by
Liao, a citizen of China, became a lawful U.S. permanent resident in 2005. In 2015, Liao had a physical altercation with his girlfriend, Yu. A neighbor called the police. Yu told responding officers that she was holding her infant son, J.Y., while Liao struck her, but that J.Y. was not “hit or hurt.” She said, however, that during the fight, J.Y. was placed on the bed and fell to the floor. Officers arrested Liao, charging him with three offenses, including endangering the welfare of a child, Pa. Cons. Stat. 4304(a)(1). Liao was convicted and served 106 days of his prison sentence. An IJ ordered Liao’s removal for committing “a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment,” which rendered him removable under 8 U.S.C. 1227(a)(2)(E)(i). The Third Circuit granted a petition for review and remanded to the BIA, reasoning that the elements of his conviction do not match the elements of the crime of “child abuse” under federal law, which requires a specified risk of harm that rises above conduct that creates only the bare potential for non-serious harm. The Pennsylvania child endangerment statute in effect at the time of Liao’s conviction did not require such a risk. View "Liao v. Attorney General United States" on Justia Law

by
H.C. was born in 2010. His parents separated in 2011 and divorced in 2014. Wife claims that violence was a factor but did not raise that issue in the divorce proceedings. Husband denies those allegations. In 2013, wife began a relationship with her childhood acquaintance, “Deleon,” who resided in New Jersey. She obtained a visa for H.C. to travel to the U.S. with husband’s consent. She visited Deleon by herself and married him in 2014. She did not tell husband about the marriage but indicated that she intended to bring H.C. to the U.S.to live; he refused to consent. Wife filed a domestic violence complaint in Guatemala and obtained a TRO. She took H.C. to the U.S., then sent a message informing husband she was there with H.C. She did not disclose their address “[o]ut of fear.” Husband filed an Application for Return of the Child with the Guatemala Central Authority, which forwarded that application to the U.S. State Department. About 16 months later, having discovered that the Hague Convention on the Civil Aspects of International Child Abduction required him to file where H.C. lived, he filed a Petition in New Jersey. The Third Circuit affirmed the denial of relief under the Convention and the International Child Abduction Remedies Act (ICARA). While ICARA’s one-year filing requirement is not subject to tolling, the delay in filing did not eliminate husband’s remedies under the Convention; the court recognized but declined to exercise its independent authority to order H.C.’s return. There was sufficient evidence that H.C. was well settled in the U.S. View "Castellanos-Monzon v. De La Roca" on Justia Law

by
In response to the rise in active and mass shooting incidents in the United States, New Jersey enacted a law that limits the amount of ammunition that may be held in a single firearm magazine to no more than 10 rounds, N.J. Stat. 2C:39-1(y), 2C:39-3(j) . A magazine is an implement that increases the ammunition capacity of a firearm; LCMs, magazines that hold more than 10 rounds, allow a shooter to fire multiple shots in a matter of seconds without reloading. Rejecting a challenge citing the Second Amendment, the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Equal Protection Clause, the Third Circuit held that New Jersey’s law reasonably fits the state’s interest in public safety and does not unconstitutionally burden the Second Amendment’s right to self-defense in the home. The law does not require gun owners to surrender their magazines but instead allows them to retain modified magazines or register firearms that have magazines that cannot be modified. Because retired law enforcement officers have training and experience that makes them different from ordinary citizens, the law’s exemption that permits them to possess magazines that can hold more than 10 rounds does not violate the Equal Protection Clause \ View "Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey" on Justia Law

by
After seeing an idling car, illegally parked in front of a store known for drug sales, officers waited for the driver to return, then approached the car. The driver admitted not having a driver’s license. Hester, the passenger, stated that he had a license and started to get out of the car. As he moved, an officer heard the familiar thud of a gun hitting the vehicle's floorboards. Another officer, who testified to seeing Hester drop the gun, verbally alerted the others. Hester attempted to run, but was apprehended. Officers near the vehicle confirmed the presence of a gun at the foot of the passenger’s seat. Hester was convicted as a felon in possession of a firearm following the denial of his motion to suppress. The court applied a four-level enhancement to Hester’s Guidelines range under the theory that Hester’s possession itself constituted New Jersey evidence tampering but varied downward to mitigate its effect, and sentenced Hester to 86 months’ imprisonment. The Third Circuit affirmed the denial of the motion to suppress but held that the application of the evidence tampering sentencing enhancement was erroneous. A traffic stop is a seizure of everyone in the stopped vehicle. Hester had submitted to the officers’ show of authority when he waited in the vehicle with the driver before and during questioning but there was objectively reasonable suspicion to support Hester’s seizure. View "United States v. Hester" on Justia Law

