Docket – February 12, 2019

NOTE: There are no new cases for February 13, 2019.

4th U.S. Circuit Court of Appeals

Rodriguez-Arias v. Whitaker (P), 4th Cir. (Floyd) from BIA.

The Board of Immigration Appeals erred in denying relief under the Convention Against Torture because it failed to aggregate his risk of torture in El Salvador from all three of the entities that the petitioner fears: gangs, vigilante groups, and the police. Joining other circuits, the court holds that the risks of torture from all sources should be combined when determining whether a Convention Against Torture applicant is more likely than not to be tortured in a particular country.

Here, the Immigration Judge’s first order addressed only the risks that the petitioner faced from gangs and the police, with no mention of vigilante groups. The second order simply stated: “Respondent has failed to demonstrate that it is more likely than not that he would be tortured by vigilante groups.” At no point did the IJ consider the aggregated risk caused by all three entities in unison by adding the probability of torture from each entity and determining whether that sum exceeded 50%. The Board also devoted no space in its final order to aggregating risk.

The Board also erred by failing to meaningfully engage with the live testimony and over 300 pages of the petitioner’s documentary evidence and failing to meaningfully consider the additional evidence that he submitted on remand about the risk of torture that he faces in El Salvador.

The tribunals below did not meaningfully address the petitioner’s evidence about the Salvadoran government’s behavior towards gang members and suspected gang members. The IJ didn’t address extensive evidence about the government’s willingness to use torture on suspected gang members or its willingness to turn a blind eye to the extreme violence between rival gangs and between gangs and vigilante groups. In its review, the Board didn’t engage with the petitioner’s evidence at all.

Denying the petitioner’s claim for Convention Against Torture relief required more— much more—from both the tribunals below. On remand, the Board must interact seriously with the full panoply of the risk-of-torture evidence, recognizing that country conditions alone can play a decisive role in granting relief under the Convention. When a man’s life is on the line, he is entitled to know that the court deciding his claim reviewed all his evidence, understood it, and had a cogent, articulable basis for its determination that his evidence was insufficient.

Petition granted; vacated and remanded.

U.S. District Court – Virginia Eastern

Police are entitled to qualified immunity as to the plaintiff’s claim that they exacerbated a dangerous situation – namely, the plaintiff’s psychotic episode in which he submerged himself underwater at the pool where he worked.
Under the state-created danger doctrine, the police’s order to another lifeguard not to attempt a rescue for over two minutes violated no clearly established substantive due process right of the plaintiff. An officer’s efforts to enable a third party to commit a violent act have been recognized as a state-created danger; temporary inhibition of a would-be rescuer in an unpredictable, emergency situation is distinguishable. And officers’ conduct was not so patently wrong that any reasonable officer in the same position would have known it was unconstitutional. Therefore, qualified immunity applies.
In addition, because the plaintiff wasn’t in police custody when he submerged himself underwater, officers didn’t violate his substantive due process rights by failing to prevent him from going into the pool when he was having a psychotic episode.
The plaintiff’s claim of gross negligence under Virginia law must be dismissed because the officers’ actions, as alleged, didn’t amount to indifference or complete neglect of the plaintiff’s safety. In fact, they took many steps to help him despite delaying retrieving him from the pool.
Finally, the plaintiff’s claims for injuries by accident arising out of his employment as a lifeguard must be remedied under the Virginia Workers’ Compensation Act and, thus, must be dismissed for lack of jurisdiction.
Motions to dismiss granted.

Yemer v. US CIS, EDVA at Alexandria (Ellis).

U.S. Citizenship and Immigration Services properly denied the naturalization application of the plaintiff, an Ethiopian citizen who has resided in the U.S. since 2009.

The plaintiff cannot show she is of good moral character, a requirement for citizenship, because she gave false testimony for the purpose of obtaining naturalization. She said she’d never given false information to immigration officials, despite having earlier lied about having children. During her visa interview, she said she didn’t have any children, even though she had a daughter born in 1999. She knew or should have known this answer was false when she said during her naturalization interview that she hadn’t provided false information in the past.

Defendant’s motion for summary judgment granted.

Court of Appeals of Virginia

Jones v. Crothall Laundry (P), CAV (Decker) from Va. WCC.

Credible evidence supports the Commission’s finding that the claimant’s act of entering the employer’s machinery area without using the gate, which would have deactivated the equipment, proximately caused his injury. The Commission also did not err in concluding that the employer enforced the safety rule.

Instead of following the employer’s safety rule, the claimant circumvented the gate and entered the area through a small opening not designed for ingress while the machines continued to operate. If the claimant had entered the area through the gate and thereby automatically shut down the machinery before entering the area, the accident wouldn’t have occurred. The claimant acknowledged that the safety rule was enforced.


