Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

On Friday, Nov. 2, the Ninth Circuit issued one published decision.

In Rebilas v. Keisler, the Ninth Circuit held that Arizona’s offense of public sexual indecency to a minor includes conduct that falls outside the federal definition of attempted sexual abuse to a minor. The Court noted that the offense could be committed even though the minor was oblivious to the offender’s conduct. As the details available of Rebilas’s conviction did not show that he had committed attempted sexual abuse of a minor, the conviction was not for an aggravated felony for purposes of removal.

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On October 31, 2007, the  Ninth Circuit issued three published decisions         

In U.S. v. Preciado, the Ninth Circuit , per curiam,  affirmed the enhancement of Preciado’s sentence, where she brought her four children along with on her attempt to smuggle marijuana into the U.S. from Mexico.   Circumstantial evidence showed that Preciado had time to arrange child care, and also had child caregiver available to her. In those circumstances, the district court could plausibly infer that the presence of the children was intended to enhance her chances of making her border crossing appear to be a family visit.

In U.S. v Hernandez-Vasquez, the Ninth Circuit clarified standards related to orders permitting the involuntary medication of a defendant for purposes of return him to competency. Such orders are permitted under Sell v. United States, 539 U.S. 166 (2003), relying on Washington v. Harper, 494 U.S. 210 (1990)(holding that dangerousness of undedicated inmate justifies government in medicating inmate involuntarily).  The Court adopted a standard of review of Sell orders holding that a district court’s determination of the seriousness of the crime is subject to de novo review, while the remaining Sell factors are reviewed for clear error. The Court also held that such an order must be specific as to permitted medications and dosages, and must set forth a time period for a physician to report back to the court as to status and effect of the treatment. The order here failed to have the necessary specificity, and was therefore vacated, with remand to the district court.

In Suntharalinkam v Keisler, the Ninth Circuit amended the order previously field on October 18, 2007, permitting the withdrawal of the Petition for Review. Judge Kozinski’s dissent to the order permitting withdrawal remains intact.

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On Thursday,  October 18, 2007, the Ninth Circuit issued one published order.

In Suntharalinkam v.. Keisler, the Ninth Circuit accepted the unopposed motion to withdraw the appeal, and withdrawal of the 3panel decision. Judge Kozinski dissented for about 18 pages, decrying the practice of accepting a motion to withdraw after cases have been argued and submitted. Here, the assumption appears to be that the question asked at oral argument suggested a likely outcome unfavorable to the appellant and to his amici. Judge Kozinski questioned the voluntariness of the withdrawal, and urged the Court to take measures to insure the action was, indeed, a reflection of the will of the appellant.

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On October 9, 2007, the Ninth Circuit issued three published opinions and two published orders:

In Quintero-Salazar v.. Keisler, the Ninth Circuit held that California Penal Code § 261.5(d) is not categorically a crime involving moral turpitude for purposes of removal under immigration law. This offense is for engaging in intercourse with a minor who under 16years of age when the perpetrator is more than 21 years old.The Court pointed out that commission of this offense could reasonably involve a relationship between a college sophomore and a high school junior, which relationship might have commenced while both were still in high school. Such an offense is not categorically one that is inherently base, vile, depraved or so far contrary to moral law as to give rise to outrage.

In Guglielmino v. Mckee Foods, the Ninth Circuit held that where a complaint does not state a specific total amount in controversy, the proper burden of proof for purposes of remand to state court after removal is proof by a preponderance of he evidence that the amount in controversy is more than $75,000.  

In Morgan v. United States District Court For The District Of Arizona, the Ninth Circuit held that when rejecting a sentence bargain plea agreement, the district court must provide individualized reasons for rejecting he agreement, based upon the specific facts and circumstances involved. Here, the district court rejected the agreement simply because the judge did not approve of sentence bargain agreements.  

In Phillips v. Hust, the Ninth Circuit ordered that the September 14, 2007 denial of the Petition for Rehearing and denial of the Petition for Rehearing en Banc be published.              

In U.S. v. Mitchell, the Ninth Circuit granted a motion to amend an opinion to remove a reference to a specific Assistance U.S. Attorney.

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On September 28, 2007, the Ninth Circuit issed one new published opinion and one published order:

 In U.S v. Sullivan, the Ninth Circuit held that a community pre-release center was not an “imprisonment” under 18 U.S.C. §3624(e), and accordingly, Sullivan was not under upervised release when he failed a drug test.            

In Ramadan v. Keisler, the Ninth circuit denied a request for rehearing en banc. Nine judges dissented from the order denying rehearing en banc. The decision leaves standing the panel decision concluding the Court had jurisdiction under the REAL ID Act over immigration appeals where the issue of  “changed circumstances” is. This conclusion is contrary to that of seen circuits that have considered the same issue.

