Suntharalinkam v. Keisler

• Decision Date: 31 October 2007
• Docket Number: No. 04-70258.,04-70258.
• Citation: 506 F.3d 822
• Parties: Arangesan SUNTHARALINKAM, Petitioner, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

506 F.3d 822

Arangesan SUNTHARALINKAM, Petitioner, v. Peter D. KEISLER,^* Acting Attorney General, Respondent.

No. 04-70258.

United States Court of Appeals, Ninth Circuit.

Filed October 31, 2007.

Visuvanathan Rudrakumaran, Esq., New York, NY, for Petitioner.

District Director, Office of the District Counsel, Department of Homeland Security, San Diego, CA, Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Francis W. Fraser, Esq., Genevieve Holm, Esq., DOJ — U.S. Department of Justice, Civil Div./Office of Immigration Lit., Jeffrey S. Bucholtz, Esq., DOJ — U.S. Department of Justice, Civil Division/Appellate Staff, Washington, DC, for Respondent.

Before: MARY M. SCHROEDER, Chief Judge, STEPHEN REINHARDT, ALEX KOZINSKI, PAMELA ANN RYMER, ANDREW J. KLEINFELD, HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD R. CLIFTON, JAY S. BYBEE, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

ORDER

The order for publication filed October 18, 2007, is hereby withdrawn and replaced with the attached order for publication. The dissent remains as originally filed.

ORDER

The petitioner's unopposed Motion to Withdraw his Petition for Review is GRANTED. The government requests that dismissal be conditioned on vacatur of the panel opinion, which we agree is appropriate in the circumstances of this case. FRAP 42(b). The government also requests that the dismissal be conditioned on an award of court costs, which we decline to do. Therefore, the Petition for Review is DISMISSED. The panel opinion, reported at 458 F.3d 1034 (9th Cir.2006), is VACATED. Each party shall bear its own costs.

KOZINSKI, Circuit Judge, with whom Judges KLEINFELD, CLIFTON and CALLAHAN join, dissenting:

My colleagues dismiss the petition for review by relying on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner's rights in jeopardy and leave the door open to future litigation as to whether counsel's representations can bind the client.

1. The motion the court grants today was filed on July 12, 2007, 24 days after oral argument, which was held on June 18, 2007. It reads as follows, in its entirety:

The Petitioner, Arangesan Suntharalinkam, through his attorney, Visuvanathan Rudrakumaran, states as follows:

1) Following the questions from the Bench pertaining to the relevance of the instant Petition for Review during oral argument, given the fact that the Petitioner is in Canada, the Petitioner's counsel discussed the matter with the Petitioner and his Canadian lawyer, Mr. Ceri Forbes.

2) The Petitioner hereby withdraws his Petition for Review before this Honorable Court.

There are three things worth noting about the motion. First, it is based entirely on facts known prior to the time the case was argued—indeed, before the case even went en banc. While the case was still pending before the three-judge panel, we were apprised that petitioner had departed for Canada and was seeking asylum there. We thereupon issued an order, dated January 19, 2007, asking the parties whether the case had been rendered moot by petitioner's departure. Both sides responded, confirmed petitioner's departure from the United States, and argued that the case was not moot. Petitioner represented repeatedly that he wished to have us set aside the BIA's ruling in his case and explained why. See pp. 824-25 infra.

Based on these representations, we continued our then-pending en banc process. A number of further memos were exchanged, every active judge of our court presumably studied the record and the en banc correspondence, and we voted to reconsider the case en banc. By so doing, a majority of the court determined that the case raised issues of sufficient importance to deserve en banc consideration. Thereafter, the 15 judges selected to sit on the en banc panel analyzed the briefs and record in preparation for argument, and 13 of those judges traveled to San Francisco (one judge is resident there and another one was prevented from appearing "because of a family emergency," Transcript of En Banc Oral Argument at 2). After the argument, we held a conference and voted on the outcome of the case, and two drafts of an opinion were circulated, which a majority of the panel commented on. In short, both the entire court and the en banc panel devoted considerable time and resources toward the resolution of the case after petitioner confirmed that he wanted the case resolved even though he had departed the United States. The only thing that has changed is that petitioner now, reportedly, no longer wishes us to decide the case.

