Case Summaries

Immigration Law

[07/23] US v. Jimenez
A sentence for unlawful reentry of a deported alien is affirmed where defendant's prior convictions for Unlawful Use of a Communication Facility under 21 U.S.C. section 843(b) qualify as "drug trafficking offenses" under section 2L1.2(b)(1)(A)(i) of the Guidelines, as reasoned in US v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

[07/23] Singh v. Mukasey
The REAL ID Act of 2005 gives aliens whose removal order became final before the REAL ID Act a reasonable opportunity to obtain judicial review. Aliens whose petitions were rendered untimely by the Act had a grace period of no more than 30 days from the effective date of the Act in which to seek such review.

[07/23] Huang v. Mukasey
Petitions for review of BIA's denials of several petitions to reopen removal proceedings are dismissed in part and denied in part where no reviewable questions of law were presented regarding: 1) whether petitioners would face persecution in China for violating its one-child policy; 2) denial of a petition based on petitioner's propensity to lie in prior removal proceedings; or 3) dismissal as untimely of a petition to reopen based on the ineffective assistance of counsel at prior proceedings.

[07/22] Llanos-Fernandez v. Mukasey
Petition for review of a denial of minor petitioner's motion to reopen his removal proceedings and rescind his in abstentia order is granted where petitioner's uncle, into whose custody he had been released, was not served with the notice of the hearing.

[07/21] Lin v. Mukasey
Petition for review of a denial of asylum and related relief is denied where: 1) the REAL ID Act of 2005 abrogated the circuit court's holding in a prior case that an adverse credibility determination cannot be based on inconsistencies and omissions that are ancillary or collateral to an applicant's claims of persecution; and 2) pursuant to the REAL ID Act, an IJ's adverse credibility was proper in light of the totality of the circumstances.

[07/18] Tekle v. Mukasey
Ethiopian citizen's petition for review of a denial of an application for asylum and related relief is granted where the BIA's adverse credibility determination was not based on substantial evidence. Where an IJ has made an adverse credibility finding and has also concluded in the alternative that petitioner is ineligible for asylum or other relief, and the BIA has affirmed on the basis of the IJ's adverse credibility finding, but has specifically declined to reach the issue of eligibility for asylum and other relief, the circuit court must remand under INS v. Ventura, 537 U.S. 12, 16 (2002).

[07/18] Uli v. Mukasey
In an immigration proceeding, petition for review of a denial of an application for asylum and related relief is affirmed where: 1) the BIA did not err by not reversing an IJ's adverse credibility determination since the BIA treated her account as credible; 2) petitioner failed to establish past persecution; 3) the BIA did shift the burden to the Department of Homeland Security to rebut the presumption that petitioner had a reasonable fear of future persecution; 4) the BIA properly relied on the fact that petitioner's family still resided in Indonesia as evidence of changed country conditions; and 5) the court did not err in denying the request for withholding.

[07/18] Gutierrez-Olivares v. Mukasey
In an immigration proceeding, petition for review of a denial of an application for asylum and withholding of removal is dismissed where: 1) the court lacks jurisdiction to review a determination that petitioner's application for asylum was untimely; and 2) petitioner failed to prove that he will suffer persecution based on his political opinion if he is removed.

[07/17] US v. Singh
A conviction and sentence for offenses related to defendant's role in a human smuggling conspiracy is affirmed over claims that: 1) there was insufficient evidence to establish that he brought, or aided and abetted the bringing of, an alien into the United States as alleged in one count; and 2) the sentence violated Apprendi.

[07/17] Dhital v. Mukasey
Petition for review of a decision denying admissibility to a Nepalese student who admitted to having previously obtained asylum under a false identity is denied where substantial evidence supported findings that: 1) extraordinary circumstances did not justify petitioner's untimely filing and that he was ineligible for asylum as a result; 2) his lack of credibility prevented him from obtaining withholding of removal; and 3) CAT relief should be denied.