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On September 27, 2007, the  Ninth Circuit issued two new published opinions, and one published order.

In U.S. v. Bussell, the Ninth Circuit declined, for purposes of he sentencing guidelines, to impose a categorical limitation upon determining “intended loss” in bankruptcy fraud cases to the value of the concealed assets.  In the circumstances here, the facts supported the district court’s conclusion that the intended loss was equal to the amount of debt scheduled to be discharged in bankruptcy.    Similarly, the evidence supported the district court’s conclusion that the actual loss, for purpose of restitution,  was equal to the amount of debt ultimately discharged.

In Bockting v.Bayer,  the Ninth Circuit determined that the Nevada Supreme Court’s affirmance of Bockting’s conviction for sexual assault on a child was not contrary to federal constitutional law.    Judge Noonan dissented, arguing the Nevada Supreme Court improperly relied upon the trial court’s actions in admitting hearsay statements of the child, rather than upon any factual findings supporting unavailability, particularly where the trial court’s statement suggested a misunderstanding of witness unavailability.

In Li v. Keisler, where three applications for fees in immigration appeals were consolidated, the Ninth Circuit held that the 30 day period to file a request for fees under the Equal Access to Justice Act begins ninety days after issuance of an order remanding an immigration matter to the BIA. The Court found fees justified in two of the cases, but not as to Li.

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On September 19, 2007, the Ninth Circuit issued five new published opinions:

In Melendez v. Gonzales, the Ninth Circuit held that an alien may not avoid immigration consequences of a drug conviction as a time offender, when he is not a first time offender. Here, following an earlier arrest, Melendez had taken advantage of a pre-trial program under a diversion scheme that did not require him to plead guilty.  The Court held that the BIA properly regarded Melendez as one who had gotten “two bites at the ameliorative apple.”  

In Navarro-Lopez v. Gonzales, the Ninth Circuit, en banc,  held that a crime involving moral turpitude must be a crime that is 1) vile, base, or depraved and 2) violates societal moral standard s. California’s offense of “accessory after the fact” does not qualify. Accordingly, Navarro-Lopez had not been convicted of an offense involving moral turpitude, and could be eligible for cancellation of removal.            

In Menken v. Emm, the Ninth Circuit held that while domesticating a judgment in unlikely, without more, to be sufficient to confer personal jurisdiction, that act coupled with additional conduct, such as, as alleged here, attempted to exact a higher payment than the judgment amount, does established sufficient minimum contacts to confer jurisdiction.             

In Brown v. Ornoski, the Ninth Circuit denied habeas relief in a death penalty matter, finding that Brown received effective assistance of counsel at the penalty phase. While the psychologist portrayal of Brown was not positive, it was more sympathetic than that presented by the prosecution, and therefore represented a strategic choice. The Court rejected the claim that counsel should have conducted more background information, as there is little indication that exposure of the jury to the additional would have changed the outcome.             

In E. &J. Gallo v. EnCana Corp. , the Ninth Circuit held that the filed rate doctrine did not apply to transactions not subject to FERC jurisdiction. Here, Gallo’s claims included transactions not based on F$RC rates; accordingly, the District Court properly denied summary judgment.  

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On Tuesday, September 18, 2007 the Ninth Circuit issued one published opinion:

In Kawashima v. Gonzales, the Ninth Circuit held that subscribing to false statements on a tax return, and aid and assisting in the preparation of a false tax return are aggravated felonies, and therefore removable offenses for purposes of immigration law.

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On Wednesday, September 12, 2007, the Ninth Circuit issued two published:

In Zurich American Insurance Company v. International Fibercom, Inc., the Ninth Circuit upheld the bankruptcy court’s method of correcting an error made in granting a § 365 assumption that was unauthorized as the contract in question was not executory, and therefore, could not be assumed. The BK court interpreted the assumption order in a way that rendered the order authorized under § 365, by limiting its terms to post petition debt.

In Marmolejo-Campos v. Gonzales,  the Ninth Circuit held a violation of Arizona Rev. Stat. § 28-1383(A)(1) for aggravated DUI (DUI while license suspended) while actually driving is a crime involving moral turpitude. Accordingly, conviction of this offense can justify removal of an alien. Senior Judge Nelson dissents, asserting that calling this conduct morally turpitudinous is illogical and unreasonable.

