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

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's order determining that her application for asylum, withholding of removal, and Convention Against Torture (CAT) was abandoned, under 8 C.F.R. 1003.47(c). The IJ's decision was based on petitioner's failure to submit required biometrics or establish good cause for her failure to do so.The panel concluded that the IJ did not abuse its discretion in deeming petitioner's application as abandoned where the IJ twice warned petitioner if she did not provide her biometrics before the next hearing her application would be deemed abandoned, and petitioner did not follow the instructions. Furthermore, petitioner failed to request a continuance before her merits hearing to complete her biometrics and her counsel failed to show good cause for requesting such a continuance. The panel also concluded that the IJ did not abuse its discretion denying petitioner's final request for more time to obtain an attorney. Because petitioner's application for relief was properly found abandoned, the BIA correctly deemed moot any challenge to the denial of petitioner's previous request for a continuance to obtain evidentiary support for her application. Finally, petitioner was not deprived of a neutral arbiter. View "Gonzalez-Veliz v. Garland" on Justia Law

The Ninth Circuit reversed the district court's judgment dismissing an amended complaint against Snap based on immunity under the Communications Decency Act (CDA), 47 U.S.C. 230(c)(1). Plaintiffs, the surviving parents of two boys who died in a high-speed accident, alleged that Snap encouraged their sons to drive at dangerous speeds and caused the boys' deaths through its negligent design of its smartphone application Snapchat. Specifically, plaintiffs claimed that Snapchat allegedly knew or should have known, before the accident, that its users believed that a reward system existed and that the Speed Filter was therefore incentivizing young drivers to drive at dangerous speeds.The panel applied the Barnes factors and concluded that, because plaintiffs' claim neither treats Snap as a "publisher or speaker" nor relies on "information provided by another information content provider," Snap does not enjoy immunity from this suit under section 230(c)(1). In this case, Snap is being used for the predictable consequences of designing Snapchat in such a way that it allegedly encourages dangerous behavior, and the CDA does not shield Snap from liability for such claims. The panel declined to affirm the district court's decision on the alternative ground that plaintiffs have failed to plead adequately in their amended complaint the causation element of their negligent design claim. Accordingly, the panel remanded for further proceedings. View "Lemmon v. Snap, Inc." on Justia Law

The Ninth Circuit affirmed the district court's orders denying defendant's motion to withdraw his guilty plea to receipt of child pornography in violation of 18 U.S.C. 2252(a)(2), and his motions to suppress evidence of sexually explicit images of minors found on two cell phones.The panel rejected defendant's contention that he was not fully informed of the essential elements of the crime of receipt of child pornography where his indictment, his plea agreement, and the colloquy informed him of the elements required to be proven; he does not assert that his counsel failed to inform him of the knowledge requirement for each element of the offense; and there is no indication that the Government misunderstood the elements. The panel affirmed the denial of defendant's motion to suppress as to the parole searches because defendant, a California parolee, had the same diminished privacy interest, and the State of California had the same substantial interest in supervising parolees as discussed in United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017). The panel also affirmed the denial of defendant's motion to suppress as to the forensic searches because any illegality in the initial seizure of forensic images from defendant's cell phones was cured by the subsequent issuance of a warrant to search the forensic images from cell phones that were legally seized from defendant as the result of valid parole searches. View "United States v. Peterson" on Justia Law