Second, the motion to dismiss is expressly based on questions asked at oral argument. The colloquy to which petitioner refers to in his motion went as follows:

THE COURT: Can I ask you one question? Both sides seem to want us to either rewrite our rules or settle on old policy for immigration cases. This case your client's gone to Canada. He wanted to go to Canada in the first place. The opinion is off the books. And he doesn't want to come back to the United States. You really want to pursue this case?

MR. RUDRAKUMARAN: Yes, your Honor. There are two—for two—for two reasons. One is the determination of this case is relevant in adjudicating his Canadian application there. So if you just let it stand, the I.J.'s finding that he is not credible, that will have an adverse impact there. And suppose if his claim is denied and if he's come back, then he will be in a more dangerous situation.

THE COURT: So you've answered, you said "yes."

. . .

THE COURT: Counsel, does Suntharalinkam want to come back to the U.S.?

MR. RUDRAKUMARAN: If—if the Canadians kick—denied his case then he will be here. Because his main thing, he cannot go back to Sri Lanka.

THE COURT: Does he want to come back to the U.S. or would he rather be in Canada?

MR. RUDRAKUMARAN:He would like—if his cases get granted he would like to be in Canada. His case is pending.

THE COURT: I thought he tried going to Canada in the first place when he snuck in from Mexico.

MR. RUDRAKUMARAN: Sure: His original intention is to go to Canada because his relatives are living in Canada. He does not have anybody here. His original intention, present intention, is to stay in Canada. But suppose—

THE COURT: He doesn't want to be in the U.S.

MR. RUDRAKUMARAN: Supposing the Canadians send him back, then he has no place to go.

THE COURT: They send him back then he's gonna go back. That will take care of that. Okay. Wonderful.

Transcript of En Banc Oral Argument at 63-64, 65-66. As this exchange shows, petitioner's counsel was adamant that the case should be submitted and decided because an adverse IJ ruling would be damaging to his client in Canada and because, if Canada were to deny petitioner asylum, he would have no place to go, except back to his native country.

Third, petitioner has absolutely nothing to gain by withdrawing his petition for review and (as his counsel suggests) doing so may wind up hurting him because withdrawal of the petition will let the BIA's adverse ruling stand, including the IJ's ruling that petitioner is not credible. Withdrawing the petition would also preclude him from obtaining asylum in the United States, should he be denied similar relief in Canada.¹ On the other hand, if the court goes ahead and decides the case, it might rule in his favor, as did the three-judge panel, which would set aside the IJ's adverse credibility finding and open up an avenue for asylum in the United States. The worst that could happen to petitioner is that we would affirm the BIA's ruling, in which case he would be no worse off than if we allow him to withdraw his petition. Thus, whatever adverse effects may flow to other petitioners in other immigration cases from a denial of the petition for review (more on this later), petitioner himself has something to gain, and nothing to lose, by allowing the case to proceed to decision.

To my mind, the combination of these factors spells manipulation. What could possibly have motivated petitioner's counsel to file a motion seeking dismissal of the petition, which would do his client absolutely no good, and quite possibly some harm, a month after oral argument? The answer is obvious: Petitioner's counsel "sought dismissal for the purpose of evading appellate determination of certain questions." United States v. Wash. Dep't of Fisheries, 573 F.2d 1117, 1118 (9th Cir. 1978) (Kennedy, J.). He believed, based on the oral argument, that he would likely suffer an adverse ruling that would not only be harmful to petitioner, but to counsel's other clients (present and future) who seek relief from adverse rulings of the BIA. In that regard, it's worth noting that petitioner's counsel, though located in another circuit, frequently represents immigration petitioners in our court.² An adverse ruling in petitioner's case could undermine the petitions of counsel's other clients (present and future) which rely on our exceedingly petitioner-friendly caselaw. Nor are petitioner's counsel and his clients the only ones who would be hurt by an adverse ruling in petitioner's case. Briefs supporting petitioner were filed by no fewer than 4 amici,...