Appellate Law & Practice

CA1: voluntary departure not tolled even if petition reopened

Chedad v. Gonzales, No. 05-2782.  Another bad case from the First today.  This immigration Moroccan immigration status adjustment petitioner, that was married to a newly-minted American, overstayed a voluntary departure order.  He argues, however, that filing a motion to reopen tolls the running of such period, or that the BIA allowing a motion to reopen (and remanding to the IJ) stripped the voluntary departure order of any legal significance.  Sucker!  He loses.  The First acknowledges that they are in the minority, and despite the fact that they are saying that someone that is granted a motion to reopen must leave the country to even have his claims heard, they defer to the government’s arguments because the government’s isn’t a bunch of foreigners.  Therefore, “We read [ 8 U.S.C. ]§§ 1229a(7)(C)(1) and 1229c(b)(2), then, as evincing a congressional intent to make the benefits of voluntary departure available only to aliens who agree to give up the fight and leave the country willingly.”

There is a bunch of stupid rambling about why voluntary departure is so important, and why we need to hurt other people in order to keep it working.  You can skip it. 

Lipez dissents for obvious reasons.  Maybe this will go en banc.

CA1: FRE 408 doesn't apply to government's position in plaintiff's favor

Rodriguez-Garcia v. Municipality of Caguas, No. 05-1847.  This is a Puerto Rican political discrimination case.  Most of it is resolved rather predictably (i.e. was someone really hurt because of their party membership), and did the Puerto Ricans teach us a thing or so about the art of political purges?  But, the First has something to say about FRE 408 (statements made in an effort to compromise), resulting in a new trial.  The First holds that letters that were sent to the plaintiff, which, apparently, they were required to, and offered her reinstated were not in the course of negotiations.  So, when the government’s position is to give up the farm, then it isn’t negotiation.  Finally, on the facts, it was not harmless. 

CA1: First screws up law of conspiracy, laundering, and privacy

US v. Portella, No. 06-1362 affirms convictions for conspiring to distribute cocaine, 21 U.S.C. § 846, and two counts of money laundering, 18 U.S.C. § 1956.  The defendant had argued that there was “insufficient evidence.”  You want to know where this is going.  This is probably one of the worst cases the First has come down with in awhile.

Look at this line, “The Portalla effort to circumvent the jury's common-sense determination is utterly unpersuasive.”  Anyway, a lot of it is fact-specific, regarding who appeared to be helping whom sell drugs and sell“throw-away” cellphones.  (He claims he would have sold a throw-away phone to everyone.)  However, the First gets a little silly, and then declares that “ In addition to the sale of illicit drugs, another obvious goal of the Carrillo conspiracy was the avoidance of police detection.”  I am not sure that avoiding police detection is a crime.  In fact, I think it is every America’s right to avoid police detection. Indeed, it is somewhat disturbing that our cellphones let the government know where we are is quite disturbing, and even more so since Americans are virtually required to carry a cellphone and phone companies seem quite willing to give up this information (and can be legally forced to, anyway).   But, in theory, at least, we have the right to turn off our cellphone if we don’t want the government to know where we are.  (However, I am told some cellphones can appear to be off, when the government has sent a friendly virus to keeping revealing one’s location to the cellphone of an alleged bad guy.)

Keep reading.  If you care.

CA1: a failure to consent to administrative closure may be reviewable

Lopez-Reyes v. Gonzales, No. 06-2505, holds that a Guatemalan asylum petitioner did not have he due process “rights” violated because the immigration judge refused to “close[] or stayed until her father's pending application for asylum was adjudicated, so that she could claim derivative asylum benefits.”  But, “ The IJ adhered to law that an administrative closure may not be granted if it is opposed by either party to the proceedings.”  Moreover, the First points out that administrative closure is not a final order, so the only way she could get it reviewed was by withdrawing her claims, and getting a removal order.

But, the First does a little more.  The government argues that it has the absolute discretion to not consent to an administrative closure.  Citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999), the First explains that 8 U.S.C. § 1252(g), the First comments that the failure to consent to such an action might be reviewable.

