Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

Petitioner Arther Deyke Kasonso petitioned the Tenth Circuit to review of a Board of Immigration Appeals (BIA) order denying his motion for reconsideration. His petition raised a single, narrow issue: whether the BIA abused its discretion in declining to apply the "disfavored group analysis" adopted by some of the other circuits, to determine whether Petitioner was entitled to restriction on removal. Petitioner, a native and citizen of Indonesia, entered the United States in 1994 on a non-immigrant visa and overstayed his six-month authorization. He received a notice to appear, conceded removability, and filed applications for asylum, restriction on removal, and relieve under the Convention Against Torture. He alleged past persecution and a well-founded fear of future persecution in Indonesia because he is a Christian. After a hearing, an immigration judge denied his applications for relief from removal, but granted him voluntary departure. The BIA dismissed his appeal. Petitioner then filed a motion for reconsideration and request to reopen his case. Upon review, the Tenth Circuit found that Petitioner did not argue that the BIA failed to follow its established policy to apply Tenth Circuit precedent or misapplied that law in his case. Nor did he provide any other basis for us to conclude that the BIA abused its discretion in denying his motion for reconsideration. Accordingly, the Court affirmed the BIA's decision and dismissed Petitioner's request for review.

Defendants the U.S. Forest Service and Defendants-Intervenors-Appellants several Environmental Groups appealed a district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (Roadless Rule) which the Forest Service promulgated in 2001. In setting aside the Rule, the district court held that the rule violated the Wilderness Act of 1964 (Wilderness Act) and the National Environmental Policy Act of 1969 (NEPA). On appeal, the Forest Service and the Environmental Groups asked the Tenth Circuit to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. Furthermore, even if the Court concluded that the rule was promulgated in violation of federal law, they asked the Court to nevertheless reverse the district court's order establishing a permanent nationwide injunction. Plaintiff-Appellee the State of Wyoming and Intervenor-Appellee the Colorado Mining Association (CMA) asked the Court to affirm the district court's order on the grounds that rule did not violate the Wilderness Act and NEPA. Upon extensive review of the parties briefs and the applicable legal authorities, the Tenth Circuit reversed the district court's order that granted Plaintiff declaratory relief and issued a permanent injunction, and remanded the case back to the district court to vacate the injunction.

Petitioner Sushma KC sought review of a Board of Immigration Appeals’ (BIA) denial of her motion to reopen or reconsider its previous decision denying her asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After arriving in this country, KC filed timely applications for asylum, but on June 23, 2008, an immigration judge (IJ) denied her applications, and ordered her to voluntarily depart or be removed to her native Nepal. In his oral decision, the IJ noted the threats she received: "the most recent and graphic of them was that her head would be cut off [by Maoist insurgents] unless she paid 300,000 rupees." The IJ concluded, however, that KC failed to satisfy the "one central reason" test (see 8 U.S.C. 1158(b)(1)(B)(i)) which required showing that one of the central reasons the Maoists targeted her was because of her political beliefs. KC appealed to the BIA, which upheld the IJ’s decision. The BIA concluded that "[t]he Immigration Judge reasonably determined based on the record as a whole that the Maoists’ demands for money were acts of extortion not related to the respondent’s political opinion." In addition, the BIA denied KC’s motion to remand her case to the IJ so that he could consider additional evidence concerning her husband’s disappearance. Because the BIA adopted the IJ’s analysis without further explanation, both to dismiss KC’s appeal and to deny reconsideration, the Tenth Circuit held that the BIA’s decision lacked "rational explanation." Accordingly, the Court held that the BIA abused its discretion, and remanded the case for further consideration. The Court affirmed the BIA in all other respects.

