Chinese citizen's petition for review of BIA's denial of his application for asylum is denied where: 1) petitioner never presented his "other resistance" argument to the BIA; 2) petitioner never argued before the BIA that his flight from China constituted other resistance to a coercive population control program; and 3) BIA did not abuse its discretion in refusing to remand for further factfinding.       

Read Dong v. Holder, No. 08-2083

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals

Decided November 6, 2009

Judges

Before: Boudin, Hansen, and Lipez, Circuit Judges

Opinion by Lipez, Circuit Judge

Counsel

For Appellant:  Theodore N. Cox

For Appellee:  Manual A. Palau, Office of Immigration, Michael F. Hertz, Acting Attorney General

Order of the Bankruptcy Appellate Panel reversing an order of the Bankruptcy Court is affirmed as a late alimony payment penalty was not a domestic support obligation, and as such, the ex-wife's claim was a general unsecured claim not entitled to priority status and consequently dischargeable.     

Read In re: Smith, No. 09-9005

Appellate Information

Appeal from the Bankruptcy Appellate Panel

Decided November 6, 2009

Judges

Before:  Boudin, Torruella, and Saris, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  Clifford P. Gallant, Jr., Beliveau Fradetter Doyle & Gallant, PA.

For Appellee:  Mark P. Cornell, Kelly Ovitt Puc, Cornell and Ovitt Puc, PLLC.

District court's imposition of a sentence based on calculation of the guideline range to include, as relevant conduct, amounts of drugs and cash independently seized from defendant in connection with an unrelated criminal investigation is affirmed as the defendant waived any objection to the sentencing determination, and the determination was not clearly erroneous. 

Read US v. Eisom, No. 08-1893

Appellate Information

Appeal from the United States District Court for the District of Maine

Decided November 5, 2009

Judges

Before:  Boudin, Seyla and Lipez, Circuit Judges

Opinion by Seyla, Circuit Judge

Counsel

For Appellant:  Christine M. Charles

For Appellee:  Paula D. Silsby, United States Attorney

District court's decision revoking supervised release and sentencing defendant to a further term in prison following his arrest for allegedly shooting at an officer, is set aside and remanded where, given the relatively weak evidence, district court's decision is undermined by reliance on guesswork regarding the event.     

Read US v. Oquendo-Rivera, No. 08-2481

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided November 5, 2009

Judges

Before:  Lynch, Chief Judge, and Torruella and Boudin, Circuit Judges

Opinion by Boudin, Circuit Judge

Counsel

For Appellant:  Hector L. Ramos-Vega, Assistant Federal Public Defender

For Appellee:  Julia M. Meconiates, Assistant United States Attorney

A Haitian citizen's petition for review of BIA's denial of his application for relief from removal under the CAT is denied where: 1) the general detention conditions in Haiti are not sufficiently severe to rise to the level of torture; 2) the acts of mistreatment that petitioner will likely be subjected to in detention do not amount to torture; and 3) Court lacks jurisdiction to address petitioner's remaining contentions that he has met his burden of proving that torture of criminal deportees in Haiti is widespread and that he is more likely to be singled out for mistreatment by Haitian authorities because of his personal characteristics.   

Read Gourdet v. Holder, No. 08-2422

Appellate Information

On Petition for Review of an Order of the Board of Immigration Appeals

Decided November 4, 2009

Judges

Before:  Lynch, Chief Judge, and Ebel and Lipez, Circuit Judges

Opinion by Lipez, Circuit Judge

Counsel

For Appellant:  Jeffrey B. Rubin

For Appellee:  Stefanie Notarino Hennes, Trial Attorney, Office of Immigration Litigation, Michael F. Hertz, Acting Assistant Attorney General, Civil Division, and John W. Blakeley, Assistant Director, Office of Immigration Litigation

In plaintiffs' constitutional challenge to the state's removal of their child after termination proceedings and motion for injunctive relief to prevent a foster family's adoption of the child, district court's dismissal of their case is affirmed where: 1) the district court correctly determined that it lacked subject matter jurisdiction to review plaintiffs' motion for injunctive relief to prevent the child's adoption pursuant to the Rooker-Feldman doctrine; and 2) the factual issues underlying plaintiffs' claims were addressed by the state court and are barred by issue preclusion.  

