Want to see a Ninth Circuit judge absolutely tee off on a prior Ninth Circuit opinion? Check out Judge VanDyke's separate opinion in this case.
I won't attempt to do it justice, and will instead simply quote some of its most memorable phrases and note that Judge VanDyke himself includes in his opinion a large number of the most inflammatory quotations from previous Ninth Circuit immigration opinions (and dissents). For example:
"I write separately because that precedent is silly and well illustrates our court’s nasty habit of muddying immigration law and holding the BIA—an appellate body—to stilted standards to which we would never subject ourselves."
"As the majority opinion observes, the entire rationale for the footnote-born rule that controls here rested on the premise that “[t]he BIA … does not normally require a showing of prejudice when a motion for rescission of an in absentia removal order is grounded on ineffective assistance of counsel.” Id. For support, Lo cited three BIA decisions— the most recent of which did require a petitioner to demonstrate prejudice when seeking to reopen an in absentia removal caused by ineffective assistance. [Cite] I suppose one might argue that two out of three ain’t bad. But even Meatloaf would find fault with our Lo rule. The other two BIA decisions that declined to require a showing of prejudice did so based on their reading of statutory text that was repealed seven years before we decided Lo."
"If you are wondering how precedent purportedly based on deference to the BIA could repeatedly require us to effectively reverse the BIA’s decisions, you would be in good company. This type of absurdity is regular fare in our immigration cases. Our circuit’s immigration jurisprudence is a hot mess."
"So once again our jurisprudence betrays the nasty habit of acknowledging only those precedents that support the needs (and desired result) of the moment—that being to overturn the BIA."
"To sum up, a dubious and incomplete picture of BIA precedents was ratcheted into a rule supposedly meant to replicate exactly what the BIA was doing. Now, we’re applying that rule to reverse the BIA for not doing the thing they apparently did so often we decided to do it, too. And we have to apply it even though this court in Singh-Bhathal rejected an ineffective assistance claim indistinguishable from the one in this case. As my colleague remarked about another anomalous rule in a different corner of our immigration law, the rule our panel is forced to apply in this case—like so many of our court’s immigration precedents— is “dumb, dumb, dumb.” Orellana v. Barr, 967 F.3d 927 (9th Cir. 2020) (Owens, J., concurring)."
I'll also briefly mention that the key case that Judge VanDyke critiques (Lo) was authored by Judge Thompson, who departed this Earth around a decade ago and so isn't around to defend himself. So on his behalf, perhaps, I'll mention that Judge Thompson was a Reagan appointee and, as you may perhaps know, was not one who was (at all) "liberal" in immigration cases. And his opinion in that regard was joined by Judge Hall, another Reagan appointee (who died the same year as Judge Thompson) and whose conservative, anti-immigration credentials are quite well-established. (The third member of the panel was Judge Berzon, who is, of course, alive, kicking, and still on the Ninth Circuit.)
I mention this only because Judge VanDyke's opinion definitely slams the alleged pro-immigrant, anti-BIA focus of existing Ninth Circuit precedent. But it's too easy to conflate the latter with the former and to assume cause-and-effect when the reality may involve a lot more complexity. Since I'm quite certain that Lo -- the central opinion savaged by Judge VanDyke -- was most definitely not the result of the pro-immigrant, anti-BIA bias of either its author or other Ninth Circuit judges who joined it. (To take another example, the footnote that Judge VanDyke centrally critiques -- the "two out of three ain't bad" line -- relies in part on another Ninth Circuit opinion that went the exact same way as Lo was written by . . . Judge Hall. Joined by . . . Judge Thompson.)
So definitely read Judge VanDyke's opinion. It's super entertaining.
Though I suspect that even if the structure of the world is as he describes, the reasons for its existence are perhaps less conspiratorial in nature than the opinion may perhaps suggest.
