Go v. Holder

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by Justia Inc
Petitioner sought review of the BIA's denial of his motion to reopen under the Convention Against Torture (CAT). The court rejected petitioner's principal argument that the regulations governing motions to reopen at 8 C.F.R. 1003.2(c) did not apply to motions that arise under the CAT, insofar as the language of these regulations makes no reference to either the CAT or to deferral or removal. Accordingly, the court held that the procedural requirements specified in 8 C.F.R. 1003.2(c) applied to CAT claims. The BIA did not abuse its discretion in concluding that the evidence of "mistreatment and abuse" presented by petitioner did not constitute evidence of "worsening" country conditions, which meant that this evidence was insufficient to show that the "changed circumstances" exception to the bar on untimely motions to reopen applied to this case. The court lacked jurisdiction to review the BIA's decision not to invoke its sua sponte authority to reopen proceedings. Accordingly, the court denied in part and dismissed in part. View "Go v. Holder" on Justia Law

Montoya v. Holder

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by Justia Inc
While on the waiting list but after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1231(a)(5), DHS issued a reinstatement of petitioner's removal order. Petitioner sought review of this reinstatement, arguing that the application of the reinstatement statute in the Act was impermissibly retroactive with respect to her, as her Form I-130 was filed prior to the Act's effective date. The court agreed with the Fifth and Seventh Circuits and held that the mere filing and approval of a Form I-130 created no vested right to apply for adjustment of status. In this case, petitioner's brother filed an I-130 on her behalf and the government placed her on the waiting list. She did not apply for adjustment of status. She took no pre-enactment action sufficient to create a vested right to apply for adjustment, and therefore the reinstatement provisions of the Act could be permissibly applied to her. Accordingly, the court denied the petition for review. View "Montoya v. Holder" on Justia Law

United States v. Bainbridge

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by Justia Inc
Defendant pleaded guilty to one count of assault with intent to kidnap. At issue was whether a district court could impose a sexual deviancy evaluation as a condition of supervised release when deviant sexual conduct was not an element of the underlying crime of conviction. The court agreed with the Eighth and Tenth Circuits and held that a district court could modify a defendant's conditions of supervised release under 18 U.S.C. 3583(e)(2) even absent a showing of changed circumstances. The district court's order modifying the conditions of supervised released did not constitute error where the district court properly followed the requirements of section 3583(e)(2). The district court did not abuse its discretion when it ordered defendant to undergo a sexual deviancy evaluation to determine whether additional supervised released conditions were necessary. Accordingly, the court affirmed the district court's order. View "United States v. Bainbridge" on Justia Law

Clabourne v. Ryan

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by Justia Inc
Petitioner, convicted of murder and sentenced to death, appealed the denial of his petition for federal habeas petition relief. The district court certified one issue for appeal, based on petitioner's argument that the Arizona Supreme Court refused to consider mitigation evidence contrary to Eddings v. Oklahoma, specifically evidence regarding his mental illness. The court held that the Arizona Supreme Court did in fact consider, and gave weight to, petitioner's mental condition. Therefore, the court affirmed the district court's denial of this claim. After consideration, the court declined to certify petitioner's request for a certificate of appealability for other claims. The court did issue a certificate of appealability as to two additional claims, both alleging ineffective assistance of counsel at the 1997 resentencing. The district court denied habeas relief as to those claims because they had been procedurally defaulted. In light of Martinez v. Ryan, the court vacated the district court's denial of habeas relief as to petitioner's claim of ineffective assistance of counsel based on the failure of his counsel at resentencing to object to the court's consideration of a confession petitioner had given to the police in 1982. However, the court affirmed the denial of habeas relief as to petitioner's claim of ineffective assistance of counsel based on counsel's alleged failure to submit additional psychological evidence. View "Clabourne v. Ryan" on Justia Law

United States v.Tanke

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by Justia Inc
Defendant was convicted of five counts of bank fraud and two counts of mail fraud. The court held that mailings designed to avoid detection or responsibility for a fraudulent scheme fell within the mail fraud statute when they were sent before the scheme was completed. In order to determine when a scheme is completed, the court looks to the scope of the scheme as devised by the perpetrator. In this case, a reasonable jury could have found that defendant sent the September 16 letter prior to the scheme's completion. Accordingly, the court rejected defendant's argument that his conviction on count 2 must be reversed because the scheme was completed before the September 16 letter was mailed. The court also rejected defendant's alternative argument that the September 16 letter could not support a conviction for mail fraud because it was sent after the fraud was uncovered. Therefore, sufficient evidence supported defendant's mail fraud conviction on count 2 and the court affirmed the conviction. Further, the court affirmed the district court's application of a 2-level sentencing enhancement for making a misrepresentation during the course of a bankruptcy proceeding under U.S.S.G. 2B1.1(b)(9)(B) and application of a 2-level enhancement for using sophisticated means under U.S.S.G. 2B1.1(b)(10)(C). The court held, in accord with the government's concession, that the district court plainly erred by including $44,715.21 in restitution for fraudulent credit cards and $1,851.38 in restitution for wage overpayments that were not part of the offenses of conviction and by failing to note the waiver of interest on restitution on the judgment. View "United States v.Tanke" on Justia Law

