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The Ninth Circuit denied a petition for review of the BIA's decision upholding a final order of removal. At issue was whether the BIA permissibly interpreted the phrase "single scheme of criminal misconduct" under 8 U.S.C. 1227(a)(2)(A)(ii). In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the BIA affirmed its longstanding interpretation of "single scheme of criminal misconduct" under section 1227(a)(2)(A)(ii): "when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct." The panel upheld the BIA's interpretation under the principles of Chevron deference and held that the BIA properly applied this interpretation here, and that this application was not impermissibly retroactive. The panel explained that, because the phrase in question operates as an exception to a ground for deportation, the BIA's narrower definition of the exception serves to broaden the application of the removal provision, making petitioner subject to removal when he might not have been under the panel's previous definition. The panel also upheld the BIA's denial of discretionary relief, acknowledging the limitations on judicial review of discretionary decisions. View "Szonyi v. Whitaker" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for DHS in an action challenging DHS's authority to expedite construction of border barriers near San Diego and Calexico, California. On January 25, 2017, President Trump issued Executive Order 13,767, directing federal agencies to deploy all lawful means to secure the Nation's southern border. A focal point of the directive was to immediately construct a physical wall. As a threshold matter, the panel held that it had jurisdiction to consider the "predicate legal question" of whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) authorizes the contested projects. On the merits, the panel held that IIRIRA section 102(a)'s broad grant of authority, which was not limited by section 102(b), authorized the construction projects. The panel affirmed the district court's grant of summary judgment to DHS, holding that the projects were statutorily authorized and therefore not ultra vires. The panel also held that DHS has waived the environmental laws California and environmental groups sought to enforce. Furthermore, the panel lacked jurisdiction to consider any argument challenging the Secretary of DHS's August and September 2017 waivers of applicable environmental laws. View "Center for Biological Diversity v. Department of Homeland Security" on Justia Law

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The Ninth Circuit affirmed the district court's forfeiture order in an action where defendant pleaded guilty to one count of attempting to export ammunition from the United States and one count of conspiracy to export firearms and ammunition. The panel held that the district court did not err in ordering forfeiture because 18 U.S.C. 924(d)(1) authorizes forfeiture of firearms and ammunition involved in a federal crime. The panel also held that the district court did not err in ordering the forfeiture of substitute property. Finally, defendant's challenge to the adequacy of the notice of forfeiture in the indictment was not reviewable, but even if it were, the notice was adequate. View "United States v. Soto" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed the district court's denial of defendant's motion to vacate his sentence under 28 U.S.C. 2255 in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Defendant argued that Johnson established that he was ineligible for a sentencing enhancement under the Armed Career Criminal Act; and, but for alleged misinformation that he was eligible for such an enhancement, he might not have entered a plea agreement. The panel rejected defendant's argument and held that he failed to show that the alleged misinformation about his ACCA eligibility was "demonstrably made the basis for the sentence." In this case, the record established that defendant's potential eligibility for an ACCA enhancement was not before the sentencing court, and defendant's personal concerns and motivation for entering into the plea agreement did not suffice to establish that the district court made an error of constitutional magnitude. View "United States v. Hill" on Justia Law

Posted in: Criminal Law

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Three small employers in Montana filed suit against health insurance companies, alleging claims under the Employee Retirement Income Security Act of 1974 (ERISA), as well as state law claims based on defendants' representations. The Ninth Circuit affirmed the district court's dismissal of plaintiffs' ERISA claims and held that plaintiffs failed to state a claim for breach of fiduciary duty under 29 U.S.C. 1132(a)(2) where defendants did not exercise control over plan assets when charging or spending the allegedly excessive premiums. However, the panel reversed the district court's dismissal of plaintiffs' state law claims and held that ERISA did not expressly preempt state-law claims against an insurer that did not bear on an ERISA-regulated relationship. Furthermore, the state law claims were not barred by conflict preemption. The panel reversed the district court's dismissal with prejudice of the state-law claims so that plaintiffs may amend their complaint to state the fraud allegations with greater particularity. View "The Depot, Inc. v. Caring for Mountanans, Inc." on Justia Law