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On September 7, 2007, the Ninth Circuit issued four published decisions and one published order:

In Solidus Networks v Excel Innovations, the Ninth Circuit held that when a bankruptcy debtor seeks to enjoin a proceeding in which the debtor is not a party, the bankruptcy court must weigh the likelihood of succ4ess forhte debtor’s reorganization against the hardship to the parties, as well as any public interest. The matter here was remanded for consideration under this test.         

In Comedy Club, Inc. v Improv West, the Ninth Circuit held that an arbitrator exceeded the scope of his authority by enjoining non party-affiliates.  The arbitrator’s decision also violated California law (CBPI 16600) by prohibiting CCI from opening comedy clubs throughout the U.S., where it should only have prohibited CCI from opening clubs in counties where it already operated.

In Inouye v Kemna, the Ninth Circuit reversed the grant of qualified immunity where a parolee stated a claim that he had been forced to participate in a narcotics addiction program containing religious content, despite protesting such content.  The Court held that the right to refrain from participation in religious-based programs as a condition of parole was clearly established at the time the parole officer recommended revocation of Inouye’s parole because of his refusal to participate in AA/NA. The Court noted that in additional to various uniform decisions on the issue among the circuits, Inouye’s pending lawsuit against the prison for having forced him to participate in such programs, plus his letter to the parole board attaching relevant case law, was enough to put he parole officer on notice.  

In  Stoner v Santa Clara, the Court held that California school districts are state agencies, and therefore, are not “persons” subject to the liability for making false claims to the U.S. government under 32 U.S.C. § 3279.     State officials may be held liable under the statute in their personal capacities.  Here, however, Stoner brought the qui tam action as a relator on behalf of the U.S. government, but, while an attorney, is not admitted to practice in California. Stoner did not identify any authority to allow him to proceed pro se on behalf of the government. 

In Singh v Gonzales, the Court granted Singh’s motion for costs  and fees under the Equal Access to Justice Act.   The Court noted that if the government continued to make rejected arguments before the Court, without noting that such argument had been rejected (thereby preserving them for en banc or Supreme Court review), the Court would consider it sanctionable conduct.

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On Tuesday, August 28, 2007, the Ninth Circuit issued five published opinions:

In Kalouma v. Gonzales, the Ninth Circuit reversed a denial of asylum, holding that the Immigration Judge had erred in determining that an amendment to 8. U.S.C. § 1158(d) required an applicant to provide information to allow the AG to carry out his duty to determine the identity of the applicant.

In Ranchers Cattlemen v. USDA, the Ninth Circuit upheld the Agency’s decision to lift a ban on Canadian beef from beef from cattle under 30 months old, finding the agency’s decision made after consideration of the proper factors.

In Camins v. Gonzales, the Ninth Circuit held that permanent residents who commit crimes or admit to committing crimes, and then leave the country temporarily , are subject to being declared inadmissible on their return; however, because this is a change in the law, the policy cannot be applied retroactively to lawful permanent residents who reasonably relied upon the old policy when they left the country.

In Rodis v. City & County of San Francisco, the Ninth Circuit upheld the denial of qualified immunity to two officers who arrested Rodis on a charge of possession or use of counterfeit money. While the officers might have believed the $100 bill Rodis had was counterfeit (it was actually genuine), they had no reasonable suspicion that Rodis had any intent to defraud.  Further, the totality of the circumstances lacked any suggestion of knowledge or intent upon Rodis’s part; the mere passing of a counterfeit bill is not a crime, absent knowledge it is a fake.

  In Sandoval-Lua v. Gonzales, the Ninth Circuit held that an alien can satisfy his burden of proof for purposes of showing eligibility for cancellation of removal, to show that he had not necessarily been convicted of an aggravated felony by producing an inconclusive record of conviction.

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On Thursday, August 16, the Ninth Circuit issues eight new published opinions. Four of them are provided here, and the other four will be addressed in the next post.

In U.S. v. Yida the Ninth Circuit held that the consideration of the  reasonableness of the government’s efforts to procure a witness for trial must include action taken both before and after deportation, where the government knew of the desirability of the witness’s testimony prior to deportation.  Here, the government’s decision to allow the witness to leave was not reasonable. Accordingly, the witness was not unavailable for FRE 804 purposes.

In Babasa v. Lencrafters, Inc., the Ninth Circuit held that a letter received for mediation purposes could serve as notice that the amount in controversy so as to begin the running of the time for removal.

In Lewis v. Astrue, the Ninth Circuit amended the opinion originally filed on July 3, 2007 to correct the identification of counsel for the appellee.

