August 21, 2019

Tenth Circuit: Opinions, 4/29/11

The Tenth Circuit on Friday issued two published opinions and nine unpublished opinions.

Published

In United States v. Harrell, the Court affirmed the district court’s decision. In eminent domain proceedings, Petitioners claimed they were the “prevailing party,” as defined by the Equal Access to Justice Act (EAJA). The district court disagreed even though Petitioners were awarded $3.8 million, and denied their request for $2 million in attorney fees. The Court agreed with the district court by reviewing the issue under the necessary strict construction of the EAJA; the statute must be strictly construed when considering “under what circumstances Congress was willing to require the government to pay the attorney’s fees of other parties” under the “mathematical prevailing party standard” set out in the EAJA. The Court held that the district court’s “$3.8 million judgment in favor of appellants was closer to the highest valuation testified to by the government’s expert, $186,500, than to the highest valuation testified to by [Petitioners]’ expert, $33 million, and that [Petitioners] therefore were not the prevailing party” entitled to attorney fees.

In Efagene v. Holder, Jr., the Court reversed the Board of Immigration Appeals’ (BIA) decision. Petitioner, a citizen of Nigeria, has been a lawful United States resident since 1991. In 2005, Petitioner pleaded guilty to misdemeanor sexual conduct-no consent and was sentenced to 364 days’ imprisonment, and ordered to register as a sex offender for the next ten years. In 2007, Petitioner failed to meet a registration deadline and was arrested. He pleaded guilty to a misdemeanor failure-to-register offense, and was sentenced to thirty days’ imprisonment and a $100 fine. He now petitions for review of a final order of removal issued by the BIA, arguing that “the BIA erred in concluding that the Colorado misdemeanor offense of failure to register as a sex offender constitutes a crime involving moral turpitude under the Immigration and Nationality Act.” The Court agreed, refusing to find Petitioner’s failure to register as a sex offender as a crime involving moral turpitude. “Colorado’s own courts have described the sex offender registry statute at issue here as regulatory in nature. . . . While there is no question a sex offense itself often involves serious harm to the victim and constitutes a depraved act, an individual can be convicted of failure to register if he, for example, changes residences and notifies law enforcement six rather than five business days later.” Failure to register within the appropriate time does not rise to the level of moral turpitude, but rather is a violation of a regulatory requirement designed to aid law enforcement.

Unpublished

Henshaw v. Wayne County

Johnson v. Kansas Parole Board

United States v. Thompson

United States v. Chacon

United States v. Garcia-Ruiz

United States v. Roe

United State v. Lockhart

United States v. Smith

Novell, Inc. v. Vigilant Ins. Co.

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