Wednesday, April 02, 2008

Sanchez v. Mukasey (9th Cir. - April 2, 2008)

I can make my points about this case fairly concisely:

(1) I always find it interesting when a judge wants to use a word other than "concurring" or "dissenting" or the like. After all, in general, you either disagree with the judgment or not, and the description of your separate opinion pretty much follows from that. Nonetheless, there may be a decent reason for Judge Wallace to label his opinion in this case "writing separately," since what he wants -- for the case to be taken en banc -- doesn't really fit the usual categories. Mind you, since the panel grants the petition for review, and since Judge Wallace wouldn't do so, both procedurally as well as (you can pretty much tell by his opinion) on the merits, I think that the label "dissenting" wouldn't be an inaccurate one either.

(2) You'll definitely see a call for en banc review here. Judge Wallace is admittedly senior, but my sense is that they'll be others who'd join the call. Indeed, in truth, regardless of the merits, I think the case should probably go. The circuit precedent on this point (an immigration removal issue) is in a fair piece of conflict, and it's an issue that arises in a decent number of cases. It's an issue that deserves a clearer rule articulated en banc.

(3) Judge Schroeder's majority opinion contains a darn good discussion of what's "dicta" from a panel and what isn't. It's definitely worth reading. And goes well with Judge Berzon's tangential (but also very good) discussion of the topic which I mentioned last year.

(4) But I would change one thing, Judge Schroeder. Page 3406, first sentence, second full paragraph. The one that says: "The government’s principle contention in this case is that Moran’s discussion of the applicability of the family unity waiver to cancellation is dictum that we are free to ignore." I believe you mean to refer to the government's "principal" (e.g., "primary") contention, even though admittedly that principal contention also involves a rule (e.g., principle). You're hardly alone in confusing these words, even amongst your colleagues, but no reason not to eventually use the right one.