What do you do when another panel in your circuit issues a holding you don't like, but the opinion doesn't get taken en banc? Drop a footnote like this.
This immigration case gets argued and submitted in 2009. That's a long time ago. It then bounces around, getting withdrawn, resubmitted and deferred until it's ultimately resubmitted in June 2011. So the panel's now ready to write (and/or issue) an opinion. But two months later, in August, Judge Reinhardt writes an opinion in a different immigration case -- Ren v. Holder -- that's really, really bad for the present panel's desired resolution. The issue in the current case is whether the IJ properly made an adverse credibility finding. That exact same issue was at issue in Ren. And Judge Reinhardt's opinion held in that case that IJs cannot make adverse credibility findings based on absent evidence without giving the petitioner a chance to explain the things that the IJ thinks are missing. Which didn't happen in the present case. So it looks like the panel here has to reverse.
But that's not what the panel wants to do. It wants to affirm. And it certainly doesn't want to follow Judge Reinhardt's holding, which it doesn't like.
The problem is that Judge Reinhardt's case was even older than the current one. That case was argued and submitted in August 2009, and also took two-plus years to decide. So the panel has to follow it.
But they don't feel like it. So they drop a footnote -- footnote four -- that says that even though Judge Reinhardt's opinion "purports" to make this holding, it's really dicta since the issue was not presented for review.
Really? Are you sure? Here's what Judge Reinhardt's decision says: "We must first decide whether under the REAL ID Act, the IJ, having concluded that corroborative evidence was necessary, was required to give Ren notice of that decision and provide him with an opportunity to obtain the required evidence or explain his failure to do so. A plain reading of the statute's text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof." That doesn't sound like dicta, does it? And the panel certainly seemed to think that this issue was presented for review and was necessarily decided, right?
One view might be that Judge Reinhardt (and the rest of the panel) was totally overreaching and that the current panel was thus right not to follow his opinion. Another view might be that the current panel was simply displeased with this holding and didn't feel like following it, and that calling a clear holding "dicta" improperly created a conflict with circuit precedent.
Regardless of who's right, I don't think that you can permit conflicts like this stand, particularly on issues (like this one) that constantly arises. I think the Ninth Circuit has to take this one en banc and decide what the right rule is. The proper resolution of the issue shouldn't depend upon an arcane -- and highly contentious -- inquiry into whether a particular issue was "really" presented by the briefs and whether a panel that clearly intended to make a particular holding "really" did so.