A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: five cases, five minutes. On the (smaller) docket this holiday week was immigration, marijuana, the Postal Service, and airport security.
1. Eleventh Circuit rejects “self-deportation” defense.
Federal law considers an immigrant deported if the immigrant (1) is “ordered deported” and (2) “le[aves] the United States” (8 U.S.C. §1101(g)). But the law is ambiguous. Must the deportation order come before the immigrant’s departure? Yes, says an Eleventh Circuit panel. Here, an immigrant returned to her home country of Guatemala a week before an immigration judge ordered her removed (in absentia). She reentered the U.S., and the government sought to deport her under the prior removal order. The government argued she was never really “deported” because an immigrant’s departure must come after the deportation order. She countered that she was indeed deported—that she had deported herself, basically—because the order and the departure need not occur in succession. The panel acknowledges that both interpretations are intrinsically valid. But, it concludes, the government’s reading is better, whether one applies the rule of lenity or defers to the government’s interpretation under Chevron.
2. Marijuana, moral turpitude at the Ninth Circuit.
Soliciting to sell less than two pounds of marijuana is a crime in Arizona. But it is not a “crime involving moral turpitude,” says a Ninth Circuit panel. This is welcome news to Pattie Walcott, a Jamaican immigrant who was facing deportation because, in the government’s mind, such a deed with weed is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Judge Berzon, concurring: “Crime involving moral turpitude” is unconstitutionally vague. Judge Collins, dissenting: It is morally turpitudinous to sell marijuana. We’ve also said it’s morally turpitudinous to do what Ms. Walcott did with four pounds of marijuana. So where do we draw the line?
3. Sixth Circuit dismisses private suit against U.S. Postal Service.
A well-to-do housing association in Michigan sued the U.S. Postal Service because it wants to change its zip code. The association, currently in Ypsilanti, MI 48198, has its eyes on nearby Ann Arbor, MI 48104. Property values are better in Ann Arbor, the association explains. Sixth Circuit panel: The association lacks standing. It hasn’t identified any concrete harm it has suffered because of the Ypsilanti post code. Worse, the association’s claim is for breach of contract, and it hasn’t even hinted at a harm arising from USPS’ alleged breach of said contract. Judge White, concurring: Worse still, the association forfeited any standing argument it had on appeal.
4. D.C. Circuit greenlights private suit against DHS for invasive airport searches.
A family of U.S. citizens is flying to visit relatives in Jordan. The family members are searched for over two hours at LAX. They nearly miss their flight. After two months overseas the family heads back to the States. They have a layover in Abu Dhabi, where officials from the U.S. Customs and Border Protection are waiting. The officials separate the family members, detain them, and interrogate them in separate rooms for four hours. Even a minor child is interrogated. The family misses its flight. When they arrive in Los Angeles on the next available flight, they are again searched for over an hour. The family is released without explanation. They ask the government if they have been put on an FBI terrorist screening list called the “Selectee List”. The government neither confirms nor denies that they are on the list. The family sues. The government responds that the family lacks standing because it can’t prove it is on the list. District court: We agree with the government. D.C. Circuit panel: Not so fast. Everything indicates the family is on that list, and the government’s Glomar response provides no evidence to the contrary. The family’s suit can proceed. And by the way, we did not find funny the government’s suggestion that if the family members want to know if they’re on the list, they should book another flight and see if they endure the same treatment.
5. Seventh Circuit certifies question of Illinois information privacy law.
The manager of a White Castle in Illinois scans her fingerprint each time she logs on to her work computer. Her fingerprint data is sent to a third-party authenticator. She claims she never consented to a third party’s viewing her personal information. So she sues, arguing that White Castle is violating the Illinois Biometric Information Privacy Act. White Castle: This manager has worked for us for over ten years and only now brings this claim? The statute of limitations has run. Manager: This argument assumes I had a claim only the first time I scanned my fingerprint. That assumption is false. Based on the text of the law, I have a claim every time I scan my fingerprint. Seventh Circuit panel: Whether White Castle’s assumption is false is an important question. We’d like the Illinois Supreme Court to decide that. Question certified.
Finally, as an early Christmas present from us to you, please enjoy this in rem action: United States v. Approximately 3879.16242937 bitcoin.
Benchwarmers 