text:
Genre's role in parole work.
Virginia Parole Board; JACKIE T.
Virginia Parole Board; RUDOLPH C.
Robert A. Angle, Robert M. Luck, III, TROUTMAN SANDERS, LLP, Richmond, Virginia; Abigail Turner, Alex R.
Gulotta, Gail Starling Marshall, LEGAL AID JUSTICE CENTER, Charlottesville, Virginia, for Appellants. Kenneth T.
Cuccinelli, II, Attorney General of Virginia, Stephen R.
for persons who committed crimes prior to 1995, however.
remaining on his sentence. Id. 53.1-154.
who have served as least ten years of their imposed sentences.
upon a finding of "compelling reasons."
felony that the Board considers to be violent."
of the five Board members.
himself and to society upon his release.
numbers led participants in the court system, including defendants and sentencing judges, to anticipate early release.
of the original offense as the reason for 95% of the denials.
least twenty-three years of his or her term of imprisonment.
records, the Board has denied parole to each Inmate on multiple occasions.
and circumstances of his crimes.
based only on the seriousness of his crimes.
Larry Macon committed his offenses in 1976.
criminal history consisted of three minor juvenile offenses and an adult gambling offense.
of the crimes and, occasionally, McClains conviction of a crime while incarcerated.
he has incurred no infractions while imprisoned.
commission of crimes while incarcerated.
one factor, the offense for which the prisoner is incarcerated.
the Ex Post Facto Clause of the United States Constitution.
reason for the denial of parole.
ers, no new inmates were becoming eligible for parole.
failed to state a plausible claim for a due process violation.
support an ex post facto claim.
for failure to state a claim, assuming all well-pleaded, nonconclusory factual allegations in the complaint to be true."
Twombly, 550 U.S. at 557).
veracity of "bare legal conclusions." Aziz, 658 F.3d at 391.
against unlawful deprivations of life, liberty, or property. U.S.
U.S. 471, 481 (1972); Slezak, 21 F.3d at 593.
rights imparted by Virginia law.
parole release." Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir.
also Hill, 64 F.3d at 170.
Once a state has "create[d] a liberty interest, the Due Process Clause requires fair procedures for its vindication."
Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011) (per curiam).
in the parole context, "the procedures required are minimal."
Swarthout, 131 S. Ct. at 862.
denial of parole." Vann, 73 F.3d at 522 (quoting Franklin v.
appear before the Board." Franklin, 569 F.2d at 800.
parole, the Board provided a reason or reasons for its denial.
another reasoneither instead of or in addition to this factorto explain its decision.
demonstrated consistently excellent institutional behavior.
to release them based on the seriousness of their crimes.
the process and decision would comply fully with constitutional demands.
affirm the district courts dismissal of the due process claim.
204, 207 (4th Cir. 2000) (quoting U.S. Const. art. I, 10, cl.
the Board has altered or eliminated since 1994.
possibleinference that the Board is looking at only one factor, particularly in light of the discordant implications of the statistical allegations.
Clause, to the consideration of multiple factors in parole determinations.
"by its own terms" or through "practical implementation"
creates a "significant risk" of extending the period of incarceration to which he is subject. Id. at 255.
promulgated by administrative agencies pursuant to a delegation of legislative authority. See United States v. Ellen, 961 F.2d 462, 465 (4th Cir.
Ex Post Facto Clause. 233 F.3d at 208 (assessing a new policy of the Virginia Parole Board).
binding," function as "the starting point and the initial benchmark" in federal sentencing. Id. at 200 & n.8 (quoting Gall v. United States, 552 U.S.
changes and a significant risk of extended punishment.
Post Facto Clause to the Boards policies.
subject to the ex post facto limitation.
crimes "hardly amount[s] to an ex post facto violation"
tougher." Foster, 595 F.3d at 362.
offenders. This is not actionable.
parole consideration. For this reason, I respectfully dissent.
The majority and I are in agreement on several points.
ered for parole, Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995).
569 F.2d 784, 800 (4th Cir. 1976) (en banc).
this to be the case,2 and we should not do so today.
This interpretation is both hyper-literal and leads to absurd results.
considerationall without ever looking at the inmates file. Such a formalistic view of the Due Process Clause cannot be countenanced.
factors" in makings its decisions. Bloodgood, 783 F.2d at 475.
(quoting Gaston v. Taylor, 946 F.2d 340, 344 (4th Cir. 1991)).
have implied that the Board must consider at least some factors beyond the nature of the offense.
parole process into an empty formality.
deny them parole. See Bell Atl. Corp. v. Twombly, 550 U.S.
members cast votes to grant or deny parole electronically. J.A.
instead, it has adopted an informal "policy manual." J.A. 22.
has been denied parole 22 times, all for the same reason. J.A. 32.
offense. These allegations are sufficient to surmount the relatively low burden of surviving a 12(b)(6) motion to dismiss.
the offense, and no other factor, on at least one occasion.
