Bench Memos

Law & the Courts

Supreme Court Smackdown of Ninth Circuit—Part 2

In its other ruling today, in Garland v. Dai, the Supreme Court also unanimously reversed the Ninth Circuit, rejecting a long line of illegitimate liberal circuit precedent and vindicating the conservative Ninth Circuit judges who objected to that line.

In his unanimous opinion, Justice Gorsuch repudiates the “special rule” that the Ninth Circuit has “long applied” in immigration cases—namely, that “in the absence of an explicit adverse credibility determination by an immigration judge or the Board of Immigration Appeals, a reviewing court must treat a petitioning alien’s testimony as credible and true.” Gorsuch explains that this “deemed-true-or-credible rule” is an “embellishment” that immigration law does not contemplate. On the contrary, “so long as the record contains contrary evidence”—evidence, that is, that is contrary to the alien’s evidence—“of a kind and quality that a reasonably factfinder could find sufficient, a reviewing court may not overturn the agency’s factual determination.” (Internal quotation marks omitted.) The Ninth Circuit’s rule “mistakenly flips this standard on its head.”

Fittingly, in his last published decision before his death in late March 2018, Judge Stephen Reinhardt wrote the Ninth Circuit opinion in Dai that the Court reversed. (Reinhardt also had an opinion in his name published after his death, which was also reversed.) In fairness to Reinhardt, though, I will point out that he was applying circuit precedent—precedent that appears to date back nearly three decades to this 1994 ruling by Reinhardt’s fellow activist, Harry Pregerson.

Stalwart conservative judge Diarmuid O’Scannlain dissented from Pregerson’s 1994 ruling, and O’Scannlain was among the twelve judges who objected to the Ninth Circuit’s denial of rehearing en banc in Dai. (Only active judges can vote on en banc matters in the Ninth Circuit; O’Scannlain and his fellow senior judge Stephen Trott registered their agreement with the ten dissenters.)


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