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Monthly Archives: March 2009

Quick hits: Immigration, Immigration, Immigration

Immigration issues are increasingly popping up in meat-and-potatoes practice areas like family and criminal law.

To help from being caught flat-footed by a client who walks through the door with an immigration-related problem, here are some recent decisions for the general practitioner to note for future reference: 

  • The California Supreme Court has ruled that a person in federal immigration detention is ineligible for a writ of habeas corpus from a state court if his state sentence and probation or parole have been completed. (People v. Villa)

     

  • The REAL ID Act strips federal courts of jurisdiction to hear the habeas petition of an Albanian family challenging deportation, says the 6th Circuit. (Muka v. Baker)
  • In an international child custody dispute, the 9th Circuit has denied a father’s Hague Convention petition and concluded that a child of Mexican origin, whose mother wrongfully retained her in the United States, should be allowed to stay in her current home while custody proceedings are pending. (Mendoza v. Miranda
  • And for lawyers who like getting paid, the 10th Circuit has decided that an immigrant whose naturalization application petition was not handled in a timely manner was entitled to attorney fees under the Equal Access to Justice Act. (Al-Maleki v. Holder)

 — Pat Murphy

patrick.murphy@lawyersusaonline.com

Poker player loses challenge to online gambling law

The advent of online gambling has dramatically changed the landscape of state efforts to regulate betting activity, both legal and illegal.

One central question that remains to be decided is the extent to which states can act without infringing on the power of the federal government.

A Washington poker player has just lost the argument that the state exceeded it powers when it criminalized the transmission of “gambling information” over the Internet.

Afraid that the new law spoiled his fun playing poker games online, the man sued saying the state encroached on the power of Congress under the Commerce Clause.

Unsurprisingly, in Rousso v. Washington the state court of appeals sided with the state legislature, finding that protecting Washington residents from the “ills associated with gambling” outweighed the “relatively small” cost of compliance imposed on out-of-state businesses.

Moving to the heartland, the Indiana Court of Appeals has ruled that a compulsive gambler who lost $125,000 in a single night can’t sue a casino for failing to curb her pathology. (Caesar’s Riverboat Casino v. Kephart)

Finally, the East Coast gives us this gambling tidbit from the live-and-let-live crowd.

Would you believe that an intrepid New Jersey legislator, with obviously nothing better to do and an apparent nose for publicity, has filed a lawsuit to overturn the Professional and Amateur Sports Protection Act and allow sports betting nationwide? (AP)

— Pat Murphy

You get the kids, I keep the dog

Breaking up is hard to do. Just ask the pet dog of an unmarried New Jersey couple who decided that they had had enough of looking at each other after 13 years.

The erstwhile lovebirds at first amicably agreed that she would get the dog.

But things turned ugly when the guy kept Fido after a post-separation visit.

A state appeals court decided that the guy could not avoid living up to his end of the deal merely by paying the woman $1500, saying that she was entitled to her day in court to prove that the pooch had “special subjective value” justifying specific performance of the couple’s oral agreement. (Houseman v. Dare)

Can a clinic be liable when an HIV-positive man commits suicide?

A man and his wife go to an in vitro fertilization clinic to have a child. Routine blood tests show that the man has HIV, but the clinic mistakenly fails to inform him of the result.

A year later, the man commits suicide when he learns of his illness as the result of a physical taken for a life insurance application.

Can his wife sue the clinic for wrongful death?

The Idaho Supreme Court answered that question in the affirmative in Cramer v. Slater, reversing a trial judge’s decision that the clinic’s alleged negligence could not be deemed the proximate cause of the man’s death.

What’s important to learn from this case is that the state high court decided that neither the man’s suicide nor the alleged negligence of a second physician necessarily constituted superseding causes that relieved the clinic of liability for its failure to inform the plaintiff’s husband of his positive HIV test.

Quick hits: ‘Cultural marriage’ defense a no-go

  • A Maryland appeals court ruled that a skate boarder struck and killed by a passing car was subject to same the standard of care imposed on “vehicle” operators regarding rights of way. (Wooldridge v. Price)
  • The Indiana Supreme Court has decided that the owners of a shopping center are not entitled to consequential damages from the state for street construction that restricts customer traffic. (State v. Kimco of Evansville, Inc.)
  • The Wisconsin Court of Appeals rejected a “cultural marriage” defense raised by a statutory rape defendant who claimed the 14-year-old victim was his wife under an arranged marriage orchestrated by his family in Southeast Asia. (State v. Lor)

No chicken for you!

 

You’d think everyone would have learned by now that you simply don’t mess around on commercial airline flights post-9/11.

 

But one American Airlines passenger just couldn’t contain his outrage when a stewardess informed him that the flight crew had run out of chicken dinners and that he’d have to eat beef.

 

Putting aside the fact that avoiding any airline meal should be counted as a blessing, this particular passenger on a flight from Switzerland to New York raised such a ruckus that he was charged with assault.

 

In U.S. v. Delis, the passenger argued that he had simply pushed a flight attendant’s hand away from his face and, because he had no intent to injure, his conviction could not stand.

 

But the 2nd Circuit concluded that simple assault under federal law does not require any finding of specific intent to injure.

 

“As a result, the Magistrate Judge’s finding that [the passenger] possessed the intent to commit an offensive touching was entirely sufficient to support the judgment of conviction,” the court said.

When is a bigamist not a bigamist?

State courts have split on whether the invalidity of a second marriage can remove the taint of bigamy.

    

But a recent federal immigration case has put a new twist on an old story.

 

In U.S. v. Ali, the 6th Circuit questioned whether an Israeli citizen could avoid prosecution for falsely stating in an application for naturalization that he had never been married to more than one person at the same time.

 

The government contended that the defendant was a bigamist because he married a woman in Georgia before his divorce to another woman in Canada became final.

 

The defendant claimed his naturalization statement was truthful because his Georgia marriage was “void ab initio” under state bigamy laws which void attempted second marriages when the first has not been dissolved.

 

Nice try, but no cigar, said the court, explaining “[s]tatutes declaring bigamous marriages ‘void ab initio’ do not preclude convictions for bigamy, nor do they relieve applicants applying for the privileges of United States citizenship from completely and truthfully disclosing their marital relationships.”

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