Alas, she didn’t make the argument to the BIA, so the First rejects this on a failure to exhaust.

Comment on the First’s Circuit views of a “class of one”

A helpful commentator explains (with lots of cites) that the First might be fixin’ to revisit whether in the First a showing of bad faith is required to prevail under a “class of one” equal protection theory. 

GWOT hath GTMO wrought? Idea for a law review article that has nothing to do with GTMO

Since the time is about right for choosing law review topics, I think that this one would be very useful and, well, poignant, if I do say so myself.  Anyone can use it, without crediting me.  If they link to the blog, that is good.  If they don’t, that is good, too. 

Here goes: 

The GTMO and Global War on Terror ("GWOT") cases have captured the imagination of the American legal community.  I would say that there are currently three schools of thought regarding the administration’s positions.

1. The administration is acting in good faith, and is protecting the US.  Therefore, the law, must, and in fact does conform to whatever the administration does or will do.  Anything Congress does is but icing on the cake, while the courts might perform some sort of judicial review of certain defective adjudications, if Congress says this is possible and the administration agrees, that review must conform to the administration's role in protecting the country.
2. The administration is really just a bunch of power-hungry jerks that are using 9/11 as a means to erase “troublesome” law regarding their ability to hurt other people in the name of the government, and install some sort of authoritarian regime.  Persecuting foreigners is but a first step.  None of their legal arguments can be taken too seriously, because they are usually invented after some demon growls that he wants to torture or detain people.
3. The administration isn’t even good at being bad.  Sure, Congress (up until last November 7th)  did almost everything they wanted, but they are so hell-bent on doing something (whether in good faith or not) they don’t comply with the law, and therefore their actions are usually legally infirm.

Interested?  Keep reading.

Welcome to the blogosphere

Welcome “The Opening Brief.”  Its tagline is about something quite novel: A Blog devoted to appellate law and issues.  It seems Cali-centric, but it has some second-Circuit stuff mixed in.

CA1: habeas petition tossed

Quinones-Torres v. US, No. 06-1148 (unpublished) dismisses a pro se habeas petition, which argued that the petitioner was ineffectively assisted by counsel at various stages of the proceeding (which lead to a guilty plea).  The First rejects it, by showing, point by point, how the facts and law were not what he said they were, and he never really opposed any of the factual findings that the sentencing court relied on.

CA1: strict compliance required in immigration IAC claims

Campos-Javier v. Gonzales, No. 06-1265 (unpublished).  This immigration petitioner, a citizen of the Dominican Republic, tries to set aside the BIA’s decision, arguing that he was ineffectively assisted.  The BIA has a rather strict set of rules for arguing “ineffective assistance” – including, but not limited to telling the “ineffective” attorney about the claims.  The First holds (as it has in the past) that filing a disciplinary complaint is not enough.  Gonzales 1: Campos-Javier 0.

CA1: constructive trusts in bankruptcy and claim preclusion

McGarry v. Chew, No. 06-2123.  Underlying this dispute is a bitter family inheritance dispute over a home that the decedent agreed with the debtor to build for her (during her life) and him: one sibling filed for bankruptcy, and his siblings (now called creditors) tried to stop him from claiming a homestead exemption, arguing that the decedent wanted all the siblings to share in that home.  The siblings first sued in state court, arguing that a contract with the mother had been breached.  While this action was pending the debtor filed a filed a declaration of homestead with the Massachusetts Registry of Deeds.  The state court ruled that only the estate could bring such an action on the decedent’s behalf, but they could bring contract claims on their behalf against the debtor-sibling.  Based on this judgment, the siblings obtained a lien.

Then, the bankruptcy petition was filed, and the debtor invoked the homestead exemption to prevent his siblings from getting the home.  The siblings argued that there was a constructive trust   So, you see the problem: if the homestead exemption is for real, then he can wipe out the lien under 11 U.S.C. § 522(f)(1)(A).  If the constructive trust survives bankruptcy, he can’t.  The Bankruptcy court asked (in a non-evidentiary hearing) whether the siblings had a full opportunity to litigate the constructive trust claim in state court, and found that it did.  The First agrees, and finds that the constructive trust claims are precluded