"Fundamental fairness [is] the touchstone of due process."
district courts 12(b)(6) dismissal and remand for further proceedings.
Germany - Panel Nomination & Election Schedule Notification IPE-2018.

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472 F.2d 293 (6th Cir. 1972), 72-1002, Michigan Hosp. Service Corp. v. N.L.R.B.
Party Name: MICHIGAN HOSPITAL SERVICE CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervenor.
NATIONAL LABOR RELATIONS BOARD, Respondent and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Intervenor.
Robert S. Rosenfeld, Southfield, Mich., for petitioner; James DiMeglio, Keywell & Rosenfeld, Southfield, Mich., on brief.
Paul J. Spielberg, Washington, D. C., for respondent; Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Kenneth B. Hipp, Atty., N. L. R. B., Washington, D. C., on brief; Jerome H. Brooks, Director, Region 7, N. L. R. B., Detroit, Mich., of counsel.
Stephen I. Schlossberg, John A. Fillion, Edwin G. Fabr›1‹e, Detroit, Mich., for intervenor.
Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
This case is before us on the Company's petition for review and the Board's cross-application for enforcement of the latter's order, reported at 194 N.L.R.B. No. 7, directing the Company to cease and desist its refusal to bargain with the Union (Intervenor herein) as the exclusive representative of the Company's Westside (Detroit) district office sales representatives. The Company concedes that it refused to bargain but challenges the propriety of the bargaining unit. The sole question for review, therefore, is whether the Board abused its discretion by recognizing the sales representatives at the Company's Westside district office as an appropriate bargaining unit.
"[t]he Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof. . . ."
It is well established that a determination under this section "involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed." Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). See also N. L. R. B. v. Lou DeYoung's Market Basket, 406 F.2d 17, 23-24 (6th Cir.) remanded on other grounds, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969); N. L. R. B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 756 (6th Cir.) cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965).
It is also established that in reviewing the Board's determination under Section 9(b), a court is merely to consider whether the designated unit is an appropriate unit, and not whether it is the appropriate unit or if another unit may have been more suitable. N. L. R. B. v. Pinkerton's, Inc., 428 F.2d 479, 487 (6th Cir. 1970) (dissenting opinion); State Farm Mutual Automobile Ins. Co. v. N. L. R. B., 411 F.2d 356, 358 (7th Cir. 1969); N. L. R. B. v. Lou DeYoung's Market Basket, Inc., supra, 406 F.2d at 24. Recognizing this limited scope of judicial review, we turn to the facts relevant to the propriety of the bargaining unit designated by the Board in the present case.


Thomas V. Massucci (submitted), New York, NY, for Petitioner.
Karen Lundgren, Department of Homeland Security Office of the District Counsel, Chicago, IL, Virginia M. Lum, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before BAUER, COFFEY, and EVANS, Circuit Judges.
Chinese citizen Bin Zhao wants to reopen his application for asylum, which was based on a fear that he will be persecuted by Chinese police for attending a Falun Gong rally in 1999. Because he waited two years after the BIA denied his claim to file his motion to reopen, the BIA denied it as untimely. Even though his motion was filed past the deadline, Zhao maintains that he satisfied a statutory exception to that deadline by presenting evidence of changed circumstances in China—specifically, an affidavit by his girlfriend (he says wife) stating that Zhao's parents in China "recently" said that police are looking for him because he attended the rally. Because evidence that police are still looking for Zhao is not changed circumstances, the BIA did not abuse its discretion. We deny Zhao's petition for review.
Zhao is a twenty-four-year-old citizen of the People's Republic of China (from Fujian Province) who came to the United States in early 2001. He applied for asylum based on his parents' affiliation with Falun Gong. Before an IJ, he testified that he personally knew nothing about Falun Gong but attended a rally of two or three hundred Falun Gong members in Fuzhou during 1999. The police broke up the rally, he said, so he and his parents ran away. His parents ran home, but he fled to his uncle's house, where he stayed for seven or eight months until coming to the United States. His parents, with whom he stayed in contact, were never troubled further by police but, a week before his hearing, they told Zhao on the phone that police were still looking for him. The IJ decided that Zhao was lying and denied relief. The BIA summarily affirmed in January 2003. Zhao never sought review.
