Appellate Law & Practice

CA1: Indonesian Christian not that oppressed

Gosal v. Mukasey, No. 07-1498 (unpublished).  In this immigration denial, the petitioner is an Indonesian Christian.  The IJ says he didn’t seem that oppressed.  There is some immigration procedure nerdery here: (“Gosal objects that the Board, in considering his motion, required that he rebut its original decision. But his argument rests on a misunderstanding of the Board's decision in Matter of Cerna, 20 I. & N. Dec. 399 (BIA 1991). What the Board meant in the passage Gosal cites, id. at 402, is that it will revisit its decision afresh, on the original record, if an error is shown to flaw its initial order. But to obtain reconsideration, the movant must still demonstrate that the original decision "was defective in some regard.”)

CA1: Condo bankruptcy fight club

Bourne v. Northwood Properties, No. 07-1146.  This is a Chapter 11 bankruptcy case involving codos.  To many lawyers, condo law touches their hearts deeply, because it is one of the only injustices that remotely impacts them.  Anyway, this case holds that Massachusetts General Laws chapter 183A, section 5(b)(1) (an a condominium owner constructively consents to the addition of further units “if the master deed at the time of the recording of the unit deed . . . made possible an accurate determination of the alteration of each unit's undivided interest that would result therefrom.").  Taking an Eerie guess, the First holds that in this case Northwood successfully extended its development rights because the objecting condo-owners (that were also creditors) knew that the master deed provided for additional units.  The First rejects the idea that there must be an exact way to calculate what the new interests are, because that, would run counter to the legislature’s intent.  The court finishes by explaining the plight of the staving refugees developers by saying “Further, in practice, the district court's reading would tie the hands of developers, making it impossible for them to respond to changing market conditions. This would seriously jeopardize developers' ability to secure financing to complete projects. This in turn could have an adverse impact on present owners of units.”

If you don’t live in a condo, you are not a real American.  The material below the fold is for real Americans only.  (Details on this condo complex can be found here.  Aerial maps can be found here.)

KS FPD: AL&P is nice

After we were de-blogrolled at VC Kansas Federal Defender writes that AL&P is “a very nice blog that we've added to our blog roll.”

This blog is quite interesting.  It is run by Federal Public Defenders in a place called Kansas.  It turns out, that, get this, Kansas is a state with its own system of government as well as courts and roads!  Who knew?  Moreover, in the funny-facts section of the CIA world factbook, Kansas is slightly bigger than Belarus.  Strangely, another funny-fact section of the CIA factbook includes a transcript of me ordering Chinese food!

In the future, we that this blog will aid in the study of Kansas law more to see what such a heretofore undiscovered land can teach us about ourselves.  Apologies to The Onion. 

CA1: Two immigration denials

Here they are:

• Tjong v. Gonzales, No. 07-1167.  The petitioner is from Indonesia.  He seeks review of a denial of a motion to reopen on the basis of changed circumstances, but the First says that the BIA had a rational explanation.
• Wang v. Mukasey, No. 06-2749.  The petitioner is from Laos, but a citizen of the People’s Republic of China!  She has an American-born daughter.  She claims that she was oppressed because of the Chinese government’s heavy-handed family-planning policies.  She has one child but wants to have more.  But, the IJ held that it wasn’t clear that those policies applied to the foreign-born, and besides the tax on too many children doesn’t seem to be as widely imposed as previously thought.  Upheld.

CA1: no constitutional right of non-voters to speak at town meetings

Curnin v. Town of Egremont, No. 07-1876.  Do property owners, but non-voters have a right to speak at a town meeting?  No!  While reviewing a denial of a preliminary injunction, the First holds that “The First Amendment does not give non-legislators the right to speak at meetings of deliberating legislative bodies, regardless of whether they own property or pay taxes.” 

Sure, the First talks about how great New England town meetings are.  But, they are not public forums, and the people speaking (i.e. the voters) are doing so as legislators.  Citing Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283-84 (1984), the First says that forum analysis doesn’t cut it.  But, the First starts going a little crazy and says that they are reluctant to interfere with legislatures rules because of ths speech and debate clause which almost provides this immunity to state legislative bodies.  Besides, the plaintiffs could still let the voters know how they feel.

Stand up for your rights and keeping reading.  Now sit down.

CA1: child pr0n sadomasochistic guideline enhancements

US v. Hoey, No. 07-1454.  This appeal involves U.S.S.G. § 2G2.2(b)(4) ( possession of sadistic or masochistic child pornography).  The underlying conviction is under 18 U.S.C. § 2252A(a)(5)(B).  Each of his arguments fails.  Know your safewords and read on. 

Amazon as a hero of the First Amendment

In celebration of the fact that VC  de-blogrolled AL&P for my repeated observations about its namesake’s failure to comment on Higazy-gate, I provide another First Amendment story.  It seems that the phone companies were all too eager to let the government have unfettered access to our communications without so much as a thought as to what the law actually was, Amazon.com (like Google) didn’t just give it up – even with a grand jury subpoena. 

