§ 310-2 Authority to install traffic control devices.
§ 310-3 Schedules; adoption of regulations.
§ 310-4 Traffic control signals.
§ 310-6 School speed limits.
§ 310-10 Prohibited right turns on red signal.
§ 310-14 Vehicle weight limits.
§ 310-15 Application of article.
§ 310-16 Parking prohibited at all times.
§ 310-19 Parking prohibited certain hours.
§ 310-20 No stopping certain hours.
§ 310-21 No standing certain hours.
§ 310-22 Time limit parking.
§ 310-25 Methods of parking.
§ 310-26 Authority to impound vehicles.
§ 310-27 Storage and charges.
§ 310-28 Notice of removal.
§ 310-33 Temporary modification or suspension of parking and vehicle weight limits.
§ 310-34 Penalties for offenses.
§ 310-38 Schedule I: Traffic Control Signals.
§ 310-39 Schedule II: Speed Limits.
§ 310-40 Schedule III: School Speed Limits.
§ 310-41 Schedule IV: One-Way Streets.
§ 310-42 Schedule V: U-Turn Prohibitions.
§ 310-43 Schedule VI: Prohibited Turns.
§ 310-44 Schedule VII: Prohibited Right Turns on Red Signal.
§ 310-45 Schedule VIII: Through Streets.
§ 310-46 Schedule IX: Stop Intersections.
§ 310-47 Schedule X: Yield Intersections.
§ 310-48 Schedule XI: Parking Prohibited at All Times.
§ 310-49 Schedule XII: No Stopping.
§ 310-50 Schedule XIII: No Standing.
§ 310-51 Schedule XIV: Parking Prohibited Certain Hours.
§ 310-52 Schedule XV: No Stopping Certain Hours.
§ 310-53 Schedule XVI: No Standing Certain Hours.
§ 310-54 Schedule XVII: Time Limit Parking.
§ 310-55 Schedule XVIII: Loading Zones.
§ 310-56 Schedule XIX: Bus Stops.
Skateboards — See Ch. 267.
Junked and abandoned vehicles — See Ch. 315.
Storage of vehicles — See Ch. 318.


(5) any special recreation facilities fund set up by the board of county commissioners for the operation of a county coliseum. The financial transactions of the special recreation facilities fund shall be audited in accordance with the minimum standard audit program prescribed by the director of accounts and reports as other municipal funds. Moneys derived from the operation of a county coliseum and deposited in the special recreation facilities fund shall be applied to reduce the tax levy for the budget fund under which the operation of such county coliseum is financed.
(b) Whenever the term "fund" is used in this act it is intended to have reference to those funds which are authorized by statute to be established. "Fund" is not intended to mean the individual budgeted items of a fund, but is intended to have reference to the total of such individual items.
(c) Whenever the term "director" is used in this act it shall mean the state director of property valuation.
History: L. 1933, ch. 316, § 1; L. 1933, ch. 121, § 1 (Special Session); L. 1941, ch. 377, § 1; L. 1945, ch. 92, § 2; L. 1959, ch. 62, § 3; L. 1969, ch. 446, § 1; L. 1971, ch. 185, § 19; L. 1975, ch. 498, § 1; L. 1980, ch. 89, § 4; July 1.


text:
JACKSON v. LYKES BROS. S. S. CO.
Charles R. Maloney, New Orleans, La., for petitioner.
Benjamin W. Yancey, New Orleans, La., for respondent.
Luther Jackson, employed by Lykes Bros. Steamship Company, inhaled noxious gases and died while working as a longshoreman on a Lykes vessel on navigable waters. His widow, Helen Jackson, filed this action against Lykes in the Louisiana state trial court claiming that her husband's death was proximately caused either by Lykes' negligence in operating the ship or by the ship's unseaworthiness. Lykes moved to dismiss on the ground that 5 of the federal Longshoremen's and Harbor Workers' Compensation Act provides that compensation [386 U.S. 731 , 732] benefits required by that Act to be given by an employer to a longshoreman or his representative for 'injury or death' 'shall be exclusive and in place of all other liability of such employer to the employee.'1 The trial court, sustaining Lykes' motion on the ground assigned in it, dismissed petitioner's suit and th tate Court of Appeal, Fourth Circuit, affirmed. 185 So.2d 342. The Supreme Court of Louisiana finding 'no error of law,' denied a writ of certiorari. 249 La. 460, 187 So.2d 441. We granted certiorari because it appeared that, in deciding as they did, the Louisiana courts had failed to follow our holding in Reed v. The Yaka, 373 U.S. 410 .2 [386 U.S. 731 , 733] The crucial facts in Reed v. The Yaka are strikingly similar to those in the present case. Reed, a longshoreman covered by the federal Longshoremen's and Harbor Workers' Compensation Act, was injured while loading a ship. The ship was owned by the Waterman Steamship Corporation but was being operated by a bareboat charterer as owner pro hac vice which had directly employed Reed to work on the ship as a longshoreman. When Reed filed his suit for damages in rem against the ship, the ship defended on the ground that Reed being a longshoreman could not bring a personal action against the employer-owner pro hac vice because of the Act's exclusive recovery features and consequently he could not sue the ship. We rejected this contention on the express ground that Reed could sue the owner pro hac vice personally despite the Act and despite the fact that the owner pro hac vice was his employer.
