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1) COPYRIGHTS / TRADE SECRETS: JustMed, Inc. v. Byce, 07-35861 (9th Cir. April 5, 2010). This case concerns a dispute over whether a company owns source code developed for its product. Its informal employment practices raised issues as to whether defendant Byce was an employee when he developed that code. The district court ordered a permanent injunction against Byce and in favor of Byce's former employer, Just Med. It found that JustMed owns the software program used in its product under the work-for-hire doctrine of the Federal Copyright Act because Byce wrote the source code for the company as an employee, not as an independent contractor. The district court also found that Byce misappropriated the software under the Idaho Trade Secrets Act ("ITSA"). The USCA agreed that Byce was JustMed's employee at the time he wrote the code, and that JustMed owns the software. However, it reversed the district court's finding that Byce misappropriated the code. Besides filing for a copyright for the source code and threatening to withhold it from JustMed, Byce made no other "use" of the code. Such actions did not rise to the level of "misappropriation." The USCA also reversed the award of damages under the ITSA. It remanded for the district court to determine whether and in what amount JustMed could recover damages on the conversion or breach of fiduciary duty claims and whether an injunction to prevent future misappropriation is warranted. B. Fletcher (author), Tashima, and Thomas Circuit Judges. S. Cozakos of Boise, ID, for the appellant; J. Manwaring of Boise, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) PATENT INFRINGEMENT / ADVERTISING INJURY: Hyundai
Motor America v. National Union Fire Insurance Company, 08-56527 (9th
Cir. April 5, 2010). At issue here were two features of Hyundai's website: a "build
your own vehicle" ("BYO") feature and a parts catalogue feature.
The BYO vehicle feature allowed users to navigate through a series of menus to
select, for example, colors, engine, transmissions, and options. In response to
the user's input, the BYO feature displayed customized vehicle images and pricing
information. The parts catalogue feature allowed users to navigate through a series
of menus to choose parts and to display parts images and pricing information.
Orion IP, LLC, a patent-holding company, held the rights to two relevant patents:
Patent 342 concerns a method of generating on a website customized product proposals
for an automobile dealer; patent 627 concerns a similar method aimed at the sale
of parts. Orion sued Hyundai and 19 other car companies for patent infringement,
alleging, in Hyundai's case, that its BYO feature infringed Orion's 342 patent
and its sales parts catalogue infringed its 627 patent. Hyundai sought a defense
from its two liability insurers, National Union Fire Insurance Company of Pittsburgh
and American Home Assurance Company. Because the alleged patent infringement concerned
one of Hyundai's advertising methods, Hyundai concluded that the third-party suit
alleged an "advertising injury," as that term is defined in the insurance
policy. The defendants disagreed and declined to defend Hyundai. Hyundai then
defended itself and sued the defendants in this diversity action, seeking to recover
its defense costs in the third-party action. The district court agreed with the
defendants that the alleged patent infringement did not constitute an advertising
injury under the insurance policy and granted summary judgment to the defendants.
The USCA reversed and remanded. Orion's patent infringement claim was that Hyundai's
web-based advertisement violated Orion's advertising-method patents. In the context
of this case, Orion's patent infringement claim constituted allegations of "misappropriation
of advertising ideas" for purposes of the insurance policy. It thus reversed
the district court's grant of summary judgment to the defendants on all claims.
It then remanded with instructions to grant summary judgment to Hyundai on the
first claim for declaratory relief on the duty to defend and with instructions
to conduct any further proceedings necessary on Hyundai's other claims. The use
of the BYO feature in the website was itself an infringement of the patent because
it is the use of the BYO feature that violates the patent (and not the design
of the car, for instance, or the method of manufacturing the car, or the car's
engine, or anything related to the car for sale). Furthermore, and critically,
it is that use that caused the injuries alleged by Orion. Accordingly, there is
a direct causal connection between the advertisement (i.e., the use of the BYO
feature on the website) and the advertising injury (i.e. the patent infringement).
Because the use of the patented method was itself an advertisement that caused
the injuries alleged in the third-party complaint, Hyundai established the requisite
causal connection. B. Fletcher, Pregerson, and Graber (author), Circuit
Judges. G. Schaerr of Washington, DC, for the appellant; R. Nicolaides of Chicago,
IL, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) COMMERCE CLAUSE: Black Star Farms v. Oliver, 08-15738 (9th Cir. April 13, 2010). This case involves a Michigan winery's claim that provisions of Arizona's statutory scheme regulating the direct shipment of wine from wineries-whether located in-state or out-of-state-to Arizona consumers violate the dormant Commerce Clause. The plaintiffs-appellants (collectively "Black Star Farms") claim that the provisions, in practical effect, unlawfully discriminate against out-of-state wineries. Arizona generally requires all alcoholic beverages sold to consumers in the state to pass through a three-tier distribution system comprised of producers, wholesalers, and retailers. But, Arizona has carved out two exceptions that allow wineries under specified circumstances to bypass the three-tier distribution system. First, all wineries that produce less than 20,000 gallons of wine per year-whether located in-state or out-of-state-are allowed to ship an unlimited amount of wind directly to consumers, regardless of how the order is placed, and to sell directly to retailers. Second, all wineries-whether located in-state or out-of-state-are allowed to ship two cases of wine per year directly to consumers who purchase wine while they are physically present at the winery. Relying on Granholm v. Heald, 544 US 460 (2005), which held that State may mandate a three-tier distribution scheme regulating the sale of wine so long as the scheme does not unlawfully discriminate against out-of-state wineries, Black Star Farms maintained that the exceptions to the three-tier system violate the dormant Commerce Clause. The USCA found that Arizona's statutory exceptions, which treat similarly situated in-state and out-of-state wineries the same and impose no new impermissible burdens on out-of-state wineries, do not have the practical effect of favoring in-state economic interests over out-of-state interests. It thus affirmed the district court's order granting summary judgment in favor of the State. Trott (author) and Bea, Circuit Judges, and Conlon, District Judge. J. Tanford of Bloomington, IN, for the plaintiffs-appellants; AAG K. Sweeney of Phoenix, AZ, for the defendant-appellee; D. Skakel of New York, NY, for the intervenor-defendant-appellee; K. O'Malley of Phoenix, AZ, for the defendant-intervenor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) INTERNET DOMAINE NAMES / CHOICE-OF-LAW: CRS Recovery v. Laxton, 08-17306 (9th Cir. April 6, 2010). This case required the application of traditional choice-of-law, tort, and property principles to a dispute over the ownership of an Internet domain name. John Laxton and his assignee North Bay Real Estate, Inc. appealed an adverse summary judgment for Dale Mayberry and his assignee CRS Recovery ("CRS"). The USCA concluded that the district court was correct to apply California law, but remanded upon finding disputed issues of material fact. On July 23, 1995, Mayberry, a citizen of Virginia, registered the domain name "rl.com" with domain name registrar Network Solutions, a Delaware corporation headquartered in Herndon, Virginia. Mayberry renewed the domain name periodically, last doing so on July 23, 2002, when he paid in advance for three years so that the registration would expire on July 24, 2005. Mayberry's contract with Network Solutions identified the administrator of the website as Micro Access Technologies ("MAT"), a company owned by Mayberry. Mayberry made MAT, through "mat.net," the administrative contact for both domain names, mat.net and rl.com, and he exercised administrative control over both websites through the email address "dale@mat.net." In 2001, mat.net ceased operation. Mayberry failed to notify Network Solutions that mat.net was no longer operative. The parties disputed the precise circumstances of Mayberry's loss of mat.net and, therefore, the loss of rl.com. Laxton asserts that Mayberry let the registration expire by its terms, but Mayberry contends he attempted to renew the domain name. Laxton's expert claimed that Mayberry is "incorrect" in insisting that the registration still belonged to Mayberry on December 19, 2003, and that Mayberry abandoned mat.net by