In Estrada-Espinoza v. Gonzales, the Ninth Circuit held that California’s statutory rape offense constitutes “sexual abuse of a minor” within the meaning of 8 U.S.C. § 1101, rendering Estrada-Espinoza removable as an “aggravated felon.” Judges Thomas and Leighton concur, finding as did the majority, Afridi v. Gonzales, 442 F. 2d 1212 (9^th Cir. 2006) controlling, but asserting that Affridi was wrongly decided, as the California statutory rape offenses do not require “abuse” to have occurred. California’s age of consent is 18.  Here, the minor in question was “15 or 16” at the beginning of the relationship, which was live-in, and was conducted with knowledge of the parents of both parties and lasted for several years.   

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On Monday, August 13, the Ninth Circuit issues five new published opinions.

In Emmert Industrial Corp v. Artisan Assocs., the Ninth Circuit held that the time for filing a claim for transportation charges set forth in 49 U.S.C. § 14705 of the ICCTA apply even where the carrier has not filed a tariff.  The Court affirmed the summary judgment granted to Artisan for the claims for transportation services provided. However, the Court also held a contract underlying a third claim to be ambiguous, and reversed and remanded the summary judgment granted as to Emmert’s breach of contract claim.

In Womack v. Del Papa, a habeas appeal arising out of Nevada, the Ninth Circuit held Womack did not receive ineffective assistance of counsel when his attorney advised him a guilty plea was a his “best chance” of receiving a minimum sentence. Although Womack did not receive the minimum sentence, nothing in the record suggests the attorney’s advice was erroneous, or that Womack did know the possible sentences he could receive. 

In Im v. Gonzales, the Ninth Circuit found that the act of unlocking a cell door so that prisoners could be taken to interrogation rooms was not an act integral to persecution. Accordingly, Im, who was once employed at a prison to perform such tasks, was not ineligible for asylum under 8 C.F.R. § 208 13. 

In AmerisourceBergen Corp. v. Roden, the Ninth Circuit held that abstention was not required, reversing the dismissal of a diversity case by the district court. The Court disapproved of the District Court’s balancing of Younger factors, rather than determining whether each factor is satisfied. The Court also clarified that all four of the Younger factors must be satisfied before abstention may occur: 1) a state initiated proceeding is ongoing; 2) that proceeding implicates an important state interest with implications beyond the case itself; 3) the federal litigant is not barred from litigating federal constitutional questions in that proceeding; and 4) the federal action would no enjoin the state proceeding. Diversity action may proceed. Here, the ongoing state proceeding did not concern important state issues; additionally, the federal action would not require the state action to be enjoined.  The Court suggested that AmerisourceBergen’s switch to federal court might have been motivation but its continuing lack of success in the state court, and expressed regret that the District court’s obligation to exercise jurisdiction it has had required the expense to which the parties had been put, as well as for the use of resources in two overburdened court systems, and

In Gulla v. Gonzales, the Ninth Circuit held the Immigration Judge abused his discretion in denying asylum, where the denial was because 1) Gulla had traveled through 3 countries before arriving at the US; 2) Gulla was in good health and not of tender age when he arrived, and 3) Gulla used forged passports  to reach the U.S border.  The IJ failed to balance favorable and negative factors, and gave reasons for the decision the Court described as “not rational.”

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On Thursday, August 9, 2007, the Ninth Circuit issued four published opinions:

In Grocery Outlet Inc. v. Albertson’s Inc., in a per curiam decision,  the Ninth Circuit upheld a preliminary injunction barring Grocery Outlet from using the trademarked name “Lucky.” The court held there was no abuse of discretion in the District Court’s finding that Albertson’s was showed a strong likelihood of success on the merits, or in the conclusion that Albertson’s did not abandon the trademark. Judges Wallace and McKeown writing concurring opinions discussing the burden of proof for an abandonment defense.  Wallace holds the burden is strict, which he defines as requiring “clear and convincing evidence.” McKeown asserts that the Circuit has not decided the appropriate burden.

In Hernandez de Anderson v. Gonzales, the Ninth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)may not be retroactively applied to applications for naturalization filed prior to its effective date, where such application would cancel rights held prior to the effective date, and where the immigrant can show an objectively reasonable reliance upon prior law.  Here, at the time she applied for naturalization, the immigrant would have been eligible to move for suspension of deportation proceedings.  After IIRIRA, she was no longer eligible to move to cancel removal proceedings.    The Court held that it was objectively reasonable for her to rely on her eligibility to seek to suspend deportation.

In Lockett v. Catalina Channel Express., the Ninth Circuit held that an ADA violation does not occur where an entity makes a one-time reasonable judgment under 28 CFR  §38.208 (permitting denial of accommodation where a risk to health and safety is posed), while investigating the competing interests between the health and safety of one customer and the ADA rights of another. Here, the ferry service declined to sell a ticket to a specific location of its boat to a blind passenger accompanied by a guide dog, where the location had been reserved to be animal dander free to accommodate an allergic passenger.  The Court noted that the ferry service’s change of policy to allow guide animals in all locations otherwise accessible was wise.

