Ninth Circuit

NLRB V. NEXSTAR BROADCASTING, INC., 20-71480

Date filed: 07/12/2021

Panel: Wardlaw Hurwitz (author) District Judge Bolton The panel granted the National Labor Relations Board’s petition for enforcement of its decision holding that management of a television station committed unfair labor practices under subsections 8(a)(1) and (5) of the National Labor Relations Act by making two unilateral changes to the existing terms of the conditions of employment after a collective bargaining agreement expired.

B. R. V. MERRICK GARLAND, 19-70386

Date filed: 07/12/2021

Panel: Wardlaw Bea (author) District Judge Rosenthal Denying in part and granting in part B.R.’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that (1) the Department of Homeland Security properly personally served B.R. with a copy of his Notice to Appear; (2) DHS cured its failure to serve the NTA on B.R.’s custodian upon his release from detention as an unaccompanied minor; (3) the immigration judge erred by failing to credit evidence showing that proof of B.R.’s alienage was tainted because it was obtained from his juvenile court records in violation of California privacy laws; and (4) the evidence did not compel the conclusion that B.R. was eligible for protection under the Convention Against Torture.

USA V. JUAN BASTIDE-HERNANDEZ, 19-30006 - Order & Opinion

Date filed: 07/12/2021

Panel: Sixth Circuit Judge Boggs (author) M. Smith (concurring in the judgment) Bennett The panel filed (1) an order withdrawing its prior opinion and dissent and denying as moot a petition for rehearing en banc; and (2) a new opinion and concurrence reversing the district court’s dismissal of an indictment charging illegal reentry after removal, in violation of 8 U.S.C. § 1326, and remanding.

USA V. ASHOT MINASYAN, 19-50185

Date filed: 07/09/2021

Panel: Gould (author) Owens VanDyke The panel affirmed the district court’s judgment and sentence in a case in which the defendant pleaded guilty to conspiracy to commit health care fraud.

USA V. REFUGIO PALOMAR-SANTIAGO, 19-10011 - Order

Date filed: 07/09/2021

Panel: Paez Clifton District Judge Harpool On remand from the Supreme Court, which reversed this court’s judgment and held that each of the statutory requirements of 8 U.S.C. § 1326(d) is mandatory, United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), the panel vacated the dismissal of the indictment and remanded to the district court for further proceedings consistent with the Supreme Court’s opinion.

JOSE ESCOBAR SANTOS V. MERRICK GARLAND, 17-72334

Date filed: 07/09/2021

Panel: Bybee (author) R. Nelson District Judge Whaley (dissenting) Denying Jose Jairo Escobar Santos’s petition for review of a decision of the Board of Immigration Appeals, the panel held that Escobar’s forgery conviction under section 470a of the California Penal Code categorically constitutes an aggravated felony offense relating to forgery under 8 U.S.C. § 1101(a)(43)(R), thus rendering him ineligible for voluntary departure.

PHILLIP KILLGORE V. CITY OF SOUTH EL MONTE, 20-55666

Date filed: 07/08/2021

Panel: Owens (author) R. Nelson Bade The panel affirmed the district court’s dismissal, for failure to state a claim, of an action brought pursuant to 42 U.S.C. § 1983 alleging that the City of South El Monte violated plaintiff’s Fourth Amendment rights when authorities, without a warrant, searched his massage business.

SLIDEWATERS LLC V. WASHINGTON STATE DEP'T, 20-35634

Date filed: 07/08/2021

Panel: Gould Clifton (author) Miller The panel affirmed the district court’s denial of injunctive relief and dismissal of state and federal claims in an action brought by the owner of a waterpark in Chelan County, Washington, who challenged the State’s restrictions, imposed in response to the COVID-19 pandemic, prohibiting the waterpark from operating during 2020 and imposing capacity limits in 2021.

BALKRISHNA SETTY V. SHRINIVAS SUGANDHALAYA LLP, 18-35573

Date filed: 07/07/2021

Panel: D.W. Nelson (author) Rawlinson Bea (dissenting) On remand from the Supreme Court, the panel affirmed the district court’s order denying defendant’s motion to compel arbitration against plaintiffs pursuant to the New York Convention and to grant a stay pending arbitration.