letting it expire on its own terms earlier. At his deposition, Mayberry stated that he was still the registrant of mat.new on December 19, 2003, a claim Laxton vigorously contested both in the district court and on appeal. The district court concluded that the circumstances surrounding the transfer of mat.net were "not entirely clear." Despite unresolved factual issues, the USCA established the following from the record. On December 9, 2003, a new registration of mat.net was made by Li Qiang on Beijing Sinonets Network & Telecom Company. Qiang's control of mat.net permitted him to designate the email address as "dale@mat.net" and to receive email at this address instead of Mayberry. Using this email address, Qiang then transferred ownership of the domain name "rl.com" to himself. Network Solutions accepted the transfer, acting in the belief that it was being made by Mayberry, who in fact was unaware of Qiang's actions. Qiang later transferred the domain name to Barnali Kalita ("Kalita"), a citizen of India. In May 2005, Kalita sold the name to Laxton, a citizen of California, for $15,000. Laxton claimed that prior to buying it he checked "rl.com" with the World Intellectual Property Organization ("WIPO") to ensure there were no disputes involving the name. Determining that there were none, Laxton consummated the purchase and assigned the name to Real Estate Loans, a California corporation. Mayberry soon discovered that he had lost control of both domain names. He assigned his interest in "rl.com" to CRS, a Virginia corporation, in exchange for an undisclosed sum of cash and CRS's promise to help him recover the names. Contact was made with Laxton, who, having just spent thousands of dollars successfully defending "rl.com" from a WIPO action brought by Ralph Lauren, declined to surrender his control of the domain name. This lawsuit followed. On October 30, 2007, Mayberry and CRS filed their second amended complaint against Laxton, Kalita, Qiang, and others, charging them with theft of the two domain names. Count 1 charged conversion of the domain names and conspiring to convert them. Count 2 charged the defendants with interference with Mayberry's contracts with Network Solutions. Count 3 charged unfair competition. Count 4 asked for declaratory relief under 28 USC Sec. 2201, affirming the plaintiffs' right to control the identity of the registrants of the two domain names. The plaintiffs prayed for a return of the domain names and disgorgement of the defendants' profits from them. Each side moved for summary judgment. The district court granted judgment for the plaintiffs on Counts 1 and 4 and ordered the defendants to turn over "rl.com." The plaintiffs voluntarily dismissed their other causes of action. The district court saw the primary question as one of a choice between Virginia's and California's law. Laxton urged application of Virginia law. Mayberry wanted California law to govern. Under Virginia law, the defendants claimed, the plaintiffs had only a contract. Under California law, all parties agreed, the plaintiffs' domain names were intangible personal property. The district court conducted a government interest analysis and concluded that California had the "greater interest" and entered judgment for the plaintiffs. The USCA upheld the district court decision to apply California law, but reversed the grant of summary judgment, concluding that Laxton raised contested issues of material fact. It remanded for further proceedings. Judge Noonan dissented. He agreed that California law governed and that the primary question was whether possess of the domain name "rl.com" was acquired by theft or fraud. But, a secondary question was the name's alleged abandonment. Undisputed facts established that Qiang transferred the domain name to himself before the registration to Mayberry had expired. No facts were presented to the court showing or even suggesting that Qiang had obtained the name by fraud rather than theft. Laxton checked the registry and found nothing suspicious. That fact establishes his innocence and good faith. Laxton was in the position of any innocent purchaser of stolen property; he had to return the property to the owner. Judge Noonan noted that the majority drew from the record the possibility that Mayberry deliberately abandoned "mat.net" by leaving it to a "virtual trash bin" of available domain names. But there was no evidence that Mayberry abandoned "rl.com" in this way. The majority also guessed that the abandonment of "mat.net" might have been the abandonment of both domain names. But Judge Noonan thought that guess was without foundation. He thought it was as though Mayberry had thrown away a bank statement that had on it the numbers and codes necessary to access a bank account: He surely would have meant to have abandoned the statement, but it could not be reasonably inferred that he meant to abandon the account itself. Noonan (dissenting), Hawkins (author), and M.D. Smith, Circuit Judges. M. Morris of San Francisco, CA, for the appellants; C. Carreon of Tucson, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY: In re Sabban, 08-60017 (9th Cir. April 13, 2010). Debtor Sabban held the majority interest in Pacific Coast Creations ("Pacific"), a general partnership that performed home remodeling. Beginning in October 2002, creditor Ghomeshi entered into a series of contracts with Sabban and Pacific to perform remodeling work on Ghomeshi's home. Prior to entering into these contracts, Sabban falsely represented to Ghomeshi that Pacific was licensed by California's Contractors State License Board. In fact, Pacific was not licensed. Pacific acted as a general contractor for the remodeling project, contracting the work out of licensed subcontractors. Ghomeshi paid $123,000 to Pacific and Sabban for the work performed. Pacific and Sabban in turn paid $129,217, for Ghomeshi's benefit, to the licensed subcontractors and other material and labor providers. Ghomeshi sued Sabban in California state court, alleging breach of contract, negligence, fraud, and violations of California Business & Professions Code Sec. 7160 and 7031(b). The state court found that Ghomeshi had been induced to sign the contract in reliance upon false and fraudulent representations made by Sabban and Avidan, an agent of Pacific, that Pacific was a licensed contractor. Pursuant to Sec. 7031(b), the state court awarded Ghomeshi $123,000, the amount he had paid to Sabban and Pacific. Sabban then filed for bankruptcy protection under Chapter 7 and Ghomeshi filed an adversary action to determine dischargeability. The bankruptcy court issued a tentative ruling, relying on Cohen v. de la Cruz, 523 US 213, 223 (1998), that the $123,000 award imposed as a remedy for violation of Sec. 7031(b) qualified as a debt obtained by fraud under 11 USC Sec. 523(a)(2)(A) and was nondischargeable. The bankruptcy court later changed this tentative ruling and concluded that the award under Sec. 7031(b) was dischargeable and that the award under Sec. 7160 was nondischargeable. Over a dissent, the BIA affirmed. It held that the award of $123,000 under Sec. 7031(b) was dischargeable, and that the $500 penalty, plus attorney's fees, awarded under Sec. 7160 was nondischargeable. The USCA affirmed. Section 523(a)(2)(A) excepts from discharge any debt for money, property, services, or credit obtained by fraud. Section 7031(b) provides that a client who employs an unlicensed contractor may recover all compensation paid to that contractor, regardless of whether the contractor has committed fraud and regardless of whether the client has sustained actual harm. At issue on appeal was whether a monetary award under this state law is excepted from discharge pursuant to Sec. 523(a)(2)(A). The USCA held that because the award of $123,000 was made under a statute that is not premised on either fraud or actual harm, it is not a debt for money obtained by fraud within the meaning of Sec. 523(a)(2)(A). The award thus did not fall with the exception and was dischargeable. W. Fletcher (author) and Clifton, Circuit Judges, and Singleton, District Judge. R. Lewels of Los Angeles, CA, for the appellant; S. Oved of Woodland Hills, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) WATER RIGHTS: USA v. Bell, 05-16154 (9th
Cir. April 20, 2010). This case is the latest installment in a long, divisive
litigation over the waters of the Truckee and Carson Rivers, and the decline of
Pyramid Lake. Congress passed the Reclamation Act in 1902, creating projects to
reclaim otherwise arid western lands for farming. One project created by the Reclamation
Act, the Newlands Project ("the Project"), controls diversions from
the Truckee and Carson rivers. The Truckee-Carson Irrigation District ("TCID")
has managed the Project under a contract with the federal government for decades.
This installment concerns the United States' effort to recoup excess diversions
TCID has permitted over many years. The Nevada district court originally established
the amount of water that could be diverted for agricultural uses from the Truckee
River in a 1944 order known as the Orr Ditch decree. That court did not issue
a final order on rights to the Carson River until 1980 in USA v. Alpine Land
& Reservoir Company, 503 F.Supp. 877 (D. Nev. 1980) ("Alpine decree").