by
When Revel entered Chapter 11 bankruptcy, its tenant, IDEA, continued to operate nightclubs and a beach club on Revel's Atlantic City casino premises. IDEA sought to protect its right to continue operating by filing an adversary proceeding. Polo became the defendant in the proceeding (and IDEA’s landlord) when the court approved a Purchase Agreement. The Sale Order authorized Polo’s purchase of Revel’s assets “free and clear of all liens, claims, encumbrances and other interests of any kind” under 11 U.S.C. 363(f). The Order contained carve-out provisions that expressly preserved certain rights relating to IDEA’s continued use of the casino premises under the Lease. After entering the Order, the Bankruptcy Court granted Revel’s long-pending motion to reject the Lease retroactively. IDEA filed a notice of its election to retain its rights as a tenant under section 365(h), as expressly allowed by the Sale Order. In an omnibus order, the Bankruptcy Court clarified major aspects of the post-petition landlord–tenant relationship between IDEA and Polo. The Third Circuit affirmed the Bankruptcy Court and the district court. IDEA is permitted to reduce its rental obligations under a tenant-protective provision, 11 U.S.C. 365(h), the Lease, and the doctrine of equitable recoupment, regardless whether its rights arose before or after Revel filed for bankruptcy and regardless whether they arose before or after Revel rejected the Lease. View "Revel AC Inc v. IDEA Boardwalk, LLC" on Justia Law

by
In 2008, IMMC filed a Chapter 11 bankruptcy petition in the District of Delaware. The liquidating trustee filed an adversary proceeding, alleging that Appellees, IMMC’s former officers and directors, had breached their fiduciary duties by pursuing a risky and costly litigation strategy in an unrelated suit against a competitor, overcompensating themselves in the process. In 2011, the Bankruptcy Court held that it lacked jurisdiction to hear the adversary proceeding, rejecting arguments that the adversary proceeding was a “core” proceeding or that the adversary proceeding was a non-core proceeding “related to” a Chapter 11 case. The trustee did not appeal. The Bankruptcy Court then considered the trustee’s request to transfer the adversary proceeding to the Eastern District of Pennsylvania under 28 U.S.C. 1631 and concluded that it lacked authority to transfer the adversary proceeding. The district court and Third Circuit agreed. The Bankruptcy Court lacked authority over the claims in the adversary proceeding. Exercising jurisdiction over the adversary proceeding so as to transfer it under section 1631 would have been ultra vires, regardless of whether bankruptcy courts fall under section 610’s definition of courts as referenced in section 1631. The court noted that bankruptcy courts have limited authority. View "IMMC Corp. v. Erickson" on Justia Law

by
Then-New Jersey Governor Christie appointed Baroni as Deputy Executive Director of the Port Authority of New York and New Jersey. Baroni and Kelly, the Deputy Chief of Staff for New Jersey’s Office of Intergovernmental Affairs, engaged in a scheme to impose crippling gridlock on the Borough of Fort Lee after its mayor refused to endorse Christie’s 2013 reelection bid. Under the guise of conducting a “traffic study,” they conspired to limit Fort Lee motorists’ access to the George Washington Bridge (the world’s busiest bridge) over four days during the first week of the school year. Extensive media coverage of “Bridgegate” ensued. Baroni and Kelly were convicted of conspiracy to obtain by fraud, knowingly convert, or intentionally misapply property of an organization receiving federal benefits, 18 U.S.C. 371, and the substantive offense; conspiracy to commit wire fraud, section 1349, and the substantive offense; and conspiracy against civil rights, section 241, and the substantive offense. The Third Circuit affirmed the wire fraud convictions but vacated the civil rights convictions. The government presented evidence sufficient to prove defendants violated the wire fraud statute by depriving the Port Authority of, at a minimum, its money in the form of public employee labor. The court rejected an argument that Baroni possessed the unilateral authority to control Port Authority traffic patterns. There is no “clearly established” constitutional right to intrastate travel, so the defendants were entitled to qualified immunity on the civil rights claims. View "United States v. Baroni" on Justia Law

