Appeals Courts Give Trial Records a Hard Look, and Most Survive

An asylum record corrected

The Ninth Circuit granted the petition for review of the Board of Immigration Appeals decision in an asylum case involving a bisexual applicant. The court held that the immigration judge misunderstood the definition of bisexuality and erred by requiring sexual relations as proof of it, holding instead that sexual orientation is defined by the capacity for attraction, not sexual relations. The immigration judge also violated 8 U.S.C. section 1158(b)(1)(B)(ii) by failing to provide notice of missing corroborating evidence, and the judge had not made an adverse credibility finding. The court rejected the government's forfeiture argument on the corroboration issue. The ruling is the week's clearest example of appellate review changing an outcome: the errors went to how the claim itself was understood. m:…0911

A tribal-organization decision affirmed

The D.C. Circuit affirmed the district court's grant of summary judgment in favor of the government in a dispute over tribal organization eligibility. The court held that the Department of the Interior's decision to include 1929 Census descendants in the Tribe's organizational process was reasonable and reasonably explained, and that the decision was not arbitrary or capricious under the Administrative Procedure Act. The plaintiffs failed to preserve their claims regarding unlawful delay and the statute of limitations. The opinion also noted that prior judicial decisions had established that the tribal community was significantly larger than five individuals, that the California Valley Miwok Tribe has never validly completed its initial organization under the Indian Reorganization Act, and that the California Gambling Revenue Sharing Trust Fund holds over $27 million that may be disbursed to the Tribe. Here the hard look ended in deference: the agency's explanation survived. m:…7094

Two convictions survive their errors

The First Circuit affirmed the convictions of Quiñones, Rosario, and Millán for RICO conspiracy and drug trafficking conspiracy in United States v. Rosario-Orangel. On remand, the district court had found by a preponderance of the evidence that the challenged statements were made by coconspirators during and in furtherance of the conspiracy, and the appellate court rejected the defendants' challenges to the admission of coconspirator hearsay statements under Petrozziello, as well as Millán's cumulative error challenge. The court held that even if some statements were admitted in error, the error was harmless given the substantial unchallenged inculpatory evidence. m:…0170

The same court affirmed the conviction of Johnny Barros Brandao for making false statements on a temporary emergency passport application, even while identifying two trial errors. The district court erred by failing to ask the venire about potential bias stemming from the defendant's pending homicide charges, and erred under Federal Rule of Evidence 403 by admitting evidence of those pending charges. The court found no abuse of discretion in denying a missing-witness instruction, and held the identified errors harmless because the evidence of guilt was overwhelming. It also noted that foreign witnesses located in foreign countries are beyond the subpoena power of the government and the defendant. m:…1384

Read together, the four rulings show appellate review doing two different jobs in the same week. In the asylum case, correcting the legal standard changed the result. In the other three, the courts found the reasoning or the record strong enough to leave the outcome in place, even when they identified mistakes along the way. m:…0911 m:…7094 m:…1384