It's an immigration case. Mr. Cheneau is convicted of various crimes (burglary, car theft, etc.), and the government wants to kick him out of the country as a result. But, not surprisingly, Mr. Cheneau does not want to leave. He says he's a "derivative citizen" under a particular statute even though his parents were from outside the United States, he wasn't born in the U.S., and he only came here when he was 13, on a nonimmigrant student visa.
You can figure out the typical sympathies in en banc cases like this. The left-leaning judges appointed by presidents from the Democratic Party (i.e., Clinton and Obama) are likely to lean towards Mr. Cheaneau, whereas the conservative judges appointed by presidents from the Republican Party (i.e., Bush and Trump) are likely to be predisposed against him.
But there's a bit of a wrinkle here. Circuit precedent is strongly against Mr. Cheaneau; under that law, he clearly loses. But there's a decent argument that this precedent misreads the relevant statute. Hence why the case gets taken en banc.
So it depends on the draw, right? There are 16 Democratic-appointed active judges and 13 Republican-appointed active judges. Statistically, the draw's likely to be a mix, and the outcome in large part will depend on who gets chosen.
The draw happens. Six Trump appointees get selected; four Clinton/Obama appointees round out the panel, plus Chief Judge Thomas (Clinton).
So one way you might draw up this result is to say: "Okay, it's likely to be a 6-5 against the immigrant, with the conservatives voting to deport the guy and the liberals voting to keep him here."
But that's not the way it works out.
Which is perhaps foreshadowed by the original panel opinion. A unanimous per curiam opinion in which Judges Bennett and Miller -- both Trump appointees -- are on the panel. The panel held that they were indeed bound by circuit precedent to hold against the immigrant. But everyone on the panel also joined a concurrence that said that this circuit rule was wrong as applied to the facts of the present case.
So if you've got even two conservative Trump appointees (joined by a judge sitting by designation) arguing in favor of the immigrant, then another way one might well predict the result of the en banc court is to say: "Well, apparently, this one's easy, and everyone of all political stripes will agree." (Or at least most everyone.) Maybe it'll be an 11-0?
You might even think such a result more likely when the en banc panel decides they don't even need oral argument to decide the case.
But, yet again, as it turns out, such a prediction would also be wrong.
Instead, two unlikely things happen. First, of the six Trump appointees drawn for the panel, two of the six are Judges . . . Bennett and Miller. The two judges who were on the original panel. The odds are very, very strongly against that. But it happens. Then, the four remaining Trump appointees who are drawn are . . . the final four Trump appointees to the Ninth Circuit (Judges Bress, Hunsaker, Bumatay, and VanDyke). Again: Statistically, not very likely at all.
So, in the end, you get a 7-4 decision in favor of Mr. Cheaneau. The five Democratic appointees join the two Trump appointees who were on the original panel to form a majority, and the last four Trump appointees dissent.
Pretty neat. Not the draw (or outcome) one would have necessarily written up at the outset.
One lesson that might potentially be derived from this result in the occasional difference between the early Trump appointees -- Judges Bennett and Miller were two of the first three Trump appointees to the Ninth Circuit -- and the end-stage Trump appointees. Personally, I don't want to make too much of this, but still, it's worth considering.
The other potentially partially explanatory factor at work here is how relatively little the case matters in the broader statutory immigration scheme. As the majority opinion explains in its final footnote:
"We recognize that this case involves a statute that has been repealed
and will not affect many cases. As the Government observed, “litigation
regarding § 1432(a)(5) is not widespread, and will continue to diminish
with the passage of time.” We also recognize that, not only is litigation
concerning this issue “not widespread,” but that this case involves
relatively unique circumstances. It is striking how many events had to
align at particular times and in a particular order for Cheneau to qualify as
a derivative citizen under § 1432(a)(5): He lawfully entered the United
States at age thirteen, intending to remain permanently in the country. His
mother naturalized while he was under eighteen. He objectively and
officially manifested his intent to reside permanently in the United States
by filing an adjustment of status application before he turned eighteen.
And all of this occurred before the statute was repealed in 2000.
Nonetheless, it is important for resolution of this case, and the relatively
few cases involving similar circumstances, for us to apply the proper
statutory analysis and to apply a correction to the relevant portion of
Romero-Ruiz."
It's perhaps easier for conservative judges to find in favor of particular immigrants in cases involving idiosyncratic and not-often-replicated fact patterns involving repealed statutes than in cases that have broader application to immigrants as a whole.
Regardless: Neat little lineup, and neat -- and perhaps somewhat unexpected -- result.