Posted in: ERISA

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The common-law agency test is the most appropriate test for determining whether an entity is a joint employer under Title VII of the Civil Rights Act of 1964. The EEOC brought an enforcement action under Title VII on behalf of Thai workers alleging discrimination charges against Green Acre Farms and Valley Fruit Orchards. The Ninth Circuit reversed the district court's dismissal of the EEOC's allegations regarding non-orchard-related matters, which in turn affected each of the other decisions under review. The panel held, under the common-law agency test, that the EEOC plausibly alleged that defendants were also joint employers with respect to non-orchard-related matters; the EEOC's allegations stated a plausible basis for holding Green Acre liable for discrimination relating to non-orchard-related matters; and the district court should have granted the EEOC leave to amend its complaint regarding Valley Fruit's liability with respect to such matters. View "EEOC v. Global Horizons, Inc." on Justia Law

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The Ninth Circuit denied a petition for review of a final order of removal following the dismissal of petitioner's appeal by the BIA. Petitioner was convicted of communication with a minor for immoral purposes in violation of Revised Code of Washington 9.68A.090, and an IJ found that petitioner's conviction constituted a crime involving moral turpitude committed within five years of admission to the United States. Therefore, petitioner was removeable under 8 U.S.C. 1227(a)(2)(A)(i). The panel held that, in assessing the constitutional status of the phrase "crime involving moral turpitude," it was bound by the Supreme Court's decision in Jordan v. De George, 341 U.S. 223 (1951), which held that the phrase was not unconstitutionally vague. The panel also held that the Supreme Court's more recent decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), did not reopen inquiry into the constitutionality of the phrase. Furthermore, petitioner's alternate claim that communicating with a minor for immoral purposes was not a crime of moral turpitude was foreclosed by the panel's decision in Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). View "Islas-Veloz v. Whitaker" on Justia Law

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The Ninth Circuit granted a petition for panel rehearing, withdrew its prior opinion, and filed a superseding opinion with its order. Entertainment Studios, along with NAAAOM, filed suit alleging that Charter's refusal to enter into a carriage contract was racially motivated and in violation of 42 U.S.C. 1981. The panel held that, although the Supreme Court's decisions in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), necessitated reconsideration of its section 1981 approach, the panel explained that a plaintiff in a section 1981 action need only prove that discriminatory intent was a factor in, and not necessarily the but-for cause of, a defendant's refusal to contract. In this case, the panel held that plaintiffs' allegations regarding Charter's treatment of Entertainment Studios, and its differing treatment of white-owned companies, were sufficient to state a viable claim pursuant to section 1981. Finally, the panel held that the First Amendment did not bar plaintiffs' section 1981 claim. The fact that cable operators engage in expressive conduct when they select which networks to carry does not automatically require the application of strict scrutiny in this case. The panel held that section 1981 would satisfy intermediate scrutiny because it was a content-neutral statute and was narrowly tailored to serve a significant government interest in preventing racial discrimination. View "National Association of African American-Owned Media v. Charter Communications, Inc." on Justia Law

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Second-degree assault under Wash. Rev. Code 9A.36.021(1) is overbroad when compared to the generic definition of aggravated assault because only the former encompasses assault with intent to commit a felony. Second-degree murder under Wash. Rev. Code 9A.32.050 (2003) is overbroad when compared to the generic definition of murder because only the former covers felony murder. The Ninth Circuit vacated defendant's sentence after he pleaded guilty to being a felon in possession of a firearm. The panel held that second-degree assault did not qualify as a crime of violence under USSG 4B1.2, because the second-degree assault statute was indivisible and the panel could not apply the modified categorical approach. Likewise, the panel held that second-degree murder is not a crime of violence under section 4B1.2. The panel concluded that the district court's incorrect calculation of the proper Guideline range was not harmless. Accordingly, the panel remanded for resentencing. View "United States v. Verderoff" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed the district court's judgment dismissing a petition for habeas relief. After the district court conducted a through evidentiary hearing on the issue of judicial bias and concluded that no bias occurred, the panel reviewed the record, the briefs, and considered the arguments of counsel and could not say that the district court committed clear error in its factual determinations. The panel also held that Ngyuen v. Curry, 736 F.3d 1287 (9th Cir. 2013), was not controlling and the prudential law of the case doctrine did not bind the panel. Rather, the panel held that, under Davila v. Davis, 137 S. Ct. 2058 (2017), petitioner's ineffective assistance of counsel claim was not viable. View "Hurles v. Ryan" on Justia Law