In the mid-20th Century, concerns grew over the adverse effect of the diversions
on Pyramid Lake's unique fish population. Water from the Truckee River flows to
Pyramid Lake, which is under the control of the Pyramid Lake Paiute Tribe ("the
Tribe"). The Secretary of the Interior ("Secretary") responded
to the concerns about Pyramid Lake fish in 1967 by imposing operating criteria
and procedures ("OCAPs") limiting the maximum diversions from the Truckee
and Carson rivers. Unhappy with the OCAPs as too generous to the farmers, the
Tribe successfully challenged them in the District of Columbia. That court ordered
the Secretary to implement more restrictive OCAPs. Known as the "1973 OCAPs,"
these more restrictive OCAPs were challenged by TCID in the USCA. The USCA upheld
the district court's ruling, but the TCID has refused to follow the district court's
ruling. In 1990, Congress attempted a resolution of the ongoing dispute between
the Tribe and TCID by enacting the Fallon Paiute Shoshone Indian Tribes Water
Rights Settlement Act of 1990 ("Settlement Act") which provides: "The
Secretary shall henceforth ensure compliance with all of the provisions of the
operating criteria and procedures referenced in Paragraph (2) of this subsection
or any applicable provision of any other operating criteria or procedures for
the Newlands Project previously adopted by the Secretary, and shall, pursuant
to subsection 709(h) or judicial proceeding, pursue recoupment of any water diverted
from the Truckee River in excess of the amounts permitted by any such operating
criteria and procedures." The Settlement Act also states that it should not
be read in such a manner as to conflict with the Orr Ditch and Alpine decrees.
Five years after the enactment of the Settlement Act, the U.S. instituted this
case by filing a complaint against TCID, its board members, and all water users
in the Project as a class, seeking to recoup over one million acre-feet of water
diverted in excess of applicable OCAPs from 1973 to 1988. The Tribe intervened
as a plaintiff. In 2003, the district court ruled that TCID had willfully failed
to comply with the 1973 OCAPs. Nevertheless, although the government had sought
over a million acre-feet of water as recoupment, the district court awarded just
under 200,000 acre-feet. It credited the report of TCID's expert and concluded
that the government was only entitled to recoupment for excess diversions in 1974,
1975, 1978 and 1979; the court also awarded recoupment for spills of water in
1979 and 1980. It held that the government, and not TCID, was responsible for
excess diversions after 1980, because the government failed to revise the OCAPs
to reflect the water duties in the 1980 Alpine decree. With respect to interest
on the water TCID owed the government by virtue of its decision, the court initially
denied both prejudgment and post-judgment interest. The reasons it gave were the
government's delay in bringing this action and the government's having inadvertently
destroyed certain records relevant to the litigation. The district court later
modified this decision and awarded post-judgment water interest. It ruled that
TCID must repay 2% each year on the balance of water remaining to be recouped
for replenishing the waters of Pyramid Lake. TCID appealed the district court's
ruling that under the Settlement Act the government can pursue claims for past
excess diversions. It also appealed the award of post-judgment interest on water
yet to be recouped and, on behalf of water rights holders ("farmers"),
it appealed the denial of attorneys' fees under the Equal Access to Justice Act
("EAJA"). The State of Nevada, a party to the case because it owns some
of the irrigated land, appeals the denial of its claim for costs. The government
and the Tribe cross-appealed the denial of prejudgment interest. They also appealed
the district court's rejection of the government's position that more recoupment
should have been ordered as a result of gauge error in measuring the excess diversions
and the denial of recoupment for diversions and spills occurring between 1980
and 1984. The USCA vacated the district court's rulings with respect to interest
and remanded for the district court to explain its legal basis for its unprecedented
award of interest that must be repaid in water. The USCA also reversed the denial
of the government's claim that gauge error was not properly accounted. Otherwise,
the USCA affirmed the district court's judgment. Schroeder (author) and
Berzon, Circuit Judges, and Shadur, District Judge. K. Barton of Washington, DC,
for the USA; D. Springmeyer of Las Vegas, NV, for the intervenor-appellee/appellant
Pyramid Lake Paiute Tribe of Indians; M. Van Zandt of San Francisco, CA, for the
defendant-appellant/appellee Board of Directors of the Truckee Irrigation District;
M. Wolz of Reno, NV, and M. Mackdon of Fallon, NV, for the defendants-appellants
State of Nevada. (Download
the full text of this decision at www.ce9.uscourts.gov/)
9) DISABILITY BENEFITS: Wise v. Verizon Communications, 08-35866 (9th Cir. April 8, 2010). Wise worked for GTE in 1997 when she was diagnosed with multiple sclerosis. Later that same year, she left GTE to work for another employer, Qwest, where her employee benefits included a long-term disability plan that covered her multiple sclerosis. In 1999, GTE sought to recruit Wise to return to work for GTE, but Wise hesitated to abandon her Quest benefits coverage without assurances that she would have full benefits coverage upon her return to GTE. To induce Wise to return, GTE promised that her benefits coverage would "bridge" back to her original employment date in 1995, such that Wise's benefits eligibility would be retroactive and not subject to coverage limitations based on pre-existing conditions. The GTE recruitment team understood that the bridging of benefits was a standard practice at the company. Wise accepted GTE's offer and returned to the company as a sales representative in March 1999. After a merger, GTE became Verizon Communications, Inc., but the employee welfare benefit plan, including the long-term disability plan, remained the same. Wise was diagnosed with breast cancer in 2000, which was complicated by her multiple sclerosis. She applied for long-term disability benefits and her application was initially approved by the Metropolitan Life Insurance Company ("MetLife"), the administrator of Verizon Communications' benefit plan. In 2001, Wise's multiple sclerosis specialist sent a letter to MetLife containing her opinion that Wise's physical and cognitive symptoms were worsening and that it was unlikely Wise could return to work. A month later, MetLife terminated her disability benefits. It concluded, contrary to Wise's multiple sclerosis specialist, that Wise was able to perform the regular duties of her normal sales job. Wise appealed, submitting additional medical documentation of her limitations. MetLife upheld its decision to terminate benefits, concluding that even if Wise could not perform her previous job, there was insufficient medical documentation to show that she could not perform any work. MetLife added, for the first time, that it deemed Wise's multiple sclerosis to be a condition that pre-existed her benefits eligibility, and thus that the multiple sclerosis was not covered by her long-term disability plan. Wise again appealed and the Verizon Claims Review Committee, which administered the long-term disability plan along with MetLife, concluded that Wise's multiple sclerosis was a pre-existing condition that was not covered by the long-term disability plan. Disregarding any limitations cause by multiple sclerosis, the Verizon Claims Review Committee determined that Wise was capable of performing part-time, sedentary work and thus was not disabled. Wise then filed this action in federal district court on March 11, 2008. She asserted three claims under ERISA against Met Life and the Verizon Claims Review Committee (collectively "Plan Administrators"). She requested past and future disability benefits, removal of the Plan Administrators as plan fiduciaries, and other equitable relief. She also pleaded one claim against Verizon Communications, alleging that its conduct in recruiting and rehiring her constituted fraud, misrepresentation, and negligence in violation of Washington statutory and common law. The defendants filed a joint motion to dismiss all of Wise's claims under Fed. R. Civ. Proc. 12(b)(6). The district court granted the motion, holding that Wise's benefits-recovery claim was governed by Washington's three-year statute of limitations for partly oral contracts instead of being governed by the six-year limitations period that Wise urged should be applied. Under the three-year statute of limitations, Wise's claim was time barred, though under the six-year statue the claim might have proceeded. The district court held that the claims for breach of fiduciary duty and for equitable relief were duplicative of the benefits-recovery claims and thus barred. Finally, it held that Wise's state law claims were preempted by ERISA, or, in the alternative, barred by the applicable Washington statute of limitations for fraud, misrepresentation, and negligence. The USCA affirmed in part, reversed in part, and remanded. Wise's benefits-recovery claim under 29 USC Sec. 1132(a)(1)(B), was timely filed within Washington's six-year limitations period for suits on a written contract, the most analogous state statute. The remainder of Wise's claims had been properly dismissed. The order dismissing Wise's claims was thus reversed in part and affirmed in part. The USCA remanded the case for further proceedings and directed that each party bear its own costs on appeal. Gould (author) and Tallman, Circuit Judges, and Benitez, District Judge. S. Krafchick of Seattle, WA, for the