A recent opinion out of the Ninth Circuit Court of Appeals was interesting not only because it reversed an earlier case from the court in the area of the level of deference owed to the Board of Immigration Appeals, but also because of the discussion in the various opinions on how the court should treat an appeal where the law is unsettled.
The primary issue before the court was whether a BIA decision which was contrary to Ninth Circuit precedent should be applied retroactively (for more details on the exact substantive issue, see the full opinion here).
According to Judge Kozinski, in his opinion “disagreeing with everyone”—“The law is unsettled in many areas and parties often don’t know the precise rule that applies to their past conduct until their case is decided. Thus, retroactivity issues lurk in many, perhaps all cases, yet we don’t routinely conduct retroactivity analysis. Before we go into retroactive mode, we must first determine whether this case involves a retroactive application of law. Because it doesn’t, we have no reason to discuss retroactivity.”After referring to points made in majority opinion as “sophistry” and “gratuitous discussion,” Judge Kozinski goes on to state: “Balancing involves uncertainty because you have to predict how different judges will assess factors, which is not always an easy task. This case illustrates my point: Having launched themselves into retroactivity mode, six of my colleagues pick one test while three others pick a different test. . . . As an en banc court, we have a responsibility to bring clarity to our law. By the time lawyers in this circuit get through reading all of our opinions, they’ll be thoroughly confused.”