Jones v. Pro-Football Inc. (P), CAV (Humphreys) from Va. WCC.

The Workers’ Compensation Commission did not err in finding the claimant, a former NFL player for the Washington Redskins, was disabled and entitled to average weekly wages of approximately $784.

On appeal, the claimant argues that his average weekly wage should be $6,115, based on an expected annual salary of $318,000. But because the claimant suffered an injury before making the final team roster, his earnings as a football player were entirely hypothetical. Code § 65.2-101 permitted the Commission to conclude that the circumstances of the claimant’s employment were sufficiently exceptional to support an average weekly wage based on his pre-injury earnings. Adding additional, unearned payments to that amount based on the sheer conjecture that certain subjective performance measures would be met would require the Commission to speculate and not serve the statutory purpose to approximate the economic loss suffered by an employee.

However, contrary to the employer’s claim, credible evidence supports the finding that the claimant was medically released to work only in a non-player football role, so his lack of employment as a football player was not voluntary.


Hamilton v. Pro-Football Inc. (P), CAV (Decker) from Va. WCC.

Evidence supports the Virginia Workers’ Compensation Commission’s denial of a claim for wage loss benefits for an injury that the claimant sustained while on the Washington Redskins’ practice squad.

Denial was based on the Commission’s finding that the claimant didn’t market his residual capacity between the date of his injury and the date on which he returned to work in a different field. Although he was disabled from playing football after his injury, no doctor ever opined that he was totally incapacitated from all work for any period of time, even after his two surgeries. He remained ambulatory and had significant residual capacity. He was able to travel among various locations in Iowa, Michigan, Texas, and Virginia. The claimant was a recent college graduate with a degree in communications and a certificate in entrepreneurship. During his period of partial physical disability, he completed an unpaid, three-week externship in which he worked with various divisions of a sports memorabilia company.

The fact that the claimant, after not actively looking for work, ultimately secured a job that paid him almost as much as his pre-injury average weekly wage does not satisfy the purpose of the Workers’ Compensation Act’s marketing requirement. To the extent possible, the employer was entitled to have its payments minimized during the entire period of the claimant’s partial disability for which he seeks compensation benefits.

Contrary to the claimant’s argument, the Commission didn’t punish him for being a bad professional football player. Instead, it found that his failure to market was unreasonable, in part because he didn’t prove that his rehabilitation was so time-consuming that it prevented him from simultaneously seeking and working in other employment.


Carlson v. Commonwealth (P), CAV (AtLee) from Chesapeake (Lowe).

The trial court erred in not suppressing evidence obtained in an unlawful search of the defendant’s residence. Therefore, his convictions for manufacturing marijuana and misdemeanor obstruction of justice must be reversed.

The government lacked an independent source for evidence obtained pursuant to the warrant. A detective at the defendant’s trailer made his own observations but was there solely because he’d been called there by officers who conducted an unlawful search by violating the curtilage of each residence in the area. Because of the direct connection between the illegal search and the detective’s presence, it can’t be said that the illegal search had no effect in producing the warrant. Nothing occurred to remove the taint of the original illegality, and the record doesn’t support the Commonwealth’s argument that the evidence would ultimately have been discovered by lawful means.

On remand, the Commonwealth may elect to retry the defendant, as the evidence presented at trial was sufficient to support conviction. He possessed more than 150 marijuana plants, a large amount of cash in various denominations, a digital scale, an AK-47 with extra ammunition, a surveillance camera, and a police scanner. A second trial would not violate double jeopardy.

Reversed, vacated, and remanded.

Arrate v. Commonwealth (U), CAV (AtLee) from Caroline (Deneke).

The defendant’s conviction for credit-card forgery must be reversed, because the indictment failed to allege the conduct for which he was convicted.

The indictment charged the defendant with credit-card forgery by “falsely mak[ing] or falsely emboss[ing] a purported credit card, in violation of [Code] § 18.2-193.” Crucially, the indictment omitted the language from subsection (1)(a) most clearly applicable to the defendant’s conduct: “or utters such a credit card.”

The trial court relied on the indictment’s general citation to Code § 18.2-193, without including a specific subsection, in finding that it included not only making and embossing, but also uttering. The trial court’s statements make clear that it found the defendant guilty of uttering the forged card. Uttering is an assertion by word or action that an instrument known to be forged is good and valid. Yet the indictment charged the defendant solely with making and embossing. Thus, it failed to provide him adequate notice that the Commonwealth intended to show he uttered the forged card. As such, a fatal variance existed between the indictment and the conduct for which the trial court convicted the defendant.


Categories: Daily Dockets

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