For the second week in a row, the Supreme Court delivered a verdict on an immigration case. And for the second week in a row, it rejected the judicial interpretation taken by the Ninth Circuit Court of Appeals. What’s remarkable is that one hit came from the left and the other came from the right in two unanimous opinions. It was a one-two punch for what critics refer to as the Ninth Circus, so named for being the most politically progressive federal appeals court. In both cases, the U.S. government won, and the immigrant petitioners lost.
Chinese Oppression That Wasn’t
The day after Memorial Day, the Supreme Court published Justice Neil Gorsuch’s opinion in Garland v. Dai. The Court ruled against Ming Dai, who came to the United States from China and applied for asylum. However, he was not truthful in his application. Dai “testified that he and his family had suffered past persecution by Chinese officials and expected future persecution upon return.” The problem was that he failed to disclose that his wife and daughter had both returned voluntarily to China since accompanying him to the United States. Dai came clean when confronted, and then an immigration judge found that “Mr. Dai’s testimony undermined his claims and denied relief.”
When the case was appealed to the Ninth Circuit, the judges on the nation’s leftmost-leaning appellate court applied their own rules to adjudicating such cases instead of following the Immigration Nationality Act. Per Justice Gorsuch and his colleagues: “Applying its own judge-made rule that a reviewing court must treat the noncitizen’s testimony as credible and true absent an explicit adverse credibility determination, the Ninth Circuit granted relief.” According to Gorsuch, “[a]t least 12 members of the Ninth Circuit have objected to this judge-made rule …”
While the federal courts have a mechanism for dealing with splits between the circuits, a split within a circuit is untenable. Considering that half of the nation’s courts of appeals have 12 or fewer judges, the judicial objections from the Ninth Circuit are remarkable. It is a surprise to know so many judges on the maverick Ninth are concerned with judicial lawmaking.
A Is A
In United States v. Palomar-Santiago, the Court also ruled in favor of the plain language of the federal law and against Ninth Circuit judicial lawmaking. Refugio Palomar-Santiago is a Mexican national who was living in the United States when he was convicted in California state court of felony DUI in 1988. At the time, that conviction was considered an “aggravated felony,” subjecting him to deportation. Palomar-Santiago was removed from the country following a hearing before an immigration judge and a waiver of his right to appeal. In 2017, he was prosecuted after being found in the United States. He argued that he should be allowed to stay and challenged the original deportation order because the law had changed, and now DUI was not considered an aggravated felony. The district court judge agreed and dismissed the indictment, a decision the Ninth Circuit affirmed, though the law requires otherwise.
The Immigration Nationality Act says that an illegal alien who challenges a deportation order must show (1) “any administrative remedies that may have been available” were exhausted; (2) “the opportunity for judicial review” was lacking; and (3) “the entry of the order was fundamentally unfair.” The Ninth Circuit gave Palomar-Santiago a pass, but the Supreme Court did not. Sotomayor wrote the Ninth Circuit’s “interpretation is incompatible with the text” of the law. Her opinion goes on to say:
“When Congress uses ‘mandatory language’ in an administrative exhaustion provision, ‘a court may not excuse a failure to exhaust.’ Yet that is what the Ninth Circuit’s rule does.”
During Donald Trump’s presidency, the Ninth Circuit seemed to double down on its independent streak. It seems all the Supreme Court justices want to make sure the judges know the law itself cannot be changed by intention and judicial wish. It’s like an originalist dream come true. Just like a dream, however, don’t expect it to last too long.
Read more from Scott D. Cosenza.