Suntharalinkam v. Keisler ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARANGESAN SUNTHARALINKAM, 
Petitioner, No. 04-70258
v.
 Agency No.
A79-784-825
PETER D. KEISLER,* Acting
Attorney General, ORDER
Respondent.

Filed October 31, 2007
Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,
Alex Kozinski, Pamela Ann Rymer, Andrew J. Kleinfeld,
Michael Daly 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.
Orders;
Dissent by Judge Kozinski
ORDER
The order for publication filed October 18, 2007, is hereby
withdrawn and replaced with the attached order for publica-
tion. The dissent remains as originally filed.
*Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-
zales, as Acting Attorney General of the United States, pursuant to Fed.
R. App. P. 43(c)(2).
14287
14288 SUNTHARALINKAM v. KEISLER
ORDER
The petitioner’s unopposed Motion to Withdraw his Peti-
tion 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 dis-
missal be conditioned on an award of court costs, which we
decline to do. Therefore, the Petition for Review is DIS-
MISSED. 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 peti-
tioner 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 repre-
sentations 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:
SUNTHARALINKAM v. KEISLER 14289
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 Honor-
able 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 rep-
resented repeatedly that he wished to have us set aside the
BIA’s ruling in his case and explained why. See pp.14290-92
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 stud-
ied 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
14290 SUNTHARALINKAM v. KEISLER
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 circu-
lated, which a majority of the panel commented on. In short,
both the entire court and the en banc panel devoted consider-
able 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 ques-
tions asked at oral argument. The colloquy to which petitioner
refers to in his motion went as follows:
THE COURT: Can I ask you one ques-
tion? Both sides seem
to want us to either
rewrite our rules or set-
tle 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
SUNTHARALINKAM v. KEISLER 14291
determination of this
case is relevant in adju-
dicating 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 Suntha-
ralinkam 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
14292 SUNTHARALINKAM v. KEISLER
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 inten-
tion is to go to Canada
because his relatives
are living in Canada.
He does not have any-
body here. His original
intention, present inten-
tion, is to stay in Can-
ada. But suppose—
THE COURT: He doesn’t want to be
in the U.S.
MR. RUDRAKUMARAN: Supposing the Canadi-
ans 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.
SUNTHARALINKAM v. KEISLER 14293
Third, petitioner has absolutely nothing to gain by with-
drawing 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 immi-
gration 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 manip-
ulation. 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 pos-
sibly some harm, a month after oral argument? The answer is
obvious: Petitioner’s counsel “sought dismissal for the pur-
pose 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 peti-
tioner’s counsel, though located in another circuit, frequently
represents immigration petitioners in our court.2 An adverse
1
Of course, he also gives up the possibility of filing a cert petition,
should he lose before us.
2
See, e.g., Annachamy v. Gonzales, No. 07-70336; Razik v. Gonzales,
06-75630; Senthinathan v. Gonzales, No. 06-75531; Partovi v. Gonzales,
14294 SUNTHARALINKAM v. KEISLER
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 peti-
tioner were filed by no fewer than 4 amici, and counsel for
one of the amici actually appeared and argued before us.
It is not too far-fetched to suspect that, following the argu-
ment, petitioner’s counsel and counsel for amici listened to
the recording of oral argument and concluded that things did
not bode well—indeed, that the case could mark a significant
change in our approach to IJ credibility rulings. While guess-
ing the outcome of a case from questions at oral argument is
tricky business, observers do it all the time, and often guess
right.3 Certainly, questions in this case suggested that some
members of the panel were prepared to fundamentally recon-
sider our approach to reviewing IJ credibility rulings. Plus,
petitioner’s counsel made at least one highly damaging con-
cession in answering questions from the bench.4
No. 05-77153; Thevanayagam v. Gonzales, No. 04-73319. In fact, after
granting the petitions for review, we awarded $10,000 in attorney’s fees
in one of his cases, see Thangaraja v. Gonzales, 428 F.3d 870, 872, 877
(9th Cir. 2005), and over $8,000 in another, see Lasitharan v. Gonzales,
No. 01-71539. Our immigration law precedents are also followed by other
circuits, see, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir.