In February 2005, Zhao moved to reopen his case. He conceded that his motion did not meet the agency's deadline of 90 days after the final decision, but he argued that he had evidence of "changed circumstances" in the "country of nationality" that exempted his motion from the deadline. He did not present his own affidavit and an application for asylum or other relief as he was supposed to, but he did submit an affidavit by a woman he calls his "common-law wife." Her affidavit says that his parents "recently" told him that the police were still looking for Zhao. It also says that she and Zhao are about to have a second child, which will subject them to persecution under China's one-child policy. Apparently, he believed that terming her his "common-law wife" would strengthen his own claim for asylum based on the birth of children in the United States.
The BIA denied Zhao's motion as untimely, reasoning that he "failed to show that changed circumstances exist" to warrant an exception from the 90-day deadline. Although the BIA's order does not explicitly mention the girlfriend's affidavit, it acknowledges Zhao's allegation that his parents told him by telephone that police are once again looking for him for his participation in the 1999 rally. The BIA declined to reopen for the same reasons it denied his original claim. In a footnote, the Board criticized Zhao's failure to include his application or supporting affidavit as regulations require, see 8 C.F.R. § 1003.2(c) (1). The BIA also decided that birth of children in the United States is merely a change in personal circumstances, not a change in country conditions in China to warrant the exception. In any event, the BIA explained that Zhao had not shown that he was legally married to his "common-law wife" and thus he could not avail himself of asylum on account of China's family planning policy.
In his petition, Zhao does not dispute that his motion to reopen was filed after expiration of the 90-day deadline, see 8 U.S.C. § 1229a(c) (7) (C) (i) (formerly § 1229a(c) (6) (C) (i)); 8 C.F.R. § 1003.2(c) (2), but he argues that the BIA erred in determining that he did not meet the statutory exception for changed circumstances in China, see 8 U.S.C. § 1229a(c) (7) (C) (ii) (formerly § 1229a(c) (6) (C) (ii)); 8 C.F.R. § 1003.2(c) (3) (ii). He explains that the BIA must have overlooked his evidence because its order did not mention his so-called wife's affidavit—which says that Zhao's parents "recently" told the couple that there is a new "crackdown" and the police are again looking for him because of the 1999 rally—and the order criticized him for failing to produce supporting affidavits.
A motion to reopen based on changed conditions in the country of nationality or removal is exempt from the 90-day deadline, so long as the evidence is material and could not have been adduced at the proceeding to be reopened. 8 U.S.C. § 1229a(c) (7) (C) (ii) (formerly § 1229a(c) (6) (C) (ii)); 8 C.F.R. § 1003.2(c) (3) (ii); see Simtion v. Ashcroft, 393 F.3d 733, 736-37 (7th Cir. 2004). Even so, cumulative evidence that conditions asserted in the original application "persisted" is not evidence of changed circumstances, Betouche v. Ashcroft, 357 F.3d 147, 152 (1st Cir. 2004). Without a material change, an applicant cannot relitigate his claim. Betouche, 357 F.3d at 152; In re J-J-, 21 I. & N. Dec. 976, 980-82 (BIA 1997); see Simtion, 393 F.3d at 737; Dandan v. Ashcroft, 339 F.3d 567, 576 (7th Cir. 2003). Any other holding would draw out the proceedings forever. See Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (citing INS v. Wang, 450 U.S. 139, 143 n. 5, 101 S. Ct. 1027, 67 L. Ed. 2d 123 (1981) (per curiam)).
The BIA correctly concluded that Zhao's allegation that police were still looking for him did not constitute changed circumstances. At best this new "evidence" is cumulative and merely an assertion that the same conditions "persisted," see Betouche, 357 F.3d at 152. Although Zhao hints that the Chinese government has intensified its persecution of the Falun Gong, the affidavit does not support that implication. All Zhao can say is that "something indeed has changed" (emphasis in original); he cannot even say what. There is no evidence of a material change, so even if the BIA did overlook the affidavit, the oversight could not possibly matter. The BIA did not abuse its discretion in rejecting this untimely motion.
Last, although Zhao no longer seeks relief based on the birth of his children in the United States, such evidence cannot justify the relevant statutory exception. The statute applies only when there are changed conditions "arising in the country of nationality or the country to which removal has been ordered," 8 U.S.C. § 1229a(c) (7) (C) (ii) (formerly § 1229a(c) (6) (C) (ii)). By contrast, the birth of Zhao's children is merely a change in "personal circumstances" in this country. See Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (per curiam); Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003) (per curiam).
On November 30, 2005, we granted Zhao's motion to waive oral argument. This appeal is submitted on the briefs and the record See Fed. R. App. P. 34(f); Cir. R. 34(e).