Want to see how you "distinguish" (read: overrule) prior circuit holdings without an intervening Supreme Court decision? Here's how.
The panel here holds that the IJ didn't have a substantial basis for finding the petitioner to lack credibility. Fair enough. Now what?
Well, there are a couple of prior Ninth Circuit cases that fairly clearly state that in such an event, you remand with instructions to adjudicate the petition on the assumption that the petitioner is credible; for example, a 1994 case called Guo, which stated: "Where an appellate court has held
that an IJ’s or BIA’s adverse credibility finding is not supported by substantial evidence . . . the proper procedure is to remand the case to the BIA for further consideration and investigation in light of the ruling that the petitioner is credible.” Seems pretty straightforward, right?
But the panel here doesn't especially like that rule, and instead wants to remand to give the IJ a chance to come up with additional reasons (if any exist) to find the petitioner uncredible. So it holds (1) that the prior circuit cases really didn't state a "rule" -- even though it might totally seem like they did (see supra) -- so the panel is free to do what it wants, and (2) in a related manner, if those prior cases did attempt to articulate a rule, that would have conflicted with other Ninth Circuit cases. Hence, the panel here holds, it's free to do what it wants.
So if you're a panel, that's how you avoid adverse circuit precedent.
What's especially interesting about this one is that it's not the usual "conservatives-limiting-a-prior-liberal-holding" or vice-versa. To be sure, the prior circuit precedent is what might be (bluntly) called a "liberal" holding. But the panel here hardly consists of right-wingers, and consists of Judges Willie Fletcher and Gould -- both Clinton appointees -- as well as Judge Noonan (who's a Reagan appointee, but who isn't uniformly conservative in immigration cases). So it's an interesting makeup.
Plus, the two prior opinions that Judge Gould has to "distinguish" are a case called He and a case called Guo. Though Judge Gould doesn't mention it, guess who not only authored the former but was on the panel in the latter? None other than Judge Willie Fletcher, who's on the panel here!
Which might, of course, lead one to believe that of course the cases have to be distinguishable, since he voted to do one thing then and another thing now. Or may alternately demonstrate that judges don't invariably realize the full ramifications of an opinion which they author or to which they sign on.
It'll be interesting to see what happens to this one. The ultimate holding of the panel isn't at all irrational (though a contrary rule is plausible as well). The big problem is circuit precedent. But for the composition of the panel, you might have a huge en banc call. But given the composition of the panel, and the knowledge that you've presumably already lost Judge Gould and Fletcher on the call (as well as, if they're drawn, both them and Judge Noonan on the ultimate result), the probability of a successful en banc vote here -- even if there is a conflict in circuit precedent -- is lower than it would ordinarily be.
Stay tuned. And even if nothing happens, it's still an informative -- and significant -- case.