We held in Yaka that a longshoreman employed by a shipowner as a longshoreman could sue the owner for the ship's unseaworthiness. In doing so we pointed out that in Seas Shipping Co. v. Sieracki, 328 U.S. 85 , 66 S. Ct. 872,3 and other cases following it, a group of maritime workers, including stevedores, carpenters, and longshoremen, although employed by an independent contractor to work on the ship, were allowed to sue the owner for unsea- [386 U.S. 731 , 734] worthiness of its ship. 4 We also pointed out in Yaka that in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124 , this Court had permitted a shipowner, sued by a longshoreman who had been directly hired by an independent stevedore employer under these circumstances, to bring an action over and recover from the independent stevedore employer despite the fact that the liability of the stevedore employer under the Act 'shall be exclusive and in place of all other liability.' [386 U.S. 731 , 735] Yaka also stressed the fact that the traditional humanitarian remedy for unseaworthiness was not to be destroyed by the kind of employment contract that a shipowner made with the people who worked on the ship.
In this case as in Yaka, the fact that the longshoreman was hired directly by the owner instead of by the independent stevedore company makes no difference as to the liability of the ship or its owner. In the final analysis the contention here against recovery as in Yaka is that the longshoreman who is employed to work on a ship by an independent stevedore company instead of the shipowner can recover for the unseaworthiness of the vessel, but a longshoreman hired by the same shipowner to do exactly the same kind of work on an unseaworthy ship cannot recover. We reject this contention as we did before. 5 We cannot accept such a construction of the Act-an Act designed to provide equal justice to every longshoreman similarly situated. We cannot hold that Congress intended any such incongruous, absurd, and unjust result in passing this Act.
We adhere to Yaka and hold that the Louisiana courts committed error in dismissing petitioner's claim. Louisiana courts have broad jurisdiction of admiralty cases such as this and have frequently exercised it. In this situation it is the duty of the Louisiana courts to adjudicate this case. The judgment is reversed and remanded for trial and further proceedings in the Louisiana courts [386 U.S. 731 , 736] not inconsistent with this opinion. Testa v. Katt, 330 U.S. 386 ; Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 32 S. Ct. 169; Claflin v. Houseman, 93 U.S. 130 . See Garrett v. Moore-McCormack Co., 317 U.S. 239 .
Luther Jackson was a longshoreman. He died from injuries received in the course of his employment. A federal law clearly imposes an absolute obligation upon his employer to pay compensation to his widow. 1 The law's humanitarian purpose is to ensure that all shall be compensated, regardless of the employer's fault. That law just as clearly provides that the employer's statutory obligation to pay this compensation 'shall be exclusive and in place of all other liability ... at law or in admiralty.' 2 Nonetheless, Jackson's widow brought this admiralty action against his employer in Louisiana. The state courts dismissed the action, holding that the federal law means what it says.
The Court today holds that this federal law cannot mean what it says, because this would lead to an 'incongruous, absurd, and unjust result.' The Court says that the result it reaches is dictated by its prior decision in Reed v. The Yaka, 373 U.S. 410 . The Louisiana courts thought that the Yaka case, which involved the intervention of a third party, was distinguishable, and so do I. But in any event I would decide this case on its own facts under the law as it was clearly written by Congress.
But even if I could agree with the Court's characterization of the law that Congress has written, I could never agree with the Court's judgment. It is our duty to apply the law, not to repeal it.
