AMERICAN-ARABANTI-DISCRIMINATION COMMITTEE, etal.,Plaintiffs,andAIAD BARAKAT; NAIM SHARIF;KHADER MUSA HAMIDE; NUANGUGIJULIE MUNGAI; AYMAN MUSTAFAOBEID; AMJAD OBEID; MICHELIBRAHIM SHEHADEH; BASHAR AMER,Plaintiffs-Appellees,v.Nos. 96-55929JANET RENO, Attorney General;97-55479HAROLD EZELL; C. M.McCULLOUGH; DORIS MEISSNER,D.C. No.Commissioner, INS; ERNEST E.CV-87-02107-SVWGUSTAFSON, Personally and in hisORDERcapacity as past District Directorof the Immigration andNaturalization Service; RICHARD K.ROGERS, District Director,Personally and in his capacity asDistrict Director of theImmigration and NaturalizationService; GILBERT REEVES,Personally and in his capacity asan Officer of the Immigration andNaturalization Service;IMMIGRATION AND NATURALIZATIONSERVICE,Defendants-Appellants.14809

Filed December 23, 1997Before: Dorothy W. Nelson and William C. Canby, Jr.,Circuit Judges, and Jack E. Tanner,* District Judge.Order; Dissent by Judge O'Scannlain

_____________________________ORDER The members of the panel that decided this case votedunanimously to deny the petition for rehearing and all recom-mended rejection of the suggestion for rehearing en banc.The full court was advised of the suggestion for rehearingen banc. An active judge requested a vote on whether torehear the matter en banc. The matter failed to receive amajority of the votes of the nonrecused active judges in favorof en banc consideration. (Fed. R. App. P. 35.)The petition for rehearing is denied and the suggestion forrehearing en banc is rejected.

