Safe Havens

A true case on point is very rare; it must be a case as to which there is no distinction from the client’s case.  Perhaps the case of a codefendant would be closest, and even there, differences can exist between the two cases.  A case is more closely on point if it involves the same ground of deportation present in the client’s case, and if it involves the same statute of conviction in the same state.  Even then, the record of conviction may differ between the two cases.  If they were decided at different times, the law may have changed in some way between the two dates of decision.  Chapter 8 collects all the cases holding that a certain conviction is not a crime involving moral turpitude, and all the cases holding that a certain conviction is not an aggravated felony.  Hopefully, one or more of them can be a “case on point,” an anchor for arguing that the client’s conviction does not trigger deportation under either of those two common grounds of deportation.  One panel of a circuit court is not free to disagree with a prior panel decision on the same point.[5]

[5] Benny v. U.S. Parole Comm’ n, 295 F.3d 977, 983 (9th Cir. 2002) (“We are bound by decisions of prior panels unless an en banc decision, Supreme Court decision or subsequent legislation undermines those decisions.”); Dean v. Trans World Airlines, Inc., 924 F.2d 805, 810 (9th Cir. 1991).