In Craig v. M & O Agencies, Inc., the Ninth Circuit reversed the grant of summary judgment on Title VII claims against an a supervisor and employer, where a jury could find the alleged conduct created a hostile work environment and where the employee’s delay of nineteen days in reporting the unwelcome conduct was not objectively unreasonable. The Court also held that, under Arizona law, a supervisor’s repeated propositioning of an employee, following her into the restroom, and grabbing her and sticking his tongue in her mouth can be outrageous conduct. However, the employer is not responsible for such conduct by its employee.

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On Wednesday, August 8, 2007, the Ninth Circuit issued two published opinions:

In McElmurry v. U.S. Bank National Assn., the Ninth Circuit held that a denial of a motion to issue notice of a collective action is not “effectively unreviewable on appeal.”  Accordingly, an interlocutory appeal is not available. 

In Hernandez-Ortiz v. Gonzales, the Ninth Circuit reversed a denial of asylum to two brothers from Guatemala, of Mayan descent, who were persecuting during events of ethnic cleansing. The Court joined the Second, Sixth, and seventh Circuits in holding that “injuries to a family must be considered in an asylum case where the events that form the basis of the past persecution claimed were perceived when the petitioner was a child.” The Court found that the IJ’s findings of lack of credibility were not supported by substantial evidence.

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On Friday, August 3, 2007, the Ninth Circuit issued three published opinions:

In U.S. v. Moses, the Ninth Circuit held that a man-made diversion of a stream, with water flow for two months out of the year is part of the “waters of the United States” for purposes of the Clean Water Act. The path of the stream, while dry, remains part of the waters. Placement of pollutant into the dry stream bed can support a verdict for discharge of a pollutant. The opinion, authored by Judge Fernandez, surges with a steady flow of watery allusions.

In Vargas-Hernandez v. Gonzales, an appeal of removal, the Ninth Circuit rejected a claim that the Petitioner’s due process rights were violated by a biased Immigration Judge. The Court found the Petitioners’ attempt to remand the matter so he could claim entitlement to stay as the spouse of a citizen had been untimely, and dismissed the portion of the appeal based upon Petitioner’s claimed that he had committed the offense underlying his removal as a juvenile, where he had been tried and convicted as an adult.

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Today, the Ninth Circuit issued two published opinions:

In Morgan v. Gonzales, the Ninth Circuit rejected claims that the federal government must be estopped to remove an alien who claimed he had cooperated with authorities in a criminal investigation twenty-five years before. Morgan failed to show that he had been actually promised he would not be deported in return for his cooperation.

In U.S. v. Sperow, the Ninth Circuit rejected a claim that a Sperow’s right to speedy trial had been violated, even though the indictment occurred in 1996 and trial occurred in 2004. However, the delay was due to Sperow’s evasion of authorities. However, the Court found the government’s ambiguous filings with respect to its notice to eek enhancement resulted in a failure to give timely notice of an intent to use a prior conviction to enhance the sentence; accordingly, the Court remanded for resentencing without the enhancement.

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The Ninth Circuit today issued four published opinions”

In U.S. v. Castillo-Basa, the Ninth Circuit rejected the sua sponte call for rehearing en banc. Five judges dissented from the rejection of the rehearing, asserting that the Court’s decision essentially held that where a defendant convincing lies at his trial, he may not thereafter be prosecuted for perjury.

In U.S. v. Figueroa-Ocampo, the Ninth Circuit remanded for resentencing where sentence enhancement for an immigration offense had been based upon a crime that, while a felony under California law, was only a misdemeanor under federal law. The Court held that an “aggravated felony” for immigration offense sentencing enhancement must be for a crime that would be a felony under federal law. 

In Oregon Natural Resources v. Timber Products Co.,.the Ninth Circuit affirmed the district court’s invalidation of the Timbered Rock Fire Salvage and Elk Creek Watershed Restoration Project

In Golden Pisces, Inc. v. Fred Wahl Marine Construction, Inc., the Ninth Circuit affirmed the district court’s denial of an award of attorneys, where no statute, contract or equitable principal support such an award. The court noted that the American Rule, which limits an award of attorney fees to where one of those three conditions justifies such an award, applies in marine litigation.

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In Hamilton Materials v. Union Carbide Corp., the Ninth Circuit affirmed the dismissal as time barred of Hamilton’s claims that Union Carbide misled it regarding the dangers of asbestos products.  The court held that a reasonably person, particularly a sophisticated manufacturer of asbestos that had been sued hundred of times because of asbestos dangers, would have suspected union Carbide’s alleged duplicity long before.

