Last October, a divided Ninth Circuit panel ruled (in Montejo-Gonzales v. Garland) that illegal aliens who, because of bad traffic, failed to show up on time for a hearing on their asylum petition established “exceptional circumstances” that warranted reopening their asylum proceeding. Judge Roopali Desai wrote the majority opinion, which Judge Salvador Mendoza Jr. joined. Desai and Mendoza are both Biden appointees.

In dissent, Judge Daniel Collins (a Trump appointee) argued that Ninth Circuit precedents established that the “extremely strict standards” for challenging an in absentia removal order were not satisfied by traffic problems: “Indeed, traffic issues plainly do not meet the requirement that the failure to appear must have been caused by exceptional circumstances that are no ‘less compelling’ than ‘the statutory examples’ of illness, death, battery, or extreme cruelty involving the alien or a family member.” Collins charged that the majority’s “watering down of the statutory standard threatens to have substantial and disruptive impacts on our overburdened immigration system.”

In an order today, the Ninth Circuit granted en banc review (and vacated the panel opinion).

The Ninth Circuit has 16 Democratic appointees and 13 Republican appointees among its 29 active judges. On the premise that all 29 judges took part in the en banc vote, that would mean that at least two Democratic appointees supported the en banc call.

It’s possible, I suppose, that some Democratic appointees voted for en banc rehearing because they want to overrule the three decades of circuit precedents that Collins cited. But one of the precedents was written by the arch-liberal Stephen Reinhardt, who (in the course of granting reopening on other grounds) declared that “Traffic and parking trouble are circumstances that an alien may fairly be expected to anticipate” and thus do not qualify as exceptional circumstances. So it seems much more likely that the judges who voted for en banc rehearing were persuaded by Collins.