United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Filed February 1, 2023 No. 21-5028 WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, APPELLANT v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-01170) On Petition for Rehearing En Banc Before: SRINIVASAN, Chief Judge; HENDERSON**, MILLETT, PILLARD, WILKINS, KATSAS*, RAO***, WALKER, CHILDS, and PAN*, Circuit Judges. ORDER Appellant’s petition for rehearing en banc and the responses thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon 2 consideration of the foregoing, it is ORDERED that the petition be denied. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Daniel J. Reidy Deputy Clerk * Circuit Judges Katsas and Pan did not participate in this matter. ** Circuit Judge Henderson would grant the petition for rehearing en banc. A statement by Circuit Judge Henderson, dissenting from the denial of rehearing en banc, is attached. *** Circuit Judge Rao would grant the petition for rehearing en banc. A statement by Circuit Judge Rao, joined by Circuit Judge Henderson, dissenting from the denial of rehearing en banc, is attached. KAREN LECRAFT HENDERSON, Circuit Judge, dissenting from the denial of rehearing en banc: For the reasons explained in my panel dissent, which is hereby incorporated by reference thereto, Wash. All. of Tech. Workers v. DHS (“Washtech”), 50 F.4th 164, 194–206 (D.C. Cir. 2022) (Henderson, J., concurring in part and dissenting in part), I dissent from the denial of rehearing en banc. RAO, Circuit Judge, with whom Circuit Judge HENDERSON joins, dissenting from the denial of rehearing en banc: For the reasons thoughtfully explained in Judge Henderson’s dissent, the panel’s interpretation of the F-1 student visa provision cannot be reconciled with the text and structure of the Immigration and Nationality Act (“INA”). Rehearing en banc is warranted because the panel decision has serious ramifications for the enforcement of immigration law. In holding that the nonimmigrant visa requirements are merely conditions of entry, the court grants the Department of Homeland Security (“DHS”) virtually unchecked authority to extend the terms of an alien’s stay in the United States. This decision concerns not only the large number of F-1 visa recipients, but explicitly applies to all nonimmigrant visas and therefore has tremendous practical consequences for who may stay and work in the United States. By replacing Congress’s careful distinctions with unrestricted Executive Branch discretion, the panel muddles our immigration law and opens up a split with our sister circuits. This is a question of exceptional importance, and I respectfully dissent from the decision not to rehear it as a full court. *** This case involves a challenge to a DHS regulation that allows F-1 student visa holders to remain in the country after they graduate and to work in fields related to their area of study for up to 36 months. Improving and …
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