plaintiff-appellant; T. O'Connell of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) DISABILITIES EDUCATION ACT: N.D. v. State of Hawaii, 09-17543 (9th Cir. April 5, 2010). The State of Hawaii is currently in the midst of a major fiscal crisis. As a result, it decided to shut down the public schools for 17 Fridays during the 2009-2010 school year. School children, disabled and non-disabled alike, would not attend school on those Fridays. The elimination of 17 Fridays from the school calendar constitutes a reduction in instructional days of approximately 10%. Hawaii reached a negotiated agreement, covering the 2009-2010 and 2010-2011 school years, with the Hawaii State Teachers Association, the state teachers' union, to implement furloughs of all public school teachers on the Fridays schools were closed. The first "furlough Friday" was on October 23, 2009. In respond to the impending furloughs, N.D., a disabled minor enrolled in Hawaii's public school system, requested a due process hearing on October 19, 2009 from Hawaii's Department of Education regarding the potential change in his individual educational program. Along with his request, N.D. invoked the "stay-put" provisions of the Individuals with Disabilities Education Act ("IDEA"). Hawaii did not adjust the furloughs in response to the invocation of the stay-put provisions and moved forward with the furloughs. N.D. then filed suit in district court on October 20, 2009, naming only Hawaii's Department of Education as the defendant. The plaintiffs included nine disabled children enrolled in five public schools. N.D. maintained that the furlough of teachers and concurrent shutdown of the public schools violated his rights under IDEA. Specifically, N.D. alleged that the furloughs constituted a change in his educational placement, and, as part of his request for a due process hearing, he was entitled to remain in his then-current educational placement. N.D. moved for a temporary injunction of the furloughs. The temporary injunction was denied by the district court on October 22, 2009. On November 9, 2009, the district court held a hearing on whether a preliminary injunction should be issued. The injunctive relief N.D. sought over the course of the litigation is an end to the school furloughs as they affect the plaintiffs. Prior to the hearing, N.D. submitted evidence as to the harm suffered by the disabled children as a result of the first several furlough days. Hawaii submitted evidence that it was undertaking efforts to provide the disabled children with alternate services consistent with their Individualized Education Programs. N.D. appealed when his motion for a preliminary injunction was denied. The USCA affirmed. It agreed with the district court that the stay-put provisions of the IDEA were not intended to cover system-wide changes in public schools that affect disabled and non-disabled children alike, and that such system-wide changes were not changes in educational placement. Farris (author), D.W. Nelson, and Bea, Circuit Judges. C. Vardy of Honolulu, HI, for the appellants; M. Bennett of Honolulu, HI, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) CLASS ACTIONS / JURISDICTION: United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers Intl. Union v. Shell Oil Company, 10-55269 (9th Cir. April 21, 2010). The defendants removed this putative class action from state court pursuant to the Class Action Fairness Act of 2005 ("CAFA"), 28 USC Secs. 1332(d), 1453. After denying Rule 23 class certification, the district court concluded that it no longer had jurisdiction and remanded the case to state court. The USCA accepted the defendants' appeal to consider whether the denial of class certification divests the federal court of jurisdiction over cases removed under Sec. 1332(d). It joined the Seventh and Eleventh Circuits in holding that it does not. If the putative class action was properly removed to begin with, the subsequent denial of Rule 23 class certification does not divest the district court of jurisdiction. The case remains removed and is not to be remanded to the state court. Continued jurisdiction under Sec. 1332(d) does not depend upon certification. Fernandez, Silverman (author), and Graber, Circuit Judges. T. Rusche of Los Angeles, CA, for the defendants-appellants; R. Cantore of Los Angeles, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) DISPUTE RESOLUTION AGREEMENTS: Pokorny v. Quixtar,
Inc., 08-15880 (9th Cir. April 20, 2010). Quixtar, Inc., the successor-in-interest
to Amway Corporation, markets a variety of products and services to consumers
through a network of individual distributors it calls "Independent Business
Owners" ("IBOs"). All IBOs signed agreements that included the
mandatory alternative dispute resolution ("ADR") provisions. The remaining
defendants-appellants were senior IBOs: they are, Bill and Peggy Brit, members
of Brit Worldwide LLC, and owners of American Multimedia and Britt Management,
Inc. (collectively, the "Britt defendants"); and, James and Georgia
Puryear members of World Wide Group LLC (collectively, the "Puryear defendants").
Both the Brit and Puryear defendants produce and market "business support
materials" and other services to junior IBOs. The plaintiffs-appellees are
junior IBOs. Junior IBOs Jeff Pokorny, Larry Blenn, and Kenneth Busiere are California
residents who filed this litigation as a class action against Quixtar and the
Brit and Puryear defendants alleging that they operated an illegal pyramid scheme
in violation of the Racketeer Influenced and Corrupt Organizations Act and California
Business and Professions Code Secs. 17200 et seq. and 175 et seq. Relying on the
mandatory ADR provisions included in its agreements with its IBOs, Quixtar, joined
by the Britt and Puryear defendants (collectively "defendants"), moved
to dismiss the plaintiffs' suit or, in the alternative, to stay the action and
compel the plaintiffs to resolve their claims through Quixtar's ADR process. The
district court denied the defendants' motion, holding that the ADR provisions
of Quixtar's agreements with its IBOs were unconscionable under California law.
Quixtar appealed that interlocutory ruing pursuant to 9 USC Sec. 16(a)(1)(B),
and maintained that the district court should not have applied California law
and erred in holding that the ADR provisions were unconscionable. The USCA affirmed.
It held that the district court properly determined that the ADR agreements were
unconscionable and thus unenforceable under California law. It also denied the
plaintiffs' request for judicial notice as moot. Finally, it affirmed the district
court's order denying the defendants' motion to dismiss or compel arbitration.
Schroeder (author) and Berzon, Circuit Judges, and Strom, District Judge.
S. Singer of Fort Lauderdale, FL, for the plaintiffs-appellants; W. Stern of San
Francisco, CA, for the defendants-appellees.(Download
the full text of this decision at www.ce9.uscourts.gov/)
14) IMMIGRATION / FRAUD: Hammad v. Holder, 07-72370 (9th Cir. April 22, 2010). In 1995, Hammad, a Palestinian immigrant to the U.S., was granted permanent resident status on a conditional basis, based on a petition filed by his U.S. citizen wife. His permanent resident status lapsed when his wife admitted to INS officials that she had entered into the marriage for a fee, had never lived with him, and had never slept with him. She withdrew her support of his petition to remove the condition on his residency. The Immigration Judge ("IJ") concluded that Hammad had not entered into the marriage in good faith. Now remarried, Hammad appealed a determination by the Board of Immigration Appeals ("BIA") that he is not entitled to permanent resident status. However, Hammad's wife's withdrawal of his support and the IJ's determination were fatal. Finding that the IJ's and the BIA's rulings against Hammad were supported by substantial evidence in the record, the USCA denied Hammad's petition. Goodwin, Berzon, and Ikuta (author), Circuit Judges. M. Karr of Sacramento, CA, for the petitioner; AAG G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) IMMIGRATION: Eneh v. Holder, 05-75264 (9th Cir. April 15, 2010). Eneh, a native an citizen of Nigeria, was paroled into the U.S. in 2000 for adjustment of status. On April 15, 2002, he was convicted for using a communication facility and interstate commerce in aid of racketeering enterprise, namely the sale of marijuana. He was sentenced to 36 months imprisonment. On September 19, 2003, the Department of Homeland Security issued Eneh a Notice to Appear, charging him as removable due to his controlled substance conviction. Eneh conceded removability, and applied for asylum, withholding of removal, and withholding and deferral of removal under the Convention Against Torture ("CAT"). An IJ denied relief and the BIA affirmed. He sought review by the USCA. The USCA dismissed for lack of jurisdiction but transferred the proceedings to the federal district court. Eneh filed a habeas petition in that court. On July 20, 2005, the government filed a motion to transfer the case to the USCA pursuant to the REAL ID Act of 2005. This time the USCA found jurisdiction pursuant to 8 USC Sec. 1252. It granted the petition for review and remanded the petition to the BIA for further proceedings to (1) fully consider Eneh's testimony and documentary evidence that he would be intentionally tortured if removed to Nigeria, and (2) provide a reasoned explanation for its decision. Hall (author), Noonan, and Thomas, Circuit Judges. D. Arik of Phoenix, AZ, for the petitioner; AUSA C. Parsons of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) IMMIGRATION: Sum v. Holder, 05-75776 (9th Cir. April 23, 2010). At issue here was a non-citizen's eligibility for a waiver of inadmissibility under Sec. 212(h) of the Immigration and Nationality Act ("INA") where he