Read Miller v. Nichols, No. 09-1174

Appellate Information

Appeal from the United States District Court for the District of Maine

Decided November 4, 2009

Judges

Before:  Lynch, Chief Judge, Torruella and Boudin, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:  Eric H. Mehnert, Hawkes & Mehnert, LLP

For Appellee:  Melissa Reynolds O'Dea, Assistant Attorney General, Janet T. Mills, Attorney General of Maine, and Paul Stern, Deputy Attorney General

In plaintiff-wireless carrier's case against a city, the city's zoning board, and some of its members for denying a variance and special use permit to build a wireless communications tower in the city, district court's judgment in favor of the plaintiff is affirmed as the zoning board's decision was a final action for purposes of section 332(c)(7)(B) of the Telecommunications Act, and as such, the court did not err in finding that the zoning board's decision had the effect of prohibiting the provision of personal wireless services.   

Read Omnipoint Holdings, Inc. v. City of Cranston, No. 08-2491

Appellate Information

Appeal from the United States District Court for the District of Rhode Island

Decided November 3, 2009

Judges

Before:  Lynch, Chief Judge, and Gajarsa and Lipez, Circuit Judges

Opinion by Lynch, Chief Judge

Counsel

For Appellant:  Jeffrey S. Michaelson, Michaelson & Michaelson

For Appellee:   William A. Worth, Thomas M. Elcock and Prince, Lobel, Glovsky & Tye LLP

District court's denial of a petition for habeas relief of a defendant convicted of first degree murder is affirmed where: 1) defendant's jury instruction claim was procedurally defaulted; and 2) defendant's claim of ineffective assistance of counsel rejected as futile.   

Read Glacken v. Dickhaut, No. 09-1491

Appellate Information

Appeal from the United States District Court for the District of Massachusetts

Decided November 3, 2009

Judges

Before:  Lipez, Stahl, and Howard, Circuit Judges

Opinion by Howard, Circuit Judge

Counsel

For Appellant:  Joseph J. Balliro, Jr. , and Balliro & Mondano

For Appellee:  Martha Coakley, Attorney General and Anne M. Thomas, Assistant Attorney General

In plaintiffs' case against the Office of the Insurance Commissioner of Puerto Rico and two consecutive Insurance Commissioners claiming that they were investigated and sanctioned for Insurance Code violations solely because of their political affiliations, district court's judgment in favor of the plaintiffs in the amount of $4.7 million and a permanent injunction is affirmed as all of defendants' grounds for relief are without merit.     

Read Guillemaro-Ginorio v. Contreras-Gomez, No. 08-1302

Appellate Information

Appeal from the United States District Court for the District of Puerto Rico

Decided October 27, 2009

Judges

Before:  Torruella, Silar, and Howard, Circuit Judges

Opinion by Torruella, Circuit Judge

Counsel

For Appellant:  Carlos A. Del Valle-Cruz, Special Counsel, Department of Justice, with whom Roberto J. Sánchez-Ramos, Secretary of Justice, Commonwealth of Puerto Rico, and Maite Oronoz-Rodríguez, Acting Solicitor General,

For Appellee:   Joseph D. Steinfield and Jeffrey J. Pyle of Prince, Lobel, Glovsky & Tye, LLP, Joan S. Peters of Nachman & Guillemard

In plaintiff's section 1983 action against the town and employees arising from his arrest for simple assault of his estranged wife, grant of defendants' motion for summary judgment is affirmed as an officer had sufficient information to conclude that the state offense of simple assault had taken place, and as such, there was no violation of the Fourth Amendment.  

Read Holder v. Town of Sandown, No. 08-1582

Appellate Information

Appeal from the United States District Court for the District of New Hampshire

Decided October 29, 2009

Judges

Before:  Lynch, Chief Judge, Torruella, Ripple, Circuit Judges

Opinion by Ripple, Circuit Judge

Counsel

For Appellant:  Sven D. Wiberg and Wiberg Law Office

For Appellee:   Brian J.S. Cullen and CullenCollimore, PLLC