Divergent Dissents

Another majority opinion in a 5-4 (actually, 5 to 3 to 1) case by Justice Kennedy today in Dada v. Mukasey, USSC No. 06-1181. And another opinion in which the interesting action is found in the dissents.

The case presents a relatively complex immigration law question. This blog doesn't discuss immigration law all that often, for the obvious reason that its author doesn't want to look any more stupid than he looks already. In any event, the issue, stated simply, was whether an alien could back away from a promise to leave our fine country voluntarily so that he could challenge immigration authorities' order that he leave with the Board of Immigration Appeals.

Stripped to the crass essentials -- a particular strength of this little blog -- the question was whether you wanted to give an illegal immigrant another shot or hold him to his promise to leave. Justice Kennedy (and the others who you'd expect) decided to give him another shot. Justice Scalia (and the others who you'd expect) dissented and said that the petitioner should have kept his promise and gotten the heck out of here.

Except for Justice Alito. He chose a middle ground, which you may want to keep in mind. His conclusion was that both the majority and the dissent were wrong. Justice Alito said that the Board of Immigration Appeals didn't think it could give the alien another shot, but it could have if it had wanted to (though it didn't have to). He would have sent the case back so that the Board could figure it out. This frustrated Justice Scalia enough that he put a gratuitous footnote at the end of his dissent tweaking Justice Alito a tiny bit. Again, something you may want to keep in mind.