ORDER

A majority of the panel has voted to deny the petition for panel rehearing. Judge Pregerson voted to grant the petition for rehearing en bane, Judge Tallman voted to deny the petition for rehearing en banc and Judge Beezer so recommends.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote to rehear the matter en banc. Fed. R.App. P. 35.

The mandate shall issue seven days after entry of this order in accordance with Federal Rule of Appellate Procedure 41(b).

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

concurring in part and dissenting in part:

I concur in the order of the court except I would direct the clerk to issue the mandate forthwith. We lack jurisdiction to consider the pending petition and there never was any probability of success on the merits which would support a stay. See Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 856-60 (9th Cir. 2004) (Beezer, J., concurring).

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