April 21, 2019

Tenth Circuit: Venue for Immigration Appeals Tied to Immigration Judge’s Location at Final Hearing

The Tenth Circuit Court of Appeals issued its opinion in Lee v. Lynch on Wednesday, July 1, 2015.

Yang You Lee is a citizen of Thailand who received lawful refugee status through his Laotian parents and was admitted to the United States in 1987 at age 5. In 2014, an Immigration Judge in Dallas found him removable for a misdemeanor domestic assault charge that was a crime of violence. The BIA agreed with the IJ and dismissed his appeal. Mr. Lee filed a petition for review in the Fifth Circuit, which sua sponte summarily transferred the petition to the Tenth Circuit. The Tenth Circuit asked the parties to address venue under 8 U.S.C. § 1252(b)(2) and reviewed their responses.

The Tenth Circuit first addressed whether § 1252 affects subject matter jurisdiction or is an ordinary venue provision. Following the reasoning of a number of sister circuits that have addressed the issue, the Tenth Circuit concluded that § 1252 is a non-jurisdictional venue provision. Next, analyzing the plain language of the statute, the Circuit found venue tied to the IJ’s location when the IJ completes removal proceedings. Although the Attorney General argued venue was proper in the Tenth Circuit because the final hearing location was docketed as Oklahoma City, Oklahoma, the Tenth Circuit noted the final hearing was held in Dallas and all parties physically appeared in Dallas. The Tenth Circuit declined to defer to agency pronouncements and followed the language of the statute. The Tenth Circuit noted that although transfer would further delay the proceedings, the Fifth Circuit is the proper venue.

The Tenth Circuit transferred the petition to review to the Fifth Circuit Court of Appeals.

Tenth Circuit: Waivers of Inadmissibility Only Precluded for Individuals Who Became LPRs at Time of Admission

The Tenth Circuit Court of Appeals issued its opinion in Medina-Rosales v. Holder on Tuesday, February 24, 2015.

Carlos Jovany Medina-Rosales entered the United States at an unknown date and became a lawful permanent resident (LPR) on November 27, 2001. On August 8, 2013, he was convicted of grand larceny in Oklahoma state court, and DHS began removal proceedings a month later. The notice of removal ordered him to appear before an immigration judge in Dallas, even though the issuing officer was in Tulsa. Medina-Rosales appeared in front of the Dallas IJ via videoconference. He conceded removability but sought a waiver of inadmissibility under § 1182(h). The IJ determined Tenth Circuit law applied, despite his physical location in Dallas, and determined Mr. Medina-Rosales was ineligible for a waiver of inadmissibility. The BIA dismissed Mr. Medina-Rosales’ appeal, and Mr. Medina-Rosales petitioned the Tenth Circuit for review.

The Tenth Circuit determined as a preliminary matter that Tenth Circuit law applied, since the charging document determines the location of the proceeding and in this case the charging document was issued in Tulsa. The IJ’s presence in Dallas did not change the location of the proceedings.

The Tenth Circuit next addressed whether § 1182’s waiver of inadmissibility language applies to individuals who became LPRs at some point after admission into the United States. Most circuits to have addressed the issue agree that the plain language of § 1182 contemplates that it only applies to individuals who were admitted at the time they became LPRs, but the Tenth Circuit had not addressed the issue.

After examining the language of § 1182, the Tenth Circuit agreed with the other circuits that the statute only precluded waivers of inadmissibility for those individuals who were admitted at the same time they became LPRs. Because Mr. Medina-Rosales was admitted at some undetermined time prior to becoming an LPR, the language did not apply to him. Despite the seemingly illogical conclusion that Congress intended the statute only to apply to those who were admitted at the same time they became LPRs, the Tenth Circuit found that Congress had ample opportunity to amend the statute and had not done so.

The Tenth Circuit found Mr. Medina-Rosales to be eligible for discretionary consideration of waiver of inadmissibility under § 1182 and remanded for further proceedings.

Colorado Supreme Court: Trial Court Abused Discretion by Allowing Change of Venue

The Colorado Supreme Court issued its opinion in In re Hagan v. Farmers Insurance Exchange; In re Ewald v. Farmers Insurance Exchange; In re Mayfield v. Farmers Insurance Exchange on Monday, January 26, 2015.

Change of Venue.

In these original proceedings under CAR 21, plaintiffs sought extraordinary relief from the trial courts’ orders granting a change of venue. The Supreme Court issued rules to show cause why those orders should not be vacated and venue transferred back to Boulder County District Court and consolidates its ruling here.

