Normally, as a lot of you have figured out by now, I’m a jurisdiction “junkie.” Jurisdiction fuels the disagreement in Ramadan v. Keisler, case no. 03-74351 (9th Cir. Sept. 28, 2007), and the jurisdictional question is interesting (it concerns the effects of the REAL ID act), but I haven’t had time to evaluate it yet. I hope to get to it.
But what caught my eye immediately was the dissent from this denial of a rehearing en banc. Eight judges join Judge O’Scannlain’s dissent, which starts:
In a feat of interpretive creativity, the Court in this case has transformed a discretionary determination of an Immigration Judge (“IJ”) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview.
The panel . . . proceeded to engage in interpretive gymnastics based upon a manufactured constitutional conflict.
[the panel decision] creates a split between our circuit and all seven other circuits to consider the issue . . . But even more troubling than this split, the panel’s decision defies the statutory text, unnecessarily creates a constitutional conundrum, and places within our jurisdiction an array of immigration appeals that Congress does not permit us to review.