by
On April 21, 2004, and March 22, 2005, Defendants sent unsolicited faxes to Dr. Weitzner’s office. Weitzner filed a putative class action in Pennsylvania state court under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(C), including at least one fax sent to Weitzner. The proposed class included all individuals “who received an unsolicited facsimile advertisement from defendants between January 2, 2001[,] and the date of the resolution of this lawsuit.” In June 2008, the court denied class certification. The case continues as Weitzner's individual action. Defendants stopped sending unsolicited faxes in April 2005. In 2011, Weitzner and his professional corporation (Plaintiffs) brought individual claims based on the same faxes, plus class claims similar to those alleged in state court. The court dismissed, concluding that the four-year federal default statute of limitations, 28 U.S.C. 1658, applicable. The Third Circuit affirmed, rejecting a claim under the Supreme Court’s “American Pipe” holding that the timely filing of a class action tolls the applicable statute of limitations for putative class members until the propriety of maintaining the class is determined. American Pipe permits putative class members to file only individual claims after a denial of class certification and does not toll the limitations period for named plaintiffs like Weitzner. Any judgment in favor of Weitzner P.C. would benefit only Dr. Weitzner. Applying tolling to P.C.’s claims would effectively allow Weitzner to pursue his claims for a second time outside the limitations period. View "Weitzner v. Sanofi Pasteur, Inc." on Justia Law

by
Salmoran, a citizen of Mexico, was granted lawful permanent resident status in 2004. In 2015, he pled guilty to violation of New Jersey Statutes 2C:24- 4(b)(5)(b): Any person who knowingly possesses or knowingly views any photograph, film, videotape, computer program or file, video game or any other reproduction or reconstruction which depicts a child engaging in a prohibited sexual act or in the simulation of such an act, including on the Internet, is guilty of a crime of the fourth degree. DHS charged Salmoran as removable for having been convicted of: the aggravated felony crime of sexual abuse of a minor; an offense relating to child pornography; and a crime of child abuse, child neglect, or child abandonment. The BIA held that the conviction “categorically constitutes a crime of child abuse," so as to subject him to removal (8 U.S.C. 1101(a)(43)(I), 1227(a)(2)(E)(i)) but did not address whether the conviction was categorically an aggravated felony for an offense relating to child pornography, rejected Salmoran’s argument that the state statute was broader than the federal offense, and found that Salmoran was “statutorily precluded from applying for cancellation of removal. The Third Circuit remanded. The conviction qualifies as a crime of child abuse, but does not qualify as an aggravated felony relating to child pornography; while Salmoran is removable, he may still file an application for cancellation of removal. View "Salmoran v. Attorney General United States" on Justia Law

by
The Photographers entered into representation agreements with Corbis, a photography agency, providing Corbis authority to sub-license their works to third parties on a non-exclusive, fixed-duration basis. The agreements include forum selection clauses and give Corbis sole authority to make and settle claims for unauthorized use of images. If Corbis declines to bring such a claim within 60 days, the Photographers may bring actions. Corbis sub-licensed their photographs to McGraw-Hill. The invoices included the name of the photographer responsible for the work and incorporated Corbis’ standard “Terms and Conditions,” which included mandatory, exclusive forum selection clauses. The Photographers each brought a copyright action against McGraw-Hill in the Eastern District of Pennsylvania. McGraw-Hill moved to transfer venue under 28 U.S.C. 1404(a), arguing that the disputes implicate the Corbis–McGraw-Hill agreements, under which the proper venue was the Southern District of New York. One judge denied the motion, reasoning that the claims are based purely on copyright law, so the action is not a “dispute regarding th[e] Agreement[s],” and not subject to the forum selection clauses. Another judge reasoned that the copyright claims depend upon the interpretation of the Corbis–McGraw-Hill agreements so that the photographer was subject to the forum selection clause as an intended third-party beneficiary. In consolidated actions, the Third Circuit concluded that the photographers are not bound because they are not intended beneficiaries of the agreements, nor are they closely related parties. Because the erring district court’s mistakes were not clear or indisputable, the court declined to grant mandamus relief. View "In re: McGraw-Hill Global Education Holdings, LLC" on Justia Law