The Court held that the trial courts abused their discretion when they granted a change of venue in each of these cases. First, Boulder County District Court is a proper venue for all three cases; under CRCP 98(c)(1), plaintiffs were allowed to file their complaints in the county of their choice because defendant is a nonresident. Second, the trial courts granted the motions without the requisite evidentiary support. The affidavits that defendant submitted improperly focus on convenience to plaintiffs and do not satisfy the standard set forth in Sampson v. District Court, 197 Colo. 158, 160, 590 P.2d 958, 959 (1979). Consequently, the Court made the rules absolute and directed the transferee courts to return the cases to Boulder County District Court.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Damages Award on Default Judgment Upheld in Complex Litigation

The Tenth Circuit Court of Appeals issued its opinion in Niemi v. Lasshofer on Tuesday, November 4, 2014.

John Niemi, along with co-plaintiffs Robert Naegele, III, and Jesper Parnevik, was working on a large-scale development project in Breckenridge, Colorado, known as the Fairmont Breckenridge. Azco, LLC and Azco II, LLC, as well as Mesatex, LLC – companies run by Niemi, collectively known as the Azco entities – were the purchasers of the properties for the Fairmont. Based on the success of Phase I of the project, Niemi and the co-investors sought $200-$220 million in financing for Phase II. Defendants Lasshofer and Michael Burgess represented that they could provide financing for Phase II, but required the investors to agree to stop looking for other financing and to provide a $180,000 loan commitment fee. The investors agreed and wired the money. Following an extensive due diligence process, plaintiffs provided an additional $2 million “upfront collateral deposit” to Lasshofer and Burgess. The loan proceeds never materialized, despite repeated assurances from Burgess and Lasshofer that the funds were coming, and eventually Burgess was indicted on criminal fraud charges and sentenced to 180 months’ imprisonment. As part of his plea bargain, Burgess indicated that the funds from the investors were deposited in an account belonging to Innovatis Asset Management, SA (IAM), a company associated with Lasshofer. Burgess implicated Lasshofer as his co-defendant and stated that IAM was continuing to defraud investors. Even after Burgess’s arrest, Lasshofer continued to assure the investors that their funds were coming, but no money ever materialized.

The three investors met to discuss how they would recover from the fraud, and during the conversation Niemi, acting on behalf of the Azco entities, expressly assigned all causes of action and claims to Parnevik, Naegle, and himself. The three filed a Verified Complaint in April 2012, initiating the lawsuit and identifying the various parties and their relationships. The amended complaint filed in July 2012 alleged 17 claims for relief, including a claim under the Colorado Organized Crime Control Act (COCCA) against the Lasshofer defendants and a common law fraud claim against all defendants. In March 2012, the district court issued a TRO to guard against dissipation of the Lasshofer defendants’ assets, and in June 2012 the court issued a preliminary injunction, effectively freezing the worldwide assets of the Lasshofer defendants. After a hearing in March 2013, the court found the Lasshofer defendants to be in contempt of its June 2012 preliminary injunction. In a joint filing between the investors and the Lasshofer defendants, the Lasshofer defendants declared they would no longer devote resources to the case at the district court level, would not participate in discovery, and would not answer Plaintiffs’ amended complaint. The district court eventually entered default judgment against the Lasshofer defendants and awarded over $61 million to the plaintiffs, trebled to $185 million. Lasshofer appealed.

Prior to reaching the merits, the Tenth Circuit had to resolve issues related to its authority to decide the appeal. Plaintiffs had requested the Tenth Circuit to employ the “fugitive disentitlement doctrine” to dismiss the Lasshofer defendants’ appeal. The Tenth Circuit could find no circumstances that would warrant application of the doctrine. Plaintiffs also contend that the Lasshofer defendants must post a bond on the default judgment before appealing, but the Tenth Circuit disagreed, finding that would be sharply at odds with the rules of procedure. Since all issues were ripe due to the district court’s dismissal of claims with prejudice, the Tenth Circuit evaluated the merits of the appeal.

