August 20, 2019

Archives for July 18, 2013

Floodgates: Riding the Wave of New Immigration Practitioners

KatharineSpeerBy Katharine Speer

Comprehensive immigration reform looks more promising now than at any time in the last 15 years. Approximately 11 million unauthorized immigrants—your neighbors, co-workers, and classmates—could benefit from the proposed changes. More immediately, the Supreme Court just eliminated DOMA’s barrier to same-sex spousal visa petitions, and about a third of the U.S. population now lives in a marriage-equality state.

What does this mean for young lawyers? A lot of prospective clients in a frequently overlooked area of the law and the chance to put your law degree to work making dreams come true!

Corny, perhaps, but true.

At the same time, immigration law is notoriously complex; equal parts rewarding and frustrating.

Remember your administrative law class? Your favorite subject? Yeah, me neither.

Where does a young lawyer begin when faced with such a challenge? First, why not talk to some immigration lawyers to see if the practice area interests you? We don’t bite, and you can find a bunch of us at AILAlawyer.com. If this piques your legal interest, consider taking a pro bono case through the Rocky Mountain Immigrant Advocacy Network. You will be matched with a client in desperate need of your services and an experienced mentor.

Okay, so you’ve finished your pro bono case, and now you’re hooked. How do you become a competent immigration lawyer? One way is to land a job as an associate at an immigration firm, but these scarce positions can be highly competitive and may require years of experience. Another way is to start your own firm or an immigration practice within an existing firm. If you choose one of these options, the following could be your life raft.

  1. Reach out ~ Join the American Immigration Lawyers Association (AILA) and the Immigration Section of the Colorado Bar Association. Meet all the immigration lawyers you can. They will be your best resource.
  2. Don’t reinvent the wheel ~ Ask about the best treatises and research tools for your immigration niche. Check out free resources from the National Immigration Project, American Immigration Counsel, AILA (which you joined, right?), and other non-profits.
  3. Address language and cultural differences ~ No one can be proficient in every language and culture. Learn to work with translators and interpreters. Understand that your clients may see the judicial system differently and take time to talk through their fears, expectations, rights, and responsibilities.
  4. Expect the unexpected ~ Each immigration case is unique. The stakes for your client may range from career advancement, to family unity, to protection from torture. Take time to assess (and re-asses) every case to be sure you are safeguarding your client’s immediate and long-term interests.

Don’t stop here. Your curiosity, sense of adventure, and willingness to admit what you don’t know will serve you well as an immigration practitioner. When the wave of new immigration lawyers hits, your preparation will help you ride the tide to an intellectually and personally rewarding career.

Katharine Speer is a solo immigration practitioner in Denver. She currently serves on the Executive Committee of the Colorado Chapter of AILA, chairs the Spanish Speaking Lawyers Committee of the Colorado Bar Association, and participates in Denver Legal NightGreeley Legal Night, and Ya Es Hora De Ciudadanía. She hopes to see you there! In the meantime, she can be reached on her homepage, by email, on Twitter, orLinkedIn. She also writes for the DBA Young Lawyers Division blog, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Ruling That Advertiser Violated Lanham Act Reversed in Part and Affirmed in Part After Its Use of Internet Keywords That Resembled a Competitor’s Service Mark

The Tenth Circuit Court of Appeals published its opinion in 1-800 CONTACTS v. Lens.com on Tuesday, July 16, 2013.

The Lanham Act prohibits the infringement of trademarks (used to identify products) and service marks (used to identify services). It was enacted in 1946, but it can be applied to technologies unimagined at the time of enactment. The Internet has created a number of challenging issues. This case concerned Internet search engines, which present advertisers with new means of targeting prospective customers and therefore new possibilities for claims under the Lanham Act. This dispute arose out of advertising through AdWords, a program offered by the search engine Google. An advertiser using AdWords pays Google to feature one of its ads onscreen whenever a designated term, known as a keyword, is used in a Google search. The Tenth Circuit had to resolve whether the Lanham Act was violated by an advertiser’s use of keywords that resembled a competitor’s service mark.

Plaintiff 1-800 Contacts, Inc. (1-800) dominates the retail market for replacement contact lenses. It owns the federally registered service mark 1800CONTACTS. Defendant Lens.com, Inc. is one of 1-800’s  competitors. To police the use of its mark, 1-800 enters different variations of the mark into Google searches and monitors what search results are displayed. When 1-800 found that several searches generated paid ads for Lens.com’s websites, it concluded that Lens.com had reserved the mark as a keyword. After attempting to resolve the situation informally, 1-800 sued Lens.com for service-mark infringement. Its primary claim was that Lens.com itself had infringed the 1800CONTACTS mark by purchasing keywords resembling the mark. As the case progressed, 1-800 supplemented its claim by alleging that third-party marketers hired by Lens.com, known as affiliates, had also purchased keywords resembling the mark and that at least one affiliate was using the mark in the text of its online ads. 1-800 sought to hold Lens.com secondarily liable for its affiliates’ conduct. The theories of secondary liability were common-law agency and contributory infringement. The district court awarded summary judgment to Lens.com on all claims. 1-800 appealed.