2003) (citing Aguilera-Cota v. INS, 914 F.2d 1375, 1382-83 (9th Cir.
1990)); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (citing Salaam
v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000); Ceballos-Castillo v. INS, 904
F.2d 519, 520 (9th Cir. 1990)), so an adverse ruling in our court may also
affect petitioner’s counsel’s practice in other courts as well.
3
See, e.g., Linda Greenhouse, Court Reviews Race as Factor in School
Plans, N.Y. Times, Dec. 5, 2006, at A1 (“By the time the Supreme Court
finished hearing arguments on Monday on the student-assignment plans
that two urban school systems use to maintain racial integration, the only
question was how far the court would go in ruling such plans unconstitu-
tional.”).
4
THE COURT: Now, focusing in on the route infor-
mation, he tells the immigration
SUNTHARALINKAM v. KEISLER 14295
Moreover, the very question that seems to have triggered
counsel’s motion, quoted above, could have been interpreted
as a suggestion that counsel would be well advised not to con-
tinue pursuing his petition.5 While the argument transcript
does not disclose which member of the panel opened this line
of inquiry, it is quite clear from the recording, and counsel
certainly were present and would remember. Coming from a
judge who is generally favorably disposed to immigration
petitioners, the question could reasonably be understood as
suggesting that nothing good would likely come to petitioner
or others similarly situated, if petitioner pressed on with his
petition for review. Counsel may reasonably have concluded
that petitioner himself had little to gain, but that others with
similar claims would have a great deal to lose, if the en banc
court accepted the government’s invitation to reconsider our
approach to IJ credibility findings.
officer when he’s asked to explain
it: I did it because I was told that if
I told them the truth I’d be sent
back. Now, it doesn’t sound to me
like a mistake. To me that sounds
like he’s saying: I was told if I don’t
lie to the Americans in my asylum
application I will not get asylum.
Sounds to me like an admission of
deliberate falsehood. Is there some
reason you think that’s not a fair
statement?
MR.RUDRAKUMARAN: It’s a fair statement.
Transcript of En Banc Oral Argument at 31.
5
I don’t suggest that it was meant as such, but it could reasonably have
been so interpreted. Our questions at oral argument tend to be both candid
and wide-ranging, and they do occasionally disclose the leanings of partic-
ular judges. One unfortunate byproduct of today’s ruling may well be that
judges will be more guarded in their questioning lest they precipitate the
kind of unfortunate reaction we see here.
14296 SUNTHARALINKAM v. KEISLER
Finally, by granting motions for voluntary dismissal in
cases that have already been argued and submitted, we create
a strong incentive for leaking the outcome of cases after con-
ference and before the opinion is issued. In an institution of
any size, security is always an issue. When an en banc panel
is deliberating, something like 100 people—judges, law
clerks, externs, secretaries, court staff—will know the out-
come of a decision shortly after conference. No responsible
institution should lightly countenance the possibility of leaks,
and we should not overlook the perverse incentives we’re cre-
ating in granting a motion to dismiss that was filed after the
likely outcome of the case was known within the institution
but had not yet been made public.
Our court, like others, has recognized that “the court has
discretion in deciding whether to dismiss an appeal on appel-
lant’s motion under [Fed. R. App. P.] 42(b).” Shellman v. U.S.
Lines, Inc., 528 F.2d 675, 678 (9th Cir. 1975). While “[s]uch
motions are generally granted, [they] may be denied in the
interests of justice or fairness.” Am. Auto. Mfrs. Ass’n v.
Mass. Dep’t of Envtl. Prot., 31 F.3d 18, 22 (1st Cir. 1994)
(citing Wash. Dep’t of Fisheries, 573 F.2d at 1118). Exercis-
ing this authority, courts have refused to grant motions for
voluntary dismissal that were filed after cases were argued
and submitted. In Ford v. Strickland, 696 F.2d 804 (11th Cir.
