Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

NINTH U.S. CIRCUIT COURT OF APPEALS

-Criminal Law and Procedure-
District court abused its discretion and prejudiced defendant’s ability to present his defense when it declined to continue the trial for two days to allow defendant to see his dying son where defendant was diligent in making his request, the continuance would have served its stated purpose, the court made no finding that a continuance would have inconvenienced the government or the court, and denial of a continuance under these circumstances was necessarily prejudicial.
United States v. Kloehn – filed August 30, 2010
Cite as 06-50456
Full text http://ping.fm/5zNid

-Criminal Law and Procedure-
Where defendants pleaded guilty under 18 U.S.C. Sec. 241 for having “knowingly and willfully conspired to injure, oppress, threaten, and intimidate [Chinese women] recruited for and engaged in prostitution, in the Territory of American Samoa,” the proper calculation for restitution was set forth in Sec. 3663 covering lost income. District court plainly erred in determining the amount of restitution by relying on restitution provision of the Trafficking Victims Protection Act to calculate defendants’ ill-gotten gains via their exploitation of the victims.
United States v. Kuo – filed August 30, 2010
Cite as 08-10314
Full text http://ping.fm/AHcS2

-Healthcare Law-
A claim for denial of drug benefits under Medicare Part D, even if styled as a claim for breach of contract and/or unjust enrichment, arises under the Medicare Act, subjecting the claim to the act’s exhaustion requirements. Consumer protection act and fraud claims, in which plaintiffs alleged that defendant made material misrepresentations and engaged in other systematic deceptive acts in the marketing and advertising of their Part D plan to induce plaintiffs and putative class members to enroll, were not subject to Medicare Act’s exhaustion requirements but were preempted by the act.
Uhm v. Humana, Inc. – filed August 30, 2010
Cite as 06-35672
Full text http://ping.fm/8jcAA

-Immigration Law-
Board of Immigration Appeals has discretion to accept or not accept an untimely brief under 8 C.F.R. Sec. 1003.3(c)(1), and neither abused that discretion nor deprived alien of due process where alien was not prevented from reasonably presenting his case, nor were the proceedings before the immigration judge fundamentally unfair. Alien cannot deprive himself of due process by missing filing deadline due to his own error. An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.
Zetino v. Holder – filed February 18, 2010, amended August 30, 2010
Cite as 08-70390

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