dissenting from the denial of rehearing en banc:
I fully join in Judge Tashima’s eloquent dissent and agree with him about the importance of the issue. As Judge Tashima points out, the panel’s opinion, contrary to our own well-established precedent, clear Supreme Court jurisprudence, and the “historical practice,”1 dramatically constricts the availability of habeas review in immigration cases. In my view, the opinion is not only contrary to well-established precedent but is manifestly unjust.
As a matter of general principle, once we settle a particular legal issue by issuing an en banc decision, or even by determining not to consider a case en banc, we should not revisit that legal issue for at least a reasonable period of time, barring some significant change in the law. See Nordyke v. King, 364 F.3d 1025 (9th Cir.2004) (Kozinski, J., concurring). Occasionally, however, our en banc system does not work perfectly, see, e.g., Calderon v. *818Thompson, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), and, occasionally, the en banc vote does not reflect the true sentiment of the majority of the court. My impression is that in this case, notwithstanding the recorded vote (under our rules a failure to vote counts as a negative vote), a majority of the judges on the circuit may not agree with, or may seriously question, the panel’s opinion.
The Supreme Court should grant certio-rari in this matter. If it does not, I believe that this is one of those unusual instances in which this court should not follow our general practice but, instead, should revisit the issue en banc the next time we are presented with an opportunity to do so.
. INS v. St. Cyr, 533 U.S. 289, 305, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (‘TT]o conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law. The writ of habeas corpus has always been available to review the legality of Executive detention.”).