Judge Reinhardt writes an immigration decision that Judge Rawlinson doesn't like. So the latter files an opinion that "distinguishes" the former.
The distinction isn't solid, so even outsiders like me say that Judge Rawlinson's opinion needs to be taken en banc. Regardless of which of the opinions is correct on the merits. A majority of judges on the Ninth Circuit agree.
This morning we learn who prevails.
It's Judge Reinhardt. 8 to 3.
Both Reinhardt and Rawlinson get picked for the en banc panel, so you know how they come out. Judge Paez authors the majority opinion. Joined by some largely predictable votes, including Judge Reinhardt, but also by some much less predictable votes (e.g., Milan Smith).
Judge Kozinski authors the dissent. Joined by Judges Rawlinson and Bybee.
It's a relatively good draw for the immigration petitioner. Ends up not even being all that close.
