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Timothy Dugdale
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Isn't there a circuit split on this, six to one, with the Third holding the ace. If Torres had flown into Newark rather than JFK, as his lawyers point out, he'd be sitting pretty.
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The panel played good offense on plenary power. They said they were deciding a question of citizenship at birth, not special treatment of an alien. Therefore Fiallo (or Mandel) was not a control. Moreover, they said they weren't granting citizenship but merely severing a section of the INA so that they could determine if citizenship was transmitted at birth with equal protection. In addition, they concluded the INA was designed not to constrict citizenship but to expand it. I love how they embraced the dissents in Miller and Nguyen too. Solid.
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This is exactly the problem with Knauff et al. If the husband had already been lawfully in the country or was actually in the country, he would be due some due process. Even then, how much was he due? Outside the border, under Knauff, he is an arriving alien and accorded no due process. Sotomayor was hinting at this late in oral arguments and I'm surprised Scalia didn't offer a short clinic on this to gird his decision. But he probably thought he didn't need it.
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Strangely enough, the ICE agents were grousing that the DACA prevents them from writing expedited removals which they seem to think is an obligation of their job. The 5th's panel was not buying it. DACA doesn't demand blanket disarmament, only case-by-case assessment for the exercise of discretion.
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Hopefully, Bouras will file for an en banc rehearing and we'll see Posner in action again on this case, perhaps a bit contrite but probably not much.
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I hope Ms. Din wins on Mandel which was a narrow First Amendment case, no? But I think the court should go further and address the issue that took up much of Haddad's portion of the argument - who is due how much due process? An attenant question begs: When does an alien him or herself accrue enough markers through significant connections to the United States to merit judicial review of consular decisions? I hope the court produces some sort of guidelines or test pursuant to Verdugo and Boumediene. Kennedy is just the man for the job.
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I wish Sotomayor and the OSG gent had mixed it up good and proper on alien's rights in the US earlier and in more depth. Their one exchange hit Knauff and should have lead to Plasencia. Alas.
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Bill, I wish this woman success and the Ninth's ruling is affirmed. I was thinking out loud (and perhaps through my hat) about what should be the standard for review and who should have standing to seek review. Not all visa denials are created equal. Nor are all petitioners. Family-based immigration is important. Reliable sources of credible information are important. I hope the court addresses them fairly and fully. But I also hope that the court revisits Knauff vis-a-vis Plasencia. Indeed, how much due process is due whom?
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Feb 20, 2015