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Criminal Law & Procedure

[07/23] Meza v. Livingston
In an inmate's suit against state prison officials raising claims under the Fourteenth Amendment, denial of summary judgment for defendants is affirmed for lack of jurisdiction where an appeal of the district court's alleged failure to address defendants' Eleventh Amendment immunity claims was an unreviewable interlocutory appeal.

[07/23] US v. Jimenez
A sentence for unlawful reentry of a deported alien is affirmed where defendant's prior convictions for Unlawful Use of a Communication Facility under 21 U.S.C. section 843(b) qualify as "drug trafficking offenses" under section 2L1.2(b)(1)(A)(i) of the Guidelines, as reasoned in US v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

[07/23] US v. Zastrow
A 240-month sentence for producing child pornography is affirmed over a reasonableness challenge where defendant did not identify evidence in the record indicating the district court committed a procedural error, and there was no abuse of discretion in the sentence.

[07/23] US v. Torres
Suppression of evidence gathered after a traffic stop is reversed where the totality of circumstances indicated that a tip from unidentified informant possessed sufficient indicia of reliability to give police a reasonable articulable suspicion justifying a Terry stop.

[07/23] US v. Clark
Convictions for possession and conspiracy to distribute cocaine are affirmed where: 1) evidence of prior drug relationships was properly admitted; 2) evidence of the details of a physical attack in which defendants were not involved was not prejudicial; 3) a photo intended to be used to impeach a witness was properly excluded; 4) a prior statement of a witness was properly excluded as irrelevant; and 5) the prosecutor's characterization of a defendant's anticipated closing argument as a "standard" argument made by drug defendants was improper, but did not prejudice defendant.

[07/23] Gil v. Reed
In an inmate's negligence, malpractice, and civil rights suit against prison medical staff, summary judgment for defendants is reversed where the record contained sufficient evidence to show genuine issues of material fact on: 1) inmate's Eighth Amendment claim that prison staff were deliberately indifferent to his medical needs; and 2) whether defendants had met the standard of care, using the state-law standard as required by the Federal Tort Claims Act.

[07/22] Fratta v. Quarterman
Grant of a habeas corpus petition in a capital murder case is affirmed, and request for a certificate of appealability on other issues is denied, where: 1) the admission at trial of the custodial confessions of codefendants violated the Confrontation Clause; 2) the fact that out-of-court statements of a coconspirator are admissible under state evidentiary law is not sufficient to meet the requirements of the Confrontation Clause; 3) the admission of the out-of-court statements of a coconspirator at defendant's trial violated the Confrontation Clause; and 4) the error was not harmless.

[07/22] US v. Saltzman
Dismissal of an indictment on the basis of prosecutorial vindictiveness is reversed where: 1) the filing of a superseding indictment containing additional charges following defendant's withdrawal of his guilty plea does not suggest a "realistic likelihood" of vindictiveness sufficient to raise a presumption of vindictiveness; and 2) defendant presented no evidence of actual vindictiveness.

[07/22] US v. Carnagie
Grant of defendants' motion for judgment of acquittal after a jury found them guilty of conspiracy to defraud the U.S. and conspiracy to commit money laundering is reversed and remanded where: 1) the evidence did not support broad conspiracies to defraud the U.S. and to launder money whereby defendants acted "together" for their "shared mutual benefit"; 2) thus, they were not interdependent coconspirators and the government failed to prove the two widespread conspiracies charged; but 3) even though a variance occurred, defendants did not suffer substantial prejudice as a result.

[07/22] Crawley v. Dinwiddie
Denial of habeas relief is affirmed where there is no clearly established federal law relevant to petitioner's claim that his counsel was ineffective in accommodating petitioner's preference to be found competent, despite his personal misgivings and the contrary opinions of a doctor and the prosecutor.

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Family Law

[07/22] In re Esmeralda S.
Juvenile court's order terminating defendant-mother's parental rights to her child is affirmed over claims of error that: 1) defendant's due process rights were violated when the juvenile court appointed her a guardian ad litem; and 2) the juvenile court did not properly inquire into her and the minor's father's possible American Indian ancestry for purposes of complying with Indian Child Welfare Act.

