FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY MICHAEL JEX and GILDA
MAE MIDDLETON, No. 09-74038
Petitioners, Agency Nos.
v. A075-683-134
ERIC H. HOLDER Jr., Attorney A075-683-135
General, ORDER
Respondent.
Filed February 6, 2012
Before: William C. Canby, Jr., Diarmuid F. O’Scannlain, and
Raymond C. Fisher, Circuit Judges.
Order;
Dissent by Judge O’Scannlain
ORDER
Anthony Jex and Gilda Middleton have filed a petition for
rehearing en banc in this matter. Petitioners have had a long-
term presence in the United States and have a United States
citizen daughter. It appears that petitioners are the beneficiary
and derivative beneficiary of an approved I-130 visa petition.
They do not appear to have any criminal convictions.
In light of ICE Director John Morton’s June 17, 2011
memo regarding prosecutorial discretion, and the November
17, 2011 follow-up memo providing guidance to ICE Attor-
neys, the government shall advise the court by March 19,
2012, whether the government intends to exercise prosecu-
torial discretion in this case and, if so, the effect, if any, of the
1117
1118 JEX v. HOLDER
exercise of such discretion on any action to be taken by this
court with regard to Petitioners’ pending petition for rehear-
ing.
O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent. “[T]he Executive Branch has exclu-
sive authority and absolute discretion to decide whether to
prosecute a case.” United States v. Nixon, 418 U.S. 683, 693
(1974). Judicial supervision of such decisions is sharply lim-
ited by the separation of powers and is guided by “the recog-
nition that the decision to prosecute is particularly ill-suited to
judicial review.” Wayte v. United States, 470 U.S. 598, 607
(1985). We have generally respected these limitations on our
authority and competence. See, e.g., United States v.
Banuelos-Rodgriguez, 215 F.3d 969, 977 (9th Cir. 2000) (en
banc) (collecting cases).
But not today. Today the majority instructs the Attorney
General to tell us whether he will prosecute a specific case
notwithstanding his brief defending the Board of Immigration
Appeals’s decision denying the petitioner relief. We have
only the slimmest authority even to review the exercise of
prosecutorial discretion, see, e.g., Banuelos-Rodgriguez, 215
F.3d at 976-77; we certainly lack authority to demand a pre-
emptive peek into whether and when (and no doubt, before
long, why) the executive branch will exercise such discretion.
Cf. Wayte, 470 U.S. at 607 (“Examining the basis of a prose-
cution . . . threatens to chill law enforcement by subjecting the
prosecutor’s motives and decisionmaking to outside inquiry,
and may undermine prosecutorial effectiveness by revealing
the Government’s enforcement policy.”). The memoranda
cited by the majority offer only internal guidance within the
executive branch and squarely disclaim any suggestion that
they might create any rights or benefits enforceable by the
judiciary.
JEX v. HOLDER 1119
What is more, the petitioner never even asked us for the
audacious ruling we issue today. The majority thus needlessly
catapults this court into a realm of decisionmaking from
which it is constitutionally walled off. I cannot join that effort
and rather would decide the petition for rehearing on the basis
of the record already before us.