'An analysis of the Yaka case reveals language which suggests that an in personam remedy may be available; the analysis likewise reveals that there exists reason for believing that the section of the Longshoremen's and Harbor Workers' Act referred to hereinabove has been taken upon the judicial anvil and hammered into an unexpected shape.
'In any event, we are of the opinion that it exemplifies more judicial integrity to conclude that the rationale emanating from Yaka merely permits a longshoreman to bring an action in rem against his employer in the federal court.' 185 So.2d, at 345.
[ Footnote 3 ] Sieracki extended the doctrine of seaworthiness to a longshoreman, even though the longshoreman was not a member of the crew, and in spite of the fact that the longshoreman was entitled to compensation benefits under the Longshoremen's and Harbor Workers' Compensation Act.
'It is pointed out that Sieracki was a 'stevedore.' Hawn was not. And Hawn was not loading the vessel. On these grounds we are asked to deny Hawn the protection we held the law gave Sieracki. These slight differences in fact cannot fairly justify the distinction urged as between the two cases. Sieracki's legal protection was not based on the name 'stevedore' but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness. The ship on which Hawn was hurt was being loaded when the grain loading equipment developed a slight defect. Hawn was put to work on it so that the loading could go on at once. There he was hurt. His need for protection from unseaworthiness was neither more nor less than that of the stevedores then working with him on the ship or of seamen who had been or were about to go on a voyage. All were subjected to the same danger. All were entitled to like treatment under law.' 346 U.S., at 412 -413-207.
Subsequent decisions in line with the general concepts put forth by this Court have read Sieracki expansively, and a wide range of maritime employees have been granted the benefits of the seaworthiness doctrine. Carpenters (Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 ); electricians (Feinman v. A. H. Bull S.S. Co., 3 Cir., 216 F.2d 393); shipcleaners (Torres v. The Kastor, 2 Cir., 227 F.2d 664, and Crawford v. Pope & Talbot, Inc., 3 Cir., 206 F.2d 784); repairmen (Read v. United States, 3 Cir., 201 F.2d 758); and riggers (Amerocean S.S. Co. v. Copp, 9 Cir., 245 F.2d 291), who performed jobs formerly done by seamen, have recovered from shipowners on the seaworthiness doctrine. See Note, 75 Yale L.J. 1174, 1183.
[ Footnote 1 ] Longshoremen's and Harbor Workers' Compensation Act, 4, 9, 44 Stat. 1426, 1429, 33 U.S.C. 904, 909.
[ Footnote 2 ] Id., 5, 44 Stat. 1426, 33 U.S.C. 905.
[ Footnote 3 ] See 1 Schneider, Workmen's Compensation 89-154 (3d ed.).

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


3Com Corporation v. Diamond II Holdings, Inc.
C.A. No. 3933-VCN.Court of Chancery of Delaware, New Castle County.Date Submitted: July 9, 2009.
Christine D. Haynes, Esquire, Morris, Nichols, Arsht Tunnell LLP, Wilmington, DE.
Daniel A. Dreisbach, Esquire, Richards, Layton Finger, P.A., Wilmington, DE.
review represents the best means for determining whether those documents are shielded by attorney-client or work-product considerations.
affiliates (collectively, “Huawei”), which are companies based in China. Specifically, Huawei was to acquire a 16.5% minority, non-controlling stake in Newco after consummation of the merger, which was to have been completed on or before April 28, 2008.
In October 2007, 3Com, Bain, and Huawei voluntarily submitted notice of the merger (the “Joint Voluntary Notice”) to the Committee on Foreign Investment in the United States (“CFIUS”). By February 2008, CFIUS had informed the parties that it intended to recommend to the President of the United States that he not approve the merger. Because Presidential approval was necessary to consummate the merger, CFIUS’s proposed recommendation greatly diminished the likelihood that the transaction could close. The parties withdrew the Joint Voluntary Notice shortly after receiving CFIUS’s decision. The Merger Agreement was terminated several months later.
termination fee could be ascribed a purpose different from that endorsed by 3Com, and that discovery was necessary under Court of Chancery Rule 56(f) to establish facts in support of an alternative interpretation. It also claimed that several of its affirmative defenses required the support that discovery might yield. The Court reserved decision on 3Com’s motion for summary judgment to allow for limited discovery.