[07/18] In re Brandon T.
Order terminating mother's parental rights over her child is affirmed where: 1) there was sufficient evidence that the minor was specifically adoptable by his relative caretakers; 2) the Indian Child Welfare Act does not require more than one expert at a section 366.26 hearing; 3) there was sufficient evidence that continued custody would result in serious emotional or physical harm to the minor; and 4) mother was not prejudiced by a lack of evidence in regard to prevailing social and cultural standards of the minor's tribe.

[07/18] Duran v. Beaumont
Dismissal of a motion for the return of petitioner's daughter to Chile is affirmed where, for purposes of the Hague Convention on the Civil Aspects of International Child Abduction, petitioner had only access rights, not custody rights, leaving the district court without jurisdiction to order the return of the child.

[07/16] In re Marriage of Sonne
In a marriage dissolution proceeding, a conclusion that repurchased service credits for husband's years of service to his employer prior to his wife were community property is affirmed where the repurchase of service credits involved the commingling of separate and community property in the use of community funds to purchase the service credits. However, assignation to the wife of the entire survivor benefit of which she was the irrevocable beneficiary is reversed and remanded where the husband was only compensated for the cost of the survivor benefits when its value far exceeded its cost.

[07/10] In re A.M.
In deciding whether to grant a parent's request for self-representation in a juvenile dependency proceeding, a juvenile court must consider the child's right to a prompt resolution of custody status. The juvenile court has discretion to deny the request when it is reasonably probable that self-representation will unduly delay the proceedings, impairing the child's right to a prompt resolution of custody status. A parent's disruptive behavior may be sufficient, but is not necessary to deny the request.

[06/30] Harper v. Division of Family Services
In a parental right adjudicatory proceeding, the court's decision to terminate respondent's parental rights and transfer of the minor to the Division of Family Services is affirmed where: 1) there was clear and convincing evidence to terminate parental rights; and 2) the state was able to prove that termination of parental rights was in the minor's best interest.

[05/29] In re Marriage of Gong
An appeal from an order to pay child support and related obligations is dismissed as frivolous and monetary sanctions are imposed on appellant who pursued every possible avenue to evade his support obligations, even when ordered to do so by the court, and prosecuted a meritless appeal solely for the purpose of taking advantage of the delay in discharging his payment obligations.

[05/29] U.S. v. Dedman
In a prosecution arising from a marriage between defendant's adopted daughter/cousin and defendant's adoptive father as part of a plan to collect his military pension, her conviction for conspiracy to defraud the U.S. Department of Defense and making material false statements to a federal agent is affirmed where: 1) the government could not rely on its sham-marriage theory because the district court did not instruct the jury as to such argument; 2) the district court correctly decided that the marriage was void under Arkansas state law; 3) even if the Arkansas marriage statute were unconstitutional, it was not plain error for the district court to apply it; 4) sufficient evidence supported the convictions; 5) a jury instruction regarding Arkansas law was not plainly erroneous; and 6) withheld taxes are properly considered part of the government's loss under U.S.S.G. section 2B1.1.

[05/27] San Joaquin County Dep't of Child Support Serv. v. Winn
In county's action seeking to establish defendant's paternity for purposes of obtaining an order that he pay child support and furnish health insurance for his children, defendant's appeal from an order granting a motion for genetic testing and providing that a proposed statement of decision would become the court's judgment if no one objected within 15 days, is dismissed where: 1) the mere "proposed statement of decision" did not make it a judgment from which an appeal could be taken; 2) the genetic testing order was not appealable as a collateral order; and 3) the underlying paternity action did not elevate to the level of importance warranting treating the appeal as a writ application.

[05/23] In re Marriage of Carlsson
Judgment in a marriage dissolution case is reversed and remanded for retrial on grounds of fundamental unfairness and due process violation where, after displaying some impatience and agitation, the family law judge arbitrarily declared the trial over and left the courtroom while an expert witness for the husband was on the stand in the midst of being questioned by counsel.

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