CA1 (2.08.05)

Guess what?

• Dismissals for lack of jurisdiction should be without prejudice.
• Document Warrants are Okay (if there is a nexus between the place of selling the drugs and the house)
• People CAN be convicted under the Hobbs Act
• Sometimes IJs get affirmed (and there is no property interst in readjustment of status)

Read on...

 

Dismissals for lack of jurisdiction should be without prejudice.

Torres-fuentes v. Motorambar, No. 02-2592, orders the District Court to change a dismissal with prejudice to a dismissal without prejudice.  The petitioner failed to respond to a motion to dismiss (challenging the amount in controversy) and therefore their argument was forfeited (not waived.)  However, the court concluded that dismissals for lack of jurisdiction should generally be without prejudice.

Document Warrants

US v. Ribeiro, No. 03-2218.  While this case is a fourth amendment one following a conditional guilty plea, it is worth nothing that it affirms a sentence under involving U.S.S.G. § 5K2.13 (downward departure for diminished capacity).  The defendant challenged whether the warrant for his home which sought not drugs but "records, currency, baggies, and other drug paraphernalia" had a sufficient nexus to any drug dealing.  The court rejected his nexus argument, pointing to the fact that the police were able to either see him go from his home to the place of the buy, or could infer that he did by the time elapsed.  Because of the ease at which he was able to go from his home to the place of the drug buy, there was apparently enough of a nexus to establish probable cause.

The First Circuit went on to question why such a "document" warrant was used.  In fact, the detective said, "It was determined by the U.S. Attorney's Office that we had enough to go ahead with a documentary search warrant, but maybe not necessarily enough to search for drugs."  However, they did not find the use of such a warrant to be fatal.

The search turned up drugs that were not in plain view, and the district court accepted the police's version of what was in "plain view."  (Of course.  Police are better people, and besides the called the US Attorney while they were conducting the search.)

Enough for a Conviction under the Hobbs Act

US v. Maria De Los Angeles Rivera Rangel, A/k/a Angie, Nos. 03-2544,  04-1791, Despite the fact that the defendent has a nicname, it appears she was an executive assistant to the Governor of Puerto Rico.  She was convicted of of count of conspiracy to interfere with commerce by extortion induced by fear of economic harm and under color of official right, in violation of 18 U.S.C. § 1951 ("the Hobbs Act"), and one count of aiding and abetting the underlying offense, in violation of the Hobbs Act and 18 U.S.C. § 2.  But the district court granted her a judgment of acquittal, which the First Circuit reversed.

The court held that under  18 U.S.C. § 1951(a), even a fear of a small economic loss is sufficient, and the victim, it seems had some fear of economic loss (under color of official right).

The court also noted that hat it "is irrelevant that the defendant lacked (and that victim knew she lacked) the ultimate authority to issue permits or otherwise affect his government business), and that since they some of the transactions at issue were with the mainland, it obviously involved interstate commerce.

Finally, it appears that the government turn over information about a plea bargain of one of their witnesses, but the first circuit, even in light of Brady v. Maryland, 373 U.S. 83 (1963) held that to be harmless error.  Therefore, the judgment of acquittal, and conditional new trial are vacated.

Diab v. Ashcroft, No. 04-1584, In this CAT case, the IJ held that the petitioner, an Egyptian Copt had neither established past persecution based on a protected category, nor a well-founded fear of future persecution, and the First Circuit affirms.  This is pretty amazing because IJs seem to be getting reversed all the time for basic things -- like failing to make adequate findings of fact.  The petitioner, who lived most of the time in Greece claimed that he was oppressed because a Muslim extremist in Greece stabbed him (and was sentenced to jail).  Diab visited Egypt a few times without incident.  This seems to be pretty much a failure of proof, and perhaps a failure by Diab's lawyer.

IAC before an IJ

Jupiter v. Ashcroft, No. 04-1649.  Talk about aliens.  Jupiter is from Haiti, and so will appreciate Judge Seyla's use arcane English words, because that is how they speak down there.  He seems to have vacillated between either wanting to leave the country on his own (i.e. "voluntary departure") or seeking asylum.  After he asked to reopen his petition, "The IJ denied the motion 'without prejudice,' noting that the petitioner had 'failed to comply' with the procedural requirements attendant to the filing of a motion to reopen premised on ineffectiveness of counsel."  Nevertheless, he didn't leave.  In fact, he married an American, and fathered a child.  His wife "wife filed an I-130 'immediate relative' petition in an attempt to lay the groundwork for adjusting the petitioner's status to that of a lawful permanent resident."  On a hearing pursuant to the I-130, he asked to reopen the underlying petition, and he he argued that exceptional circumstances prevented him from complying with the deadline, but the IJ denied it. The first circuit held that he had filed too many motions to reopen, as the limit under 8 C.F.R. § 1003.23(b)(1), and it also affirmed the IJ's alternative grounds, that under 8 U.S.C. § 1229c(d), a failure to voluntarily depart renders someone ineligible for any further relief for ten years.

Strangely, at the end of the opinion, the court remarks that "adjustment of status" is not an entitlement, and therefore doesn't implicate the fifth amendment.