The Ninth Circuit Court of Appeals today released an opinion in RAM v. MUKASEY, No. 05-71190, an administrative appeal. The panel consisted of Stephen S. Trott and Sidney R. Thomas, Circuit Judges, and Michael R. Hogan, District Judge.

TROTT, Circuit Judge:
Joel Jonathan Ram petitions for review of the Board of Immigration Appeals’ (”BIA”) decision that he is removable because he was convicted of (1) an aggravated felony and (2) a controlled substance violation. The BIA determined also that Ram’s hearing before an Immigration Judge (”IJ”) afforded him adequate due process. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) and conclude that Ram was denied due process and his statutory right to counsel. Because we conclude also that Ram was prejudiced by the denial, we grant his petition for review and remand to the BIA with instructions to order a new hearing before an IJ. We need not reach the remainder of Ram’s claims. I. BACKGROUND In the original Notice To Appear (”NTA”), the Department of Homeland Security (”DHS”) charged Ram with being deportable under 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a controlled substance violation. At his first hearing on July 12, 2004, Ram was informed by a pre-recorded statement of his rights, including the right to be represented by an attorney during the removal proceedings as well as the right to deny the charges against him. The IJ then granted Ram’s request for a continuance in order for him to meet with an attorney. Ram’s second hearing was held August 12, 2004. It began: Q. Your hearing was set over until today in order for you to obtain the services of an attorney. Have you done that? A. No. No. . . .

The Ninth Circuit Court of Appeals today released an order in LEPPIND v. MUKASEY, No. 04-75903, an administrative appeal. The panel consisted of Kim McLane Wardlaw and Sandra S. Ikuta, Circuit Judges, and Jeremy D. Fogel, District Judge.

This case is referred to the Ninth Circuit Mediation Office to explore a possible resolution through mediation. Because a majority of the panel has concluded that an intervening case, Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), is relevant to the determination of the petition, but would remand for the Board of Immigration Appeals (BIA) to have the opportunity, which it previously did not, to apply the principles of Bona to the facts presented in this petition in the first instance, the majority accedes to the government’s preference for mediation over remand. Given the parties’ agreement to alternative dispute resolution, “the strong judicial policy that favors settlements of disputes,” Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 939 (9th Cir. 2007) (internal quotation marks omitted), and that the Ninth Circuit Mediation Office has proven remarkably effective in resolving, to the satisfaction of both petitioners and the government, issues arising in immigration petitions, this mediation referral order meaningfully serves the goals of judicial economy and fairness. To fully decide the question of Bona’s applicability, as our dissenting colleague would desire, would be to substitute ourselves for the BIA as the decisionmaking body. See INS v. Ventura, 537 U.S. 12, 16-17 (2002). Submission of this matter is therefore vacated until 60 days from the date of this order. Vacatur may be extended by further order of this panel or the Chief Circuit Mediator. IT IS SO ORDERED.. . .

IKUTA, Circuit Judge, dissenting:
At oral argument, the government agreed to mediation only if the panel determined that Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), impacted this case. The panel now submits this case to mediation without explaining why Bona is relevant. Because in my view the change in the law affected by Bona has no impact on Leppind’s case, I dissent from the order referring this case to mediation. I In Bona, an arriving alien in a removal proceeding attempted to file a new application for adjustment of status with the immigration judge (IJ). (The application filed by the petitioner before she was put in removal proceedings had been denied.) The IJ held that 8 C.F.R. § 245.1(c)(8) precluded him from considering the petitioner’s application. That regulation stated, in pertinent part:
(c) Ineligible aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act:
. . . (8) Any arriving alien who is in removal proceedings . . . . 8 C.F.R. § 245.1 (2005). The petitioner challenged this regulation as conflicting with 8 U.S.C. § 1255(a), which provides that “[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the. . .

The Ninth Circuit Court of Appeals today released an opinion in NATURAL RESOURCES v. EPA, No. 06-73217, an administrative appeal. The panel consisted of Jane R. Roth, Sidney R. Thomas, and Consuelo M. Callahan, Circuit Judges Opinion by Judge Roth; Dissent by Judge Callahan The Honorable Jane R. Roth, Senior United States Circuit Judge for the Third Circuit, sitting by designation. 5947

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5950 NRDC v. USEPA COUNSEL Sharon Buccino, Aaron Colangelo and Margaret Renner, Nat- ural Resources Defense Council, Washington, D.C., for the petitioner. David A. Carson, United States Department of Justice, Envi- ronmental & Natural Resources Division, Denver, Colorado, for the respondent. Thomas C. Jackson, Baker Botts L.L.P., Washington, D.C., for amicus curiae American Petroleum Institute.