ANGEL POSOS-SANCHEZ V. MERRICK GARLAND, 17-72002

Date filed: 07/07/2021

Panel: Wardlaw (author) Gould Owens Denying in part and granting in part Angel Posos-Sanchez’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that: 1) the agency correctly concluded that Posos had not been “admitted” to the United States and was therefore removable and ineligible to adjust his status; and 2) in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Notice to Appear (NTA) served on Posos – which lacked the time and date of his removal proceedings – did not terminate his period of physical presence in the United States and, as a result, the agency erred in finding him ineligible for voluntary departure on the ground that he had not been physically present for a year before service his NTA.

USA V. RILEY BRIONES, JR., 16-10150 - En Banc Order

Date filed: 07/07/2021

En Banc Court: Thomas, Graber, McKeown, Wardlaw, Berzon, M. Smith, Ikuta, Christen, Nguyen, Bennett, R. Nelson On remand from the Supreme Court, the en banc court further remanded this case to the three-judge panel for further consideration in light of Jones v. Mississippi, 141 S. Ct. 1307 (2021).

IRONHAWK TECHNOLOGIES, INC. V. DROPBOX, INC., 19-56347 - Order & Opinion

Date filed: 07/06/2021

Panel: Tashima (dissenting) M. Smith (author) Murguia The panel filed (1) an order granting a petition for rehearing, amending the panel’s opinion, and denying a petition for rehearing en banc; and (2) an amended opinion reversing the district court’s grant of summary judgment in favor of defendant Dropbox, Inc., vacating the judgment, and remanding for trial in an action brought under the Lanham Act by Ironhawk Technologies, Inc.

USA V. WILFREDO LOPEZ, 19-10017

Date filed: 07/06/2021

Panel: Wallace Bea (author) Bennett (dissenting in part) The panel affirmed the district court’s judgment in a case in which Wilfredo Lopez was convicted of attempt to entice a minor to engage in prohibited sexual activity (18 U.S.C. § 2422(b)) and attempt to transfer obscenity to a minor under sixteen years of age (18 U.S.C. § 1470).

REGENCY AIR, LLC V. STEPHEN DICKSON, 20-72084

Date filed: 07/01/2021

Panel: R. Nelson (author) Lee District Judge Stein The panel denied a petition for review brought by Regency Air, LLC challenging a decision by the Federal Aviation Administration affirming an administrative law judge’s finding that Regency Air violated regulations requiring air carriers to test each employee for drug and alcohol misuse if performing a safety-sensitive function like plane maintenance.

USA V. DANIEL KELLER, 20-50247

Date filed: 07/01/2021

Panel: Wardlaw Gould Owens The panel affirmed the district court’s denial of both of Daniel Eugene Keller’s motions for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), without prejudice to filing a new motion in the district court after exhausting his administrative remedies with the Bureau of Prisons.

JENNY FLORES V. MERRICK GARLAND, 20-55951

Date filed: 06/30/2021

Motions Panel: W. Fletcher Berzon (author) M. Smith In an action involving the 1997 settlement agreement between the United States and a class of minors subject to detention by U.S. immigration authorities, the panel affirmed a district court order enjoining the Department of Homeland Security from detaining certain minors in hotels for more than a few days in the process of expelling them from the country.

E. SCHOENBERG V. FBI, 20-55607

Date filed: 06/30/2021

Panel: Owens R. Nelson (author) Bade The panel affirmed the district court’s order denying plaintiff’s request for attorney’s fees following his successful suit under the Freedom of Information Act to obtain redacted information from the Federal Bureau of Investigation related to a 2016 search warrant, investigating then-Secretary of State Hillary Clinton’s email practices.

USA V. MANUEL MELGAR-DIAZ, 20-50010

Date filed: 06/29/2021

Panel: Bybee Bress (author) District Judge Cardone Affirming convictions for entering the United States at a time or place other than as designated by immigration officers in violation of 8 U.S.C. § 1325(a)(1), the panel held that § 1325(a)(1) does not violate the non-delegation doctrine, and is not unconstitutionally vague—facially or as applied.

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