1973) (en banc) (per curiam), an en banc panel of the Elev-
enth Circuit started its lengthy opinion as follows:
This cause, after a decision by a panel, was taken en
banc for the purpose of resolving for this Circuit sev-
eral important issues that repeatedly arise in capital
cases. After full briefing, extended oral argument,
and several months of deliberation during which the
judges of the Court sought to resolve and reconcile
the various issues involved, a communication was
received purporting to be a request by defendant
Ford that all appellate proceedings cease and that the
state judgment be carried out.
SUNTHARALINKAM v. KEISLER 14297
The Court determines that, considering Ford’s com-
munication as a motion to dismiss his appeal, the
motion is untimely.
Id. at 807 (citations omitted).
In Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004), also
an immigration case, the government stipulated to an order
vacating the BIA’s decision. In refusing to grant the joint
motion, the court noted:
At oral argument, we expressed doubts as to the
soundness of the Attorney General’s definition of
torture . . . . In addition to being dispositive in
Khouzam’s case, this is clearly an issue of public
importance. For the government to agree to a vacatur
two weeks after oral argument suggests that it is try-
ing to avoid having this Court rule on that issue. We
therefore decline to grant the order that the parties
have agreed to. Instead, we will review Khouzam’s
CAT petition and grant or deny it according to its
merits.
Id. at 168.
Finally, the Seventh Circuit in Albers v. Eli Lilly & Co.,
354 F.3d 644 (7th Cir. 2004) (per curiam), held as follows,
when confronted with a situation very much like ours:
After a draft of this opinion had been written, Albers
moved to dismiss the appeal under Fed. R. App. P.
42(b), which provides in part: “An appeal may be
dismissed on the appellant’s motion on terms agreed
to by the parties or fixed by the court.” The parties
had not agreed on terms, and Lilly filed a response
making it clear that it would not do so. In Lilly’s
view, the law firm representing Albers, which has a
substantial portfolio of DES cases—most of which
14298 SUNTHARALINKAM v. KEISLER
are filed in the District of Columbia to take advan-
tage of that jurisdiction’s favorable limitations rules,
even though counsel recognize that they will be
transferred for trial or decision elsewhere—is
attempting to manipulate the formation of precedent
by dismissing those proceedings that may lead to an
adverse decision while pursuing others to conclu-
sion. Counsel for Albers filed a response essentially
conceding that this is the plan, and that because the
oral argument had not gone well he decided to dis-
miss the appeal and try again, with a different client,
at a different time or in a different court. Counsel
contends that Lilly sometimes behaves opportunisti-
cally too and that both sides should have this option.
When the parties do not agree on terms, dismissal is
discretionary with the court. Doubtless there is a pre-
sumption in favor of dismissal, but the procedure is
not automatic. . . . One good reason to exercise dis-
cretion against dismissal is to curtail strategic behav-
ior. See, e.g., American Automobile Manufacturers
Association v. Massachusetts Department of Envi-
ronmental Protection, 31 F.3d 18 (1st Cir. 1994);
United States v. Washington Department of Fish-
eries, 573 F.2d 1117 (9th Cir. 1978). Cf. U.S. Ban-
corp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18, 115 S. Ct. 386, 130 L. Ed. 2d 233 (1994)
(judicial decision created with a significant invest-
ment of public resources is not a bargaining chip that
the parties may elect to have vacated).
Albers, 354 F.3d at 646. I am aware of no case where a
motion for voluntary dismissal was granted when it was filed
after the case was argued and submitted for decision.