As the result of that discovery effort, documents were produced by Newco, Newco’s legal advisors, 3Com, and 3Com’s legal and financial advisors to the merger. The parties each withheld a number of documents, and each redacted portions of produced documents on privilege grounds. 3Com and Newco held five meet and confer sessions to discuss documents withheld in part or entirely on the basis of privilege. The parties were able to reach agreement on some of the contested documents, but have come to an impasse regarding some others, and have sought the Court’s assistance in resolving their stalemate.
Newco has challenged four categories of documents redacted or withheld by 3Com. It seeks the production of these documents in full; alternatively, it requests that the Court review the documents individually and in camera to determine whether the privilege has been properly asserted.
First, Newco challenges 3Com’s decision to withhold merger communications between it and its attorneys that also involved its investment banker, Goldman Sachs. This particular challenge raises a choice-of-law dispute over whether Delaware or Massachusetts law should apply. 3Com would apply the law of Delaware, which extends a wider privilege for communications made between a client and its attorney in the presence of an investment banker than that recognized by Massachusetts. Newco, of course, would apply Massachusetts law, although it argues that it should prevail even under Delaware law.
and Legal Officer, and Secretary. Mr. Goldman, both within 3Com and during the transaction, acted in more than one role. On the one hand, Mr. Goldman served as 3Com’s general counsel during the merger negotiations; however, he also purportedly acted as 3Com’s chief negotiator for the transaction. 3Com has withheld or redacted many of Mr. Goldman’s internal communications and notes on privilege grounds. Newco contends that these documents should be produced because Mr. Goldman’s activities related to the pending dispute were made primarily in a business capacity, and not within the scope of his duties as 3Com’s general counsel.
regardless of their specific subject matter. Newco argues that 3Com has failed to show that the documents were generated “because of” anticipated litigation.
Lastly, Newco contends that 3Com’s failure to provide the subject lines of withheld e-mails in its privilege logs violated the terms of the Scheduling Order that governs the parties’ limited discovery efforts.
3Com also seeks the production, or in camera review, of three categories of documents withheld by Newco.
The first set of challenged documents relates to communications between Newco and Huawei. Newco maintains that it and Huawei had a “common interest” in the merger and thus certain of its communications with Huawei remain privileged. 3Com responds that Newco and Huawei were in an adversarial position to each other, and therefore their communications, and any internal Newco documents reflecting such communications, must be produced.
not attorneys. The redactions may span anywhere from an entire page to several pages. 3Com has not challenged all of the redactions, but only those that it believes may be relevant, based upon their date or log description, to Newco’s opposition to summary judgment.
Third, 3Com challenges redactions made to, or the non-production of, a number of electronic communications in which no attorney participated or in which an attorney was merely copied. 3Com similarly challenges several electronic communications sent to a number of business people but just one attorney. As with the challenges to the redacted handwritten notes, 3Com has only challenged a subset of redacted or withheld electronic communications — specifically, those it anticipates may be relevant to the pending summary judgment motion.
have adopted a more limited approach than have Delaware’s courts when assessing the privilege to communications made to, or in the presence of, third-parties, particularly investment bankers.
Massachusetts’ highest court, in Commissioner of Revenue v. Comcast, recently considered application of the attorney-client privilege to communications between a client and its attorney made in the presence of a third-party. The Court held that such communications are privileged only when the third-party’s “presence is `necessary’ for the `effective consultation’ between client and attorney.” The Court in Comcast explained that, under Massachusetts law, the “necessity element” means “more than `just useful and convenient,'” the third-party’s role must be to “clarify or facilitate” communications between the attorney and client.
To illustrate this point, the Court in Comcast cited opinions which “rejected claims that the derivative privilege applies where an attorney’s ability to represent a client is improved, even substantially,” by the assistance of a third-party, unless that third-party was acting as an interpreter or translator.
Whether disclosure of a communication beyond the client and lawyer destroys the basis for the claim of privilege or not inevitably involves a judgment as to whether in the circumstances the person making the disclosure in fact regarded that disclosure as confidential and, if there was an expectation of confidentiality, whether the law will sanction that expectation.
privilege to protect communications disclosed to the client’s financial advisor in the corporate transactional context.
merger context waives the attorney-client privilege, the Court must engage in a choice-of-law analysis to determine which law applies.
forum, unless the admission of such evidence would be contrary to the strong public policy of the forum.
