Appellate Law & Practice

CA1: Girl interrupted was “molested” not “exploited”

National Union Fire v. West Lake Academy, Nos. 07-2190, 07-2204 (11/13/08).  This is a fun insurance coverage case.  It is pretty rare that case begins with the words “Fourth-party plaintiff Jane Doe (“Doe”)).    Westlake Academy is one of those places that they put “out-of-control” or “moody “ teens “involuntarily.”  As seems to be fairly common at these places, one of Westlake’s employees had sex with Doe.  Doe became pregnant.  And, as usual Doe sued the guy that made her pregnant, West Lake, and people she thought negligently let this happen.  The state court action resulted in, among other things, a judgment jointly in the amount of $750,000 based on the negligent supervision claim.  It held the employee (and another employee, probably the supervisor) jointly liable. 

To begin, the First says that the defendants are not entitled to cross-appeal when they win.

The insurance company wasn’t too happy about this, and filed suit in the District Court for a declaratory judgment saying that the liability policy they wrote didn’t include “acts of molestation.”  Though, there was a “sexual abuse endorsement” which they said limited liabile to $300,000.  Moreover, they claimed that this was a “wasting” policy in that the coverage would be reduced by the cost to defend.  The insured, as usual, answered and filed counterclaims asserting violations of state insurance and consumer protection laws.  Then Doe got involved.  She essentially was now on the same side as her molestors, and argued that she was standing in their shoes.

Doe says that she was exploited.  Not molested.  Not abused.  The First and the District Court essentially disagree that the “abuse” and “molestation” coverage endorsement applies, because the exclusion for abuse and molestation and the endorsement for molestation have the same scope.  Moreover, what went on wasn’t “exploitation” but rather “abuse.”  Exploitation would mean turning Doe into a prostitute.

Lookout Below!

CA1: No 5th or 6th problem in trickery case

US v. Boskic, No. 07-1188.  This is a big case under the Fifth and Sixth amendments.  The First sides with the government.  The defendant, a Bosnian, was “guilty on two counts of making false statements in his applications for refugee status and permanent residency in the United States. See 18 U.S.C. § 1546."  Essentially, he is claimed to have lied on his application for refugee status by omitting the fact that he was involved in killing a lot of people when he was in the military. 

You can find more of this post downtown.

CA1: First continues to usurp executive and legislative function on immigration matters

Odmar v. Mukasey, No. 07-2361 (unpublished) (10/1/08).  The petitioner is from Indonesia.  He filed his petition for asylum late.  There is an interesting question about the extent to which the First Circuit can review an IJ’s application of an incorrect standing in determining whether changed circumstances brought on the late filing.  But, the First blows it off, saying that even though the IJ might have screwed it up, the BIA applied the correct standard.

Regarding the witholding of removal, the First says he didn’t suffer that much persecution in the past.  The First goes off the chains here when it starts citing its prior holdings on the way that Indonesian Christians are treated.  This is wrong.  The courts cannot apply any doctrines of asylum-tyime claims regarding country conditions.  Each individual case must rise and fall on its facts or the record.  But relying on its prior cases the First has begun writing foreign policy which is properly the domain of Congress and the executive.  But, since the executive is getting what it wants (sending someone back to their home country) they don’t complain.  I am sure that they would feel differently if the courts held that as a matter of law that all non-Muslim Iraqis had an absolute right to asylum in the US because they were oppressed in their home country. 

CA1: Petitioner not beaten enough for asylum

El-Labaki v. Mukasey, No. 07-1191.  The petitioner is a Lebanese Greek Orthodox Christian that worked in Lebanon a lot.  The IJ denied his claim, writing:

While recognizing that petitioner’s ability to travel was merely encumbered by the short-duration detentions at the checkpoint and occasional beating, the IJ considered these interferences negligible inasmuch as El-Labaki remained free to travel within Lebanon, Saudi Arabia, Beirut, Jordan and Syria.

He filed late, so the asylum claim doesn’t work.  Regarding a withholding of removal claim, The First sides with the BIA and says he wasn’t persecuted.  Regarding his CAT claim, that fails, too. 

CA1: forged CDs make someone an aggravated felon

Magasouba v. Mukasey, No. 07-2298.  This petitioner, an “aggravated felon” wants to stay under the CAT. The First question is whether selling pirated CDs is an aggravated felony.  The state statute is R.I.G.L. § 11-17-13(c)(1).  The BIA looked to 8 U.S.C. § 1101(a)(43)(R).  The petitioner says that the federal statute has a loss amount, but the First says he is talking about a different section.  Secondly, the First says that an amendment of charges in the state court wasn’t even close to unconstitutional.

CA1: remand in Indonesian homosexual economic persecution case

Kadri v. Mukasey, Nos. 06-2599, 07-1754.  This is strange.  The petitioner is a gay doctor in Indonesia.  The IJ granted granted his petition.  The government appealed.  What the hell?  What the hell is OIL doing appealing this?  The BIA reversed on somewhat opaque grounds, saying that he was not physically injured.  They relied on State Department Reports that indicate that closeted homosexuality is tolerated in Indonesia.  The BIA seems to indicate that he was just economically oppressed, not physically oppressed.  The dissent would rather have determined whether there really was any economy persecution.  The First remands, holding that it wasn’t at all clear what standard the BIA was applying to past economic discrimination. 

CA1: Cambodian petition not taken seriously

Keo v. Mukasey, No. 08-1103 (9/25/08) (unpublished).  The petitioner is from Cambodia.  The BIA claims says he wasn’t oppressed.  The First does not take his petition seriously, but decides that the BIA is some kind of court or something.  Whatever.

CA1: First usurps foreign policy making power

Sunarno v. Mukasey, No. 07-2623 (9/25/08) (unpublished).  The petitioner is an Indonesian Catholic.  There was a late filing for asylum, and a petition to reopen.  Unfortunately, the First goes a little crazy and starts creating separation of powers issues, by relying on previous decisions that held.   This court has "repeatedly held that 'discrimination in Indonesia does not, without more, qualify a Christian Indonesian national for asylum.'" This is a prime example of the courts usurping the executive’s foreign policy prerogative.  Of course, since the executive doesn’t seem to mind when they get the result they want (a Christian sent back to face discrimination.)  Whatever the case, the courts assess individual facts, not the overall state of the Indonesian culture.

CA1: mixed motive oppression y’all

Singh v. Mukasey, No. 07-2187 (9/25/08).  The petitioner is from India and claims to be oppressed because of his political beliefs, or the beliefs of his father.  The issue is how to deal with mixed-motives for oppressing someone under the REAL ID Act.

While the Act did not "radically alter[]" this standard, In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007), the REAL ID Act clarified the petitioner's burden to show that at least one of the statutory grounds was "one central reason" for the persecution. In many cases, of course, persecutors may have more than one motivation. In such "mixed motive cases," the law now requires that the protected ground be "one central reason" for the mistreatment, and that it not be "incidental, tangential, superficial, or subordinate to another reason for harm."

Whatever the case, the First concludes that he didn’t show that he was persecuted because of his political beliefs. 

CA1: First abdicates its role in reviewing immigration cases

Rabbat v. Mukasey, No. 08-1330 (9/25/08) (unpublished).  The petitioner is a Syrian Christian.  The First says that because the asylum claim was filed late, it lacks jurisdiction to review it. But, it can review the withholding claim.  The First then uses the same boilerplate found in the case below (including calling the BIA a court) and denies the petition for review without taking the matter seriously.

For some reason, it seems that some inter-judge politics on the First has mandated that the First no longer take a number of immigration appeals seriously. This shows a lack of attention to detail.