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

Petitioner, a native and citizen of the Philippines, petitioned for review of the BIA's decision to affirm the IJ's order of removal pursuant to 8 U.S.C. 1227(a)(2)(A)(ii) where petitioner was an alien convicted of two or more crimes involving moral turpitude, namely his 1998 conviction for passing a bad check with intent to defraud and his 2004 conviction for possession of 15 or more access devices with intent to defraud. The court held that it lacked jurisdiction over the petition for review where petitioner was convicted of two crimes involving moral turpitude, for which each sentence of a year or more could be imposed, and which did not arise out of a common criminal scheme; and where the IJ's denial of the cancellation request was a discretionary decision as to which petitioner had not raised a colorable legal or constitutional claim. Accordingly, the court denied the petition for review.

Petitioner, a 71 year old native of Turkmenistan and a citizen of Armenia, petitioned for review of the BIA's denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. The court found that petitioner first had reason to become suspicious of counsels' ineffectiveness in preparing her asylum claim after the BIA denied her appeal on February 25, 2005, and did not establish her diligence in discovering counsel's deficiency or continuing to pursue asylum after that date. Thus, the court held that the BIA did not abuse its discretion when it concluded that petitioner's motion to reopen on this ground was untimely. The court held, however, that petitioner did not have reason to become suspicious of her prior counsels' ineffectiveness in pursuing adjustment of status until she met with her current counsel. Petitioner then, with due diligence obtained and reviewed her file, and filed a motion to reopen within 90 days of reviewing the file with competent counsel. Thus, the BIA abused its discretion in denying as untimely petitioner's motion to reopen on the grounds of ineffective assistance in applying for adjustment of status.

Defendant pleaded guilty to one count of being a felon in possession of a firearm in violation of the Armed Career Criminal Act (ACCA), 18 U.S.C. 922(g)(1). At issue was whether a February 2000 conviction for burglary in the second degree under Oregon Revised Statutes (ORS) 164.215 was a predicate offense under the ACCA and that a May 1999 conviction for felony attempt to elude the police under ORS 811.540(1) was not a predicate offense under the ACCA. The court held that, although burglary in the second degree was not categorically a violent felony under the ACCA, defendant's conviction was a violent felony under the modified categorical approach. The court also held that felony attempt to elude police was a violent felony under the ACCA where the prohibition fell within the residual clause of section 924(e)(2)(B)(ii) in that flight presented a serious potential risk of physical injury to another. Accordingly, the court reversed the district court's ruling that defendant's prior conviction for felony attempt to elude the police was not a violent felony and affirmed the district court's ruling that defendant's conviction for second degree burglary qualified as a violent felony. Because defendant had three prior violent felony convictions, the court remanded for resentencing under the mandatory minimum sentence in section 914(e)(1).

Petitioner was convicted of first-degree murder, kidnapping, and molestation of a nine-year-old girl and received the death sentence. Petitioner requested permission to file a second or successive application for a writ of habeas corpus and a stay of his execution. The court held that defendant failed to satisfy the requirements of 28 U.S.C. 2244(b)(2) where petitioner waited ten years after the enactment of Arizona's DNA testing statute, Ariz. Rev. Stat. 13-4240, before filing a motion requesting DNA testing of inculpatory hair evidence presented at trial and where, whatever the DNA testing of the hair evidence might reveal, the evidence could not refute the overwhelming inculpatory evidence presented at petitioner's trial. The court also held that petitioner's motion to stay pending disposition of his application was moot and that petitioner's motion to stay in light of the recent appointment of the Arizona Federal Public Defender as associated co-counsel was denied where petitioner's prior counsel remained on the case and the recent addition of new counsel did not deny petitioner the meaningful assistance of counsel. Accordingly, the court denied petitioner's application for permission to file a second or successive habeas corpus petition and denied petitioner's motions for stay of execution.