As the Second and Seventh Circuits noted, courts must be
particularly wary of abetting “strategic behavior” on the part
of institutional litigants whose continuing interest in the
SUNTHARALINKAM v. KEISLER 14299
development of the law may transcend their immediate inter-
est in the outcome of a particular case. Counsel for petitioner,
like counsel for appellant in Albers and the Department of
Justice in Khouzam, is precisely such an institutional litigant,
and his interest in the welfare of one particular client may be
overshadowed by concerns about his other clients and his own
livelihood. See pp.14293-94 & n.2 supra. Certainly, counsel
for amici, which not only thoroughly briefed the issue but par-
ticipated in the oral argument of this case, qualify as institu-
tional litigants who have no responsibility at all to petitioner
and whose interests are wholly those of the great body of
immigration petitioners who appear in our court; the amicus
briefs, including their statements of interest, leave no doubt
on this score. That petitioner’s counsel has filed a motion that
can do his client zero good, and possibly great harm, for no
apparent reason other than to avoid an adverse ruling that
would affect other parties in other cases, militates strongly
against exercising our discretion in favor of granting the
motion at this late date.
All this would be of no consequence if petitioner could
simply render the case moot by moving to dismiss the peti-
tion. But Fed. R. App. P. 42(b) gives us discretion whether to
allow a voluntary dismissal and, if so, on what terms. Shell-
man, 528 F.2d at 678. We ought to be chary in finding moot-
ness in a situation such as this, where, by doing so, we leave
ourselves at the mercy of institutional litigants who can pull
out the mootness trump card whenever they come to believe
that their institutional interests would be best served by avoid-
ing a decision and hoping for a better outcome “with a differ-
ent client, at a different time or in a different court.” Albers,
354 F.3d at 646.6
Albers resolved the mootness issue as follows:
6
The concern about a “different court” is not trivial. Presenting the same
issues to another en banc panel of our court will ensure a different, and
perhaps more favorable, en banc draw. See 9th Cir. R. 35-3.
14300 SUNTHARALINKAM v. KEISLER
The case is not moot, because costs abide the out-
come and have yet to be determined; in the absence
of an agreement, there may be further dispute. (Sanc-
tions are also a possibility, though Lilly has not
invoked Fed. R. App. P. 38.) Albers certainly has not
promised to pay whatever costs or sanctions Lilly
sees fit to demand. We think it best, largely for rea-
sons parallel to those that animated the decision in
U.S. Bancorp, to carry through so that the invest-
ment of public resources already devoted to this liti-
gation will have some return, and an attempt to make
the stock of precedent look more favorable than it
really is may be foiled.
Id.
Albers suggested two possible rationales for concluding
that the case is not moot. The first, and most direct, is the
question of possible costs and sanctions. Whether costs are to
be assessed, against whom and in what amount is, as in
Albers, for us to decide. Because that decision depends, to
some extent, on the outcome of the case, we must decide the
merits in order to resolve it. Also as in Albers, sanctions are
a possibility. As noted, petitioner and his counsel had every
opportunity to withdraw the petition after petitioner left for
Canada. Instead, they put the Justice Department and our
court to the expense and effort of holding an en banc
argument—at substantial cost to the government. Petitioner
has shown no justification for filing this motion at such a late
date, and it is at least a theoretical possibility that we could
impose sanctions sua sponte for what appears to be abusive
conduct on petitioner’s part. See Chambers v. NASCO, Inc.,
501 U.S. 32, 46 (1991). Sanctions might also be imposed for
filing a frivolous petition for review challenging the IJ’s cred-
ibility finding when the record shows, and petitioner’s coun-
sel admits, see p.14294-95 n.4 supra, that petitioner lied
under oath in his asylum application.
SUNTHARALINKAM v. KEISLER 14301
Albers also contains a second rationale based on U.S. Ban-
corp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18
(1994). In U.S. Bancorp, the Supreme Court refused to follow
its normal vacatur rule announced in United States v. Mun-
singwear, Inc., 340 U.S. 36, 40-41 (1950), where the party
sought vacatur after voluntarily settling a case. U.S. Bancorp,
513 U.S. at 29. The Court denied vacatur, citing precisely the
kinds of institutional concerns Albers relied on. Id. While U.S.