In Vacation Village Inc.. v. Clark County, Nevada, the Ninth Circuit relied on the Nevada Supreme Court opinion of McCarren Int’l Airport v. Sisolak  137 P.3d 1110 (Nev. 2006), to hold an ordinance limiting construction heights resulted in a per se regulatory taking of airspace.  The Court found that ordinances that prevent result in a physical invasion of airspace constitute a taking under Nevada’s constitution.  An ordinance that merely limited the property to certain uses, however, is not a per se regulatory taking.

In Winzer v. Hall, the Ninth Circuit reversed and remanded with instructions to issue a writ of habeas, finding that admission of the a hearsay statement that the defendant threatened the victim was a violation of the confrontation clause.  The statement, made by the alleged victim to a police officer 5 ½ hours after the threat, was not properly admitted under the spontaneous utterance exception to the hearsay rule, where the victim had made such a calm 911 call between the time of the threat and the statement, that the court deemed it proper to deny admission of the 911 call.

In Magtanong v. Gonzales the Ninth Circuit dismissed the appeal as untimely filed, refusing to make allowance where the overnight carrier used by the Petitioner let him down and took two days to deliver, instead of one.  The court named the carrier as DHL.

In Muradin v. Gonzales, the Ninth Circuit remanded the matter for determination of whether Muradin’s persecution at the hands of the Armenian government was due to his membership of a particular social group.  The Court also vacated the BIA’s order denying Muradin eligibility for relief under the Convention Against Torture. The Court affirmed the BIA’s finding that Muradin had failed to establish his persecution was due to imputation of his mother’s political opinions. 

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 In U.S. v. Bibler, the Ninth Circuit amended, for he second time, the opinion originally filed May 4, 2007. The outcome is changed in that rather than the appeal being dismissed, the district court decision is affirmed.  

In Kutasi v. Las Vigenes Unified, the Ninth Circuit reaffirmed the principles that, prior to filing an action seeking relief for any claim addressable through the IDEA, administrative remedies must be exhausted.  The claims alleged violations of the ADA and the Rehabilitation Act, as well as § 1983 claims, but sought, at least in part, relief obtainable through the IDEA. 

In Hemmerle v. Schiro, the Ninth Circuit determined that, where a state appellate court has concluded its review, the statute of limitations for filing a petition for writ of habeas corpus begins to run.  

In Singh v. Gonzales, the Ninth Circuit granted the petition for rehearing, withdrawing the opinion filed November 28, 2006. The Court remanded the matter to the BIA to consider whether the presumption of correct mailing of the BIA’s decision was rebutted by the affidavits of nonreceipt which accompanied the Singh’s motion to reopen.

In Nehmer v. US Department of Veterans, the Ninth Circuit ordered the VA to pay to pay retroactive benefits to Vietnam War veterans exposed to Agent Orange who later contracted a  and contracted a form of leukemia. Judge Reinhardt, writing for the panel, chided the  agency for its position in the case, saying that agency’s performance “has contributed substantially to our sense of national shame.”

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On Wednesday, July 18, 2007, the Ninth Circuit issued four new published opinions, and one published order.:

In Douglas v. USDC Central District, the Ninth Circuit, in a per curiam decision, held that a service provider may not change the terms of its service by merely posting a revised contract on its website; a contract cannot be unilaterally changed. Here, the district court had ordered arbitration, but he arbitration clause had been among the unilateral changes to the contract. The Court issued a writ of mandamus vacating the order compelling arbitration. 

In U.S. v. Diaz-Leuvano, the Ninth Circuit clarified that its decision in Morales-Izqueirdo v. Gonzales, 486 F. 3d 484 (9^th Cir. 2007) did not overrule U.S. v. Luna-Madellagna, 315 F.3d 1224 (9th Cir. 2003). Physical removal continues to be a valid bases for sentence enhancement.

In Hadera v. Gonzales, the Ninth Circuit remanded the matter to the BIA to redetermine Hadera’s country of removal, as the designated country, Ethiopia, was merely the country where Hadera’s parents were born; he had no other connection to that nation.

In U.S. v. Diaz-Castaneda, the Ninth Circuit held that a license plate check that reveals the person’s car ownership, driver status, and criminal record is not a search for fourth amendment purposes.

In Ass’n of American Physicians & Surgeons v Brewer, the Ninth Circuit granted the petition for rehearing of Plaintiff-Appellant Dean Martin.

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In U.S. v. Jernigan, the Ninth Circuit granted a new trial, where the prosecution failed to inform the defense that crimes committed by a suspect matching the defendant’s description continued while she was in custody.

