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Wednesday, June 15, 2022


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Ninth Circuit Judge VanDyke Issues Rebuke to Colleagues for Ignoring Deference Standard  


By a MetNews Staff Writer


Ninth U.S. Circuit Court of Appeals Judge Lawrence VanDyke has lambasted his colleagues for persistently ignoring the command by Congress that an extraordinarily deferential standard be applied in reviewing administrative decisions in immigration cases.

The Immigration and Nationality Act (“INA”), he pointed out in a dissent on Monday, declares that that “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”

There is no compulsion, he maintained, to reject findings that petitioner Flores Molina is not eligible for asylum based on persecution in Nicaragua, criticizing the majority for “looking for a basis to overturn the agency instead of scouring the record as a whole looking for a way to uphold the agency if even a single reasonable factfinder could agree with its ultimate conclusion.”

The majority opinion was authored by Circuit Judge Richard A. Paez. District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation, wrote a concurring opinion.

Supreme Court Decision

VanDyke made note of last year’s opinion for a unanimous Supreme Court by Justice Neil Gorsuch in Garland v. Dai. Gorsuch wrote:

“For many years, and over many dissents, the Ninth Circuit has proceeded on the view that, ‘[i]n the absence of an explicit adverse credibility finding [by the agency], we must assume that [the alien’s] factual contentions are true’ or at least credible….This view appears to be an outlier.”

The high court jurist declared:

“The Ninth Circuit’s rule has no proper place in reviewing a court’s analysis….Nothing in the INA contemplates anything like the embellishment the Ninth Circuit has adopted.”

‘Deviant’ Decisions

VanDyke wrote:

“Looking to our circuit’s enormous, slanted edifice of deviant immigration precedents perpetuates our court’s regretful trend of granting ourselves massive discretion instead of granting massive deference to the agency. The remnants of our overturned Dai decision, and other clearly wrong and manufactured rules that we have etched into this edifice, echo throughout our caselaw, blatantly favoring immigration relief and disguising our disdain for the properly deferential role that Congress prescribed because we can always say we are just following (or slightly extending) precedent.”

He continued:

“We cite the obligatory deferential language at the beginning of each new recalcitrant opinion, masquerading as if we’re being deferential even though we’re not. Deference to our own precedents? I suppose. But not to the agency’s discretion that Congress has authorized it to exercise and commanded that we defer to. Unfortunately, this case will no doubt be another layer in our leaning tower of precedents, encouraging further future deviation from our properly deferential role.

Unaffected by Reversals

VanDyke also asserted:

“Our failure to defer besets more (and worsening) failures to defer, as our court keeps relying on its own distorted immigration precedent to justify a downward spiral. Every once in a while, the Supreme Court corrects us in a decision like Dai, where anyone with any common sense (including the unanimous Supreme Court) wonders how we could have strayed so far afield from our statutory mandate. But like a meandering elephant being smacked with a flyswatter, our court lumbers on. Unaffected by the occasional reversal, our ever-growing pile of perfidious immigration precedents make it harder and harder for judges to properly defer to the agency without seemingly conflicting with some precedent….”

The dissenter went on to say:

“Unmoored from the extremely deferential standard of review Congress has tied us to, we are now essentially lost at sea in our review of agency immigration decisions and tend to grab onto the nearest buoys of friendly caselaw closest to our facts (irrespective of whether the prior precedent was properly deferential). This is not how our ‘extremely’ deferential standard of review should work. We should remain anchored to the standard of review Congress has dictated, and under that deferential regime I cannot say the record compels a different result with respect to Molina’s claims here.”

Paez’s Footnote

Paez said in a footnote:

“Our dissenting colleague sharply criticizes our court’s immigration jurisprudence. This is not the first time he has expressed such views.”

He cited five opnions in which VanDyke criticized the Ninth Circuit’s proclivities. Paez commented:

“While we note the dissent’s critique, it fails to engage with our analysis of the issues in this case. Our task is to apply existing precedent—whether or not we agree with it—as we faithfully do here.”

The case is Molina v. Garland, 19-73028.


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