1st Circuit Court of Appeals, September, 2008, Federal Case law

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Federal Courts - 1st Circuit Court of Appeals - September 30 - October 2, 2008

Kadri v. Mukasey, Nos. 06-2599, 07-1754, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, September 30, 2008, Decided
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Overview: Where an alien from Indonesia alleged that he was prevented from earning a living as a doctor because of his sexual orientation and his asylum application was denied under 8 U.S.C.S. ?? 1101 and 1158, remand was necessary because the court was unable to determine what standard the agency used in rejecting the alien's economic persecution claim.

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Magasouba v. Mukasey, No. 07-2298, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, September 30, 2008, Decided
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Overview: 8 U.S.C.S. ? 1101(a)(43)(R) subsumed all the elements of the offense under R.I. Gen. Laws ? 11-17-13(c)(1). Accordingly, the fact of conviction alone established the alien's status as an aggravated felon and the alien's petition for review of the BIA's declaration that he was removable as an aggravated felon was denied.

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New Fed Mortg. Corp. v. Nat'l Union Fire Ins. Co., No. 07-2762, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, September 30, 2008, Decided
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Overview: Where a lender approved mortgages from an insured in which the insured's employee had altered credit reports and the lender sought indemnification, the insured was not entitled to indemnification or defense costs from an insurer under an errors and omissions policy, because the allegations fell within the policy's fraud and dishonesty exclusion.

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El-Labaki v. Mukasey, No. 07-1191, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 1, 2008, Decided
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Overview: Lebanese alien's applications for asylum, withholding of removal, and CAT relief were properly denied under 8 U.S.C.S. ?? 1101, 1158, and 1252 because, inter alia, the court lacked jurisdiction to consider his time-barred asylum application, the alleged incidents did not rise to the level of persecution, and family continued to reside in Lebanon.

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Levasseur v. United States Postal Serv., No. 08-1266, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 1, 2008, Decided
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Odmar v. Mukasey, No. 07-2361, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 1, 2008, Decided
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Overview: Court lacked jurisdiction to review the BIA's determination regarding the timeliness of an Indonesian Christian's asylum application. Substantial evidence supported the BIA's findings that the alien's experiences did not rise to the level of past persecution and that he did not show that he would face future persecution if he returned to Indonesia.

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Ricci v. Patrick, No. 07-2522, No. 07-2523, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 1, 2008, Decided
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Overview: Order which reopened a 1993 consent decree and required actions regarding residents of an institution for the mentally retarded was reversed because the district court lacked jurisdiction to modify the consent decree. There was no "systemic failure" on the part of the Commonwealth to provide a compliant individual service plan process.

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Tracey v. United States (In re Tracey), BAP NO. NH 08-011, UNITED STATES BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT, October 2, 2008, Decided
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Overview: IRS obtained a secured interest in personal property owned by Chapter 13 debtors when it filed a Notice of Federal Tax Lien with the town clerk in the town where debtors lived. At the time the IRS filed the Notice in 2002, RSA 454-B:2 provided that the proper location for filing a federal tax lien on personal property was the town clerk's office.

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United States v. Giambro, No. 08-1044, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 2, 2008, Decided
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Overview: Where defendant was convicted under 26 U.S.C.S. ? 5861(d) for possessing a gun that was not registered in the National Firearms Registration and Transfer Record as required by the National Firearms Act of 1934, he was not entitled to acquittal per Fed. R. Crim. P. 29 as evidence supported that he knew of the 26 U.S.C.S. ? 5845(e) characteristics.

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United States v. Thurston, No. 05-2271, UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT, October 2, 2008, Decided
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Overview: While a federal court of appeals thought defendant's three-month sentence was substantively unreasonable-where the guidelines called for 60 months-as it did not reflect the seriousness of the offense and a need for deterrence, the sentence was upheld as a district court's findings under the 18 U.S.C.S. ? 3553(a) factors were entitled to deference.

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