Back in February, I highlighted a divided Ninth Circuit panel decision in which the majority opinion, written by Judge William Fletcher, injected lots of indeterminacy into the seemingly elementary question of what it means for an alien to have “reentered the United States illegally.” Judge Jay Bybee, in dissent, argued that Fletcher’s position was inconsistent with circuit precedent and created a conflict among the circuits.

I’m delighted to report that, in a unanimous opinion written by Judge Consuelo Callahan, the en banc Ninth Circuit has ruled that the position Fletcher took contravenes “the plain language of the statute,” is inconsistent with Ninth Circuit precedents, and would create a conflict with rulings of the Seventh and Tenth Circuits.

The eleven-member limited en banc panel (a unique creature of the Ninth Circuit) had five appointees of Democratic presidents, including at least two very liberal judges, Sidney Thomas and Richard Paez. When the court granted en banc review, I observed that Fletcher, a former Berkeley law professor, seems to be competing to succeed the late Stephen Reinhardt as the most aggressive liberal on the Ninth Circuit. Today’s ruling suggests that he’s winning that competition.

For what it’s worth, Fletcher will take senior status upon confirmation of his successor, but I’d guess that he will continue to be very activist … I mean, active, or rather both. President Biden has nominated state judge Holly Thomas to fill his seat. Her nomination remains pending in the Senate Judiciary Committee.