Friday, July 10, 2020

Silva v. Barr (9th Cir. - July 10, 2020)

When, as here, Judges Berzon and Ikuta agree that circuit precedent is probably wrong, I suspect that you'll see a successful en banc call to fix the problem.

It's one of those plethora of "what counts as moral turpitude under state law" cases, which determines whether we kick someone out of the country.  The Ninth Circuit decided back in 2009 that petty theft in California counts, the California courts subsequently refined the contours of that offense so that it probably doesn't count anymore, but subsequent Ninth Circuit panels didn't really examine the new state law precedent and simply followed the 2009 case.  That compels a current Ninth Circuit panel to follow the earlier circuit precedent even when, as here, they're pretty sure it's wrong.

But you can always fix these things with an en banc vote.  Which seems would have a very good shot at success here.