Wednesday, August 04, 2010

Kawashima v. Holder (9th Cir. - Aug. 4, 2010)

Judge Graber dissents from the denial of en banc review and has this to say about the panel opinion (authored by Judge O'Scannlain):

"The panel reads one phrase of the statute in isolation, ignoring the very next phrase in the same sentence. The panel’s interpretation of the statutory provision renders another statutory provision superfluous. The panel’s interpretation is inconsistent with other canons of construction, including the standard caveat that the specific governs over the general and the rule that an ambiguous statute should be construed in the alien’s favor. The panel fails to explain how its method of interpretation is consistent with recent Supreme Court jurisprudence. When made aware that one of its cited cases actually supports a view contrary to its own, the panel simply deleted its citation of that case without explaining why it found that case unpersuasive. Finally, the panel’s opinion will lead to absurd results in other cases."

Tell us what you really think, Judge Graber. Stop holding back.