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Kadri timely applied for asylum because of the persecution he suffered in Indonesia due to his sexual orientation. Kadri was a factor in Indonesia who was effectively prevented from practicing because of rumors circulating within the medical community that Kadri was a homosexual. The IJ found Kadri credible, found past persecution and granted asylum because he was deprived of the ability to make a living and found a reasonable person in Kadri’s position would have a fear of future persecution based on “an attitude, atmosphere and an environment of hostility towards the gay community, which is so discriminatory and so pervasive as to rise to the level of persecution”.
DHS appealed and the BIA reversed the IJ ‘s opinion finding that economic deprivation was not enough for past persecution. The BIA also stated that “closeted homosexuality is tolerated in Indonesia” and that as the State Department report on Indonesia did not include information on violence against homosexuals, there was not enough evidence of future persecution.
The First Circuit noted that the BIA did not dispute the IJ’s finding that Kardi was a homosexual or that sexual orientation is a basis for seeking asylum as a member of a particular social group. The BIA reversed the IJ’s finding that Kadri had not shown that the economic deprivation that he suffered on account of being homosexual amounted to persecution or that such deprivation would be future persecution. Noting that the BIA and sister circuits had not been consistent in establishing what the standard was for a claim of economic persecution until the BIA’s decision in In Re T-Z, 24 I&N Dec. 163 (BIA 2007). The Court remanded the case to the BIA to remand back to the IJ to evaluate Kadri’s case under the In re T-Z standard.
The First Circuit held that a Rhode Island conviction for “forgery, counterfeiting, or alteration of trademark, service mark or identification mark” in violation of R.I.G.L. Sec. 11-17-13(c)(1) does constitute an aggravated felony under 8 U.S.C. Sec. 1101(a)(43)(R) (an offense relating to commercial briery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year) as all of the elements of the Rhode Island offense were include in (a)(43)(R).
Furthermore, the Court rejected Magasouba’s argument that the proper subsection to be applied to his case is 8 U.S.C. Sec. 1101(a)(43)(M) which states that to constitute an aggravated felony a fraud or deceit offense must involve a loss that exceeds $10,000. The Court found that when more than one removability subsection may apply, the government has discretion to proceeds under either or both subsections. It stated that “such discretion would only be limited if one provision was a subset of the other” which is not the case with the provisions at hand.
The Court also rejected the due process challenge that Magasouba attempted to raise relating to the DHS issuing an I-261 rather than dismissing the original NTA and issuing a new one. The charges in the original NTA were not sustained but the court but the IJ did sustain the charges raised in the I-261. Magasouba attempted to argue that if the DHS had dismissed the original notice and issued the new one, it would have been bared by res judicata from raising additional charges based on the same conviction. The Court agreed with the BIA that the I-261 was the “functional equivalent” of filing the same charge on an NTA and that Magasouba had an opportunity to respond to the new charges contained in the I-261.
Finding no jurisdiction to review the IJ and BIA determination that Odmar was presented an exceptional circumstances or changes country conditions to excuse filing for asylum past the one year filing deadline, the Court dismissed Odmar’s appeal on this issue. Additionally, finding that the IJ did not err in finding a lack of past or future persecution, the Court denied Odmar’s PFR relating to his withholding claim.
The Appellants, PHS doctors facing personal liability for horrific mistreatment of a DHS detainee, appealed from a DistCt finding that the FTCA doesn't preclude Bivens liability for PHS doctors. The facts of this case are spectacularly horrific. Castaneda developed penile cancer, but DIHS repeatedly denied him a biopsy to determine that it was cancerous (notwithstanding multiple medical recommendations) over a 10+ month period. The condition worsened. Once he was released, his penis was amputated within a week ("leaving only a two-centimeter stump") - but the cancer had spread, and he died at age 36.
The Court of Appeals explained the difference between simple malpractice (recoverable under FTCA) and deliberate indifference.
While the acts giving rise to a constitutional action might also give rise to one for malpractice, the two are nonetheless quite distinct. In Bivens, the Supreme Court rejected a view of “the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens,” noting that an “agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” 403 U.S. at 391-92.
To describe the allegations in the complaint as averring mere “malpractice” is to miss the point. Castaneda was not a walk-in patient at Defendants’ clinic; neither are Defendants merely alleged to have misread a chart or fumbled a scalpel. The ordinary doctor, no matter how careless, does not hold her patients under lock and key, affirmatively preventing them from receiving the medical care they need and demand. Even when denying his requests for a biopsy in the fall of 2006, DIHS officials were aware that Castaneda “is not able to be released to seek further care due to mandatory hold and[,] according to ICE authorities, may be with this facility for a while.” The Kafkaesque nightmare recounted in Plaintiffs’ complaint, which we assume here to be true, draws its force not only from Defendants’ alleged deliberate indifference, but also from Castaneda’s state-imposed helplessness in the face of that indifference. The element of state coercion transforms this into a species of action categorically different from anything Congress would likely term “malpractice.”
The essential holding of the case is that the FTCA wasn't intended to preempt Bivens liability - contra Cuoco v. Moritsugu, 222 F.3d 99, 107-09 (2d Cir. 2000) - and that it wasn't a "special factor" suggesting that PHS doctors be exempt from Bivens.
In illegal reentry / sentencing enhancement case, the CtApp found that James v. United States, 127 S. Ct. 1586, 1599-1600 (2007), did not overturn United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), which held that burglary of a habitation was a crime of violence. The CtApp first held that the analysis in James was dicta, and second, that the FL offense in James included trespass onto the land (curtilage) around home, whereas TX offense only includes burglary of the actual house.
General Immigration 