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NRDC v. USEPA 5951 Janet Lynn McQuaid, Fulbright & Jaworski L.L.P., Austin, Texas, for amicus curiae Independent Petroleum Association of America. OPINION ROTH, Circuit Judge: The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), have challenged aspects of the Environmental Protec- tion Agency’s (EPA) recent Clean Water Act (CWA) storm water discharge rule. This rule is entitled “Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities,” 71 Fed. Reg. 33,628 (Jun. 12, 2006) (codified at 40 C.F.R. § 122.26).1 The rule exempts from the permitting requirements of the CWA dis- charges of sediment from oil and gas construction activities that contribute to violations of water quality standards. Peti- tioners contend that the rule’s NPDES permitting requirement exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under section 402(l)(2) of the CWA, 33 U.S.C. § 1342(l)(2), as amended by section 323 of the Energy Policy Act of 2005, 33 U.S.C.

ROTH, Circuit Judge: The Natural Resources Defense Council (NRDC), along with the Oil and Gas Accountability Project (OGAP), Amigos Bravos, and Powder River Basin Resource Council (Powder River), have challenged aspects of the Environmental Protection Agency’s (EPA) recent Clean Water Act (CWA) storm water discharge rule. This rule is entitled “Amendments to the National Pollutant Discharge Elimination System (NPDES) Regulations for Storm Water Discharges Associated With Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities,” 71 Fed. Reg. 33,628 (Jun. 12, 2006) (codified at 40 C.F.R. § 122.26). The rule exempts from the permitting requirements of the CWA discharges of sediment from oil and gas construction activities that contribute to violations of water quality standards. Petitioners contend that the rule’s NPDES permitting requirement exemption for storm water discharges of sediment from oil and gas construction activities is unlawful under section 402(l)(2) of the CWA, 33 U.S.C. § 1342(l)(2), as amended by section 323 of the Energy Policy Act of 2005, 33 U.S.C. § 1362(24), and under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). As such, petitioners ask this Court to vacate EPA’s rule. For the reasons stated below, we will grant the petition for review, vacate the rule, and remand this matter to EPA for further proceedings in accordance with this opinion. . . .

CALLAHAN, Circuit Judge, dissenting:
I agree with the majority that at step one of the analysis under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the plain language of section 402(l)(2) of the Clean Water Act (”section 402(l)(2)”), 33 U.S.C. § 1342(l)(2), as amended by the Energy Policy Act of 2005, does not unambiguously indicate whether Congress intended the exemption from National Pollutant Discharge Elimination System (”NPDES”) permitting to cover storm water discharges contaminated solely with sediment. I further agree that the scant legislative histories for section 402(l)(2) and the relevant portions of the Energy Policy Act do not elucidate Congress’s clear intent. Therefore, as the majority correctly concludes, this dispute must be resolved at step two of the Chevron analysis, with the question of whether the Environ. . .

The Ninth Circuit Court of Appeals today released an opinion in ANDOVAL LUNA v. MUKASEY, No. 04-74825, an administrative appeal. The panel consisted of Alfred T. Goodwin, Betty B. Fletcher, and N. Randy Smith, Circuit Judges.

PER CURIAM:
Daniel Sandoval-Luna petitions for review of his removal proceedings. He contends that the Immigration Judge’s denial of a continuance constitutes an abuse of discretion and violation of due process, and that the qualifying relative requirement for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(D), . . .

The Ninth Circuit Court of Appeals today released an opinion in MANDUJANO-REAL v. MUKASEY, No. 06-74186, an administrative appeal. The panel consisted of Stephen Reinhardt, M. Margaret McKeown, and William A. Fletcher, Circuit Judges.

REINHARDT, Circuit Judge:
We consider whether a conviction for identity theft under Oregon Revised Statute § 165.800 is a conviction for an aggravated felony theft offense for the purposes of 8 U.S.C. § 1101(a)(43)(G) of the Immigration and Nationality Act (”INA”). We hold that it is not. I. Factual and Procedural Background Petitioner, Miguel Mandujano-Real, is a thirty-three year old native and citizen of Mexico. He entered the United States at the age of six. In 1989, at the age of fourteen, he became a lawful permanent resident. In March 2006, the U.S. Department of Homeland Security (”DHS”) commenced removal proceedings against Mandujano-Real. The Government charged him with being. . .

The Ninth Circuit Court of Appeals today released an opinion in WA STATE NURSES ASSOC. v. NLRB, No. 06-74917, an administrative appeal. The panel consisted of Betty B. Fletcher, Richard A. Paez, and N. Randy Smith, Circuit Judges.

