June 23, 2019

Archives for January 9, 2012

Tenth Circuit: Economic and Emotional Persecution from Resistance to Chinese Population Control Policies Not Sufficient for Asylum

The Tenth Circuit Court of Appeals published its opinion in Pang v. Holder, Jr. on Friday, January 6, 2012.

The Tenth Circuit affirmed the Board of Immigration Appeals’ (BIA) decision. Petitioner illegally entered the United States in 1993 from his native country of China. Just months after his arrival, he applied for asylum, withholding of removal under the Immigration and Nationality Act and relief under the Convention Against Torture. “He claims he suffered economic and emotional persecution due to his resistance to Chinese population control policies.”

The Court found that Petitioner “undoubtedly suffered emotional distress because of his wife’s sterilization, her ectopic pregnancy and the fine.” However, the evidence allowed the BIA to determine that the fine and economic penalties were not so onerous as to amount to past persecution. “And most significantly, his wife and children remain in China unharmed and able to continue farming. [Petitioner] has not shown that family planning officials have a continued interest in him such that there is a reasonable possibility that he would suffer persecution upon his return to China. Accordingly, while [Petitioner’s] situation is sympathetic, he has not established eligibility for asylum.”

Tenth Circuit: Unpublished Opinions, 1/6/12

On Friday, January 6, 2012, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Unpublished

United States v. Robless

United States v. Ferguson

Culp v. Williams

Jackson v. Standifird

Cantrall v. Chester

Evans v. Province

United States v. Hernandez-Cornejo

United States v. Rascon-Garcia

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Supreme Court: Week of January 8, 2012 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of January 8, 2012.

Tenth Circuit: Maximum Authorized Post-Revocation Prison Term Was Two Years, which Is Longer than Term Imposed by Court

The Tenth Circuit Court of Appeals published its opinion in United States v. Lamirand on Thursday, January 5, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner “pleaded guilty to one count of possession of marijuana with the intent to distribute and was sentenced to a term of imprisonment of twenty-four months, followed by five years of supervised release. After he served his sentence, he violated the terms of his supervised release, and, in 2010, the district court revoked his supervised release and sentenced him to thirty days in prison. In addition, the district court also imposed a new term of supervised release. After serving his revocation sentence, [Petitioner] violated the terms of supervised release for a second time, leading the court to again revoke his release and sentence him to an additional year and a day in prison. [Petitioner] now appeals, claiming that the district court lacked the statutory authority to imprison him for a period longer than his second term of supervised release.”

The Court disagreed with Petitioner’s contentions. “The statute authorizing the supervised-release term of that grade of felony—subsection (b) of § 3583—defined the possible length of any postrevocation term of imprisonment. And, by observing the interplay between that provision and the specifically prescribed prison-term maximums of subsection (e)(3), [the Court was] able to identify the maximum authorized post-revocation prison term that the district court could have imposed on [Petitioner]—that is, two years.” The district court imposed a term of imprisonment of twelve months and one day, which is less than the authorized term. Therefore, the district court did not err.

Tenth Circuit: Petitioner Was Principal in Theft from Indian Casino Involving Employee, which Was a Crime Against the United States

The Tenth Circuit Court of Appeals published its opinion in United States v. Bryant on Thursday, January 5, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner appeals her conviction for theft by an officer or employee of a gaming establishment on Indian lands. Petitioner “played a $1 slot machine at the Choctaw Casino and Resort, an Indian gaming establishment. She won 90 cents and took the ticket to her sister, who worked as a cashier. Her sister, and later codefendant, paid [Petitioner] $4,000.91. They later split the proceeds. The casino noticed the missing $4,000 and saw the transaction as recorded by cameras.” Petitioner was sentenced to a two-year term of supervised probation and restitution of $4,000 was ordered. On appeal, she contends that no federal law was violated.

The Court disagreed. Petitioner “participated in a theft that involved an employee, and, as an aider and abetter, the law declares her a principal. If her sister had not been a cashier at the casino, matters would have stood differently. The district court properly asserted jurisdiction under 18 U.S.C. § 1168.” Additionally, the crime against a gaming establishment licensed by the National Indian Gaming Association that sits on territory subject to the jurisdiction of the United States is a crime against the United States.

Tenth Circuit: No Agreement Entered Into that Would Qualify under Tax Code as Settlement of Liability as an Individual Partner

The Tenth Circuit Court of Appeals published its opinion in Mathia v. Comm’r of Internal Revenue on Thursday, January 5, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is the widow of Doyle Mathia, a limited partner in Greenwich Associates. “Greenwich was a partnership that incurred losses that were passed through to the couple’s income tax returns for the years 1982–84. After an investigation of numerous related tax shelters, the Commissioner of Internal Revenue disallowed these losses and in 2003, following lengthy administrative and judicial proceedings involving the partnership, assessed more than $150,000 against [Petitioner]. [Petitioner] appealed to the United States Tax Court, challenging the assessments as untimely and asserting the government bore the burden of proof in establishing timeliness.”

The Tax Court denied the appeal and Petitioner now contends the tax assessments were untimely because the relevant statute of limitations had run. “This contention turns on whether Doyle Mathia entered into a settlement agreement under the tax code that resolved his partnership tax liability on an individual basis, separate from the partnership-level proceeding.” The Court agreed with the tax court that he entered into no such agreement that would qualify under the tax code as a settlement of liability as an individual partner. Therefore, the Court concluded that the assessments were timely and properly applied by the IRS, and that the district court correctly assigned the burden of proof to Petitioner.

Tenth Circuit: Unpublished Opinions, 1/5/12

On Thursday, January 5, 2012, the Tenth Circuit Court of Appeals issued three published opinions and seven unpublished opinions.

Unpublished

MCC Mgmt. of Naples, Inc. v. Int’l Bancshare Corp.

United States v. Bates

Ute Indian Tribe of the Uintah and Ouray Reservation v. Ute Distribution Corp.

United States v. Schulz

Roebuck v. Medina

Scott v. Warden of Buena Vista Corr. Facility

United States v. Duran

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.