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Sanchez v. Barr, Apr. 1, 2019
"ORDER A judge of the court sua sponte requested a vote on whether to rehear this case en banc. A vote was taken, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35(f). Rehearing en banc is DENIED.
PAEZ, Circuit Judge, with whom WARDLAW, Circuit Judge joins, concurring in denial of rehearing en banc: This case began when the United States Coast Guard seized Luis Sanchez solely on the basis of his race. The critical question before the panel was what, if any, remedy existed for Sanchez. We thus confronted a clear case of racial profiling—an egregious violation of the Department of Homeland Security’s own internal regulation to deter unlawful searches and seizures, 8 C.F.R. § 287.8(b)(2). In line with the Second Circuit, we held that an egregious violation of § 287.8(b)(2) could warrant termination of removal proceedings without prejudice and we remanded to the agency to afford the Government an opportunity to rebut Sanchez’s prima facie case. Sanchez v. Sessions, 904 F.3d 643, 653–54 (9th Cir. 2018) (citing Rajah v. Mukasey, 544 F.3d 427, 446–47 (2d Cir. 2008)). Nothing more, nothing less. This limited but tailored remedy ensures that immigration officers are held accountable for violating rules that are meant to “safeguard” individuals’ fundamental rights. INS v. Lopez-Mendoza, 468 U.S. 1032, 1044 (1984). Even the Government agreed that remand, not rehearing en banc, was the appropriate next step for Sanchez’s case. Judge O’Scannlain’s separate statement attempts to obscure the core issue—the egregious regulatory violation— with the smokescreen of the exclusionary rule. His quarrel with our opinion, however, rests on a mischaracterization of decades of precedent that this court has wisely sidestepped. I therefore concur in the court’s denial of rehearing en banc and respectfully but firmly reiterate a few points in response to errors in Judge O’Scannlain’s statement."