Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Petitioner, an Indonesian citizen of Chinese descent, sought review of the BIA's denial of his motion to reopen removal proceedings. The court joined its sister circuits and held that a petitioner's untimely motion to reopen may qualify under the changed conditions exception in 8 C.F.R. 1003(c)(3)(ii), even if the changed country conditions are made relevant by a change in the petitioner's personal circumstances. In this case, petitioner converted to Christianity after his order of removal became final. Petitioner then filed an untimely motion to reopen on the basis that religions persecution against Christians in Indonesia had worsened since his previous hearing. The court granted the petition and remanded for further proceedings because the BIA failed to consider petitioner's evidence of changed conditions in Indonesia in light of his conversion to Christianity. View "Chandra v. Holder, Jr." on Justia Law

Plaintiff, an unsuccessful candidate for judicial office in Mohave County, Arizona, filed suit challenging the facial and as-applied constitutionality of certain provisions of the Arizona Code of Judicial Conduct. The court held that Rule 4.1(A)(6) (the solicitation clause) is unconstitutional as applied to non-judge judicial candidates because it restricts speech that presents little to no risk of corruption or bias towards future litigants and is not narrowly tailored to serve those state interests. The court held that Rules 4.1(A)(2)-(5) - prohibiting speechifying, endorsements, and fundraising - are not sufficiently narrowly tailored to serve the state's interest in an impartial judiciary, and are therefore unconstitutional restrictions on political speech of non-judge candidates for judicial office. Accordingly, the court reversed the district court's grant of summary judgment in favor of defendants. View "Wolfson v. Concannon, et al." on Justia Law

Petitioner, a native and citizen of the Marshall Islands, sought review of the BIA's order reversing the IJ's finding that he was eligible for relief under the Convention Against Torture (CAT). Petitioner fled the Marshall Islands as a teenager after being sexually assaulted and beaten as a homeless, homosexual child. The authorities there allegedly did nothing to intervene. Petitioner was later convicted in California state court of assault with a deadly weapon other than a firearm and of battery with serious bodily injury following a fight with his then-boyfriend. The court concluded that the record contained substantial evidence supporting the BIA's conclusion that petitioner would not likely be subjected to torture based on his sexual orientation if removed to the Marshall Islands; the BIA's interpretation of the State Department Report, which found that the Marshall Islands have no enforced proscriptions on homosexuality, was entitled to deference; and the BIA was not required to presume that petitioner would be tortured again because of his own credible testimony that he had been subjected to torture as a homeless child. The court also concluded that the BIA did not abuse its discretion in determining that petitioner's assault-and-battery convictions were particularly serious crimes. Just because a sentencing enhancement cannot be considered for the purpose of determining whether the crime is an aggravated felony does not imply that it cannot be considered for purposes of determining whether the crime is particularly serious. The BIA adopted the IJ's reasoning. The court concluded, in light of Delgado v. Holder, that the IJ properly considered the two-year enhancement under the Frentescu factors. Accordingly, the court denied the petition for review. View "Konou v. Holder" on Justia Law

Defendant appealed the denial of his motion to dismiss an indictment charging attempted entry after deportation. The court applied the modified categorical approach and held that defendant's state conviction for aggravated assault constituted a crime of violence. Consequently, defendant was not eligible for voluntary departure at his February 2005 immigration hearing. Accordingly, defendant's attempt to attack collaterally the deportation order underlying his illegal reentry conviction because he was not adequately advised of the voluntary departure remedy failed. The court affirmed the district court's judgment. View "United States v. Cabrera-Perez" on Justia Law

The Union petitioned for review of the FRA's decision that the agency lacked jurisdiction to decide whether the Union Pacific Railroad Company had authority under the Collective Bargaining Agreement (CBA) to designate terminals for a new service the railroad had instituted in California. The court concluded that, because this was a dispute regarding interpretation of the CBA, it was governed by the procedures of the Railway Labor Act (RLA), 45 U.S.C. 151a, for disputes requiring interpretation or application of agreements covering rates of pay, rules, or working conditions. The FRA correctly determined that this was fundamentally an issue of contract interpretation beyond its adjudicatory powers. Accordingly, the court denied the petition for review. View "United Transp. Union v. Foxx" on Justia Law

