I often do an annual review of opening lines of judgments. This review has never had any jurisdictional limits. For that reason I am able to review the judgment yesterday of the United States Court of Appeals for the Ninth Circuit in Orellana -v- Barr . This is a concurring judgment by Judge Owens.
THE CASE
This was a petition for a review of the Board of Immigration Appeals. The decision was that a conviction for criminal stalking is a crime of moral turpitude and therefore made the appellant removable. The court held that it was. Judge Owens delivered a concurring judgment, albeit that he was not pleased with the outcome.
THE CONCURRING JUDGMENT
OWENS, Circuit Judge, concurring:
“Dumb, dumb, dumb!” my Grandpa Harold would exclaim when I tried to explain a legal concept that made little sense. I can only imagine what he would say about the “CIMT” approach that case law currently compels us to apply.
I do not have to imagine what other judges have said about this approach. Like me, they think it is dumb, dumb, dumb. See, e.g., Romo v. Barr, 933 F.3d 1191, 1199–1200 (9th Cir. 2019) (Owens, J., concurring) (listing cases where judges from various circuits have criticized CIMT
jurisprudence).
We should avoid doing dumb things. Especially ones that are dumb.
A smarter (and more just) approach would be to “look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed from our country.” Almanza-Arenas v. Lynch, 815 F.3d 469, 482–83 (9th Cir. 2016) (en banc) (Owens, J., concurring, joined by Tallman, Bybee, and Callahan).
Nevertheless, duty sometimes demands the dumb thing, so I join the majority opinion in full because it correctly applies the law as it now stands.”
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