Sorenson Communications, Inc. challenged the 2010-2011 rates set by the Federal Communication Commission (FCC or Commission) to compensate Video Relay Service providers, including Sorenson. Video Relay Service (VRS) is a type of telecommunication relay service (TRS), "which enables a person with a hearing disability to remotely communicate with a hearing person by means of a video link and a communications assistant." FCC regulations provide certain minimum standards that VRS providers must meet. Among these requirements, VRS providers must operate every day, twenty-four hours a day, and must answer 80 percent of all calls within 120 seconds. TRS customers do not pay to access the service. Instead, TRS providers are compensated by the TRS Fund at a rate determined by the FCC. The TRS Fund is financed by interstate telecommunications providers on the basis of interstate enduser telecommunications revenues. Until 2007, the Commission set VRS rates annually, which resulted in significant variation in compensation each year. In 2007, the FCC adopted a three-tiered rate structure for compensating VRS providers, with rates that declined as the number of minutes per month increased. Sorenson asked the FCC to stay its 2010 Order which retained the tiered structure of the 2007 order, but reduced rates on all tiers. Upon review, the Tenth Circuit denied Sorenson's petition for review because the Commission’s order was consistent with its statutory mandate and was not arbitrary or capricious.

Appellant Gabriela Cordova-Soto petitioned the Tenth Circuit for review of a Department of Homeland Security (DHS) order reinstating her prior removal order under 8 U.S.C. 1231 (a)(5). Appellant is a native and citizen of Mexico, who entered the United States as a child and became a lawful permanent resident in 1991 at the age of 13. In 2005, DHS initiated removal proceedings against Appellant charging her as removable on three grounds: (1) as an aggravated felon; (2) as an alien convicted of two crimes involving moral turpitude; and (3) as an alien convicted of a controlled substance offense. Appellant had three Kansas state-law convictions, including a 2005 conviction for felony possession of methamphetamine for which she was sentenced to a suspended jail term of twenty months and eighteen months' probation. Appellant was found in 2010 in Wichita, Kansas and identified as an alien who had previously been removed. No criminal charges for illegal reentry were lodged against her, but DHS issued a Notice of Intent/Decision to Reinstate Prior Order, advising Appellant that she was subject to removal. Appellant argued to the Tenth Circuit that: (1) her underlying removal order was not lawful; and (2) her reentry into the United States after her previous removal was not illegal. On these bases she maintained that reinstatement of her previous removal order was precluded. Upon review of the DHS's determination and the applicable legal authority, the Tenth Circuit concluded Appellant failed to establish that DHS misconstrued the meaning of "reenters the United States illegally" in Sec. 1231 (a)(5): she was removed from the United States in 2005, and she admittedly reentered the country without the Attorney General's authorization shortly thereafter. Because she could not have entered the United States legally at that time, her reentry was illegal and she was therefore subject to reinstatement of her previous removal order. Accordingly, the Court denied Appellant's petition for review.

Payne County Jail Administrator Brandon Myers appealed a district court's order that denied his motion for summary judgment that asked for qualified immunity. While held as a pretrial detainee at the Payne County Jail, Plaintiff John David Palmer suffered from an infection of the flesh-eating methicillin-resistent staphylococcus aureus (MRSA) bacteria. The jail's medical transport officer took Plaintiff to Dr. Daniel Hill who did not diagnose Plaintiff as having MRSA, but drained the boils Plaintiff had developed, administered an injection of an antibiotic, and prescribed two more antibiotics for oral use at the jail. Dr. Hill advised that Plaintiff should return in two days for a follow-up visit, but warned that if Plaintiff developed a fever, he should be taken to the hospital. Ultimately, Plaintiff developed a fever, his condition worsened, and he alleged in his complaint against prison officials that their inattention or delay in taking him to the hospital caused him tremendous suffering and caused him to accumulate $24,000 in medical bills. Upon review of the trial court record and the applicable legal authority, the Tenth Circuit affirmed the district court's decision to deny Mr. Myers qualified immunity.

Defendant-Appellant Alan Tukes appealed his federal conviction for bank robbery, arguing that the government’s evidence was insufficient to prove that the bank was insured by the Federal Deposit Insurance Corporation (“FDIC”) at the time of the crime. At trial, a prosecutor asked the bank’s branch manager: “Now, the Compass Bank, is that a bank that is federally insured by the [FDIC]?” She responded: “Yes, it is.” When asked whether the bank “has” any documentation proving its insured status, she replied: “Yes. We have a certificate.” When asked whether the certificate “hangs” in the branch, the manager replied in the affirmative. The district court admitted the certificate, dated November 8, 1993, into evidence. The government offered no additional evidence of the bank’s insured status. At summation, Defendant argued that the government had not proven that the bank was FDIC insured at the time of the robbery. The jury returned a guilty verdict. Viewing the evidence in the light most favorable to the government, the Tenth Circuit concluded "it is clear that a rational juror could have concluded beyond a reasonable doubt that the bank was insured at the time of the robbery." The Court affirmed Defendant's conviction.