 In Crater v. Galaza, the Ninth Circuit again finds the Anti-Terrorism and Effective Death Penalty Act constitutional, rejecting a claim that the Act effectively suspends all privileges of writs of habeas corpus. The Court agreed with the Fourth and Seventh Circuits in finding that the ct merely alters the standards on which writs issue.   The Court rejected a claim that the Act infringes upon federal court power by requiring consideration of whether a state court’s appellate decision was not “contrary to” or “an unreasonable application of” U.S. Supreme Court decisions.

In Abebe v. Gonzales, the Ninth Circuit denied a petition seeking to prevent removal of an alien due to conviction of an offense of sexual misconduct with a minor. The Court joined the First, Third, Fifth and Seventh Circuits in finding that a statute need no longer be interpreted to apply an exception to exclusion to prevent removal.

In Loma Linda University v. Leavitt, the Ninth Circuit held that the Provider Reimbursement Review Board may order reimbursement for a provider’s cost allowable under the Medicare regulations, but excluded from the provider’s cost report. The Court joined with the First Circuit in reaching this conclusion, and disagrees with the Seventh’s Circuit’s resolution of this issue.

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I'm still playing catch up for last week's opinions.  Here are Thursday's releases:

In Pesnell v. Arsenault, the Ninth Circuit reversed a dismissal of claims brought against government officials.  Pesnell had previously brought claims under the Federal Tort Claims Act (FTCA).  A judgment in an action brought under the FTCA bar any later action on the same subject matter.  However, Pesnell’s FTCA claims had been dismissed for lack of jurisdiction.  To bar future claims, the judgment must have been on the merits.

In Moreno-Mornate v. Gonzales, the Ninth Circuit denied the petition to cancel removal on the basis of pending adoption of the alien’s grandchildren, as the grandchildren, themselves citizens, were not qualifying relatives, nor does the de facto parent-child relationship prevent removal.                                                  

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Today’s Ninth Circuit decision reminds us that the time to be creative in the gathering of evidence is before, not after, the hearing.

In Goel  v. Gonzales, the Ninth Circuit declined to overturn an administrative finding that an applicant for asylum lack credibility. The credibility finding was based upon inconsistencies between documentary evidence submitted by the applicant, and the applicant’s testimony.

The Court also upheld the denial of a request to reopen the evidence in the matter on the basis of newly discovered evidence. The “new” evidence consisted of the applicant’s polygraph examination, taken after his application had been denied, in which he was found to be truthful, and also, a medical report stating that the applicant’s scars could have been caused by the torture he described in support of his application. The Court found that such evidence was not newly discovered, as the applicant could have undergone the polygraph or medical examination prior to his hearing, so that such evidence could have been presented then.  The Court noted the applicant had not been in custody, and thus, had been free to gather such evidence as he desired to present.

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In Singh v. Gonzales, the Ninth Circuit that mere inference is insufficient to support a denial of asylum. Singh is an Indian Sikh who claims he left India after being detained and beaten several times by Indian police.  He entered the U.S. through Canada, where he had been briefly detained.  While there, he was fingerprinted and sign some documents. 

Investigators attempted to obtain the Canadian file, but Canada would not release it without Singh’s permission.  Singh refused to release the file, claiming he feared his family in India would be killed if the person who had helped him get to Canada learned of it.

The Immigration judge denied the application for asylum because of Singh’s refusal to release his Canadian file.  The judge acknowledged the file could confirm the claim of persecution, but also noted the file could contain contradictory.  

The Court held that the evidence did not support the denial, where the IJ did not make any finding of lack of credibility in Singh’s testimony, but instead, relied only on the fact of Singh’s refusal to release his Canadian file.

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In Tang v. Gonzales, the Ninth Circuit granted a petition for review of a denial of a grant of asylum. Tang had sought asylum from China due to the forced termination of his common law wife’s pregnancy.  Forced abortion results in a statutory entitlement of asylum for the woman and her partner. Tang presented evidence that his wife was required to submit to a gynecological examination by her employer, was  found to be pregnant, was physically taken by the employer to the medical facility, and suffered an abortion performed without anesthesia.   The Court rejected the immigration judge’s (IJ) findings that the abortion had not been forced Tang and his wife had not protested, physically resisted, or attempted to go into hiding. The Court relied upon the facts that the examination had been mandatory, the employer required the abortion, the employer physically took the wife to the facility, and the abortion was performed without anesthesia to find force was established.