_____________________________O'SCANNLAIN, Circuit Judge, with whom KOZINSKI andKLEINFELD, Circuit Judges, join, dissenting from denial ofrehearing en banc:Congress unambiguously revoked judicial review of depor-tation proceedings -- with but one exception -- when itpassed, and the President signed into law, the Illegal Immigra-tion Reform and Immigrant Responsibility Act of 1996("IIRIRA"), Pub. L. No. 104-208, div. C, 110 Stat. 3009(1996). Today, the Ninth Circuit nullifies the express intent ofthe elected branches of our government by carving out yetanother exception, one which is neither contemplated nor per-mitted by the plain language of the statute. In so doing, we arein tension with the two other circuits which have addressedIIRIRA's jurisdiction-stripping provisions, see Auguste v.Attorney General, 118 F.3d 723 (11th Cir. 1997); Ramallo v.Reno, 114 F.3d 1210 (D.C. Cir. 1997), as well as a prior deci-sion of this court itself, Duldulao v. INS, 90 F.3d 396 (9th Cir.1996). Because I fear today's action inflicts mischief on thesound administration of our nation's immigration laws in thenine western states, I respectfully dissent from the court'sdecision not to review this case en banc.IIn IIRIRA, Congress stated:       Except as provided in this section and notwithstand-       ing any other provision of law, no court shall have       jurisdiction to hear any cause or claim by or on       behalf of any alien arising from the decision or       action by the Attorney General to commence pro-       ceedings, adjudicate cases, or execute removal       orders against any alien under this chapter.8 U.S.C. S 1252(g) (emphasis added). As the opening clausesuggests, Congress's elimination of jurisdiction over removalcases is not absolute. Another portion of section 1252, withunmistakable clarity, limits the number of exceptions to butone:       Judicial review of all questions of law and fact,       including interpretation and application of constitu-       tional and statutory provisions, arising from any       action taken or proceeding brought to remove an       alien from the United States under this chapter shall       be available only in judicial review of a final order       under this section.8 U.S.C. S 1252(b)(9) (emphasis added).At the risk of belaboring the obvious, when Congress says"only," it usually means "only." The only permitted judicialreview of removal proceedings is the review of final orders.Under the plain language of IIRIRA, decisions by the Attor-ney General to commence proceedings and to adjudicate casesare simply not reviewable until the final order stage.Nevertheless, this court now "finds" a second exception,1because "[a]ny other reading would present serious constitu-tional problems." American-Arab Anti-Discrimination Com-mittee v. Reno, 119 F.3d 1367, 1373 (9th Cir. 1997). Ourcircuit apparently believes that the narrowing of judicialreview of deportation proceedings may violate the Constitu-tion. To avoid these perceived problems, the court called upon"the well-established principle that where possible,jurisdiction-limiting statutes should be interpreted to preservethe authority of the courts to consider constitutional claims."Id. at 1372 (emphasis added).With respect, the opinion's reliance on this principle ofconstitutional avoidance -- interpreting statutes to avoid per-ceived constitutional infirmities -- is without foundation inthe facts of this case. As the opinion itself admits, the princi-ple is to be invoked only "where possible." Whatever the mer-its of constitutional avoidance might be, no court may "avoid"a perceived conflict when the text is unambiguous, as it ishere. The avoidance canon, invoked with such abandon,amounts to nothing less than rewriting the statute. 2Moreover, judicial decisions based on constitutional avoid-ance are all the more suspect, quite frankly, when there is noconstitutional infirmity to avoid. That is precisely the scenarioin this case. As the Supreme Court has stated:       Deportation is not a criminal proceeding and has       never been held to be punishment. No jury sits. No       judicial review is guaranteed by the Constitution .Carlson v. Landon, 
342 U.S. 524, 533
  (1951) (emphasisadded). Just four years ago, the Supreme Court reminded usthat, "[f]or reasons long recognized as valid, the responsibilityfor regulating the relationship between the United States andour alien visitors has been committed to the political branchesof the Federal Government. [O]ver no conceivable subject isthe legislative power of Congress more complete. " Reno v.Flores, 
507 U.S. 292, 305
  (1993) (quoting Mathews v. Diaz,
426 U.S. 67, 81
  (1976); Fiallo v. Bell, 
430 U.S. 787
, 792(1977)) (internal quotation marks omitted) (citations omitted)(alteration in original). Heeding these very words, this courthas previously declared that "aliens have no constitutionalright to judicial review of deportation orders." Duldulao v.INS, 90 F.3d 396, 400 (9th Cir. 1996).But alas, today's decision now creates an exception to thislong-established rule. According to the opinion, the distin-guishing factor in this case is that the plaintiffs have raised aFirst Amendment claim of selective enforcement. What theopinion overlooks, however, is that such exception swallowsthe constitutional principle. To fit within the exception, apotential deportee need only assert a First Amendment viola-tion. Even if the claim were frivolous, no court can so ruleuntil after obtaining jurisdiction. Because the question ofjurisdiction logically precedes the question of merit, today'sdecision, which purports to expand jurisdiction only to meri-torious First Amendment claims, actually broadens jurisdic-tion to all such claims, frivolous and meritorious alike. Byartful pleading, a potential deportee now is entitled to judicialreview notwithstanding the statute and the cases holding thatthere exists no constitutional right to judicial review in depor-tation matters. Nothing could be more contrary to bothSupreme Court precedent and this court's decision in Duldulao.3IIBy finding a constitutional infirmity where none exists andthen engrafting onto the statute an exception of our own cre-ation, we undermine the unambiguous intent of Congress.I respectfully dissent.

___________________________FOOTNOTES *The Honorable Jack E. Tanner, Senior United States District Judge forthe Western District of Washington, sitting by designation.1 The opinion locates this exception in S 1252(f)(1), which reads:       Regardless of the nature of the action or claim or of the identity       of the party or parties bringing the action, no court (other than the       Supreme Court) shall have jurisdiction or authority to enjoin or       restrain the operation of the provisions of part IV of this subchap-       ter, as amended by the Illegal Immigration Reform and Immi-       grant Responsibility Act of 1996, other than with respect to the       application of such provisions to an individual alien against       whom proceedings under such part have been initiated.8 U.S.C. S 1252(f)(1). Contrary to the panel's interpretation, subsection (f)is not a grant of jurisdiction of any kind, but rather an additional restric-tion on jurisdiction that applies unless proceedings have been broughtagainst an individual alien under part IV of this subchapter. Appropriately,subsection (f) is entitled "Limit on injunctive relief." The exception withinthis subsection is clearly only an exception to this subsection.2 To be sure, it is the duty of the courts, when they have jurisdiction, todeclare unconstitutional any law that violates a protected right. Even then,the power to strike down a statute as unconstitutional does not include thepower to amend it. See Frederick Schauer, Ashwander Revisited, 1995Sup. Ct. Rev. 71, 74, 97-98.3 Not surprisingly, the only other circuits to have dealt with the issuehave upheld IIRIRA's limitations on federal court jurisdiction. SeeAuguste, 118 F.3d at 726-27; Ramallo, 114 F.3d at 1214. the end