had been convicted of an aggravated felony after his admission for permanent residence. Section 212(h) expressly bars from relief a non-citizen who has previously been admitted to the United States as an alien lawfully admitted for permanent residence and later is convicted of an aggravated felony. Sum, a native of Hong Kong and citizen of China, was denied a Sec. 212(h) waiver because he was convicted of a qualifying offense after his admission as a lawful permanent residence ("LPR"). He advanced a curious position on appeal: namely, that because he was never legally admitted for permanent residence in the first place, but rather procured his admission by fraud or misrepresentation, the bar on Sec. 212(h) relief does not apply to him. That is, he thought his initial fraud should now save him. The USCA was not persuaded and denied the petition for review. The text, structure, and history of the statue all confirm that the terms "admission" and "admitted" as used in INA Secs. 1101(a)(13)(A) and 212(h) refer to inspection and authorization by an immigration officer at the port of entry. Because Sum was admitted as an LPR pursuant to such procedures and later convicted of an aggravated felony, he was barred from Sec. 212(h) relief. Judge Graber concurred in the majority opinion but wrote separately to suggest that this situation lends itself to application of the traditional notion of equitable estoppel. When Sum sought LPR status, he knew the facts of his previous arrest. He deliberately lied by denying any previous arrest. He intended that the government act on his false representation of a clean record. The government did not know of the previous arrest and relied to its detriment on Sum's representation when it granted LPR status. Allowing Sum to claim that he never was entitled to LPR status, after he had lied to obtain it, would damage respect for the law and damage the public interest. Judge Graber thought the USCA should not countenance that change of position in the context of Sum's attempt to obtain a favorable exercise of discretion from the government. Wallace, Graber (concurring), and McKeown (author), Circuit Judges. M. Kayal of San Francisco, CA, for the petitioner; B. O'Connor of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 17) IMMIGRATION: Nunez-Reyes v. Holder, 05-74350 (9th Cir. April 23, 2010). Nunez-Reyes, a native and citizen of Mexico, entered the United States in 1992. In 2001, he was charged in state court with one felony count of possession of methamphetamine, in violation of California Health and Safety Code Sec. 11377(a), and one misdemeanor count of being under the influence of methamphetamine, in violation of Health and Safety Code Sec. 11550(a). He pled guilty to both counts, but the state court eventually dismissed the charges under California Penal Code Sec. 1210.1. Under that provision, the state court shall set aside a conviction and dismiss the indictment if the defendant successfully completes probation and other conditions are met. Except as provided in other subsections, both the arrest and the conviction shall be deemed as never to have occurred. In early 2002, the federal government issued a notice to appear, charging Nunez-Reyes as removable. He conceded removability but applied for adjustment of status, due to his marriage to a U.S. citizen, and for cancellation of removal. The IJ denied all forms of relief and ordered Nunez-Reyes removed. He held that the state convictions rendered Nunez-Reyes ineligible for any form of relief, regardless of whether the convictions had been dismissed. The BIA affirmed the IJ's decision. It held that Nunez-Reyes' conviction for being under the influence of methamphetamine was a "conviction" for purposes of the immigration laws, and was "not one for which federal first offender treatment would be available." The BIA explained that the Federal First Offender Act ("FFOA"), 18 USC Sec. 3607, "applies only to simple possession offenses described in 21 USC Sec. 884." While recognizing that the Ninth Circuit has applied FFOA treatment to convictions for "lesser" offenses, the BIA reasoned that this expanded FFOA treatment applied only when the defendant had pleaded down from a charge explicitly covered by the FFOA, which Nunez-Reyes had not done. Moreover, the BIA found that the crime of being under the influence of a particular drug was not a lesser offense than simple possession. Because Nunez-Reyes' conviction would not have been eligible for FFOA treatment, the expungement under California law did not erase the conviction for immigration purposes. The BIA thus held that Nunez-Reyes remained convicted of the controlled substance offense and could not demonstrate eligibility for cancellation of removal. The USCA granted the petition and remanded for further proceedings. As in Cardenas-Uriarte v. INS, 227 F.3d 1132, and Rice v. Holder, 597 F.3d 952 (9th Cir. 2010), the USCA found that it could be sure that being under the influence is a lesser offense because it would be a misdemeanor once probation was successfully completed while possession of the drugs would have been a felony. Cardenas-Uriarte, 227 F.3d at 1137; Rice, 597 F.3d at 956. The USCA thus held that Nunez-Reyes' expunged conviction under Sec. 11550(a) for being under the influence may not be treated as a "conviction" for purposes of the immigration laws. It also rejected the BIA's holding that the reasoning in Cardenas-Uriarte was undermined because Nunez-Reyes "was charged with the same offense to which he ultimately pleaded guilty; he did not 'plead down' from a charge of simple possession." The USCA noted that the holding in Rice clarifies that expanded FFOA treatment of lesser crimes does not depend on whether the petitioner originally was charged with simple possession and pleaded down from the charge. The proper focus is the petitioner's conduct, not the prosecutor's conduct. Concurring, Judge Graber agreed that Rice answered the legal questions raised in this case. She was thus compelled to concur in the per curiam opinion. However, she wrote separately to express her disagreement with the Circuit's underlying rule that equal protection principles require Congress to treat aliens subject to a state expungement identically to aliens subject to federal expungement. She said that if the USCA were writing on a blank slate, or reconsidering the matter en banc, she would favor joining the unanimous recognition of sister circuits that Congress reasonably distinguished between aliens subject to a state expungement and aliens subject to a federal expungement. B. Fletcher, Canby, and Graber (concurring), Circuit Judges. Per Curiam. F. Sprouls of San Francisco, CA, for the petitioner; E. Miles of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) IMMIGRATION / FRAUD: Delgado-Ortiz v. Holder, 09-72993 (9th Cir. April 6, 2010). The petitioners, natives and citizens of Mexico, sought review of the BIA's final order denying their motion to reopen to allow them to apply for asylum, withholding of removal, and relief under the Convention Against Torture. The USCA denied the petition for review, finding that the BIA did not abuse its discretion in determining that the petitioners failed to present a prima facie case and that their proposed social group, returning Mexicans from the United States who are targeted as victims of violent crimes as a result, was too broad to qualify for the requested relief. The petitioners claimed that the authorities in Mexico do noting to protect this particular class of Mexicans. In support of their motion, they submitted declarations, news articles describing current violence in Mexico primarily associated with drug trafficking and drug cartels, as well as a new asylum application. The USCA agreed with the BIA that the petitioners failed to show that reopening their case was warranted. They failed to show prima facie eligibility for the relief requested. The USCA noted that asylum is not available for victims of indiscriminate violence, unless they are singled out on account of a protected ground. The key to establishing a particular social group is ensuring that the group is narrowly defined. The USCA concluded that the petitioners' proposed social group is too broad to qualify as a cognizable social group. It thus granted the respondent's motion for summary judgment. Canby, Gould, and Tallman, Circuit Judges. Per Curiam. J. Nasseri of Los Angeles, CA, for the petitioners; A. Nazarov of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) IMMIGRATION: Mutuku v. Holder, 05-73609 (9th Cir. April 9, 2010). Mutuku, a 57-year-old native and citizen of Kenya, she worked for Lutheran World Relief, a Christian non-governmental organization in Kenya. She was an organizer and supporter of the Democratic Party, the leading opposition party in Kenya at the time. In August 1992, a band of armed men came to her house looking for her. They burned down her home, beat her sister, and harassed her mother. The men told Mutuku's mother that they would kill Mutuku if she did not stop her political activities. Mutuku later received three phone calls threatening to "come for [her] head" if she did not cease her political activities. Then, in October 1992, Mutuku was almost hit by a Kane Party ("KANUP") activist driving a truck. She fled Kenya and came to the U.S. in November 1992 on a B-2 visitor visa. The INS issued Mutuku a Notice to Appear on September 11, 1998, charging her as removable because she had overstayed her visa. In response, Mutuku applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), claiming that she had been persecuted on the basis of her political opinion in Kenya and would likely be persecuted or tortured if she were to return. The Immigration Judge ("IJ") denied Mutuku's claims for asylum, withholding of removal, and relief under CAT. He held that Mutuku was ineligible for asylum for three separate and independently sufficient reasons: (1) her application was barred by the one-year statute of limitations; (2) she was not credible and thus her testimony did not establish past persecution; and, (3), even if she had suffered past persecution, she did not have a well-founded fear of future persecution because conditions in Kenya were no longer hostile towards members of the Democratic Party. The IJ also denied withholding of removal on the basis of the latter two reasons, credibility and changed country conditions. Finally, he held that Mutuku was not eligible for CAT relief because the Democratic Party was not in power in Kenya, and thus it was not likely that she would be subjected to torture should she be return to Kenya. The BIA affirmed the IJ's decision in a per curiam order. With respect to asylum, the BIA affirmed the IJ's decision on the basis that Mutuku's application for asylum was not timely. With respect to withholding of removal and CAT relief, the BIA adopted and affirmed the IJ's decision in its entirety, citing Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). The USCA dismissed the petition in part, denied it in part, and granted and remanded in part. It concluded that the BIA correctly found that Matuku's application for asylum was barred by the one-year statue of limitations. 