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In Kharana v. Gonzales, the Ninth Circuit held that an alien cannot “buy down” the value element of an “aggravated felony” as defined by the Immigration and Nationality Act (“INA”).   Kharana, a lawful resident alien, pleaded nolo contendre  to charges of defrauding victims of amounts greater than $10,000.  Immigration authorities commenced removal proceedings, due to her conviction of felonies involving loss to the victims of more than $10,000.   She subsequently made those victims whole through restitution, and argued her victims had therefore no sustained losses greater than $10,000. The Court held that the INA definition applies to the conviction, and subsequent restitution cannot alter the fact of conviction, particularly as Kharana repaid her victims only after her schemes were discovered and she faced criminal penalties.

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In Urzua Covarrubias v. Gonzales, the Ninth Circuit held that an alien’s assistance to another alien to enter the country unlawfully statutorily barred an alien from showing the  “good moral character”  necessary to avoid involuntary deportation. 8 U.S.C. 1182 precludes a finding of good moral character where an alien knowingly . . . encouraged, induced, assisted, abetted[ ] or aided” an alien to unlawfully enter the U.S.   The definition of such assistance is the same as that used for the criminal alien smuggling statute, 8 U.S.C. 1324 – meaning that such assistance continues until the initial smuggler ceases to transport the alien. Here, Urzua knowingly aided his brother by agreeing to help pay for his transport.

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In Landine-Zavala v. Gonzales,  the Ninth Circuit held that an alien’s formal exclusion from the country resulted in the termination of the alien’s physical presence in the U.S.  

The only remarkable thing about this stunningly obvious case is that the opinion was nine pages long.

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In addition to U.S. v. Curtin, discussed in the previous post, the Ninth Court issued the following opinions yesterday:

In Gama Puga v. Chertoff, the Ninth Circuit dismissed the petition for habeas brought by an alien who had been removed. The petitioner claimed for the first time in his petition he had received ineffective assistance of counsel with respect to his asylum application. Applying the theory of prudential exhaustion, the Court dismissed by applying the theory for failure to exhaust administrative remedies. Allowing a claim of ineffective assistance of counsel to be raised for the first time in a petition for judicial review would encourage the bypass of administrative scheme.

In U.S. v. Dang, the Ninth Circuit held that the Department of Homeland Security’s regulation requiring a determination that good moral character be assessed in naturalization proceedings is neither unconstitutional nor ultra vires. 

In U.S. v. Jeremiah, the Ninth Circuit upheld the revocation of supervised release. The Court rejected the defendant’s claims that his arrest was invalid, that he was denied a preliminary hearing, that there was insufficient evidence to revoke his supervise release and that the conditions imposed upon his new sentence of supervised release were improper.

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The Ninth Circuit issues three opinions today:

In Spry v. Thompson, the Ninth Circuit held that state programs expanding medical coverage to populations ineligible for Medicaid are not bound to the same premium and copayments offered under Medicaid.  The decision determines that, while a deviation from Medicaid requirements generally requires a waiver from the Secretary of Health and Human Services, that waiver is not required where the deviations are for person ineligible for Medicaid.

In U.S. v. Meiners,  the Ninth Circuit upheld the fifteen year sentence imposed following the defendant’s plea of guilty to four counts of advertising child pornography. The Court rejected the 8^th amendment challenge, finding the offense to be one that threatens to cause grave harm to society.

In Saravia-Paguada v. Gonzales, the Ninth Circuit denied a petition to review an order of deportation. The petitioner is a legal permanent resident (LPR) who came to the U.S. as a child. He was twice prosecuted for drug related offenses, 1988 and 1992, and served a total time of incarceration of six years and five months. Deportation proceedings were commenced in 1990, but he had sought discretionary relief. However, between the time of is two prosecutions, an amendment to immigration laws eliminated discretionary relief from deportation for anyone who has served more than five years on a felony conviction. Petitioner’s second conviction resulted in his exceeding the five year limit.  

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In Montes-Lopez v. Gonzales, the Ninth Circuit held the Board of Immigration Appeals (BIA) erred in failed to determine whether the Petitioner’s right to counsel during proceedings before the immigration judge (IJ) had been violated. The BIA had affirmed the IJ’s decision without discussion of Petitioner’s claim.  The Court remanded the matter to the BIA for determination of the claim.

In another immigration matter, Chaidez v. Gonzales, the Ninth Circuit issued an amended opinion, clarifying that the matter was remanded. Otherwise, the outcome is unchanged from the original opinion.

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In Pedroza-Padilla v. Gonzales, the Ninth Circuit found that a waiver of inadmissibility does not also waive a legalization requirement that an alien reside continuously in the U.S. since January 1, 1982.  Pedroza-Padilla had been deported in 1985, and therefore, cannot satisfy the residency requirement.

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