Magasouba v. Mukasey (9/30/08)

Lynch, Selya, Howard

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.

Odmar v. Mukasey (10/1/08)

Lynch, Boudin, SCHWARZER 

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.

Read Opinion Here...

Castaneda v. Henneford (9th Cir. 10/2/08)

MSMITH, Reinhardt, Berzon

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. 

Read opinion here: 

USA v. Cardenas-Cardenas (5th Cir. 9/25/08)

PER CURIAM Jolly Benavides Haynes

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.

http://www.ca5.uscourts.gov/opinions/pub/08/08-40210-CR0.wpd.pdf

U.S. v. Sandoval-Ruiz (5th Cir. 9/26/08) 

HIGGINBOTHAM, Stewart (only two judges)

The Government sought a sentence enhancement in illegal reentry case, arguing that Defendant's prior conviction for Illinois delivery of drugs was an aggravated felony. He argued that IL accomplice liability was broader than the federal scheme, because it included "solicitation" of the crime, so not an AggFel. The 5th Cir held that under Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), there was no substantial difference between IL law and the federal law.

[Illinois] Solicitation is further defined as “to command, authorize, urge, incite, request, or advise another to commit an offense.” The practical meaning of this list of verbs does not differ from the practical meaning of the federal list in such a way as to make the Illinois statute more broad. For instance, a defendant under federal law found to have factually “requested” or “advised” a crime could reasonably be found guilty of having “induced” or “counseled” the crime. * * * *

The word “solicit” in the accountability law of Illinois does not create a separate offense based on a solicitation or an offer to sell. As used, solicit refers to conduct that subjects a defendant to liability for the substantive delivery offense if the other elements of accountability, including intent and commission of the offense, are satisfied. In contrast, statutes criminalizing an offer or solicitation create separate crimes from the substantive delivery offense that are complete upon the solicitation, do not require commission of the delivery offense, and do not rest upon imputation of the acts of the principal to the solicitor. Whether a separate offense of criminal solicitation would support enhancement under the Guidelines is not presented and we do not reach that question.

US v. Gonzalez, 484 F.3d 712 (5th Cir. 2007), distinguished.

Read opinion here:

U.S. v. Phillips (10th Cir. 10/2/08)

McCONNELL Henry Brobry

The defendants were an immigration attorney and his paralegal/wife, who had filed an I-589 and ETA-750s by signing on behalf of their clients (without consent, apparently) - the latter, on 4/30/01, just before 245(i).  The CtApp found that the jury could reasonably have found Mr Phillips liable as an accomplice for his wife's actions, based on their more-than-paralegal relationship, his role as legal supervisor, and his involvement with one fake signature - but his status as solo practitioner would not have been enough.

However, counts charging forgery under 1546(a) were reversed, because 1546(a) doesn't apply to applications.

Section 1546(a) prohibits forgery of a document “prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States.” (emphasis added). As explained above, filling out the ETA-750 is the first out of three steps that must be completed before the alien can receive a visa under U.S.C. § 1182(a)(5)(A)(I). It is this visa, not the ETA-750, that has been prescribed for entry into, and stay or employment within, the United States. An alien seeking to cross the border or to prove eligibility for employment would get nowhere by flashing an ETA-750. An ETA-750 is no more a “document prescribed for entry . . . or as evidence of authorized stay or employment” than an application for a credit card is a credit card.

The 10th Cir is thus in disagreement with the 4th Cir, which ruled to the contrary. United States v. Ryan-Webster, 353 F.3d 353, 357 (4th Cir. 2003).

Read opinion here: 

Johnson v. Mukasey (7th Cir. 10/1/08)

POSNER Rovner Wood

The 7th Cir held that motions to reconsider, like motions to reopen, are covered by the bar at 1252(a)(2)(B)(ii) to judicial review. 

We held in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), and repeated in Kucana, that the statute applies to discretionary decisions authorized by regulations that are based on and implement the Immigration and Nationality Act, as well as by the Act itself. The regulation that we cited in Kucana as satisfying these requirements, 8 C.F.R. § 1003.2(a), applies both to motions to reopen and to motions to reconsider. 

Petitioner argued that BIA should have equitably tolled his time to move for reconsideration.  But CtApp found that the Board hadn't misunderstood its power to permit equitable tolling - and the decision of whether to equitably toll required the application of law to fact, which is not a "pure" question of law for which review is permitted by 1252(a)(2)(D).  Therefore, no jurisdiction.

