FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LUIS ENRIQUE SANCHEZ, AKA No. 14-71768 Enrique Cruz Sanchez, AKA Luis Llamas Sanchez, AKA Luis Charles Agency No. Sanchez, AKA Enrique Sanchez A076-359-028 Cruz, AKA Luis Enrique Sanchez Llamas, Petitioner, ORDER v. WILLIAM P. BARR, Attorney General, Respondent. Filed April 1, 2019 Before: Kim McLane Wardlaw, Richard A. Paez, and Morgan Christen, Circuit Judges. Order; Concurrence in Order by Judge Paez; Statement Respecting Order by Judge O’Scannlain; 2 SANCHEZ V. BARR SUMMARY * Immigration The panel filed an order denying rehearing en banc in a case in which the panel held that Luis Sanchez may be entitled to termination of removal proceedings without prejudice as the result of having made a prima facie showing of an egregious violation of 8 C.F.R. § 287.8(b)(2) (to detain a person for questioning, an immigration officer must have reasonable suspicion the person is, or is attempting to be, engaged in an offense against the United States, or is an alien illegally in the country), and remanded for the agency to afford the Government an opportunity to rebut Sanchez’s prima facie case. Concurring in the denial of rehearing en banc, Judge Paez, joined by Judge Wardlaw, wrote to reiterate points in response to Judge O’Scannlain’s separate statement. Judge Paez wrote that Judge O’Scannlain’s statement attempted to obscure the core issue—the egregious regulatory violation— with the smokescreen of the exclusionary rule, and wrote that Judge O’Scannlain’s opinion rested on a mischaracterization of decades of precedent. Judge Paez wrote that, contrary to Judge O’Scannlain’s assertions, the panel did not pull the remedy of termination with prejudice out of thin air; rather, the remedy was based on this court’s precedent and consistent with the Supreme Court’s long-standing concern for regulatory violations that implicate fundamental rights. Responding to Judge * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SANCHEZ V. BARR 3 O’Scannlain’s insistence that the court has no authority to address an egregious violation of this regulation, Judge Paez wrote that the regulation implicates constitutional rights, thereby triggering the court’s duty to ensure agency compliance. Judge Paez also responded to Judge O’Scannlain’s opinion that the remedy would do nothing but delay Sanchez’s “inevitable removal,” stating that this view misses the essence of Sanchez’s claim and the harm he sought to remedy. In this regard, Judge Paez wrote that more was at stake than the outcome of a single case in that the remedy recognized the tainted nature of the initial detention and, one hopes, would encourage agency compliance. Finally, Judge Paez wrote that Judge O’Scannlain’s parade of horribles regarding the consequences of the panel’s remedy were unsubstantiated and, at best, hypothetical. Respecting the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Callahan, Bea, Ikuta, Bennett, and R. Nelson, wrote that the court should have reheard this case en banc to correct the panel’s errant decision, a very unfortunate precedent ...
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