To the extent that the district court based summary judgment on the ground that no likelihood of confusion existed, the Tenth Circuit affirmed. Rational analysis and actual marketplace data revealed that the keyword use by Lens.com and its affiliates was highly unlikely to divert consumers. As for the remaining secondary-liability claims, the Court affirmed the denial of liability under agency law because the affiliates, even if agents of Lens.com, lacked authority to include 1-800’s mark in ads for Lens.com. But the Tenth Circuit reversed the denial of liability for contributory infringement because the evidence could support a reasonable finding that Lens.com did not take reasonable steps to halt the display of 1-800’s marks in affiliate ads once it learned of such display.

Tenth Circuit: Summary Judgment in Favor of State Trooper and State Based on § 1983 and State Law Claims Reversed in Part

The Tenth Circuit Court of Appeals published its opinion in Courtney v. State of Oklahoma on Monday, July 15, 2013.

On October 25, 2010, Oklahoma State Trooper Smith stopped Jason Courtney for speeding. Smith observed Courtney acting nervous and asked Courtney to answer questions, which Courtney initially declined. Courtney had a gun in the trunk and after questioning was ultimately arrested for possession of a firearm after being formerly convicted of a felony. No charges were filed and Courtney’s gun was not returned to him until almost a year after it was seized.

Courtney brought suit against Smith and the State under 42 U.S.C. § 1983 as well as state law claims. The district court granted summary judgment in favor of the Defendants on all of Courtney’s claims. Regarding Courtney’s § 1983 claims, the court concluded Smith was entitled to qualified immunity. The court concluded the State was immune from Courtney’s state-law claims under the Oklahoma Governmental Tort Claims Act. Courtney appealed.

When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established. In determining whether a right is clearly established, the dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Based on what the record showed as Courtney’s behavior during the traffic stop, the Tenth Circuit held that the district court did not err in concluding Trooper Smith was entitled to qualified immunity.

However, given the facts known to him at the time of the arrest, the Tenth Circuit held Smith lacked probable cause to arrest Courtney for possession of a firearm by a convicted felon. While Oklahoma law prohibits the possession of firearms by a person previously convicted of a felony, a juvenile adjudication over ten years old does not qualify as an underlying felony. At the time Smith arrested Courtney, Smith knew the report he found on Courtney referred to an incident that occurred when Courtney was a minor and that it was over ten years old.

As to Courtney’s state-law claims, having rejected the district court’s conclusion that Smith had probable cause to arrest Courtney, the Tenth Circuit necessarily rejected its corollary conclusion that the State was entitled to governmental immunity.

For the foregoing reasons, the district court’s order granting summary judgment to Smith and the State is affirmed in part, and reversed in part. The district court’s grant of qualified immunity to Smith as to Courtney’s claims related to the extension of the traffic stop is affirmed. The district court’s grant of qualified immunity to Smith as to Courtney’s claims of unlawful arrest without probable cause is reversed. The district court’s grant of summary judgment to the State on Courtney’s state law claims are reversed.

Tenth Circuit: Previous Downward Departure of Defendant’s Criminal History Category Disregarded at Resentencing

The Tenth Circuit Court of Appeals published its opinion in United States v. Boyd on Monday, July 15, 2013.

Occasionally the United States Sentencing Commission revises a guideline to reduce the offense level for certain conduct and makes the change retroactive. Those sentenced under the old guideline can then seek reductions in their sentences. At resentencing, the district court recalculates the defendant’s guideline range, replacing the provision used in the original sentencing with the revised provision but leaving all other guideline application decisions unaffected.

Travis Boyd was convicted of conspiring to possess cocaine with the intent to distribute and possessing cocaine with intent to distribute. At sentencing, the district court used the 1998 edition of the Guidelines Manual. It calculated Defendant’s offense level as 40 and reduced Mr. Boyd’s criminal-history category from III to I. Defendant’s resulting guideline range was 292 to 365 months’ imprisonment. He was sentenced to 300 months’ imprisonment.

On November 1, 2011, Amendment 750 to the Sentencing Guidelines went into effect. It increased the amount of crack cocaine necessary to qualify for various offense levels. Defendant moved for a reduction in sentence. The district court reduced Defendant’s sentence to 292 months using an offense level of 38 and a criminal-history category III. Defendant appealed, arguing his new sentence should be based on a criminal history category I.

The sole issue on this appeal was whether the district court’s decision at the original sentencing to grant a downward departure of the defendant’s criminal history category to “I” was to be disregarded in calculating the defendant’s amended guideline range.

Although Defendant’s argument was far from frivolous, it ignored the final clause of the definition of “applicable guideline range:” “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” USSG § 1B1.10 n.1(A) (2011) (emphasis added). Accordingly, the district court correctly resentenced Defendant using his predeparture criminal-history category III.

Tenth Circuit: Unpublished Opinions, 7/16/13

On Tuesday, July 16, 2013, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

State of Oklahoma v. Acrisure Business Outsourcing Services

Marshall v. Lee

Gambina v. Federal Bureau of Prisons

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

Colorado Court of Appeals: Announcement Sheet, 7/18/13

On Thursday, July 18, 2013, the Colorado Court of Appeals issued three published opinions and 35 unpublished opinions.

Reid v. Berkowitz

Chostner v. Colorado Water Quality Control Commission

Just In Case Business Lighthouse v. Murray

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.