Under § 139(1), the Court’s first task is to determine which state, Delaware or Massachusetts, has the more significant relationship to the challenged communication. If that state is Delaware, the analysis is complete and Delaware privilege law applies. If, however, Massachusetts had the more significant relationship to the communications, then its privilege rules would be applied unless that would contravene Delaware public policy.
bankers was centered in Massachusetts. Indeed, 3Com is headquartered, and has its principal place of place of business, in Massachusetts; additionally, key provisions of the Merger Agreement were negotiated, and the Merger Agreement itself was finalized, in Boston.
Although the commentary to the Restatement favors Newco’s position, the Court finds Newco’s reliance on it unpersuasive. The parties selected Delaware law to govern the Merger Agreement, and chose Delaware as the forum for any disputes arising out of the Merger Agreement. Delaware has a considerable interest in ensuring that corporate entities seeking a business combination under its laws may expect consistent and predictable treatment when appearing before its Courts.
Most mergers and other important corporate transactions necessarily entail the involvement of business people, attorneys, and financial advisors located throughout the country, if not the world. Newco’s focus on the communications’ location, if followed, could foster inconsistency in a context where predictability is at a premium. Indeed, while the record shows that many of challenged communications originated or were received in Massachusetts, several others both originated and were received outside of that jurisdiction. Applying Delaware law in this context would avoid the uncertainty generated by the varying loci of communications involved both in this case and others like it.
foster predictability for parties to major corporate transactions that have availed themselves of Delaware law.
In sum, Delaware is the state with the most significant relationship to the challenged communications because it has considerable interest in vindicating the reasonable expectations of those parties that engage in a merger under Delaware law; it further has an interest in defining the scope of those reasonable expectations. Because Delaware is also the forum state, its law will apply.
review is necessary to determine the reason for Goldman Sachs’ involvement in each communication. According to Newco, if Goldman Sachs received a particular communication for any reason other than to assure that 3Com received informed legal advice, that communication must be disclosed. The case law is clear, however, that insofar as Goldman Sachs was involved in communications between 3Com and its attorneys involving legal matters, those communications are privileged. Goldman Sachs’ precise role in a specific communication is not critical as long as it involved legal issues regarding the transaction and participation by 3Com’s attorneys. Indeed, 3Com states that it has not asserted the privilege over communications with Goldman Sachs that addressed purely financial or business matters. If Newco seeks to challenge specific documents that it nonetheless believes reflect non-legal communications, these documents can be reviewed in camera.
Newco has also challenged a selection of redacted documents involving Mr. Goldman. As stated previously, Mr. Goldman served as 3Com’s Executive Vice President, Chief Administrative and Legal Officer, and Secretary. According to Newco, Mr. Goldman also served as 3Com’s chief negotiator during its discussions regarding the Merger Agreement and the events leading up to the withdrawal of the parties’ CFIUS application. Newco contends that Mr. Goldman, at all relevant times during this matter, was acting primarily in a business capacity, and thus the challenged communications should be discoverable.
counsel’s role in a particular transaction or negotiation, although that role may very well inform the nature of the communication. 3Com claims that it only withheld those portions of communications involving Mr. Goldman where he provided legal advice or advice so intertwined with legal issues that it, “as a whole was primarily legal in nature.” Nonetheless, given Mr. Goldman’s prominent business role in the transaction, the Court is of the view that in camera review is appropriate here to determine whether Mr. Goldman was acting in primarily a legal or business capacity at the time that the challenged communications were made.
involving Goldman Sachs and Mr. Goldman. Newco questions the plausibility that all of these documents were prepared because of the prospect of litigation.
Whether the work-product protection applies to the withheld Goldman Sachs documents has been resolved by the Court’s application of Delaware law to govern the attorney-client privilege. As for the communications involving Mr. Goldman, when conducting it in camera review of these documents to determine whether they are shielded by the attorney-client privilege, the Court can also decide whether they alternatively represent attorney work-product.
Scheduling Order required that the party asserting privilege only provide any withheld document’s title. Title, according to 3Com, does not mean subject line.
At oral argument 3Com, while maintaining the position taken in its brief, expressed willingness to produce the e-mail subject lines. It suggested that the subject lines actually provide less information than the titles or the document descriptions. Instead of delving into the merits of the parties’ dispute, the Court simply directs that 3Com provide the subject lines.
E. Did Huawei and Newco Have a Common Interest when Negotiating the Side-Letter?
3Com’s main challenge pertains to the assertion of the attorney-client privilege by Newco over certain communications between Newco and Huawei. As stated previously, Newco was formed by Bain for the purpose of acquiring 3Com; Huawei was to take a 16.5% interest in the acquisition. Newco claims that it and Huawei shared a common interest in pursuing the merger with 3Com, and thus the communications sought by 3Com are privileged.