8 USC Sec. 1158(a)(2)(B). Mutuku's hope that conditions in Kenya would improve did not constitute an extraordinary circumstance excusing her delay in applying for asylum. The USCA thus dismissed the petition insofar as it related to her asylum claims. The IJ found that Mutuku was not credible because, though she had testified that she had almost been run over by a truck driven by a KANUP supporter in 1992, she did not mention this significant event in her asylum application. The USCA found that the IJ was clearly incorrect: Mutuku's asylum application states that she was "threatened in September of 1992 and [she] was almost run down by a vehicle owned by the Kanu Party which is the ruling political party in Kenya." As the IJ's adverse credibility finding was premised on a clearly erroneous factual finding, the USCA reversed it. The USCA also found that substantial evidence did not support the IJ's finding that conditions in Kenya had improved for members of the Democratic Party to such an extent that Mutuku no longer has a well-founded fear of returning to Kenya. The 2002 Country Report, considered in its entirety, confirms that abuses like those suffered by Mutuku are still common in Kenya and Kenya's human rights record remains poor. Abuses by security forces, particularly the police, are common. Political activists like Mutuku are routinely targeted by police for harassment, arbitrary arrest, excessive force, rape, and even extrajudicial killing: The Kenyan Human Rights Commission has documented more than a thousand cases of extrajudicial killings in the last decade. The USCA thus held that in offering only the 2002 Country Report, the government failed to meet its burden to show, by a preponderance of the evidence, that circumstances changed such that Mutuku no longer faces a threat to her life or freedom based on her political opinion. The IJ erred in making such a finding. The USCA could not say that the record compelled a finding that Mutuku would likely be tortured if she were to return to Kenya. It thus dismissed the petition for review with respect to Mutuku's asylum claim, denied the petition for review with respect to her CAT claim, and granted the remainder of her petition. The IJ and the BIA did not decide whether Mutuku's testimony, if believed established past persecution. The USCA remanded so that the BIA could decide that question in the first instance. B. Fletcher, Pregerson (author), and Graber, Circuit Judges. L. Wayland of Diamond Bar, CA, for the petitioner; J. Segall of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) IMMIGRATION: Lopez-Jacuinde v. Holder, 07-72046 (9th Cir. April 12, 2010). The petitioner, a citizen of Mexico, was convicted for possession of pseudoephedrine with intent to manufacture methamphetamine or any of its analogs in violation of California Health and Safety Code Sec. 11383(c)(1). He was served with a notice to appear for removal proceedings on the grounds that he had committed an aggravated felony. He filed an application for cancellation of removal and a motion to strike the aggravated felony charge. The Immigration Judge ("IJ") denied his motion to strike and ordered him removed from the United States. The BIA dismissed the petition for review, agreeing with the IJ that the petitioner had been convicted of an aggravated felony. The BIA held that the state felony conviction for possession of pseudoephedrine with intent to manufacture methamphetamine was a "drug trafficking crime," which constitutes an aggravated felony" under federal law, rendering the petitioner statutorily ineligible for cancellation of removal. The petitioner argued that a "drug trafficking crime," as defined by the relevant federal statue, requires the use of a firearm and thus the state criminal statute, which has no element, is broader than the federal state. He further argued that the state criminal statue is broader than the corresponding federal crime because the federal crime imposes a requirement, not found in the state statute, as to the minimum amount of pseudoephedrine possessed by the defendant. The USCA disagreed and denied the petition for review. It found no error in the BIA's determination that the petitioner was convicted of an aggravated felony. The use of a firearm is not required for a state conviction to constitute an aggravated felony as "drug trafficking crime." A "drug trafficking crime is expressly defined in 18 USC Sec. 924(c)(2) as "any felony punishable under the Controlled Substance Act (21 USC Sec. 801, et seq.), the Controlled Substance Import and Export Act (21 USC Sec. 951, et seq.), or chapters 705 of title 46." In addition, the USCA found that the federal crime corresponding to Sec. 11383(c)(1) does not require possession of a minimum amount of pseudoephedrine. The petitioner had maintained that his conviction for violating Sec. 11383(c)(1) is not a categorical aggravated felony because the state statute proscribes possession of any amount of pseudoephedrine with intent to manufacture methamphetamine, and the corresponding federal crime requires proof that the defendant possessed more than a certain amount of pseudoephedrine. However, the USCA found this argument to be without merit because the federal offense corresponding to the petitioner's state conviction has no such requirement as to amount. Finally, because the BIA correctly applied the relevant statues, there was no due process violation. B. Fletcher (author), Clifton, and Bea, Circuit Judges. J. Bennett of El Cerrito, CA, for the petitioner; A. Nazarov of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) IMMIGRATION: Joseph v. Holder, 05-74390 (9th Cir. April 14, 2010). Joseph, a 29-year-old Haitian musician, started a band in his hometown of Petite Riviera de l'Artibonite. In 2000, President Aristide visited Artibonite. After hearing Joseph sing, Aristide asked Joseph to create a musical group to support the Aristide movement in the Artibonite region. Joseph did so, and wrote music for the group, played the cornet, and was the spokesman and contact person for the group. Joseph then became involved with Aristide's political party, "Lavalas." He organized meetings and protests for Lavalas and attended 20 to 25 meetings. He testified that he supported Aristide "simply" because he thought Aristide would improve the economy of Haiti and diminish the poverty of the people. On April 22, 2004, Joseph held a Lavalas meeting at his house. He testified that during that meeting, a man named "Dario" tried to disrupt the meeting. Dario was a member and director of "Ramikos," a group opposing Lavalas. Dario pressured Joseph to join Ramikos and threatened to kill Joseph if he refused to join. When Joseph asked Dario to leave, Dario threw stones, hitting Joseph on the head. Dario then punched Joseph in the face. Joseph believes that if the other people present had not separated them, Dario would have killed Joseph because Dario was "known to be a very dangerous man." Later that night, Dario returned, broke down the front gate of Joseph's house, and started shooting. Joseph's mother told Joseph to leave the house and "go vary far away." Joseph fled to Lincour, where his friend Vladimir lived. Vladimir later went to Joseph's house and found that Ramikos members had severely beaten Joseph's mother and raped his sister. Believing that Dario would kill him, Joseph fled to Port-au-Prince where he stayed with a friend of Vladimir's for 23 days before leaving Haiti. After Joseph left Haiti, on July 29, 2004, Joseph's cousin, Dumarsais Riker, visited Joseph's mother in Artibonite. Joseph and his cousin were similar in appearance. Ramikos members shot and killed Dumarsais, burned Dumarsais' car, and destroyed Joseph's mother's house because, Joseph believes, they mistook Dumarsais for him. Joseph submitted into evidence photographs of Dumarsais' body, his car, and the destroyed house. Joseph said he left Haiti because Ramikos members were looking for him. He added that Ramikos had become even more powerful and had become associated with a group named "184." Joseph testified that Ramikos and 184 could do whatever they want in Haiti and would kill Joseph if he returned and could kill him anywhere in Haiti. Joseph entered the U.S. from Mexico, without documents around July 2, 2004. Two days later, Border Patrol officers apprehended him and issued a Notice to Appear, charging him with entering the U.S. without inspection. On August 5, 2004, he appeared without counsel at a master calendar