PAEZ, Circuit Judge:
Petitioner Washington State Nurses Association (”WSNA”) seeks review of the National Labor Relations Board’s (”NLRB” or “Board”) decision that Sacred Heart Medical Center’s (”Sacred Heart”) ban on union buttons bearing the message “RNs Demand Safe Staffing,” did not constitute an unfair labor practice in violation of the National Labor Relations Act (”NLRA” or “Act”). This case calls on us to reaf . . .

The Ninth Circuit Court of Appeals today released an amended order in REBILAS v. MUKASEY, No. 05-76988, an administrative appeal. The panel consisted of Michael Daly Hawkins, Sidney R. Thomas, and Carlos T. Bea, Circuit Judges.

BEA, Circuit Judge: Petitioner Ryszard Kazimienz Rebilas (”Rebilas”), a native and citizen of Poland, petitions for review of the Board of Immigration Appeals’ (”BIA”) decision denying petitioner’s motion for reconsideration of the BIA’s earlier holding that petitioner’s conviction for two counts of “attempted public sexual indecency to a minor” under Arizona Revised Statutes (”ARS”) §§ 13-1001 and 13-1403(B) constituted sexual abuse of a minor and attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and (U). As such, petitioner was found by the BIA to be removable as an aggravated felon under 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii). Petitioner was ordered removed and is in custody awaiting removal. We grant the petition for review, and hold that Arizona’s statutory definition of attempted public sexual indecency to a minor under ARS §§ 13-1001 and 13-1403(B) includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under 8 U.S.C. § 1101(a)(43)(A) and (U). See Taylor v. United States, 495 U.S. 575, 600-02 (1990). Because Rebilas has raised a colorable legal question as to whether his conviction constitutes an aggravated felony, we have jurisdiction under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), to resolve the issue. Parrilla v. Gonzales, 414 F.3d 1038, 1040-41 (9th Cir. 2005). We review the BIA’s denial of a motion to reconsider for abuse of discretion, see Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002), and we review the BIA’s determination of issues of law de novo, deferring to the BIA’s interpretation of an immigration statute where that interpretation is “based on a permissible construction of the statute.” Parrilla, 414 F.3d at 1041. This includes the definition of “sexual abuse of . . .

The motion to amend the opinion is granted in part. The opinion issued on November 2, 2007, Rebilas v. Keisler, 506 F.3d 1161 (9th Cir. 2007), is amended as follows:
We delete the paragraph on page 1164 that currently reads: . . .

The Ninth Circuit Court of Appeals today released an order in GRIGORYAN v. KEISLER, No. 05-77020, an administrative appeal. The panel consisted of Harry Pregerson, Stephen Reinhardt, and A. Wallace Tashima, Circuit Judges.

The opinion filed February 5, 2008, and appearing at 515 F.3d 999 (9th Cir. 2008), is withdrawn. Pursuant to General Order 5.3.a, a memorandum disposition is filed contemporaneously with this order. With the withdrawal of the opinion and the filing of the memorandum disposition, the Government’s petitions for rehearing and rehearing en banc are denied as moot. Further petitions for rehearing and rehearing en banc may be filed with respect to the memorandum disposition pursuant to Federal Rule of Appellate Procedure 40. 5247 . . .

The Ninth Circuit Court of Appeals today released an opinion in NLRB v. STUDIO TRANSPORT, No. 06-72695, an administrative appeal. The panel consisted of Harry Pregerson and Kim McLane Wardlaw, Circuit Judges, and Ronald B. Leighton, District Judge.

PREGERSON, Circuit Judge:
The National Labor Relations Board (”the Board”) asks this court to enforce its order finding that Studio Transportation Drivers, Local 399 (”the Union”) committed an unfair labor practice against Hyo Chol Lim, who refused to join the . . .

The Ninth Circuit Court of Appeals today released an opinion in AIR LINE PILOTS v. NLRB, No. 05-75333, an administrative appeal. The panel consisted of Jane R. Roth, Sidney R. Thomas and Consuelo M. Callahan, Circuit Judges.

ROTH, Circuit Judge: The Air Line Pilots Association (ALPA) petitions this Court to review a final Decision and Order of the National Labor Relations Board (the Board or NLRB). The NLRB petitions for enforcement of its Order. ABX Air, Inc., the charging party before the NLRB, intervenes in this appeal as a matter of right. The NLRB Complaint against ALPA alleged that, by attempting to enforce certain provisions of a collective bargaining agreement with DHL Airways, ALPA had committed unfair labor practices. After a hearing, an Administrative Law Judge (ALJ) ruled that ALPA had violated the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq., and ordered ALPA to take remedial action. ALPA filed exceptions to the ALJ’s decision. The NLRB issued a Decision and Order, likewise finding that ALPA’s conduct violated the National Labor Relations Act and adopting the ALJ’s order. . . .