KAVANAUGH, Randolph, Williams (concurring in part)
Jennifer Harbury sued on behalf of herself and Efrain Bamaca, alleging individual liability on the part of CIA employees complicit in the torture and death of her husband. The DC found the suit barred by the Political Question Doctrine, as it would require the courts to assess whether the conduct should have occurred. Alternately, it found that the CIA officials were acting in the scope of their employment, so that the FTCA applied; and the FTCA bars suits re actions that occurred abroad (the Court said that her emotional distress was derivative of the actions abroad). Finally, in a footnote, the Court found that if her claim was a TVPA action, if would still be barred by the Political Question Doctrine.
The 8th Cir denied the Govt motion for summary dismissal. The Court noted that even though some waiver aspects are discretionary, it has jurisdiction over legal claims relating to discretionary determinations, and particularly the appropriate legal standard for the decision. It also found the fact that marriage fraud would trigger a permanent bar to work in favor of review.
Defendant argued that "necessity" was a defense to illegal reentry, because he had diabetes and needed urgent medical attention to control his blood sugar. Held: necessity is judged on an objective, not subjective basis; and objectively, his claim fails because he could have obtained treatment in Tijuana, his blood sugar level wasn't that high, and hiding in the bushes wasn't an effective way to obtain urgent medical treatment.
The Defendant was a Cancellation applicant, with an EAD and a Social Security number - he had firearms in his house. Court said that the fact that his status was tolerated and that employment was authorized did not eliminate his status as one illegally present; distinguished those granted TPS, as there is a clear difference between being granted TPS and apply for LPR status.
The Supreme Court today denied cert petitions filed in Ali v. Mukasey and Gulati v. Mukasey. Those cases raised a circuit split regarding federal court jurisdiction to review the denial of a continuance. It considered the cert petition in Saravia-Paguada, but did not deny or grant.
In Im, the 9th Cir originally held that a Cambodian man forced to serve as a guard in a Vietnamese-run camp had not engaged in "assistance" of persecution, because his help was "trivial" and more like Jewish prisoners forced to cut the hair of other concentration camp inmates than like a prison guard. Today, the Court withdrew that decision in light of the Supreme Court's grant of certiorari to decide whether an individual forced to act as a guard has engaged in persecution, in Negusie v. Mukasey.
The SG has now filed its opposition to the cert petition in Yang v. Mukasey, which argues that where China forbids people to marry until age 25, and they enact a "traditional marriage," that population-control-based persecution of the "near-spouse" qualifies as if it were persecution of the applicant; just as for a legally married spouse.
The SG's response had two interesting points: (a) that the Board's decision in Matter of S-L-L-, 24 I. & N. Dec. 1 (2006) would trigger Brand X reconsideration in circuits which have reversed the BIA on this issue, so that the current circuit split is not unchangeable; and (b) that the AG has certified this issue to himself, which may also eliminate the circuit split.
The 4th Cir found civil ICE detention not to count for purposes of the Speedy Trial Act. It agreed that there is a "ruse exception" if the Govt uses the civil detention as a cover for criminal detention, but found that his civil detention was for the purpose of executing the reinstated removal order, not to keep him around to be charged criminally.
The 4th Cir reached the (obvious?) conclusion that Lopez v. Gonzales governed the question of whether to apply a sentencing enhancement for a prior conviction of possession of cocaine. Vacated and remanded.
Notwithstanding the 8th Cir decision in Tamenut, the Court had jurisdiction to consider constitutional arguments regarding the Board's refusal to reopen sua sponte - but grant of Asylum to his (estranged) brother didn't constitute a deprivation of fundamental fairness, where he didn't know about it until proceedings were terminated.
Falaniko v. Mukasey (10th Cir. 4/9/08) (unpublished)
PER CURIAM Briscoe, Baldock, Lucero
The 10th Cir issued a 14 page unpublished decision, analyzing 212(c), and rejecting the 2d Cir's approach in Blake v. Carbone, 489 F.3d 88, 94 (2nd Cir. 2007). The 10th Cir agreed with the majority of circuits that the EqPro analysis must focus on the ground of removability / inadmissibility, and not simply the criminal offense.
Immigration Litigation Update 