Bancorp is certainly not directly on point, the reasons it gives
for denying vacatur in cases where a party voluntarily settles
a case—avoiding manipulation of precedent and the preserva-
tion of scarce public resources—apply in full force to our
case. After all, we have explained that parties shouldn’t be
allowed “to seek the benefits of a favorable judicial decision
but escape some of the more significant adverse consequences
of an unfavorable judgment.” Armster v. U.S. Dist. Court, 806
F.2d 1347, 1356 (9th Cir. 1986).7
The Supreme Court has recognized “the flexible character
of the Art. III mootness doctrine,” U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 400 (1980), by creating multiple
exceptions to this doctrine. Were it necessary to do so—and
I don’t believe it is—I would invoke an exception to the
mootness doctrine where a party moves for dismissal of an
appeal based on previously known facts, after the case has
been argued and submitted for decision.8 Such an exception
7
In Armster, we presciently anticipated the Supreme Court’s ruling in
U.S. Bancorp. The Armster panel relied on three separate rationales to
reach the conclusion that it was not required to vacate its opinion under
Munsingwear, even though the case had technically become moot; one of
those rationales was that the case is not moot under the “voluntary cessa-
tion” of activities doctrine. 806 F.2d at 1357-58 (citing United States v.
W. T. Grant Co., 345 U.S. 629 (1953)). Armster, like the “voluntary cessa-
tion” cases, focuses on the need to avoid manipulation of precedent and
the squandering of public resources—precisely the considerations that
would militate against dismissal of our case at this late stage.
8
The case would be quite different if petitioner had filed his dismissal
motion based on changed circumstances beyond his control—such as that
he had been granted asylum in Canada, or there had been a regime change
in his native country so that he no longer feared persecution if he were
returned there. Petitioner here cites nothing of the sort. See pp.14288-89
supra.
14302 SUNTHARALINKAM v. KEISLER
would parallel the exception to mootness for cases capable of
repetition yet evading review, see, e.g., Roe v. Wade, 410
U.S. 113, 123-29 (1973), in that both recognize the realities
of litigation and the need to preserve the integrity of the judi-
cial process.
As we are well aware, cases can be litigated very swiftly
when the need arises—the Pentagon Papers Case, N.Y. Times
Co. v. United States, 403 U.S. 713 (1971) (per curiam), was
completed, from the day the district court issued its injunction
to the day the Supreme Court issued its multiple opinions, in
15 days. See United States v. N.Y. Times Co., 328 F. Supp.
324 (S.D.N.Y. 1971). Yet such speed takes a considerable toll
on the litigants and the judicial process and cannot be invoked
in more routine cases. The capable-of-repetition-yet-evading-
review exception to mootness is thus best viewed as a doc-
trine, not of necessity, but of judicial convenience—a recogni-
tion that courts need time to resolve cases in a thoughtful and
deliberative manner, and that Article III does not stand in the
way of deciding cases that are technically moot but cannot
readily be decided while there is a live controversy.
A parallel rationale supports an exception to mootness
where it is clear that one of the parties is seeking dismissal in
order to manipulate the judicial process to its advantage.
Many of the considerations that underlie judicial reluctance to
decide moot cases do not exist, in any event, where the case
has been argued and submitted because the parties did present
a concrete controversy and vigorous briefing and argument
before submission; all that’s left is for the court to rule based
on the vigorous presentations already offered by the parties.
See Baker v. Carr, 369 U.S. 186, 204 (1962) (Article III’s
case or controversy requirement ensures “concrete adverse-
ness”); see also R. Fallon, Of Justiciability, Remedies, and
Public Law Litigation: Notes on the Jurisprudence of Lyons,
59 N.Y.U. L. Rev. 1, 51 (1984) (the “functional requisites of
effective adjudication” are “[c]oncrete facts and adversarial
presentation”).
SUNTHARALINKAM v. KEISLER 14303
Cases such as Claiborne v. United States, 127 S. Ct. 2245
(2007) (per curiam), Deakins v. Monaghan, 484 U.S. 193
(1988), and Comer v. Schriro, 480 F.3d 960 (9th Cir. 2007)
(en banc) (per curiam), are distinguishable. Claiborne became
moot because petitioner died after the case was submitted, so
there was no possibility of manipulation. 127 S. Ct. at 2245.