The Ninth Circuit affirmed defendant's conviction and sentence for conspiracy to launder money in violation of 18 U.S.C. 1956(h), conspiracy to operate an unlicensed money transmitting business in violation of 18 U.S.C. 371, and operating such a business in violation of 18 U.S.C. 1960. Defendant's conviction stemmed from his involvement in a hawala operation, a money transmitting network that he and his coconspirators used to move drug trafficking proceeds from Canada to the United States and eventually to Mexico.The panel concluded that the evidence was sufficient to support defendant's convictions; the government's closing arguments did not constructively amend Counts II and III of the indictment; and there was no Confrontation Clause violation and no abuse of discretion in the district court's rulings regarding the cross-examination of a cooperating witness. The panel also concluded that it was not required to resolve the issue of whether a clear and convincing evidence standard or a preponderance of the evidence standard should apply, because the record supports the application of the six-level USSG 2S1.1(b)(1) enhancement, because defendant knew that the laundered funds were drug trafficiking proceeds, under either standard of proof. The panel noted that the district court ultimately imposed a sentence of 70 months, which is well below defendant's Guidelines range of 151–188 months. View "United States v. Singh" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for HHS in an action brought by plaintiff, challenging HHS's denial of his claim for reimbursement from the Medicare program for services that he provided covered patients. The Supreme Court recently reaffirmed that a reviewing court should defer to an agency's reasonable interpretation of ambiguous regulations in Kisor v. Wilkie, 139 S. Ct. 2400 (2019).The panel agreed with the district court that the governing regulation, 42 C.F.R. 424.520(d), is genuinely ambiguous and that the agency's interpretation is reasonable. In this case, section 424.520(d) does not specify whether a certification submitted to reactivate billing privileges constitutes a "Medicare enrollment application" that triggers a new effective date. The panel concluded that the Board's interpretation of section 424.520(d) merits Auer deference and controls this case. Therefore, plaintiff's reactivation request was "a Medicare enrollment application," and its filing date of August 31, 2015 is the effective date of his billing privileges. The panel also agreed with the district court that its review was appropriately confined to the administrative record the agency produced and that the agency was not required to supplement the record. View "Goffney v. Becerra" on Justia Law

The Ninth Circuit affirmed the district court's order committing defendant, who was found incompetent to stand trial and was committed to the custody of the Attorney General pursuant to 18 U.S.C. 4241(d) for inpatient assessment of her potential for restoration to competency.The panel held that section 4241(d) mandates that district courts commit mentally incompetent defendants to the custody of the Attorney General for treatment, without discretion for the court to order a particular treatment setting. The panel rejected defendant's assertion that under Attorney General and Bureau of Prison (BOP) policies, defendants are automatically hospitalized and that this contravenes her construction of the statute in violation of the Take Care Clause of Article II and general separation of powers principles. The panel also concluded that mandatory commitment under section 4241(d) does not violate defendant's substantive and procedural due process rights. The panel also rejected defendant's three equal protection claims that section 4241(d) denies her equal protection because it imposes a less stringent standard for confinement than the Bail Reform Act; that mentally incompetent pretrial defendants are subject to less stringent standards for commitment than convicted persons who, having served their sentence, are going to be committed civilly; and that section 4241(d) violates her right to equal protection because federal pretrial defendants are subject to a less stringent commitment standard than Arizona state defendants.The panel rejected defendant's novel claim that mandatory commitment violates fundamental fairness and a hybrid due process/equal protection right recognized by the Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015), and Bearden v. Georgia, 461 U.S. 660 (1983). Finally, the panel held that mandatory commitment under 4241(d) does not violate the Sixth and Eighth Amendments, and the panel declined to reach defendant's arguments under the Rehabilitation Act and the Americans with Disabilities Act. View "United States v. Quintero" on Justia Law

In 2007, PANNA and the NRDC filed a petition asking the EPA to prohibit foods that contain any residue of the insecticide chlorpyrifos. In 2017, the EPA, pursuant to a court-set deadline, finally ruled on the 2007 Petition and denied it. In 2019, the EPA denied all objections to its decision.The Ninth Circuit granted petitions for review of the 2017 and 2019 EPA Orders and remanded with instructions for the EPA within 60 days after the issuance of the mandate either to modify chlorpyrifos tolerances and concomitantly publish a finding that the modified tolerances are safe, including for infants and children – or to revoke all chlorpyrifos tolerances. In this case, the EPA has spent more than a decade assembling a record of chlorpyrifos's ill effects and has repeatedly determined, based on that record, that it cannot conclude, to the statutorily required standard of reasonable certainty, that the present tolerances are causing no harm. Yet, rather than ban the pesticide or reduce the tolerances to levels that the EPA can find are reasonably certain to cause no harm, the EPA has sought to evade, through one delaying tactic after another, its plain statutory duties. Therefore, the panel concluded that the EPA's delay tactic was a total abdication of its statutory duty under the Federal Food, Drug and Cosmetic Act (FFDCA). The panel also ordered the EPA to correspondingly modify or cancel related Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) registrations for food use in a timely fashion consistent with the requirements of 21 U.S.C. 346a(a)(1). View "League of United Latin American Citizens v. Regan" on Justia Law