Bain and Huawei signed a “Termination Fee Side Letter” (the “Side Letter”) on or around September 28, 2007. The “Side Letter” made reference to limited guarantees provided to 3Com by both a Bain affiliate and Huawei that guaranteed their respective pro rata shares of the Merger Agreement’s termination fee. According to the Side Letter, Huawei would be responsible for 7.5% of the termination fee, with Bain accountable for the remaining 92.5%. Of particular importance here, the Side Letter also provided that in the event that either Bain or Huawei’s conduct (or lack thereof) caused the fee to be owed, the party that acted wrongfully would reimburse the other for its pro rata obligation.
Newco and Huawei appear to have had a common interest in obtaining CFIUS approval and seeing the merger to its completion. The two companies, however, had adverse interests both in negotiating the Side Letter and in determining, if necessary, responsibility for the Merger Agreement’s termination. Because of their potentially conflicted relationship, the Court will review the challenged communications in camera to determine Newco and Huawei’s position vis-à-vis one another at the time each challenged communication was made. If the parties were in common interest with respect to the matters addressed, the communication will remain privileged.
Finally, 3Com challenges ten sets of handwritten notes that it believes may have been inappropriately redacted. Newco has filed affidavits to establish a basis for applying the attorney-client privilege to these communications. 3Com, however, considers the responses contained in the affidavits to be “skeletal,” and it remains skeptical that the notes pertained to legal matters. Likewise, 3Com challenges a number of e-mail communications that involved either limited or no attorney participation. It argues that Newco’s response as to why these communications are in fact privileged is too vague to support the communications’ redaction or non-production, especially given the lack of attorney participation.
Newco does not contest the use of in camera review to resolve the issue. Given the relatively limited number of challenged communications and documents, the Court will indeed review the documents in camera to determine whether the attorney-client privilege applies.
was no waiver of the attorney-client privilege as to those documents. The subject lines of privileged emails will be produced. Otherwise, the Court directs the parties to submit the remaining challenged documents for in camera review.
 Non-party Diamond II Acquisition Corp. was also a party to the Merger Agreement.
 Huawei is not a party to this action.
 Def.’s Mem. in Opp’n to Pl.’s Mot. to Compel, Ex. 1 at ¶ 4.
 At oral argument, the Court discussed three categories of anticipated discovery: 1) the intent behind Section 8.3(c)(iii) of the Merger Agreement; 2) the parties’ intentions with respect to withdrawing the proposed merger from review by CFIUS; and 3) Newco’s equitable estoppel and waiver defenses, which are based on the CFIUS withdrawal. Oral Arg. on Pl.’s Mot. for Summ. J. Tr. at 61-63.
 Transmittal Aff. of Patrick H. Kim (dated May 15, 2009) (“Kim Aff.”), Ex. E.
 Merger Agmt. § 9.9. Section 9.9 of the Merger Agreement provides in part: “Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any state court located within New Castle County, State of Delaware in connection with any matter based upon or arising out of this Agreement or the transactions contemplated hereby,. . . .”).
Mass. G. Evid. § 502(b). Massachusetts has not adopted formal rules of evidence, but instead has issued a guide which summarizes the law of evidence as applied in its courts. Mass. G. Evid. § 102.
 Under the Delaware Rules of Evidence, “a communication is `confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” D.R.E. 502(a)(2). Massachusetts provides a similar definition, and considers a communication to be confidential if it is not intended to be disclosed to third persons other than those to whom disclosure is made to obtain or provide professional legal services to the client, and those reasonably necessary for the transmission of the communication. Mass. G. Evid. § 502(a)(5).
Similarly, in both Delaware and Massachusetts, a party may waive the privilege if it voluntarily discloses or consents to disclosure any significant part of the privileged matter. See D.R.E. 510; Mass. G. Evid. § 523.
 901 N.E.2d 1185 (Mass. 2009).
 Id. at 1197 (citing United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)). The Court in Comcast refers to the application of the attorney-client privilege to communications made in the presence of third-parties under the circumstances described above as the “derivative attorney-client privilege” or the Kovel doctrine. Id. at 1196-97.
 Id. at 1197-98 (quoting Cavallaro v. United States, 284 F.3d 236, 249 (1st Cir. 2002)).
 Id. at 1197 (citations omitted).
