From dissent to majority opinion. Only takes two years.
Appeals of immigration judge decisions have to be filed within 30 days. An immigration lawyer does everything right and mails the appeal with guaranteed next day delivery (for delivery on the 30th day) via the USPS. Predictably -- otherwise we wouldn't be in this jam -- the USPS takes an extra day, which means the appeal is one day late.
The BIA holds that it lacks jurisdiction to decide the appeal. In 2009, the Ninth Circuit affirms, in an opinion by Judge Milan Smith. Judge Kleinfeld dissents.
There's a motion for rehearing and rehearing en banc. That gets a fair piece of internal attention in the Ninth Circuit. The two judges in the majority start to rethink their position. Or, at a minimum, see the handwriting on the wall. So in 2010, the opinion is withdrawn.
And, earlier today, a new opinion is issued in its stead. Written by . . . Judge Kleinfeld. A majority opinion that looks very similar to the dissent he filed in 2009 (but that includes even more details and arguments). But this time, he's not writing for himself. It's unanimous. It wasn't persuasive to anyone else on the panel in 2009, but in 2011, they're on board.
Stuff like this is rare. But it happens. And when it does, it's nice to see. At least in cases like this one, which which the original dissent seems both a proper interpretation of the law as well as eminently reasonable. (Back when the original Ninth Circuit opinion came out, I talked about the case, and particularly Judge Kleinfeld's dissent, by saying that "I have never liked and respected Judge Kleinfeld more than I do today." I was glad to see that my view of the dissent was shared by a nontrivial number of judges on the Ninth Circuit -- even enough to make an en banc call a serious possibility.)
Plus, I like the changes that Judge Kleinfeld makes. To give but one example, in 2009, his dissent said: "Aliens’ appeals are not, by and large, handled by giant spare-no-expense law firms, in which a partner can command a senior associate who can command a junior associate to have something on his desk by 9:00 A.M. Monday without fail, and whatever expenses are necessary to accomplish that will be borne." He's got that same thought in 2011, but drops a footnote that reads: "But see Maples v. Allen, 586 F.3d 879, 884, 886-90 (11th Cir. 2009) (denying relief to prisoner in part because his lawyers, from the large New York firm Sullivan & Cromwell, caused his notice of appeal to be filed late)." Gotta love the slam -- albeit an entirely relevant one -- on S&C.
