350 F3d 966 Abreu-Reyes v. Immigration and Naturalization Service

350 F.3d 966

Gilda Altagracia ABREU-REYES, a.k.a. Gilda A. DeSmith, Petitioner,

No. 99-70542.

United States Court of Appeals, Ninth Circuit.

Filed November 21, 2003.

Albert C. Lum, Esq., Law Offices of Albert C. Lum, Las Vegas, NV, for Petitioner.

Regional Counsel, Immigration & Naturalization Service, Laguna Niguel, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, San Francisco, CA, John C. Cunningham, Esq., Nelda C. Reyna, Attorney, Marion E. Guyton, Attorney, DOJ-U.S. Department of Justice, Washington, DC, for Respondent.

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Petition to Review a Decision of the Board of Immigration Appeals.


Before: DIARMUID F. O'SCANNLAIN and RICHARD A. PAEZ, Circuit Judges, and SAMUEL P. KING,* District Judge.



Good cause appearing, the mandate in this case is withdrawn. See Nevius v. Sumner, 105 F.3d 453, 460-61 (9th Cir.1996) (reiterating that the authority of a Court of Appeals to recall its mandate exists as part of the court's power to protect the integrity of its own processes).


Petitioner's "Motion for Reinstatement of Petition for Review, Reconsideration and a Stay of Deportation Pending Resolution of Reconsideration," filed on October 29, 2003, is construed as a Petition for Rehearing and is GRANTED.


The prior opinion issued in this case, published at 292 F.3d 1029 (9th Cir.2002), is inconsistent with United States v. Corona-Sanchez, 291 F.3d 1201, 1211-12 (9th Cir.2002) (en banc) (discussing use of pre-sentence reports for determining whether an alien is removable for having committed an aggravated felony), which was issued four days before the prior opinion. Because the en banc court's opinion in Corona-Sanchez takes precedence, the prior opinion in this case published at 292 F.3d 1029 (9th Cir.2002) is WITHDRAWN.


We GRANT the original petition for review for the reasons stated in Corona-Sanchez and Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir.2003). The immigration judge was not authorized to use the pre-sentence report in determining whether petitioner was an aggravated felon for purposes of removal.


Petition GRANTED.


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The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation