Dalombo Fontes v. Gonzales
| Decision Date | 14 August 2007 |
| Docket Number | No. 05-1755.,05-1755. |
| Citation | 498 F.3d 1 |
| Parties | Antonio DALOMBO FONTES, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.
Fontes has filed a petition for panel rehearing and rehearing en banc. In the petition, Fontes raises two issues. As to the issue of whether Fontes was entitled to a section 212(c) waiver of deportability, the petition for panel rehearing is summarily denied.
Fontes also raises a challenge to the panel's holding that, under the Real ID Act, this court lacks jurisdiction to review the BIA's rejection of his res judicata argument. The ACLU has moved for leave to file an amicus brief on the latter issue. We have allowed the motion to file the amicus brief.
As framed by those filings, the late-blooming issue involves a question of whether the Suspension Clause is violated by reading the statute to deny Fontes review in this instance (in which his habeas action was affected by the REAL ID Act). We note, in this regard, that Fontes does not argue the Suspension Clause issue as a per se ground for relief but, rather, proposes that we allow a grace period for assertion of his claim. Cf. Rogers v. United States, 180 F.3d 349, 354 (1st Cir.1999).
In the briefs filed by Fontes before the panel, Fontes never articulated a claim that application of the Real ID Act to bar jurisdiction here might violate the Suspension Clause of the Constitution. U.S. Const. art. I, § 9, cl. 2. In the usual course, we will not address an issue raised by a party for the first time in a petition for rehearing. See Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir.1990)(order on rehearing). By the same token, we will not address an issue raised by an amicus that was not seasonably raised by a party to the case. See Lane v. First Nat'l Bank of Boston, 871 F.2d 166, 175 (1st Cir.1989). We discern no reason here to depart from our customary practice in either of these respects.
Still, we acknowledge that the Suspension Clause issue is not only of constitutional dimension but also is colorable. Consequently, we wish to make clear that our holding on the jurisdictional issue should not be read, under principles of stare decisis, as barring a future panel of this court, in a case in which the Suspension Clause issue is timely raised, directly presented, and fully briefed, from considering the import (if any) of the Suspension Clause with respect to the jurisdictional question. This panel intimates no view as to the outcome of such an inquiry.
This course of action seems especially appropriate in this case because, even if we had jurisdiction to review the BIA's rejection of Fontes's res judicata claim, we would deny that claim on the merits. As noted in our earlier opinion, Fontes argued that res judicata barred the government from asserting that he had committed an...
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