The majority says it's a weird case because the immigration judge (1) refused to admit a document -- a country report -- as part of the record, but then (2) relied on that very same (excluded) document to reach its decision. And then, on review, the BIA didn't address this underlying problem. So it remands so the BIA can decide what it should do with respect to this apparent dilemma. It thinks that's a cautious and reasonable solution to the problem, saying: "The question of how to treat this unusual situation is an issue that the BIA has not addressed and therefore we cannot decide in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (citations omitted) (“[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). We therefore remand the CAT claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, the Country Report."
By contrast, Judge Van Dyke takes the exact opposite view.
Although he's been on the court only for only around a year, Judge Van Dyke isn't much worried about making friends with his dissents. Or at least not with Judges Fletcher and Schroeder. It looks to me like the majority opinion was designed to be an unpublished memorandum disposition, and is per curiam -- but that Judge Van Dyke insisted that it (and his dissent) be published. A dissent that begins like this, with the underlying footnote contained in the parenthetical below:
The majority’s lawless remand of this case to the BIA flouts binding precedent stating that the BIA is not required to consider—nor are we permitted “to take judicial notice of”—a country report that is “not part of the administrative record or not previously submitted to the Board.” Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc). (Footnote: I recognize that “lawless” is a strong word, and I don’t use it lightly. But it is sadly appropriate here. The majority not only fails to cite any relevant precedent for its remand to the BIA—thus evincing that its remand is, precisely, “not regulated by or based on law,” Lawless, Merriam-Webster Dictionary, https://www.merriam-webster.com/ dictionary/lawless (last visited Feb. 25, 2021)—it even has the cheek to cite Fisher, which actually forecloses its remand rationale, in the part of its opinion ordering the remand. “Keep your enemies close …,” as they say.) But notwithstanding contrary on-point, en banc authority, I guess nobody can make intransigent judges unknow what they already know they know. . . ."
Describing your colleagues as "lawless" and "intransigent" -- and using the word "enemies" -- is surely a strong opening paragraph. Particularly for a proposed memorandum disposition in an immigration case that sends the thing back for what will almost certainly be the same result on remand.
But Judge Van Dyke has a definitive take. And isn't shy about making sure you know what it is.
P.S. - It's a big Judge Van Dyke day today. The Ninth Circuit published opinions in three cases, and Judge Van Dyke writes opinions in all three of 'em: he authors two dissents -- this one, and one in a sex discrimination case -- and the panel opinion in the other (an immigration case). As you might suspect, Judge Van Dyke finds against the plaintiff/petitioner in each of these opinions.
