1st Circuit Court of Appeals, June, 2009, Federal Case law

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Federal Courts - 1st Circuit Court of Appeals - June 1 - June 4, 2009

Burbiene v. Holder, No. 08-1478, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 1, 2009, Decided
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Overview: Alien from Lithuania was properly denied asylum under 8 U.S.C.S. ?? 1101 and 1158 because substantial evidence supported the conclusion that the Lithuanian government was neither responsible for human trafficking nor unable or unwilling to control it to an extent that would constitute persecution; her CAT claim also failed.

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Dunellen, LLC v. Getty Props. Corp., No. 08-2099, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 1, 2009, Decided
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Overview: Based on a prior decision of the state supreme court, the appellate court affirmed the decision that the pier was personalty. The owner failed to show that the corporation was liable to contribute to upkeep with respect to an interest in personalty that it was not using and the owner pointed to nothing in state law that created such an obligation.

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United States v. Boidi, No. 07-1527, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 3, 2009, Decided
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Overview: Conviction for conspiracy to possess with intent to distribute 500 or more grams of cocaine, in violation of 21 U.S.C.S. ?? 846 and 841(b)(1)(B)(ii)(II) was vacated because any distribution was to friends, and jury could rationally have convicted of lesser possession conspiracy. Therefore, lesser included offense instruction should have been given.

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United States v. Pratt, No. 05-2624, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 3, 2009, Decided
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Overview: Defendant's escape from secure custody, by crawling under a fence at a county jail, was a violent felony within the meaning of the ACCA, and defendant stipulated to two other offenses that he did not dispute were violent felonies. Thus, he had the requisite three prior violent felony convictions to qualify for the ACCA's mandatory minimum sentence.

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United States v. Riccio, No. 07-2604, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 3, 2009, Entered
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Da Silva Neves v. Holder, No. 07-1091, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 4, 2009, Decided
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Gutierrez-Castillo v. Holder, Nos. 08-1537, 08-1972, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 4, 2009, Decided
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Overview: Nunc pro tunc relief in the alien's case could not have been squared with Congress' language or evident intent since for the Immigration and Naturalization Service to grant, or the court to order, waiver relief under 8 U.S.C.S. ? 1182(c) now would have provided a form of relief expressly withdrawn by IIRIRA.

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Maldonado v. Fontanes, No. 08-2211, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 4, 2009, Decided
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Oliveira v. Holder, No. 08-2494, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 4, 2009, Decided
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Overview: The BIA did not abuse its discretion in denying a motion to reopen because an employment-based visa was not immediately available, thus precluding a Brazilian petitioner from relief under 8 U.S.C.S. 1255(a). His petition had a priority date of May 24, 2007, but only visas with priority dates of January 15, 2003, or earlier were then available.

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Touch v. Holder, No. 08-1217, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, June 4, 2009, Decided
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Overview: Cambodian petitioners' applications for asylum under 8 U.S.C.S. ?? 1101 and 1158, withholding of removal under 8 U.S.C.S. ? 1231, and CAT relief were properly denied because, inter alia, substantial evidence supported the determination that the alien did not suffer past persecution on account of his political opinions.

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