Justia Federal District Court Opinions

ORDER UPON REHEARING IN BANC

On consideration of the arguments in banc, Chief Judge Fairchild and Judges Swygert and Cummings vote to affirm. Judges Pell, Sprecher, Tone, and Bauer vote to reverse and completely vacate the injunction of the District Court. Judge Wood votes to reverse in part and vacate paragraph (b) of the preliminary injunction* so that it can be modified to prohibit an agent who does not have a belief, based on specific articulable facts, that a person he wishes to interrogate is illegally in the United States, from detaining that person by force, threat of force, or a command based on the agent's official authority, but not prohibiting the agent from questioning that person, without such detention, concerning his right to be in the United States, if the agent reasonably believes the person to be an alien. He votes to affirm the remainder of the District Court's order.

Since there is a majority to vacate paragraph (b) of the preliminary injunction and remand for modification in the manner favored by Judge Wood, that part of the order of the District Court is reversed and remanded for further proceedings consistent with this order. The remainder of the District Court's order is affirmed by an equally divided court.