Monday, December 03, 2012

Tenth Circuit -- Aguilar-Aguilar v. Napolitano

BIA not estopped from instituting removal petition based on conviction by proceeding with discretionary removal.

No 5A interest imperilled in simultaneously terminating first process and instituting the second, as relief offered by the first process was entirely at the agency's discretion.

Aguilar-Aguilar v. Napolitano


APA challenges that implicate immigration removal proceedings are barred by statute -- petitioner is limited to those statutory processes.



Federal courts cannot review immigration holding allowing removal based on commission of a particularly dangerous crime unless a matter of law is raised, a constitutional claim is raised, or the IJ makes findings extraneous to the record of the conviction.

Relevant statute not unconstitutional.

Concurrence (by the author): The extraneous findings category ("on the merits") is erroneous.



Front gate to small lawn is quintessential curtilage.

Police officer's kicking in of front gate (onto homeowner) while pursuing someone who was evading questioning about a baseball bat incident was not justified by exigency or emergency.  (Suspect was not carrying a baseball bat.)

Policeman had fair notice of clearly established right for purposes of S1983.


EIghth Circuit -- David G. Velde v. Border State Bank

Quick "going out of business" sales with proceeds going directly to the creditors really shouldn't be held inside of 90 days before bankruptcy. That's a voidable transfer -- and paying the costs of the sale isn't the giving of new value.

Floating lien defense not valid where the interest is unsecured. 

Amounts on deposit with creditor bank are subject to a security interest -- nothing more need be done to achieve setoff protections.

Bankruptcy court's arithmetic was correct.

 David G. Velde  v.  Border State Bank

Eighth Circuit -- Joyce Johnson v. MFA Petroleum Company

Absence of a federal cause of action creates strong presumption  against a 'complete' preemption of state law -- 'complete' preemption allows removal to federal court despite the plaintiff's only having raised state claims.

Remand for CAFA analysis.

Dissent - Complete preemption is merely field preemption -- clearly no need for a statutory cause of action to find field preemption.   On-point precedent for this specific claim.

Joyce Johnson  v.  MFA Petroleum Company

Eighth Circuit -- Toby J. Sutton v. Patricia Bailey

State University administrators did not violate any clearly established rights of terminated instructor, in that a casual meeting with a supervisor sufficed for pretermination processes.

Speculative claims of the insufficiency of post-termination procedures irrelevant.

Toby J. Sutton  v.  Patricia Bailey

Eighth Circuit -- R.K.N. v. Eric H. Holder, Jr.

Although BIA did not specifically address the petitioner's HIV claim, since the Bureau incorporated the IJ's findings, their holding still is supported by substantial evidence.

 IJ did not err in excluding medical records.

BIA's upholding of a potentially flawed IJ legal analysis on credibility is a matter of law, not fact, and therefore permissible.  Doesn't reach the threshold for Article III reversal.

R.K.N.  v.  Eric H. Holder, Jr.

EIghth Circuit -- United States v. Efrain Orozco

As the policeman was filling out paperwork, Terry stop not unreasonably prolonged.

Sufficient evidence for constructive possession theory of conviction.

Remand for FSA adjustment in sentence - Act was passed after conviction, but before sentencing - as pro se petition insufficiently developed facts.

United States  v.  Efrain Orozco

Seventh Circuit -- USA v. Jwuan Moreland

Excusing jurors with business commitments doesn't offend 6A or statute.

No error in excusing jurors before deft entered proceedings.

Appropriate instruction cured potential confusion when witness was both lay and expert.

Selling drugs wholesale to a retailer is not per se evidence of conspiracy, as the transaction is arm's length.  But when the supplier extends credit to the retailer with the express understanding that they be sold, jury can properly find conspiracy.

Admission of cash found in patdown after auto stop in for inevitable discovery , as there were drug scales in the (stolen) car. 

Addiction doesn't justify downward reduction in sentence -- rather, court should lengthen post-conviction monitoring.  This applies to life sentences as well.

Harmless error in court's accidental announcement of deft's prior convictions.

Deft telling sister to hide gun in dropped ceiling = possession.

Court properly granted minor, not minimal participant sentencing adjustment.

USA v. Jwuan Moreland

Seventh Circuit -- USA v. Larry Purnell

Court can properly consider petitioner's fruitless collateral challenges to other aspects of his or her conviction when assessing whether to impose discretionary sentencing reduction. 

(Sentence was within guidelines either way.)

 USA v. Larry Purnell

Sixth Circuit -- Robert Andrews v. Hickman County, Tennessee

Police officer accompanying state child protective services who entered house without warrant violated clearly established law for S1983.  Neither consent, exeigency, nor de minimis.

Social workers covered by Fourth Amendment, but not liable when acting on false information provided by other state actors.

4A not as clear for social workers, so no clearly established law for purposes of S1983.

Robert Andrews v. Hickman County, Tennessee

Sixth Circuit -- OH Police & Fire Pension Fund v. Standard & Poor's Fin Services

Agency did not profit from the sale of the Funds, so its representations aren't governed by the statutory cause of action for negligent misrepresentation.

State securities statute requires affirmative misrepresentaiton, not withholding of information.

Funds did not owe investors a duty of care under NY law.  Ohio uses different terms to essentially the same result.

If the Agency believes the ratings, they're not actionable.

Absent motion to amend, 12(b)6 dismissal with prejudice proper.

OH Police & Fire Pension Fund v. Standard & Poor's Fin Services

Second Circuit -- United States v. Caronia

First Amendment protects pharmaceutical reps who advocate off-label uses of the drugs.

Narrowing construction of the statute - FDCA doesn't apply to marketing statements. 

Doesn't work under strict scrutiny or intermediate -- criminalizing reps' representations does nothing if anyone else can make the same representations.

Dissent -- speech was merely evidence of motive.  Demonstrates objective intent to violate statute.

United States v. Caronia

Second Circuit -- Lee v. Holder

Chevron deference to AG's holding that substitute claimants are not eligible for the grandfather clause in a form of immigration relief.  The ambiguity is in the application process, not the designation of beneficiaries.

Lee v. Holder

Second Circuit -- Zeno v. Pine Plains Cent. Sch. Dist.

Reasonable finder of fact could have held that school district was indifferent to racial harassment, given tepidity of response. 

No error in trial judge rejecting remmitteur.

    Zeno v. Pine Plains Cent. Sch. Dist.

First Circuit -- Gasparian v. Holder

Not enough new evidence to reopen immigraiton case.

No factors warranting Article III interference in prosecutorial discretion.  

Stayed for 90 days to allow son of family to apply for new form of relief.

Gasparian v. Holder
Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.