Status Of Mohiuddin’s Deportation Case

Today papers in Bangladesh are reporting that the US Ninth Circuit Court of Appeals will decide on convicted terrorist Mohiuddin AKM Ahmed‘s deportation order within the next few days. It appears that Mohiuddin filed a petition for panel rehearing  or a petition for rehearing en banc  with the Court after a three judge panel unanimously denied his petition for review on February 23, 2007.

When the Ninth Circuit Court of Appeals denied Mohiuddin’s petition to review the deportation order against him, Mohiuddin had 45 days to file a petition for rehearing (or rehearing en banc). He apparently filed this petition for rehearing on March 30. Unless the Court decided to grant a panel rehearing or a rehearing en banc, Mohiuddin’s deportation order will become effective seven days after the expiration of the 45 day window to file a petition for a rehearing – that is, on April 16, 2007:

The judgment (or decision) is entered on the docket by the clerk after he or she receives the court’s opinion or upon the court’s instruction (where judgment is rendered without opinion). FRAP 36 (Entry of Judgment). A petition for rehearing or petition for rehearing en banc may be filed within 45 days after entry of judgment, unless otherwise specified by the court or local rule. FRAP 35 (En Banc Determination) and FRAP 40 (Petition for Panel Rehearing). Unless the court directs otherwise, the mandate will automatically issue seven calendar days after the time to file a petition for rehearing expires, or seven calendar days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41.

By filing a petition for rehearing, Mohiuddin was able to temporarily stay the February 23 decision of the Ninth Circuit. That stay is automatic – in other words, the Court did not need to order a stay of its decision:

The timely filing of a petition for rehearing or rehearing en banc stays the mandate until the court decides the motion, unless the court orders otherwise. FRAP 41(d)(1). A stay of the mandate, however, does not automatically stay a person’s removal from the United States.

If the Court denies his petition for a rehearing, he will be subject to deportation seven days after the order or April 16, whichever is later.

Although any party in the case can file a petition for a rehearing, the Court rarely grants such a rehearing:

After a court of appeals renders a decision, any of the parties may ask the court to reconsider its decision – this is called a petition for rehearing. See Federal Rules of Appellate Procedure (FRAP) 35 and 40. The courts rarely rehear cases and will do so only when (1) there was an error of fact or law in the opinion or (2) the opinion failed to consider an important argument.

Parties can seek panel rehearing, rehearing en banc or both panel and en banc rehearing. Panel rehearing means that only the panel of three judges that issued the original decision reconsiders the case. Rehearing en banc means that the full court (or an en banc panel) reconsiders the case.

In order for the Court to grant Mohiuddin a panel rehearing (by the same three judge panel), Mohiuddin must show in his petition that the judges made an error in the law or that the judges overlooked a point of law or fact:

Petitions for panel rehearing “must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition.” FRAP 40(a)(2).

In order for the Court to grant Mohiuddin an en banc rehearing, Mohiuddin has even a higher hill to climb:

Petitions for rehearing en banc will only be granted when it is necessary to secure or maintain uniformity of the court’s decisions or when the case involves a question of exceptional importance. FRAP 35(a). The petition must begin with a statement that either:

1. the panel decision conflicts with a decision of the U.S. Supreme Court or of the court to which the petition is filed (with citation/s to the conflicting case/s) and consideration by the full court is necessary to ensure the uniformity of the court’s decisions; or
2.  the proceeding involves at least one “question of exceptional importance,” which must be succinctly stated. (An example of a question of exceptional importance  may be an issue on which the panel decision is inconsistent with the binding decisions of other circuit courts that have ruled on the issue.)

FRAP 35(b).

Given that the February 23 decision of the Court was unanimous, it is unlikely that Mohiuddin will be granted an en banc rehearing. There does not seem to be any "question of exceptional importance" in this case – it is a straight forward deportation case. His other recourse for a en banc rehearing is to show that the decision conflicts with Supreme Court decisions – highly unlikely since the court relied on earlier decisions of the Ninth Circuit as well as Supreme Court precedent.

Mohiuddin’s best chance for a rehearing is a panel rehearing with the same three judge panel. Here, Mohiuddin will have to show that the Court misapplied the law – a tall order given that the decision was unanimous.

It seems likely that Mohiuddin’s days as a fugitive are coming to an end. It is fitting that a man who showed blatant disregard for the law by acting as judge, jury and executioner should now face justice with full due process of law.