Because of Amazon’s upstanding actions, I will now buy three things from Amazon that are priced above the competition’s price.  Each of those things will be in seperate orders, each less than $25, so that Amazon doesn't have to pay shipping!

Anyway, a Grand Jury wanted the records of a target bookseller in a tax evasion case.  Amazon complied but refused to turn over the names of the buyers "citing the buyers' First Amendment right to maintain the privacy of their reading choices."  Some dickering ensues as Amazon and the government make some kind of effort to keep each other happy.  (I agree with the judge and the government that booksellers per se do not have a 1st amendment interest in keeping their business records secret unless the booksellers are intimately involved in whatever idea is being expressed.  Unlike the government and the judge, I believe that the readers do have a First amendment right to keep their reading choices secret.  I am now entertaining the notion that online booksellers have a business interest in keeping their necessarily credit-card records secret.  And, for the record, I hate tax cheats.)  Magistrate Judge Stephen L. Crocker writes:

But it is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else. In this era of public apprehension about the scope of the USAPATRIOT Act, the FBI's (now-retired) "Carnivore" Internet search program, and more recent highly-publicized admissions about political litmus tests at the Department of Justice, rational book buyers would have a non-speculative basis to fear that federal prosecutors and law enforcement agents have a secondary political agenda that could come into play when an opportunity presented itself.  Undoubtedly a measurable percentage of people who draw such conclusions would abandon online book purchases in order to avoid the possibility of ending up on some sort of perceived "enemies list."

...Taken a step further, if word were to spread over the Net–and it would–that the FBI and the IRS had demanded and received Amazon's list of customers and their personal purchases... the chilling effect on expressive e-commerce would frost keyboards across America. Fiery rhetoric quickly would follow and the nuances of the subpoena (as actually written and served) would be lost as the cyberdebate roiled itself to a furious boil. One might ask whether this court should concern itself with blogger outrage disproportionate to the government's actual demand of Amazon. The logical answer is yes, it should: well-founded or not, rumors of an Orwellian federal criminal investigation into the reading habits of Amazon's customers could frighten countless potential customers into canceling planned online book purchases, now and perhaps forever....

Let me re-emphasize that I have no concerns about the government's good faith and intent in the instant case. Amazon, however, has a legitimate concern that honoring the instant subpoena would chill online purchases by Amazon customers.

The judge approves a method whereby Amazon will seek volunteers to give up their information to the government. 

CA1: credibility and asylum discussed

Segran v. Gonzales, No. 07-1295.  This is a denial of a Liberian’s petition for review of an Asylum petition!  This seems to be mostly on credibility grounds.  The First then goes on to explain that “not every adverse credibility determination merits judicial allegiance. Despite the deferential standard of review that obtains — substantial evidence — an inquiring court's role is not reduced to that of a rubber stamp.... What is more, an adverse credibility determination cannot depend on trivia but, rather, must implicate matters of consequence”  Oh, for a minute there, I thought the First was, indeed, rubber-stamping things. 

CA1: mathematical error at sentencing was plain error and appeal waiver was unenforceable

US v. McCoy, No. 06-2138.  This is a pretty straight-forward mortgage fraud case.  At sentencing, pursuant to U.S.S.G. § 2B1.1(b)(1) (2001), the District Court judge calculated the loss by “subtracting from the amounts of the fraudulently obtained mortgage loans the amounts that the conspirators had paid for the properties--treating the latter as a proxy for their value as security. He rejected McCoy's position that the subtracted figure should be the often higher amounts recovered by the banks through foreclosure or other means.”  But the defendant, on appeal found a mathematical error.  The government says that an appeal waiver was in effect.  The First says that the text of the waiver doesn’t apply to a misapplication of the guideines.

While the First says that the District Court’s mechanism of determination was “reasonable” enough, and he had a good estimate of the value, the First holds that the mathematical error was actually plain!  Because the guy was going to spend an additional year in jail because of the conceded error, the First says that in its “discretion” is going to remand the case.

Problem: Is plain error really that discretionary?  Would it be an abuse of discretion to say, “Sure everyone agrees that the District Court judge made a mistake and but for that mistake he would have gotten less time in jail, but in our discretion we say, ‘Screw you’”?

CA1: illegal immigrants need to exhaust all the abuse their claims for abuse

Aguilar v. U.S. Immigration and Customs Enforcement, No. 07-1819.  Judge Seyla uses big words to say that the District Court and First Circuit lack jurisdiction to hear claims of many illegal immigrants that were working at a Department of Defense Contractor.  Many bad things happened.  Selya says that they should not have happened.  He condemns the government.  But, then he sides with them.  So, Selya sends a clear message to the government: do whatever you want.  Be as ham-handed as possible.  You have the green light to do anything you want.  Read on.