Read opinion here: 

Gertsenshteyn v. Mukasey, 2nd Cir. (9/25/08, case nos. 07-1183-ag)

CALABRESI, B.D. Parker, Underhill

Petitioner, a citizen of Ukraine who was convicted of violating and conspiring to violate 18 U.S.C. § 2422(a), prohibiting the enticing of individuals to travel in interstate or foreign commerce to engage in prostitution, filed PFR following BIA’s determination that he had been convicted of an aggravated felony.  In order to constitute an ag fel under 8 U.S.C. § 1101(a)(43)(K)(ii), INA § 101(a)(43)(K)(ii), the crime of which he had been convicted had to have been committed for commercial advantage.  The IJ, affirmed by the Board, held that his crime was an ag fel, relying on evidence in the record along with petitioner’s testimony, to conclude that the crime had been committed for commercial advantage, despite the absence of this element from the criminal statute in question.  The 2d Circuit reversed, holding that the Board had erred in considering evidence outside the record of conviction to find that petitioner had committed his offense for commercial advantage and rejecting the Board’s reasoning and gvt’s arguments that a new approach was warranted here.  The court then remanded to the Board to consider whether, within the legal framework that remained the law in the 2d Circuit (i.e., following either the categorical approach or modified categorical approach where the statute is divisible), petitioner’s conviction was an ag fel. 

DETAILED SUMMARY AFTER THE JUMP

Read opinion here:  

See previous blog entries summarizing other circuits' (mostly contrary) opinions on this issue:

Ali v. Mukasey (7th Cir. 4.4.08) (finding that the Board is not obligated to apply a categorical test to the CIMT determination)

Nijhawan v. Atty Gen'l (3d Cir. 5.4.08) (finding Taylor inapplicable to 10K loss in fraud AggFel case)

Arguelles-Olivares v. Mukasey (5th Cir. 4.22.08) (permitting use of PSR to show amount of loss in fraud case)

Kawashima v. Mukasey (9th Cir. 7/2/08) (finding 10K loss in 101(a)(43)(M) is element and was not proven, with concurrence urging rejection of strict application of Taylor's categorical test to immigration law, and particularly regarding 101(a)(43)(M).)

Rajah v. Mukasey, 2^nd Cir. (9/24/08, case nos. 06-3493-ag)

CALABRESI, Winter, Walker

Petitioner with pending labor cert challenged denial of continuance by IJ, affirmed by the BIA.  Petitioner, who is also a petitioner in the court’s other 9/24/08 decision regarding the  legality of the NSEERS program, was placed into proceedings in April 2003, following his registration with INS as part of the NSEERS program.  An application for labor certification had been filed on his behalf by his employer with the DOL in April 2001.  This certification was finally approved shortly before oral argument in this case, on July 11, 2007. 

The court considered whether the denial of a continuance constituted an abuse of discretion and ultimately concluded that this was a case where remand to the Board was abuse or lack of abuse of discretion was unclear and where clear standards, set by the BIA, would be extremely helpful.  The court thus vacated the Board’s order and remanded to the BIA to come up with such standards.  

MORE AFTER THE JUMP

Read opinion here:  

WINTER, Walker, Calabresi

In consolidated case of 4 individuals placed in removal proceedings and ordered removed following their registration as part of the post-9/11 NSEERS (Special Registration) program, the Second Circuit rejected all of petitioners’ legal challenges to the NSEERS program and the deportation proceedings brought against them. In short, the court found (1) statutory authorization for NSEERS is found in the registration provisions of the INA (2) the gvt was not required to follow notice & comment as set forth in the APA because the foreign affairs exemption applied (3) the program passed rational basis scrutiny and thus did not violate equal protection (4) there was no 4th or 5th amendment violation requiring suppression of evidence (5) although regulatory violations did take place, these violations did not warrant invalidation of the deport orders, suppression of evidence, or termination without prejudice.

With the exception of petitioner Rajah, whose case was remanded according to Judge Calabresi’s separate opinion in case no. 06-3493-ag, the court denied the PFRs.

FOLLOW LINK BELOW FOR DETAILED SUMMARY

Full opinion available here.