hearing before an IJ. He was also unrepresented at his August 27, 2004 bond hearing in front of the same IJ who denied his application for bond. No transcript of the bond hearing exist. According to the IJ's bond hearing notes and contrary to testimony Joseph gave during his removal hearing, Joseph "testified that he left Haiti because a group of President Aristide supports wants to kill him. According to the IJ's bond hearing notes, Joseph testified that Dario was a member of a pro-Aristide group, rather than an anti-Aristide group as Joseph would later testify during his removal hearing. Moreover, the IJ's bond hearing notes reflected that Dario argued with Joseph and threw rocks at him because Dario wanted to break up Joseph's band, not because, as Joseph later testified at his removal hearing, Dario wanted Joseph to join Ramikos, the anti-Aristide group. On January 25, 2005, the same IJ presided over Joseph's removal hearing. At this hearing the IJ sought to supplement the record with her notes from Joseph's bond hearing. Joseph's counsel challenged the propriety of including the bond hearing notes in the record of Joseph's removal hearing because there was no transcript of the bond hearing. Nevertheless, the IJ's bond hearing notes were typed into a bond memorandum and included in the record of Joseph's removal hearing. On January 25, 2005, the IJ denied Joseph's claim for asylum, withholding of removal and relief under CAT because she had "very real concerns regarding the credibility of [Joseph's] claim." The BIA affirmed the IJ's decision, stating that it found that the record supported the IJ's adverse credibility finding. The BIA found no error on the part of the IJ in noting the inconsistencies between the claim presented by Joseph during his bond hearing and that presented during his subsequent merits hearing. The BIA also denied Joseph's motion to remand which Joseph had filed alongside his appeal. On appeal, the main issue was whether an IJ, who presides over a petitioner's bond hearing and removal hearing, may use her notes from the unrecorded bond hearing in reaching her decision in the removal hearing. The USCA concluded that she may not. Because the other grounds for the IJ's and BIA's adverse credibility finding were also erroneous, the USCA granted the petition for review and remanded to the BIA for it to determine whether, accepting Joseph's testimony as true, he is eligible for relief. Concurring, Judge Graber agreed that the petition had to be granted, but wrote separately to express her view that, in situation other than the particular one presented her, statements made at a bond hearing may be admissible and may support an adverse credibility determination. B. Fletcher, Pregerson (author), Graber (concurring), Circuit Judges. J. Chatten-Brown of San Diego, CA, for the petitioner; M. Eaton of Washington, DC, for the respondent. (Download the full text of this decision at www.usca-portal.com) 22) IMMIGRATION: Ramirez-Villalpando
v. Holder, 08-72102 (9th Cir. April 9, 2010). The petitioner, a citizen
of Mexico, was admitted to the U.S. as a lawful permanent resident in 1961. In
2006, he was arrested and charged by felony complaint on theft charges. He later
sought review of a BIA decision affirming an order of removal based on his conviction
for an aggravated felony. In 2006 he was arrested, charged, and pleaded guilty
to grand theft of personal property in violation of California Penal Code Sec.
487(a) for unlawfully taking tires and rims, and receiving stolen property in
violation of California Penal Code Sec. 496(a) for obtaining tires and rims. The
BIA had held that his conviction under Sec. 487(a) qualified as an aggravated
felony under the modified categorical approach. The USCA agreed and denied the
petition for review. The record clearly demonstrates that the petitioner's conviction
under Sec. 487(a) qualified as an aggravated felony under the modified categorical
approach. As a result, he is subject to removal under INA Sec. 237(a)(2)(A)(iii).
See 8 USC Sec. 1127(a)(2)(A)(iii). Wallace, Hug, and Clifton (author), Circuit
Judges. B. Shumate of Washington, DC, for the petitioner; A. Frederickson of Washington,
DC, for the respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
24) IMMIGRATION: Vasquez v. Holder, 05-73714 (9th Cir. April 19, 2010). The petitioner, Renerose Vasquez, a 37-year-old native and citizen of the Philippines, married Wilfredo Vasquez, a U.S. citizen, in the Philippines in January 1994. On February 2, 1995, Vasquez was admitted to the U.S. as a conditional permanent resident as the wife of a U.S. citizen. As required, Renerose and Wilfredo filed a joint petition to remove the conditions on residence and appeared for an interview on May 20, 1998, with the INS. Seven years of Byzantine procedures followed. First, at the INS interview on the joint petition, Wilfredo signed an affidavit stating that Renerose's grandmother promised him $3000 (half of which he accepted, half of which he refused) to marry Renerose for immigration purposes. Renerose signed an affidavit stating that she knew that "did wrong" and that her grandmother paid Wilfredo because she "she's trying to help us [because] that's the one way." The INS issued a written notice terminating Renerose's conditional resident status. The notice recounted Wilfredo's admission that the marriage was "entered into for the sole purpose of obtaining immigration benefits," and cited Matter of McKee, 17 I&S Dec. 332 (BIA 1990), for the proposition that "a marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, has not be recognized as enabling an alien spouse to obtain immigration benefits." It concluded that "Based on the foregoing facts and since the Petition…is a joint petition and no longer represents the signature of the United State citizen spouse, the petition may not be approved and therefore must be denied." The INS then served Renerose with a Notice to Appear, charging her with removability under INA Sec. 237(a)(1)(A), 8 USC Sec. 1227(a)(1)(A), as an alien inadmissible at the time of admission because she sought to procure admission by fraud. While removal proceedings were pending, Renerose filed a second petition to remove the conditions on residence, this time seeking an extreme hardship waiver under Sec. 216(c)(4)(A). After Renerose appeared before an IJ and denied she had committed marriage fraud, the removal proceedings were continued to await INS adjudication of her pending application for a waiver. Renerose divorced Wilfredo on June 2, 2000, and married Frederick Villanueva, a U.S. Citizen, on December 2000. Renerose and Frederick had a son, Eren, on September 10, 1999. Eren has "mild persistent asthma," which has required his hospitalization at least twice. Frederick filed an immediate relative petition on Renerose's behalf. To facilitate that petition, Renerose filed a second request for waiver of the joint petition requirement, this time on the basis that her marriage to Wilfredo had been terminated but had been entered into in good faith. Finally, in 2003 Renerose supplemented her application for an extreme hardship waiver with documentation of hardship to her U.S. citizen husband and child. On December 9, 2002, the INS issued a written notice denying Renerose's application for an extreme hardship waiver. The notice stated, inter alia, that Renerose was not statutorily eligible to apply for the waiver because she had met the joint petition requirement. Her petition had been denied on its merits, the IRS ruled, for marriage fraud. The removal proceedings were then renewed, and Renerose appeared before a visiting immigration judge, IJ Smith, on August 15, 2003. Vasquez testified that her marriage to Wilfredo was in good faith but she did not move in with him because she was afraid that his ex-wife-her aunt-would be jealous. IJ Smith held that the government had justified its decision to terminate Renerose's status by a preponderance of the evidence, because it had shown that the marriage to Wilfredo was entered into for the purpose of immigration to the United States and no other basis. Ruling that no extreme hardship waiver was available because the joint petition had been filed but denied, IJ Smith continued the proceedings so that Renerose could seek a waiver under Sec. 237(a)(1)(H) (the "fraud waiver"). The fraud waiver provision allows the Attorney General to waive removal for an alien who sought to procure admission by fraud and is the spouse or parent of a U.S. citizen. The Department of Homeland Security responded to this suggestion by filing an additional charge of removability against Renerose on October 24, 2003: It now charged that she was removable not only for fraudulent admission but also, pursuant to Sec. 237(a)(1)(D)(i) as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated. Renerose appeared before another immigration judge, IJ Yam, on January 28, 2004. IJ Yam held that the fraud waiver did not apply to the additional charge filed against Renerose. She thus pretermitted Renerose's application for fraud waiver and, in the alternative, denied the waiver "in the exercise of discretion." Finding Vasquez ineligible for relief, IJ Yam ordered her removed to the Philippines. Renerose timely appealed the two immigration judges' orders to the Board of Immigration Appeals ("BIA"). The BIA addressed both IJ rulings in a single decision, affirming IJ Smith's ruling that Renerose was ineligible to apply for an extreme hardship waiver and IJ Yam's ruling that the fraud waiver would not cover both grounds of removal, and, in the alternative, IJ Yam's discretionary waiver denial. Premised on this ruling, the BIA dismissed Renerose's appeal from the removal order. At issue on appeal to the USCA was whether an alien whose legal status as the spouse of a citizen was later terminated because the marriage was fraudulent is eligible for discretionary relief from removal. The USCA concluded that she is. It granted the petition and remanded to the BIA to determine whether the petitioner's application for a fraud waiver should be denied in the exercise of discretion. While the BIA did not err in holding that the petitioner was ineligible to apply for an extreme hardship waiver under Sec. 216(c)(4), the petitioner was eligible to apply for a fraud waiver under Sec. 237(a)(1)(H), as her conditional permanent resident status was terminated upon a finding of marriage fraud. In these circumstances, the USCA concluded that the fraud waiver can waive removal based on the termination of status. Schroeder and Berzon (author), Circuit Judges, and Strom, District Judge. J. Johnson of San Francisco, CA, for the petitioner; R. Evans of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Morales-Izquierdo v. Holder, 08-35965 (9th Cir. April 2, 2010). Morales, a Mexican citizen, entered the U.S. without inspection in March 1990. He was later arrested by the INS and placed in removal proceedings. He did not attend these proceedings and was ordered removed in absentia on September 14, 1994. He was removed to Mexico in January 1998. He reentered the U.S. without inspection on Jan. 8, 2001. At some time between his 1998 removal and his 2001 reentry, he married a U.S. citizen. Two months after his illegal reentry into the U.S., Morales and his U.S.