Gutierrez-Brizuela v Lynch

Gutierrez-Brizuela petitioned for review of the order denying his request for discretionary relief d=from removal. The panel granted the petition. It held that the immigration appeals board could not apply its new rule requiring a 10 year waiting period to applicants like Gutierrez-Brizuela who applied after the board changed its interpretation of applicable statute and before the 10th Circuit affirmed the new rule because the judiciary says what the law is and the case affirming the new rule held that the new 10 year period rule is prospective only, the reasoning of that case relied upon the legislative norm of prospective application only and failure to apply rule prospectively only would violate due process and equal protection as the board at one point recognized before changing its mind and the burdens here on Gutierrez-Brizuela far outweigh the benefit to the board of speedier application of its new rule. One judge added a concurrence arguing Chevron deference violate separation of powers and the text of the Administrative Procedures Act, creates due process and equal protection problems, is not applicable in the criminal context yet somehow is applicable in the civil context except for when the supreme court says it does not apply demonstrative Chevron has administrabilty issues and unclear precedent and eliminating it would not cause the agencies to unable to perform their duties but would only require Congress and the judiciary to do their jobs to make and interpret law.

Vasquez v Lewis

Vasquez appealed summary judgment on qualified immunity grounds in his 42 USC 1983 action alleging unreasonable search and seizure. The panel, 2-1, reversed. The majority held that under the totality of the circumstances there was no fact or group of facts which indicated criminal activity was afoot. The majority specifically condemned the Lewis’ use of Vasquez citizenship in Colorado to justify a stop in Kansas holding that the fact that a person lives in a state with legalized medical or recreational marijuana use does not allow officers to stop them based on citizenship and noted nothing suspicious about the route taken, the age of the car, the blanket and pillow in the back seat, Vasquez’s nervousness or the absence of items Lewis expected to be in the car. The majority held that 10th Circuit precedent involving a codefendant here clearly established that no reasonable suspicion was created when a nervous out of state driver going through Kansas from a drug source state has an unusual car with unusual items. The dissent argued that the majority used a rejected factor by factor analysis instead of totality of the circumstances and even if reasonable suspicion did not exist there was no clearly established law here given the numerous cases upholding reasonable suspicion after the case relied upon by the majority.

Securities and Exchange Commission v Kokesh

Kokesh appealed the disgorgement order and an injunction entered in Commission’s enforcement action against him. The panel affirmed. It held that the injunction was not a penalty for statute of limitations purposes as it only required Kokesh to obey the law and the district court reasonably concluded Kokesh posed a risk for future violations given his experience, lifestyle and demeanor at trial. It held the disgorgement order was not time barred as it is an equitable order making the partnership victims here whole and there is nothing punitive about ordering Kokesh to give back all funds taken by al the wrongdoers here and it is not a forfeiture because it is a personal order not the final judgment in an in rem proceeding. It finally rejected Kokesh’s argument that he should have been allowed to present evidence of the participation of accountants and lawyers in the distributions in question because he failed to preserve it and failed to argue absent the district court’s alternative basis for excluding the evidence.