Criminal, False Advertising, and Immigration Matters - U.S. Ninth Circuit
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Criminal, False Advertising, and Immigration Matters

Joseph v. Holder, No. 05-74390, involved a petition for review of the BIA's decision affirming an immigration judge's denial of petitioner's applications for asylum, withholding of removal, and relief under the Convention Against Torture.  The court of appeals granted the petition, holding that an Immigration Judge, who presides over the same petitioner's bond hearing and removal hearing, may not use her notes from the unrecorded bond hearing in reaching her decision in the removal hearing.

PhotoMedex, Inc. v. Irwin, No. 07-56672, concerned an action involving Lanham Act claims for misleading advertising and California state law claims for false advertising and unfair competition, based on defendants' alleged misrepresentations regarding the release of a medical device.  The court affirmed summary judgment for defendants in part where, because the FDA permitted defendants to determine in the first instance whether their laser device was covered by clearance previously given to a similar device and to market their device without an affirmative statement of approval by the FDA, the Lanham Act claim by plaintiff could not proceed.  However, the court vacated in part, holding that though a forecast of future events may ordinarily be a statement of opinion upon which unfair competition claims could not be based, such a statement may be actionable if the speaker knew at the time the statement was made that it was false or did not have a good faith belief in the truth of what was said.

Mora-Meraz v. Thomas, No. 09-35413, involved a drug possession prosecution.  The court of appeals affirmed the Bureau of Prisons' unwritten requirement that petitioner present documented proof of substance use within twelve months of imprisonment to be eligible for a drug treatment program was not required to comply with the Administrative Procedure Act's procedural requirements including: 1) the need for an agency to provide ample notice and time for comment; and 2) an agency's explanation of its rationale for adopting a particular rule.

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