Ninth Circuit Judge VanDyke Blasts Court for Giving Illegal Immigrants a ‘Free Decade’ in America

In a scathing, unanimous concurrence released Tuesday, Ninth Circuit Judge Lawrence VanDyke exposed the dirty secret behind his court’s immigration docket: the Ninth Circuit has turned meritless appeals into a get-out-of-deportation-free card, handing illegal immigrants years—sometimes a full decade—of lawful presence in the United States simply for filing paperwork.

The case itself was straightforward (attached below).

Armando Santana-Gonzalez, a Mexican national with multiple unlawful entries between 2014 and 2015, was ordered removed after an immigration judge rejected his asylum, withholding of removal, and Convention Against Torture claims. His stories of vague threats from a vigilante group, family extortion, and discrimination as a homosexual never rose to the level of persecution or established the “required nexus to a protected ground.” 

The Board of Immigration Appeals agreed. Yet Santana remained in the country for over a decade thanks to the Ninth Circuit’s reflexive policy of automatically granting stays of removal the moment a petition for review is filed.

Writing for the panel that ultimately denied Santana’s petition—because his arguments were forfeited and meritless anyway—Judge VanDyke used the occasion to unload on his own court’s “broken” practice. In a concurrence joined by Judge Eric Tung, VanDyke declared:

“A rational observer might wonder how an alien—who conceded his removability in 2015 and whose application for immigration relief was ruled meritless in 2015 and then again in 2016—could possibly still be in the United States pursuing a meritless claim for immigration relief a full decade later. That’s a good question, but unfortunately the extensive delays in this case are hardly unique.”

“Like countless others, this case illustrates the extremely problematic fact that “the Ninth Circuit offers more than half of the immigration petitioners in the nation an open tap of time to remain in the United States, no matter how meritless their claims might be. You don’t have to take my word for it; all you need to do is just peek below the surface at the record in this case. Everyone involved in this case knows that the primary objective of Santana’s meritless appeal was simply to secure more time in the United States…”

“Because our court doles out automatic stays of removal as a matter of right, a petitioner like Santana can get a free decade in the United States simply by filing a meritless petition for immigration relief. And the more petitioners that exploit this system, the better it gets for each of them. As caseloads increase, it takes our court longer and longer to deal with utterly meritless immigration petitions, and our court further delays the process of all immigration enforcement. It’s a win-win for everyone—except the rule of law.” (emphasis added)

VanDyke pointed directly to the court’s unwritten policy of rubber-stamping stays under General Order 6.4 without the individualized analysis required by the Supreme Court in Nken v. Holder. 

The result? Thousands of frivolous appeals clog the docket, enforcement grinds to a halt, and illegal immigrants—many with criminal records—get to live, work, and potentially reoffend in America while bureaucrats, immigration judges, and federal judges play games.

This is the daily reality in California, where sanctuary policies already shield criminal aliens from federal immigration enforcement—and where Sacramento Democrats have repeatedly directed taxpayer dollars to provide free legal defense for illegal immigrants fighting deportation. 

California has already committed tens of millions—and in recent years up to $125 million in various allocations—to immigration legal services under the “One California” umbrella and related removal defense grants.

Now, Assemblymember Mia Bonta (D-Oakland, wife of Attorney General Rob Bonta, has introduced AB 2600, which would create a statutory framework to provide state-funded legal counsel to every indigent “covered individual” (illegal alien)  in removal proceedings (subject to available funding). The bill prioritizes those in detention, allows contracting with nonprofits, public defenders, and private attorneys, and sets implementation no later than January 1, 2027. 

This week, the bill advanced out of committee and was re-referred to the Committee on Human Services. Critics note that while some restrictions exist for serious felons, the measure would further empower legal challenges and merciless challenges against federal deportation—at California taxpayers’ expense.

But far too often, as Judge Dyke reveals, the court’s procedural gimmicks undermine the very enforcement Californians desperately need. While Sacramento Democrats recently advanced AB 2727 to rein in elderly parole for serial rapists and child predators after public outrage, the federal courts continue to play their own game of delay-and-release with illegal immigrants who never should have been here in the first place—now aided by state-funded lawyers courtesy of California taxpayers.

Judge VanDyke’s message was blunt: the Ninth Circuit’s addiction to automatic stays isn’t compassion or due process—it’s malpractice. It rewards bad lawyering, punishes lawful Americans, and makes a mockery of immigration statutes Congress rewrote precisely to prevent this kind of endless delay.