-citizen wife appeared at an INS office in Spokane, Washington, seeking to adjust Morales' immigration status to that of a lawful permanent resident ("LPR"). His application was denied because his prior removal made him "inadmissible." He filed a habeas petition challenging the rejection by an INS official of his adjustment-of-status application, denial of which by the district court prompted this appeal. Morales maintained that under the Ninth Circuit's interpretation of the relevant statute at the time he filed his application, he was eligible for a discretionary waiver of inadmissibility. Perez-Gonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). However, the USCA noted that it has subsequently overruled that waiver precedent because of an intervening decision by the BIA. Gonzales v. Dept. of Homeland Security, 508 F.3d 1227 (9th Cir. 2007). Such deference is required by National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 US 967 (2005). Moreover, after Morales filed his habeas petition, the jurisdiction of federal district court to hear habeas challenges to administrative decisions relating to removal orders was curtailed by Sec. 106(a) of the REAL ID Act. See 8 USC Sec. 1252(a)(5). At issue on appeal, was whether Morales could challenge the denial of his adjustment-of-status application in a habeas proceeding after enactment of the REAL ID Act, and whether the decision in Gonzales, overruling the Circuit's prior interpretation of a statute as required by Brand X, makes Morales ineligible for waiver of inadmissibility. The USCA denied the petition. It concluded that the REAL ID Act stripped the district court of habeas corpus jurisdiction to consider Morales' challenge to the administrative denial of his adjustment-of-status application, because the denial was part of a reinstatement order constituting and "order of removal." Construing the appeal as a timely filed petition for review, the USCA held that its interpretation of the Immigration and Naturalization Act in Gonzales-following Brand X's directive and overruling the Circuit's prior interpretation of the statute-applies to all cases currently on direct review. Thus, a Form I-212 waiver could not cure Morales' inadmissibility under 8 USC Sec. 1182(a)(9)(C). Denying his adjustment-of-status application did not violate due process, even in the light of impact on his family. Morales was thus not eligible to adjust his status. Beezer, Gould (author), and Tallman, Circuit Judges. R. Pauw of Seattle, WA, for the petitioner-appellant; P. Sandhu of Washington, DC, for the respondents-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 26) CHILD PORNOGRAPHY: USA v. Strickland, 08-30091
(9th Cir. April 19, 2010). Strickland appealed following his guilty-plea conviction
for receipt and possession of child pornography. He challenged the government's
proof at sentencing that his prior Maryland conviction for child abuse was a predicate
offense relating to the sexual abuse of a minor under 18 USC Sec. 2252A(b)(1)
and (2) and supported an increased statutory minimum and maximum sentence. To
show that the prior Maryland conviction was a predicate offense, the government
offered a Maryland court docket sheet and sex offender registration documents
signed by Strickland from the states of Washington and Montana. The USCA affirmed
the district court's judgment on the basis that the docket sheet for the Maryland
conviction established that the predicate offense was for the sexual abuse of
a child. The USCA thus did not consider whether the district court could consider
Strickland's sex offender registration forms. That docket sheet, like the minute
order in USA v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc),
had the requisite reliability to be considered and allowed for no reasonable conclusion
other than that Strickland pled guilty to sexual abuse of a child. Nothing more
is required by statute or case law. Judge Kozinski concurred in most of the majority's
opinion but also agreed with Judge Reinhardt that the USCA's failure to decide
whether the district court erred in relying on Strickland's sexual offender registration
forms was wrong and unfortunate. It's wrong for the reason given by Judge Reinhardt
and one more, Judge Kozinski said: The district judge relied on the registration
forms in finding that Strickland had been convicted of a predicate offense under
Sec. 2252A(b)(1), but it is not known whether he would have made the same finding
in the absence of the forms. If his reliance on the registration forms was improper
as a matter of law, the USCA should remand and give the district judge an opportunity
to make findings without relying on any improper documents. Concurring, Judge
Thomas agreed with Judge Berzon that docket sheets, as a general category, are
not inherently reliable and do not qualify as documents that satisfy the rigorous
standard necessary to be used as conclusive proof of a prior conviction. However,
Judge Thomas said that he was persuaded, under the unique circumstances of this
case, that the tendered evidence was sufficient to prove that the defendant's
Maryland conviction for child abuse was a predicate offense under Sec. 2252A(b).
He thus concurred in the majority opinion. Judge Berzon, joined by Judges Schroeder
and Reinhardt, and in part by Judge Thomas, dissented. The majority held that
a Maryland state court document is adequate to provide that Strickland was convicted
of a sexual offense. It held, essentially, that what it refers to as the "docket
sheet" in Strickland's Maryland conviction is "close enough" to
the minute order approved in Snellenberger to form the basis for judicial enhancement
of his criminal sentence. Judge Berzon thought that this conclusion was wrong
for three reasons: First, docket sheets, as a general category, are not inherently
reliable. Second, the Maryland statutes and court rules cited by the majority
do not demonstrate that docket sheets created in the Maryland state courts meet
the Snellenberger criteria. Third, the specific document the majority describes
as a docket sheet and views as conclusively proving that Strickland committed
a sexual offense is actually a document of some other kind, was not created at
the time of his guilty plea, and does not contain a description of the offense
of conviction that unambiguously meets the federal criteria. Thus, the documents
relied upon by the majority did not satisfy the "demand for certainty when
identifying a generic offense" required by Shepard v. USA, 544 US
13, 21 (2005). If Strickland was actually convicted of child sexual abuse, the
government could have introduced the charging documents, agreed statement of facts,
or other conviction records approved under Shepard to show that fact. The government
instead offered several unreliable documents that did not alone or in tandem,
unequivocally establish the fact that Strickland was convicted of a sexual offense.
Judge Berzon thought that the majority, by permitting trial courts to go "beyond
conclusive records made or used in adjudicating guilt," Shepard, 544 US at
21, eroded the constitutional protections at the heart of our system of criminal
adjudication. Judge Reinhardt concurred in Judge Berzon's dissent but wrote separately
to register his objection to the majority's failure to rule upon the uses of the
Montana sex offender registration forms. He said the USCA took this case en banc
to decide whether the forms at issue and similar extra-judicial forms fit within
the narrow category of documents that may be considered in determining whether
a past conviction falls within a particular category of offense. In Judge Reinhardt's
view, to fail entirely to address the issue that caused the court to go en banc
constitutes an abuse of the en banc process. It allows future district courts
and three-judge Ninth Circuit panels to repeat the Strickland panel's error of
relying upon such forms, resulting in erroneous decisions which could easily be
avoided by resolving the issue in this proceeding. Kozinski (concurring),
Schroeder, Reinhardt (dissenting), O'Scannlain, Rymer, Thomas (concurring),
Silverman, Berzon (dissenting), Bybee, Callahan (author), and Ikuta,
Circuit Judges. A. Gallagher of Helena, MT, for the appellant; AUSA W. Archer
of Billings, MT, for the USA. (Download
the full text of this decision at www.ce9.uscourts.gov/)
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