Plaintiffs filed suit against Zynga and Facebook under the Wiretap Act, 18 U.S.C. 2511(3)(a), and the Stored Communications Act, 18 U.S.C. 2702(a)(2), two chapters within the Electronic Communications Privacy Act of 1986 (ECPA). Plaintiffs alleged violations of the ECPA based on Facebook and Zynga's disclosure of the information contained in referer headers to third parties. On appeal, plaintiffs argued that the district court erred in holding that Facebook, Zynga, and the third parties were the intended recipients of the referer headers containing the user's Facebook IDs and the URLs. The court held that under the ECPA, the term "contents" refers to the intended message conveyed by the communication, and does not include record information regarding the characteristics of the message that is generated in the course of the communication. The referer header information that Facebook and Zynga transmitted to third parties included the user's Facebook ID and the address of the webpage from which the user's HTTP request to view another webpage was sent. This information does not meet the definition of "contents," because these pieces of information are not the "substance, purport, or meaning" of a communication. Therefore, the court concluded that plaintiffs have failed to state a claim because they did not allege that either Facebook or Zynga disclosed the "contents" of a communication, a necessary element of their ECPA claims. Accordingly, the court affirmed the district court's dismissal with prejudice. View "In re: Zynga Privacy Litigation" on Justia Law

Plaintiff filed suit under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1132(a)(1)(B), 1132(a)(3), against PacifiCare when Pacificare denied her health care coverage. The court concluded that PacifiCare's benefit exclusion of myoelectric devices was not contrary to the plain language of California Health & Safety Code 1367.18. Accordingly, the court affirmed the district court's grant of summary judgment to PacifiCare. The court denied as moot plaintiff's motion to certify a question to the California Supreme Court. View "Garcia v. PacifiCare of California" on Justia Law

LOWD plaintiffs appealed the district court's denial of their motion to preliminarily enjoin the Snow Basin logging project. The court concluded that the LOWD plaintiffs have shown that they were likely to prevail on their National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., claim regarding the Final Environmental Impact Statement's (FEIS) discussion of elk habitat because that discussion was insufficiently clear; the Environmental Impact Statement's (EIS) analysis of the project's effects on elk failed to satisfy NEPA's requirements; the LOWD plaintiffs have shown that absent a preliminary injunction, they were likely to face irreparable harm; LOWD plaintiffs have shown that the balance of the equities tipped in their favor; and LOWD plaintiffs have shown that the public interest supported the granting of a preliminary injunction. The court reversed the district court's assessment that the LOWD plaintiffs were not likely to succeed on one claim, affirmed the district court's determination that LWOD plaintiffs were not likely to succeed on other claims; and reversed the district court's holding that the LOWD plaintiffs were not entitled to a preliminary injunction pursuant to Winter v. Natural Res. Def. Council, Inc. The court remanded with instructions. View "LOWD/BMBP v. Connaughton" on Justia Law

Petitioner challenged the district court's dismissal of his petition for a writ of habeas corpus because it was time barred. In order to determine whether petitioner's state post-conviction petition for relief was a "properly filed" application that was eligible for tolling, the court looked to Nevada state filing requirements. Although Nevada applied the prison mailbox rule to state notices of appeal filed by pro se prisoners, it has expressly rejected application of the rule to state post-conviction relief petitions. Accordingly, the court affirmed the judgment of the district court View "Orpiada v. McDaniel" on Justia Law

Plaintiffs filed suit against defendants under the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962. Plaintiffs alleged that defendants conspired to pay inflated rent payments so that the properties sold to plaintiffs would appear far more valuable to third parties. The court held that the complaint did not meet the pleading standards by Bell Atlantic Corp. v. Twombly, Ashcroft v. Iqbal, and In re Century Aluminum Co. Securities Litigation. The court concluded that the complaint's factual allegations did not support a plausible inference that defendants had the required specific intent to defraud, nor do they tend to exclude the alternative explanation that the transactions at issue were merely a group of business deals gone bad during a deep recession. The court affirmed the dismissal of plaintiffs' RICO allegations and the dismissal of plaintiffs' allegations of RICO conspiracy. View "Eclectic Props. East v. The Marcus & Millichap Co." on Justia Law