Opinion
Nos. 88-5226, 90-5293 and 89-5301.
January 27, 1994.
Before: MIKVA, Chief Judge; WALD, EDWARDS, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, and RANDOLPH, Circuit Judges.
ORDER
Appellees' Suggestion For Rehearing In Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing it is
ORDERED, by the Court in banc, that the suggestion is denied.
Chief Judge MIKVA and Circuit Judge WALD would grant the suggestion. A statement of Circuit Judge WALD is attached.
For reasons discussed in my dissent in Ayuda, Inc. v. Reno, 7 F.3d 246, 251-54 (D.C. Cir. 1993), I would grant the suggestion for rehearing in banc to remand the case to the district court in order to determine whether there are undocumented aliens in the Masters' files eligible to pursue this five-year-old challenge to the INS amnesty regulations under the Supreme Court's criteria in Reno v. Catholic Social Service, Inc., ___ U.S. ___, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). This was the course followed by the Supreme Court itself in Catholic Social Services and by other courts of appeals on remand from the Supreme Court after Catholic Social Services was decided. See Perales v. Thornburgh, 4 F.3d 99 (2d Cir. 1993); League of United Latin American Citizens v. INS, 999 F.2d 1362 (9th Cir. 1993); Catholic Social Services, Inc. v. Reno, 996 F.2d 221, 222 (9th Cir. 1993). The petitioners here tell us that eligible plaintiffs are in fact registered in the Masters' files, and I do not think we need or should ignore their plight.