Thursday, October 20, 2011

Myers v. Holder (9th Cir. - Oct. 20, 2011)

Seems to me like Judge Ikuta has a point here.

She dissents from the panel's decision to stay the mandate in an immigration case.  Her dissent is fairly brief (though, as usual, emphatic), and argues in part that the panel's string-cite decision -- which doesn't respond to the points the dissent makes -- isn't good enough, contending that the panel "has a duty" to say why it's doing the thing she doesn't like.

Of course, there's no such obligation, either generally or specifically.  But she's right that she makes some facially plausible arguments in her dissent, ones to which I agree the panel should probably respond.  Now, maybe the panel's just deliberately making her mad by not responding, and if the whole point is just to show everyone how little they think of her, okay, I get it.  But I'm not sure that's indeed their point.  In which case the arguments she makes do indeed probably warrant saying something.

Admittedly, there's not much at stake here.  It looks like the stay of the mandate here will be for around sixty days or less -- and is in any event entirely within the BIA's control (the stay is only during the period in which the BIA is considering Myers' petition to reopen, a petition they can presumably decide -- thereby ending the stay -- whenever they want).  But Judge Ikuta thinks that's a huge burden, and whatever arguments the panel thinks are responsive to that contention perhaps warrant elaboration.  If only to give future panels the benefits of the current panel's thoughts.