Sanchez v. Mukasey (9th Cir., 10/9/08, No. 04-75584)
KOZINSKI, Chief Judge
"Upon the vote of a majority of nonrecused active judges, it is ordered that
this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."
The 9th Cir found that smuggling one's own spouse - which triggers inadmissibility under 212(a)(6)(E) - does not bar good moral character because it is waivable by 212(d)(11). It found that the analysis at Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005), was not dicta, and thus, controlled. Wallace, writing separately, agrees that Moran probably governs, but thinks that it was wrongly decided and should be reheard en banc.
Delgado v. Mukasey (9th Cir., 10/8/08, No. 03-74442)
CANBY, Siler, Berzon (D)
Petitioner is an El Salavadoran who has been in the U.S. for 20+ years. Subsequently convicted three times for DUI, he was placed in removal in July 2001. Petitioner conceded removability, and requested asylum, withholding of removal, CAT withholding and deferral, NACARA cancellation, and suspension of deportation. The IJ denied CAT deferral on the merits and determined that the 3 convicitions were "particularly serious" crimes, although not agg felonies, and petitioner was thus precluded from asylum, withholding of removal, and CAT withholding. The IJ also denied suspension and NACARA cancellation, although those two decisions were not appealed.
The 9th Cir. held:
1. The "particularly serious" crime bars to asylum and withholding are under separate provisions of the INA, but (a) the withholding of removal section, 1231(b)(3)(B), permits a case by case adjudication that a crime is particularly serious even if not an agg felony; and, (b) the particularly serious crime section for asylum purposes, 1158(b)(2)(A)(ii) and (B)(ii), allows ad hoc decisions and does not require that the crime be found by regulation to be particularly serious.
2. The court has no jurisdiction to review the merits of the BIA's determination that DUI convictions constitute particularly serious crimes, citing 1252(a)(2)(B)(ii).
3. Substantial evidence supported the denial of CAT withholding and deferral.
The dissent, in a thirty page opinion, argued "the only viable construction of the 'particularly serious crime' provision of § 1231(b)(3)(B), the withholding version, is that only aggravated felonies can be 'particularly serious crime[s].' And the only viable interpretation of the asylum 'particularly serious crime' provision, § 1158(b)(2)(B), is that the Attorney General can make non-aggravated felonies 'particularly serious crimes' only through regulation, not on a case-by-case basis."
As to the jurisdiction issue the dissent states this decision "is directly in conflict with Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). Morales held that asylum issues generally are reviewable, even when committed to the Attorney General’s discretion, because of an express statutory provision pertaining only to asylum decisions."
Granados-Oseguera v. Mukasey (9th Cir., 10/7/08, No. 03-73030)
Per Curiam: Fletcher, Tashima, Callahan
The 9th Cir. withdrew its earlier 2006 decision, 464 F.3d 993, remanding this case to the BIA to reconsider its denial of petitioner's motion to reopen based on ineffective assistance of counsel and denied this Petition for Review. The government here had filed a petition for rehearing based on its failure to tender a complete administrative record in the case and claimed the court's earlier decision premised on the incomplete record was incorrect.
The BIA had affirmed the IJ's decision denying cancellation and granted petitioner voluntary departure of 30 days. Peitioner's counsel filed a Motion to Reopen with the BIA 60 days after the expiration of the voluntary departure period.
1. The 9th Cir. held that petitioner's claims were not moot due to an abandonment of the I-140 petition.
2. The 9th Cir. next held that the BIA's denial of the Motion to Reopen was not an abuse of discretion. It upheld the BIA's three stated reasons for denying the MTR: (1) the IAC claim did not trump the statute's prohibition of discretionary relief if the petitioner overstays his voluntary departure period (the "exceptional circumstances" forgiveness being written out of the INA by IIRIRA); (2) petitioner's counsel had sought an extension of the VD from the wrong entitey and there was no basis to permit an untimely filing (counsel had to request an extension of the VD from the District Director, not INS officers); and, (3) petitioner had not shown, as required for a successful MTR, a prima facie case of eligibility for relief because there had been no I-485 AOS request filed to go along with the earlier filed I-140 from petitioner's employer.
3. Petitioner had also argued that his earlier counsel reassured that overstaying his VD would be excused and that counsel had failed to file the I-485 before or with the late filed MTR.
Martinez v. Mukasey (9th Cir., 10/6/08, No. 04-72975)
TROTT, Noonan (C), Pregerson (D)
Petitioner had filed affirmatively for asylum based on political opinion as a member of a persecuted student group in Guatemala; in removal proceedings before the IJ he changed his ground for asylum to persecution because he was gay and admitted he'd lied earlier about his student activities in both his initial app and to the Asylum Officer. This case had been remanded by the 9th Cir. in 2003 to the BIA because the BIA failed to state cogent reasons for rejecting petitioner's testimony; while the BIA agreed with with the IJ's adverse credibility finding it did not adopt that finding. Petitioner also had filed a MTR to consider his CAT claim. The 9th Cir. denied both grounds of the PFR.
The 9th Cir. stated that its earlier opinion was not the law of the case since it had remanded to the BIA as to the reasons the BIA had upheld the IJ's denials of asylum/withholding/VD. The BIA on remand had stated petitioner's testimony was not credible due to his earlier lying and his admissions of those lies. The court here then said its misunderstanding of the initial BIA decision shouldn't benefit petitioner.
The concurrence notes that to adopt its earlier decision, which would have led to a favorable decision for petitioner, was manifestly unjust and thus within an exception to the law of the case doctrine.
The dissent points out that the question of whether the false statements were a sufficient reason to deny petitioner's asylum app had already been decided earlier by the 9th Cir. (No, they weren't sufficient reason). Also, there was not manifest injustice since petitioner's failure to allege persecution based on sexual orientation was not illogical given the state of the law at the time he came to the U.S. and applied for asylum.
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.
Ninth Circuit 