The Ninth Circuit affirmed defendant's conviction and sentence for being a felon in possession of a firearm and a felon convicted of a crime of violence in possession of body armor. The panel concluded that, in light of the Supreme Court's intervening opinion in Rehaif v. United States, 139 S. Ct. 2191 (2019), the district court committed plain error by failing to require the government to prove defendant's knowledge of his prohibited status and omitting the knowledge element from the indictment and jury instructions. However, the panel concluded that defendant cannot show that these errors affected the fairness, integrity, or public reputation of the judicial proceedings. The panel likewise rejected defendant's challenge to the indictment and the jury instructions.The panel also concluded that the district court did not clearly err in applying an obstruction of justice enhancement pursuant to USSG 3C1.1 where defendant's pre-trial threats could reasonably be construed as an attempt to obstruct justice on the theory that defendant wanted to prevent the agent from testifying at his trial. Finally, the court concluded that defendant's sentence was procedurally and substantively reasonable, and the district court did not abuse its discretion in sentencing defendant to 276 months' imprisonment. View "United States v. Door" on Justia Law

The Ninth Circuit affirmed the district court's denial of petitioners' habeas corpus petitions challenging their California state-court murder convictions. In this case, the key prosecution witness was an informant who said that both men had confessed to the crime. At trial, the witness invoked the Fifth Amendment and refused to testify, so the trial court read to the jury a transcript of the witness's preliminary-hearing testimony. The California Court of Appeal affirmed petitioners' convictions, holding that they had an adequate opportunity to cross-examine the witness when he testified at the preliminary hearing, so the introduction of his testimony at trial did not violate their Sixth Amendment right to confront the witnesses against them.The panel granted a certificate of appealability on the issue of whether the admission of the witness's preliminary hearing testimony violated petitioners' Sixth Amendment right to confrontation, and concluded that the state court's decision was not an unreasonable application of clearly established federal law. Applying a deferential standard of review under the Antiterrorism and Effective Death Penalty Act (AEDA), the panel concluded that it was not unreasonable for the California Court of Appeal to determine that the questions petitioners wanted to ask the witness would not have given the jury a significant different impression of the witness's credibility. Furthermore, even assuming that the timing of the prosecution's disclosures implicated the Confrontation Clause, the California Court of Appeal could reasonably conclude that questioning based on those disclosures would not have materially enhanced the effectiveness of the cross-examination. View "Gibbs v. Covello" on Justia Law

The Ninth Circuit granted the union's petition for review, challenging the Board's decision holding that janitorial employees had lost the protection of the National Labor Relations Act (NLRA) due to unlawful picketing. In this case, with the help of a union, janitorial employees picketed outside the commercial office building where they worked to protest their low wages and poor working conditions. The employees were consequently terminated from their jobs.The panel concluded that the Board erred in determining that the employees' picketing violated Section 8(b)(4)(ii)(B) of the NLRA, a provision that prohibits various unfair labor practices, including what is known as "secondary picketing." The panel explained that, while the union may have engaged in coercive activity (picketing and patrolling), the Board's finding that it constituted secondary, as opposed to primary, activity is not supported by substantial evidence. The panel further explained that the union never made any statements or took any actions indicating that an objective of its picketing was to coerce Harvest into pressuring Preferred to meet the employees' demands. Accordingly, the panel remanded for further proceedings. View "Service Employees International Union Local 87 v. National Labor Relations Board" on Justia Law