First, the Lasshofer defendants raised several issues related to the district court’s authority to hear the case. They contended (1) Plaintiffs lacked standing to bring their claims, and the district court thus lacked subject matter jurisdiction, (2) the court lacked personal jurisdiction over the Lasshofer defendants, and (3) venue was not proper in the District of Colorado. The Tenth Circuit first addressed the standing claim. Defendants argued that the plaintiffs were not proper parties, because the loan agreement listed Azco as the borrower. However, after reviewing the record, the Tenth Circuit was satisfied that plaintiffs possessed proper standing to bring their claims. The defendants argued that the Loan Agreement barred transfer of the right to sue, but the district court held, and the Tenth Circuit agreed, that the Loan Agreement was a tool of defendants’ broader fraudulent enterprise, and therefore its terms were void and unenforceable.

The Tenth Circuit likewise disposed of defendants’ arguments that the court lacked personal jurisdiction over them. Plaintiffs had many connections to Colorado, and although the Loan Agreement specified jurisdiction was proper in the District of New York, the defendants contended they would have disputed New York jurisdiction also. Therefore, the U.S. District Court for the District of Colorado was the proper venue for the claims. The court also concluded that sufficient minimum contacts existed to confer personal jurisdiction over Lasshofer.

Finally, defendants argued several errors in the determination of damages. The Tenth Circuit reviewed the record and found no error in the court’s calculation. After entry of default judgment, the court requested that plaintiffs present evidence regarding their damages. Plaintiffs presented two different damages calculations, based on two different methods of arriving at the damages amount, that were nearly identical in the total amount. The district court chose the actual damages and trebled it. There was no error in its decision.

The Tenth Circuit denied plaintiffs’ motion to dismiss based on the fugitive entitlement doctrine, denied defendants’ motion to file a surreply based on that motion, denied plaintiffs’ motion to require defendants to post a bond, and denied the requests to award fees and costs. The district court’s award of damages was affirmed, except to the extent it applied to one defendant that did not exist at the time of the controversy. The Tenth Circuit ordered the district court to vacate its order of contempt. The case was remanded for further proceedings.

Tenth Circuit: Sex Offenders Have Continuing Duty to Keep Registration Information Up-to-Date

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lewis on Tuesday, September 30, 2014.

Marcus Lewis pleaded guilty to statutory rape in Missouri in 1996 and was sentenced to five years’ probation. He later served prison time because of a probation violation. Under the Sex Offender Registration and Notification Act (SORNA), Lewis was required for life to register as a sex offender. He last registered in Kansas in May 2011, and has not voluntarily registered in any state since then. SORNA requires sex offenders to register where they live, work, or attend school, and requires offenders to report any change in status to authorities.

In August 2011, a sheriff’s deputy in Kansas tried to locate Lewis for a warrant unrelated to his previous sex offense. The deputy used Lewis’s last known address from the sex offender registry, but learned that Lewis no longer lived there. Unable to find Lewis, the deputy alerted U.S. Marshals, who found a car associated with Lewis at the residence of his relatives in Missouri. Over a year later, Lewis was arrested in Atlanta on the Kansas warrant. In an interview with a U.S. Marshal, Lewis admitted that he had not registered because of the outstanding warrants. A federal grand jury indicted Lewis on one count of failing to register, and after a bench trial, Lewis was convicted. Following the conviction, Lewis filed a motion for judgment of acquittal, claiming improper venue and that the evidence was insufficient to support a conviction. His motion was denied, and Lewis appealed.

Lewis contended that venue in Kansas was improper, because he abandoned his home in Kansas, traveled through Missouri, and eventually settled in Georgia. Lewis argued that any SORNA violation occurred outside Kansas. The Tenth Circuit disagreed, finding that under SORNA, Lewis was required to report within three days that he had abandoned his Kansas residence or register in a new location within three days, so venue was proper in the departure district. Lewis also argued that he had abandoned his Kansas residence before the date listed on the indictment, but the Tenth Circuit found this argument flawed, as Lewis had a continuing requirement to update his information. Lewis next argued that his next registration date had not occurred at the time the sheriff discovered his abandonment of the Kansas residence, but the Tenth Circuit disagreed with his reasoning, as the purpose of SORNA is to keep registrations current regardless of where the offender resides, not to maintain one registration and allow the offender to be transitory as long as that one registration is maintained. Finally, Lewis argued that the government’s theory of the case was inherently flawed because it required a sex offender to notify the departure state of any change in location. The Tenth Circuit, however, determined that this was only partially true — sex offenders have a continuing requirement to update their registration, and if the offender does not re-register within three days of departure, the offender has the duty to notify the departing location of his departure.

The Tenth Circuit affirmed the district court’s judgment.