Neither Deakins nor Comer involved institutional litigants, so
there was also no risk of manipulation. See Deakins, 484 U.S.
at 195; Comer, 480 F.3d at 961. More importantly, in both of
these cases, the party seeking dismissal had expressed its wish
not to pursue the case long before argument and submission;
both involved situations where the parties had no interest in
pursuing their remedies, and had made that position clear
before oral argument, so “strategic behavior” was not an
issue. See Deakins, 484 U.S. at 199 n.3; Comer, 480 F.3d at
961-62.
I would treat quite differently a case like this one where the
party seeking dismissal has an obvious institutional interest,
tests the judicial waters by listening to the court’s questions
at oral argument, submits the case for decision and then, for
no apparent reason, gives up the possibility of victory for
absolutely no gain in return. We owe it to the judicial process,
and to the litigants who appear before us in good faith, to pre-
serve the integrity of the system by denying such an obvious
effort at subverting the orderly development of the law
through artful dismissal of the petition long past the eleventh
hour.
2. Even were I inclined to grant dismissal after submission
in some circumstances, I would not do so in this case because
we only have petitioner’s counsel’s word that petitioner does,
indeed, wish to have his petition for review dismissed. As pre-
viously explained, petitioner has nothing to gain from a dis-
missal, as he gives up his chance of reversing the IJ’s adverse
credibility finding and deprives himself of the possibility of
asylum in the United States. Counsel has, moreover, made
14304 SUNTHARALINKAM v. KEISLER
inconsistent representations on this issue, and he has an insti-
tutional and personal interest adverse to his client.
Under such circumstances, we should exercise our discre-
tion by requiring that counsel provide us with a declaration
from petitioner himself, confirming that he wishes to dismiss
his petition. Furthermore, I would insist that petitioner express
his understanding that he is giving up the possibility of asy-
lum in the United States and getting nothing of benefit in
exchange. As things stand, we have no assurance—not even
the representation of counsel—that petitioner has been fully
advised before giving up his rights.9 If petitioner is, indeed,
willing to give up his petition here, a certification signed by
him should not be difficult to obtain. Insisting on such a certi-
fication would not only safeguard petitioner’s rights, but
would avoid the possibility that petitioner will seek to reopen
the proceedings at a later date, claiming that he was not ade-
quately advised by his lawyer. Such a claim would not be
implausible because dismissal of the petition makes no sense
at all from petitioner’s perspective. If petitioner’s counsel did
not obtain his client’s fully informed consent, petitioner may
well be able to claim ineffective assistance of counsel, lack of
informed consent or some similar basis for reinstating his
appeal.
Will we be prepared to deny petitioner his rights if he pre-
sents a credible claim that his lawyer sacrificed his petition in
order to serve the interests of other clients and of the lawyer
himself? I seriously doubt it. See Cmty. Dental Servs. v. Tani,
282 F.3d 1164, 1171 (9th Cir. 2002) (“[C]onduct on the part
9
Because counsel is in the United States, while petitioner is in Canada
(and perhaps in custody), it is unlikely that counsel and petitioner met in
person to make this decision. There is, moreover, the mysterious mention
of petitioner’s Canadian lawyer. It is unclear from counsel’s terse motion
the extent to which he relied on a communication directly with his client
and to what extent he relied on instructions conveyed by Canadian coun-
sel. As we know from playing “Telephone,” the longer the communication
chain, the more likely there is to have been a misunderstanding.
SUNTHARALINKAM v. KEISLER 14305
of a client’s alleged representative that results in the client’s
receiving practically no representation at all clearly consti-
tutes gross negligence, and vitiating [sic] the agency relation-
ship that underlies our general policy of attributing to the
client the acts of his attorney.”). At a bare minimum, then, if
we are inclined to grant the motion to dismiss, we should take
simple steps to ensure that petitioner himself seeks such relief
and is not the victim of deceit or misunderstanding. Respect
for petitioner’s rights and the integrity of the judicial process
demands at least that much.
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