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Mercado v. Mukasey

May 19, 2009

MARIA DE LOURDES CASTRO DE MERCADO, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL, RESPONDENT.
ILDEFONSO MERCADO MORAN, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A98-006-996 & A98-006-997.

The opinion of the court was delivered by: O'scannlain, Circuit Judge

FOR PUBLICATION

Argued and Submitted June 5, 2008 -- Pasadena, California.

August 21, 2008; amended May 19, 2009

Before: David R. Thompson, Diarmuid F. O'Scannlain, and Richard C. Tallman, Circuit Judges.

Order; Dissent to Order by Judge Pregerson; Opinion by Judge O'Scannlain.

The petition for rehearing and the petition for rehearing en banc are DENIED. No further petitions for rehearing or rehearing en banc may be filed.

PREGERSON, Circuit Judge, dissenting from the denial of rehearing en banc

I dissent from our court's denial of an en banc rehearing in this case. The panel opinion ignores a well-settled rule of constitutional avoidance. In the final footnote, the panel gratuitously and unnecessarily addresses a constitutional issue after basing its decision on the plain language of the statute at issue and pre-existing case law. There was absolutely no need for the panel opinion to grapple with a constitutional argument- particularly after expressly setting the constitutional question aside and deciding the case on other grounds.

Under the principle of constitutional avoidance,

[A court] will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of . . . . [T]hus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); see also Envt'l Def. Ctr., Inc. v. EPA, 344 F.3d 832, 843 (9th Cir. 2003) (stating that "we avoid considering constitutionality if an issue may be resolved on narrower grounds[ ]") (citing Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 184 (1999) (stating that "[i]t is . . . an established part of our constitutional jurisprudence that we do not ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional issues when a case can be fully resolved on a narrower ground.")); United States v. Gurolla, 333 F.3d 944, 953 n.11 (9th Cir. 2003) (declining to express any view on implicated constitutional concerns and noting that the court's ruling avoided the necessity of reaching the constitutional questions); Anchustegui v. Dep't of Agric., 257 F.3d 1124, 1129 (9th Cir. 2001) (explaining that "because we find a statutory violation, it is not necessary to reach the constitutional question presented" and citing Ashwander, 297 U.S. at 347 (Brandeis, J., concurring)).

I believe the panel gratuitously, unnecessarily and cursorily addressed a constitutional issue in its ...


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