Airs Aromatics v. Victoria’s Secret

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by Justia Inc
Airs International, a purported owner of an ANGEL DREAMS trademark, filed suit against Victoria's Secret alleging breach of contract claims and requesting cancellation of Victoria's Secret's registered DREAM ANGELS trademark. On appeal, Airs International challenged the district court's dismissal of its claims. The court held that Section 37 of the Lanham Act, 15 U.S.C. 1119, did not provide an independent basis for federal jurisdiction. Because Airs Aromatics had not appealed the dismissal of the only claims it brought that could support jurisdiction, the district court's judgment dismissing this action with prejudice must be affirmed. Airs Aromatics has not alleged sufficient facts to support a claim for trademark infringement where it failed to allege that the litigation was the kind of continuous, public usage of a trademark that served to identify the marked goods to the public as those of the mark's owner. Finally, leave to amend would be futile. Accordingly, the court affirmed the judgment of the district court. View "Airs Aromatics v. Victoria's Secret" on Justia Law

United States v. Yazzie

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by Justia Inc
Defendants appealed their convictions for aggravated sexual abuse of a minor. Applying the test set out in Waller v. Georgia, the court concluded that defendants' Sixth Amendment rights to a public trial were not violated when the district court closed the courtroom while the child victims were testifying; the closure at Defendant Yazzie's trial did not violate the statutory provision permitting a closed courtroom during the testimony of a child witness; and Yazzie's multiple convictions under 18 U.S.C. 2241(c) for discrete sexual acts that occurred during one sexual encounter with the victim did not violate the Double Jeopardy Clause. Accordingly, the court affirmed the judgment of the district court. View "United States v. Yazzie" on Justia Law

Dariano v. Morgan Hill Unified Sch. Dist., et al.

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by Justia Inc
Students brought a civil rights suit against the school district and two school officials after the school asked a group of students to remove clothing bearing images of the American flag when school officials learned of threats of race-related violence during a school-sanctioned celebration of Cinco de Mayo. The court concluded that school officials did not violate the students' rights to freedom of expression, due process, or equal protection where the school officials anticipated violence or substantial disruption of or material interference with school activities and their response was tailored to the circumstances. Accordingly, the court affirmed the district court's holding that the policy was not unconstitutionally vague and did not violate the students' rights to due process. View "Dariano v. Morgan Hill Unified Sch. Dist., et al." on Justia Law

Tadevosyan v. Holder

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by Justia Inc
While petitioner, a native of Iran and citizen of Armenia, was appealing the BIA's removal order, he married a United States citizen. The BIA then affirmed the removal order and petitioner filed a timely motion to reopen, which the BIA denied. The court concluded that the BIA abused its discretion by improperly relying on a de facto DHS veto as dispositive of petitioner's motion to reopen; petitioner's affidavit was sufficient to make the prima facie showing required when the BIA considered a motion to reopen; had the BIA addressed the issue on the merits, it would have been an abuse of discretion to deny the motion; and if the BIA had indeed meant to address those merits, it did not fulfill its obligation to provide a reasoned explanation for its actions. Accordingly, the court granted the petition for review and remanded to the BIA for further proceedings. View "Tadevosyan v. Holder" on Justia Law

Garcia v. Google, Inc.

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by Justia Inc
Plaintiff was cast in a minor role in an adventure film with the working title "Desert Warrior." The film never materialized and plaintiff's scene was used, instead, in an anti-Islamic film titled "Innocence of Muslims." The film was uploaded to YouTube.com and her brief performance was dubbed over so that she appeared to be asking, "Is your Mohammed a child molester?" An Egyptian cleric subsequently issued a fatwa, calling for the killing of everyone involved with the film. After Google refused to take it down from YouTube, plaintiff sought a restraining order seeking removal of the film, claiming that the posting of the video infringed the copyright in her performance. The district court treated the application as a motion for a preliminary injunction but denied the motion. The court concluded that plaintiff demonstrated a likelihood of success on the merits where plaintiff had an independent copyright interest in her performance; the work for hire doctrine was inapplicable in this instance because plaintiff was not a traditional employee and the filmmaker was not in the regular business of making films; and although plaintiff granted the filmmaker an implied license to use plaintiff's performance, the filmmaker exceeded the bounds of the license when he lied to plaintiff in order to secure her participation and she agreed to perform in reliance on that lie. The court also concluded that plaintiff faced irreparable harm absent an injunction where plaintiff took legal action as soon as the film received worldwide attention and she began receiving death threats; the harm plaintiff complained of was real and immediate; and plaintiff demonstrated a causal connection because removing the film from YouTube would help disassociate her from the film's anti-Islamic message and such disassociation would keep her from suffering future threats and physical harm. Finally, the balance of the equities and the public interest favored plaintiff's position. Accordingly, the court concluded that the district court abused its discretion in denying the motion for a preliminary injunction. The court reversed and remanded. View "Garcia v. Google, Inc." on Justia Law