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Ramirez-Altamirano v. Mukasey (9th Cir. - Feb. 4, 2009)

By Shaun Martin

Far be it from me to make more of things than is due. But is there something going on here that I should know about?

Last week, Judges Wardlaw and Ikuta got into a huge bench slap, something about which I commented here. Don't get me wrong; I like a spirited and vigorous debate, especially among able judges (as are both here) who are convinced that they're right and the other side's wrong. No problem. Bring it on. That Judge Ikuta writes a dissent and Judge Wardlaw the (underlying) majority opinion is far from earth-shattering, regardless of the strong rhetoric on both sides.

But then, today, I read this opinion. Again authored by Judge Wardlaw. Again with a dissent by Judge Ikuta. And while the language on both sides is a fair piece milder than the exchange last week (from Judge Wardlaw here: "The dissent?s reliance on Ramirez-Castro is both misplaced and misleading" and "The dissent?s cramped reading of these cases is unpersuasive"), it still got me to thinking whether there these two former O'Melveny colleagues were, say, less than generally persuaded by the other.

So I went back and looked up some of the opinions decided by this same panel on the same week as this one; i.e., when Judge Fogel sat by designation with Judges Wardlaw and Ikuta in Pasadena in the first week of May 2008. A task, I might add, made much more time-consuming by the fact that (1) the transition to the Ninth Circuit's new web site seems to have deleted all the historical calendars, and (2) the "advanced search" feature on the oral argument screen works as well as a rusted '26 Ford.

What does one find? Well, for one thing, the panel has already issued at least two opinions from immigration cases that were argued on the same day (May 5, 2008) and to the same panel (Judges Wardlaw, Ikuta, and Fogel) as the present immigration case. What transpired, you ask? Well, here, of course, Judge Wardlaw was in the majority -- which issued an opinion favorable to the alien -- and Judge Ikuta dissented.

What about the other two cases? In the first, Felix-Corona v. Mukasey, Judge Wardlaw was in the majority, which issued an opinion favorable to the alien, and Judge Ikuta dissented. Deja vu. And in the second (Ky Lay Luong v. Mukasey), guess what? Judge Wardlaw was in the majority, which issued an opinion favorable to the alien , and Judge Ikuta dissented.

Boy, I bet the conference after the oral arguments on May 5, 2008 was a lot of fun.

I'm not going to even mention what transpired in the immigration case before the same panel two days later (Leppind v. Mukasey). Okay, I will. Judge Wardlaw was in the majority, which issued an opinion favorable to the alien, and Judge Ikuta dissented.

I could go on. But this post is already long enough. Let's just say that it's always a good time in the Ninth.

Full post as published by California Appellate Report on February 04, 2009 (boomark / email).