In a separate “dubitante” opinion yesterday in Sanchez Rosales v. Barr, Ninth Circuit judge Lawrence VanDyke agreed with the panel majority that circuit precedent compelled the result in the case, but he powerfully demonstrated that that precedent is “silly” and argued that it “well illustrates our court’s nasty habit of muddying immigration law and holding the BIA—an appellate body—to stilted standards to which we would never subject ourselves.”

Under the precedent at issue, when an applicant facing deportation seeks to re-open a removal proceeding on the ground that he received ineffective assistance of counsel, the Board of Immigration Appeals cannot deny that request on the ground that the applicant failed to demonstrate that he was prejudiced by the alleged ineffective assistance. That precedent, VanDyke notes, departs from the “general rule that a petitioner relying on ineffective assistance must show resulting prejudice.” By his account, the precedent, set forth in a footnote in an opinion two decades ago, miscited the BIA rulings and Ninth Circuit case that it purported to rely on. “Worse,” he continues, “our precedent that was supposedly predicated on deference to the BIA’s practice now somehow perversely forces us to penalize the BIA when it fails to rigidly adhere to its (inconsistent) prior practice—a change eminently justified by the fact that the old (inconsistent) practice relied on a statute that hasn’t existed for roughly 24 years.”

VanDyke laments that “[t]his type of absurdity is regular fare in our immigration cases”:

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Our circuit’s immigration jurisprudence is a hot mess. It’s sharply at odds with the text and purposes of immigration law, including the REAL ID Act. It regularly ignores the important difference between the BIA’s direct appellate role versus our court’s indirect and supposedly deferential role on review. Much of our circuit’s caselaw seems designed to make it very difficult for the BIA to do its job; we perform our highly deferential review in an extremely nondeferential manner.