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Monday, April 18, 2005

Ind. Decisions - 7th Circuit posts four today

Pervaiz, Abida v. Gonzales, Alberto (Bd.Imm.App.) [6 pp.- agency]

Before BAUER, POSNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Abida Pervaiz, a Pakistani, came to the United States in 1991 on a tourist visa, overstayed, and eventually applied for asylum or alternatively for withholding of removal. On January 31, 2002, the immigration service informed her lawyer that the hearing on Pervaiz’s claim of asylum would be held on January 24, 2003, at 1 p.m. On May 15, 2002, the service sent the lawyer a letter stating that the time of the hearing had been changed from 1 p.m. to 9 a.m. January 24, 2003, arrived, and Pervaiz and her lawyer showed up for the hearing—at 1 p.m.—only to be told that because she had failed to appear at 9, her claim for asylum had been deemed abandoned and she had been ordered, in absentia, removed. * * *

Pervaiz retained another lawyer, who on April 15, 2004, filed, this time with the Board of Immigration Appeals, before which the appeal from the June 13 ruling was pending, another motion to reopen. The ground was that the order would not have been issued had it not been for ineffective assistance by her first lawyer. Although the constitutional doctrine of ineffective assistance of counsel, being an interpretation of the Sixth Amendment’s right to counsel in criminal cases, is inapplicable to civil litigation—including removal, Stroe v. INS, 256 F.3d 498, 499-501 (7th Cir. 2001)— the Board of Immigration Appeals has, in the exercise of its discretion, decided that ineffective assistance can be a ground for forgiving a failure to comply with required procedures. Id. at 501. The government does not challenge the Board’s claim to have this discretionary authority. * * *

The 180-day deadline is not, as the Board believed, jurisdictional. Borges v. Gonzales, 2005 WL 712367, at *1 (3d Cir. March 30, 2005). It is merely a statute of limitations and is therefore subject to equitable tolling. Id.; Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999) * * *

But the test for equitable tolling, both generally and in the immigration context, is not the length of the delay in filing the complaint or other pleading; it is whether the claimant could reasonably have been expected to have filed earlier. * * *

Her first lawyer led the immigration judge and Board of Immigration Appeals into error by failing to distinguish between the adequacy of notice of a hearing and the receipt of the notice, an elementary distinction. * * *

The petition for review is granted and the case remanded to the Board of Immigration Appeals for further proceedings consistent with this opinion.

Durkin, Michael v. Equifax Check (ND Ill.) [29 pp. - civil]

Before COFFEY, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. Equifax Check Services, Inc.,1 uses a series of form letters to assist it in collecting debts from dishonored checks. Equifax mailed such a series of letters to Michael Durkin and, separately, to Loretta Reed. Believing that certain letters were unacceptably confusing, Durkin, and later Reed, sued Equifax under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. The district court consolidated the two actions into one. After denying the plaintiffs summary judgment, the district court granted Equifax’s motion to exclude the plaintiffs’ only expert witness. This evidentiary ruling led Equifax to move for summary judgment, arguing that the plaintiffs failed to bring forth the necessary extrinsic evidence to support their case. The district court agreed and granted Equifax summary judgment. The plaintiffs appealed. We affirm.

USA v. Mitra, Rajib K. (WD Wis.) [9 pp. - criminal]

Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. Wisconsin’s capital city uses a computer-based radio system for police, fire, ambulance, and other emergency communications. The Smartnet II, made by Motorola, spreads traffic across 20 frequencies. * * * Police arrested Rajib Mitra, a student in the University of Wisconsin’s graduate business school. They found the radio hardware and computer gear that he had used to monitor communications over the Smartnet system, analyze how it operated, and send the signals that took control of the system. Mitra, who in 2000 had received a B.S. in computer science from the University, possessed two other credentials for this kind of work: criminal convictions (in 1996 and 1998) for hacking into computers in order to perform malicious mischief. A jury convicted Mitra of two counts of intentional interference with computer-related systems used in interstate commerce. See 18 U.S.C. §1030(a)(5). He has been sentenced to 96 months’ imprisonment. On appeal he says that his conduct does not violate §1030—and that, if it does, the statute exceeds Congress’s commerce power. * * * Affirmed.

USA v. Ramsey, Arthur [13 pp. - criminal]

Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. After a jury trial, Arthur L. Ramsey was acquitted of assaulting a federal officer with a dangerous weapon and found guilty of maintaining a drug house by permitting his son to use the mobile home he leased for distributing and possessing with intent to distribute crack cocaine. Although Ramsey appeals the district court’s denial of his motion to dismiss from the indictment of the drug house count, we find that the indictment included the essential elements of the crime. We also find based on our review of the evidence that the district court’s failure to include the statute’s mens rea requirement was harmless error. Thus, we affirm Ramsey’s conviction. However, in light of the Supreme Court’s recent decision in United States v. Booker, 125 S.Ct. 738 (2005), and this court’s decision in United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), we order a limited remand regarding Ramsey’s sentence.

Posted by Marcia Oddi on April 18, 2005 12:40 PM
Posted to Ind. (7th Cir.) Decisions