Defendant appealed the district court's denial of his petition for writ of habeas corpus challenging the Bureau of Prison's (BOP) calculation of his Good Conduct Time (GCT) credit under 18 U.S.C. 3624(b), contending that he accrued 82 days of GCT during the 21 months he served in state custody on state charges before he was sentenced in federal court on a related felon-in-possession charge. The court affirmed the district court's denial of defendant's petition for writ of habeas corpus. The Court held that, because a prisoner could receive GCT credit under section 3624(b) only on time he had served on his federal sentence, and his federal sentence did not begin under 18 U.S.C. 3585 until he had been sentenced in federal court, defendant was not eligible for GCT credit for the 21 months he spent in state custody, serving a state sentence, before imposition of his federal sentence, notwithstanding the district court's statement that defendant's federal sentence was to be served concurrent to his unfinished sentence. Accordingly, the BOP's calculation of defendant's GCT credit and of his expected release date must be upheld.

Plaintiff filed a lawsuit under 42 U.S.C. 1983 against defendants claiming that she had been demoted in retaliation for exercising her First Amendment rights by attending a school board meeting and sitting next to her boss, who was fired at the meeting. At issue was whether the district court properly granted defendants' motion for summary judgment holding that defendants' efficiency interests were greater than plaintiff's interest in free association. The court held that it appeared that the triggering factor in defendants' action was simply plaintiff's decision to sit next to her boss at the public school meeting, without even speaking to him. The court also held that, because defendants produced no evidence that plaintiff's association with her boss actually disrupted the office or her performance, or reasonably threatened to cause future disruption, defendants failed to show that its interests in work-place efficiency outweighed plaintiff's First Amendment interests. Accordingly, the court reversed the district court's grant of summary judgment in favor of defendants.

Petitioner, a native of the Philippines, petitioned for review of an order of the BIA directing his removal, as well as the BIA's order denying reconsideration. At issue was whether the IJ erred in finding him removable, whether the IJ erred in finding him ineligible for withholding of removal, and whether the IJ violated his due process rights. As a preliminary matter, the court held that petitioner's notice of appeal gave the BIA an adequate opportunity to pass on the arguments he presented. The court also held that the government satisfied its burden of proving removability where petitioner was convicted of a controlled substance offense. The court held, however, that petitioner failed to carry his burden of proving that he was entitled to relief from removal where he failed to demonstrate persecution on a protected ground or that the IJ violated his due process rights where petitioner failed to demonstrate prejudice. Accordingly, the petition for review was denied.

Plaintiffs, married couples who worked as house parents to children who were "severely emotionally disturbed" in defendants' homes, sued defendants for overtime pay under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. 203(r)(2)(A). The children attended local public schools and participated in other activities away from the homes. Although, the children participated in group therapy conducted by clinicians in the homes, they received most of their medical and psychological treatment outside the homes. Plaintiffs were not licensed medical or social service professionals. Defendants filed an interlocutory appeal challenging the district court's conclusion that defendants' homes were covered by the FLSA and were subject to its overtime provisions. The court held that defendants' homes were not covered by the FLSA because they were not an "institution primarily engaged in the care of the sick, the aged, mentally ill or defective who resided on the premises of such institution." Accordingly, the court reversed and remanded for further proceedings.

Former Arizona Congressman Richard G. Renzi sought to invoke the Speech or Debate Clause ("Clause") of the Constitution to preclude his prosecution for allegedly using his public office to benefit himself rather than his constituents. Renzi denied the charges against him but argued on interlocutory appeal that he was protected by the Clause from even the burden of defending himself. Specifically, Renzi claimed that the public corruption charges against him amounted to prosecution on account of his privileged "legislative acts"; that "legislative act" evidence was improperly presented to the grand jury; that the United States must show that its investigation did not benefit from its review of "legislative act" evidence; and that the district court erred by declining to wholly suppress all of the evidence against him relating to his illicit "negotiations." The court held that it lacked jurisdiction under the collateral order doctrine to consider Renzi's suppression claim and therefore, dismissed that part of his appeal. The court also held that the Clause was a privilege that "had enabled reckless men to slander and even destroy others with impunity," but the Supreme Court had made equally clear that the Clause did not "make Members of Congress super-citizens, immune from criminal responsibility." Accordingly, the court held that Renzi's actions fell beyond the Clause's protections and denied him the relief that he sought.

This case stemmed from a federal grand jury indictment of twenty-two persons, including the seven defendants at issue, for illegal activities related to the Mexican Mafia. Defendants appealed their convictions of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d), and their sentencing enhancement for carrying out the conspiratorial agreement by acts subjecting them to life imprisonment. Defendants raised numerous issues individually and collectively but the court found no error and held that the judgment of the district court was affirmed.