Mexican national Defendant-Appellant Nicolas Cobos-Chachas pled guilty to unlawfully reentering the United States after deportation. At sentencing, the district court varied downward from the advisory guidelines range and sentenced him to thirty-eight months' imprisonment, which was three months below the bottom of the advisory guideline range. Defendant challenged the length of his sentence as substantively unreasonable in light of the sentencing factors listed in the Guidelines. Upon review, the Tenth Circuit found that "Mr. Cobos-Chachas' own perception that the sentencing factors compel[ed] a more marked variance [did] not rebut the presumption that his below-guideline sentence [was] substantively reasonable." Accordingly, the Court affirmed Defendant's sentence.

Petitioners Mihiretab Teshome Jobira and Beza Teshome Jobira petitioned the Tenth Circuit to review final orders of removal. The Jobiras are natives and citizens of Ethiopia. They claimed to be brother and sister. In September 2006, the Jobiras entered the United States on visitor visas. On the date their visas expired, they applied for asylum and protection under the United Nations Convention Against Torture (CAT). According to their applications, the Jobiras were arrested on several occasions in 2005 as a result of their activities organizing fellow high school students in support of the "Coalition for Unity and Democracy" (CUD). They alleged that during their detentions, they were interrogated, held in squalid conditions, and severely beaten or tortured. After hearing the Jobiras’ testimony, an immigration judge issued an oral decision denying relief and granting voluntary departure. The judge concluded the Jobiras’ story had not proven credible for a number of reasons. The Jobiras appealed the judge's denial to the Board of Immigration Appeals (BIA). A single member of the BIA dismissed their appeal. The Tenth Circuit concluded that the Jobiras failed to meet the persecution standards for asylum, and necessarily failed to satisfy the higher standards required for restriction on removal under the immigration laws or relief under the CAT. Accordingly, the Court affirmed the BIA's and immigration judge's decisions.

Plaintiff-Appellant Timothy Arles appealed a district court judgment that affirmed the Commissioner of Social Security's denial of his application for supplemental security income benefits (SSI). An Administrative Law Judge (ALJ) denied Plaintiff's request for benefits at the last step of the five-step sequential process for determining disability. At the time of the hearing before the ALJ, Plaintiff was 44 years old and weighed 329 pounds. He testified about his difficulties with cramping and swelling hands after carpal tunnel surgery, swollen knees, a painful left foot, daily migraine headaches, neck pain, loss of near vision from glaucoma, low-back problems, and an ache from a rupture in his stomach. He stated that medical providers prescribed eye drops for his diagnosed low-tension glaucoma and also pain pills, sleeping pills,nerve pills, arthritis pills, and high-blood-pressure pills. Plaintiff further related that he did not take any of these medications or seek medical care because he lacked the financial resources to afford them. The ALJ therefore concluded that Plaintiff was not entitled to SSI and denied his application. The Appeals Council denied review, making the ALJ’s decision the final agency decision. The district court affirmed. On appeal of the district court’s ruling to the Tenth Circuit, Plaintiff argued that the Commissioner’s denial of benefits should have been reversed because the ALJ did not perform a proper credibility determination. He also contended that throughout the sequential-evaluation process, the ALJ failed to give appropriate consideration to his restricted vision and obesity. Upon review, the Tenth Circuit found that the ALJ’s decision provided "an adequate discussion of the effect of obesity on [Plaintiff]’s RFC. Further, the ALJ’s conclusion that obesity did not interfere with Plaintiff's ability to perform a restricted range of sedentary work is supported by substantial evidence." Therefore, the Court affirmed the Commissioner's decision to deny Plaintiff SSI benefits.