 169 F.3d 136, 139 (2d Cir. 1999) (“[A] a communication between an attorney and a third party does not become shielded by the attorney-client privilege solely because the communication proves important to the attorney’s ability to represent the client.”).
 Jedwab v. MGM Grand Hotels, Inc., 1986 WL 3426, at *2 (Del. Ch. Mar. 20, 1986).
 Id. Newco cites Baxter International, Inc. v. Rhone-Poulenc Rorer, Inc. to argue that the Delaware standard is actually much closer to the Massachusetts standard tha Jedwab and its progeny would otherwise suggest. I Baxter, the Court applied a narrow exception to the rule that third-party disclosure waives the attorney-client privilege: the Court held that attorney-client communications remain privileged despite third-party disclosure when such disclosure is “necessary for the client to obtain informed legal advice.”2004 WL 2158051, at *4 (Del. Ch. Sept. 17, 2004). The facts i Baxter, however, are distinguishable from those present here Baxter involved a dispute over royalty payments made pursuant to a settlement agreement. Before suit was filed, the parties had retained an independent auditor to confirm the precise amount of the payments in dispute. The moving party sought the production of email communications between the non-moving party’s management and in-house counsel that had been forwarded to the independent auditor. The moving party argued that, by disclosing to the auditor, the non-moving party had waived any attorney-client privilege it could otherwise assert over the communications. The Court ordered in camera review to determine both whether the non-moving party intended to keep the communications confidential and also whether their disclosure to the auditor was necessary for the provision of legal services. Id. Baxter is of limited value in the corporate transactional context where, as here, a party discloses otherwise privileged information to its own financial adviser and not an independent auditor.
 See Hexion Specialty Chems., Inc. v. Huntsman Corp., 2008 WL 3522445, at *1 (Del. Ch. Aug. 12, 2008) (finding that the attorney-client privilege was not destroyed by disclosure of communications between a party’s counsel and its investment banker advising on a merger for the purpose of eliciting commentary on strategies to make covenants contained within the merger agreement more favorable to the client) Cede Co. v. Joulé Inc., 2005 WL 736689, at *1 (Del. Ch. Feb. 7, 2005) (“To the extent that Updata’s files contain advice given by Joulé’s counsel to Joulé, and Updata became privy to that advice during the course of Updata advising Joulé, those portions of documents may be redacted, as the attorney-client privilege is not waived by the presence of the investment banker.”) SICPA Holdings, S.A. v. Optical Coating Lab., Inc., 1996 WL 636161, at *10 (Del. Ch. Oct. 10, 1996) (“[The Defendant] agrees that the privilege is neither destroyed nor waived by virtue of the fact that a copy of these documents was provided to SICPA’s financial advisors.”).
 3Com suggests that the communications involving Goldman Sachs may be privileged even under Massachusetts law. Pl.’s Br. in Opp’n to Def.’s Mot. to Compel at 16 n. 10. Likewise, Newco argues that the communications would not be protected even if Delaware law applies. Def.’s Mem. in Supp. of its Mot. to Compel at 16-18. If the two laws are the same, there is no conflict, and thus no need to engage in choice-of-law analysis. See Tel. Data Sys., Inc. v. Eastex Cellular L.P., 1993 WL 344770, at *9 (Del. Ch. Aug. 27, 1993) (“[A]s a practical matter the choice of law dispute falls by the wayside, because in all relevant jurisdictions the substantive law governing contract formation is the same.”). Given the differences between Massachusetts and Delaware law, however, and the strong likelihood that they could produce disparate results regarding the privilege issue raised by Newco’s motion, the Court will proceed with a choice-of-law analysis; upon selecting the governing law, the Court will then determine whether the challenged documents are privileged.
 See, e.g., Gloucester Holding Corp. v. U.S. Tape Sticky Prods., LLC, 832 A.2d 116, 124 (Del. Ch. 2003) (citing Travelers Indem. Co. v. Lake, 594 A.2d 38, 41 (Del. 1991)); Lee v. Engle, 1995 WL 761222, at *7 n. 3 (Del. Ch. Dec. 15, 1995) (“Delaware follows the Restatement’s choice of law principles and the Restatement’s `most significant relationship’ test.”).
 Kim Aff., Ex. S at entries 1-6, 32-36, 49-57.
 Newco points to comment e of Restatement § 139 which suggests that one may also consider other locations where the attorney-client relationship existed in addition to where the communications took place. Although the record is not entirely clear, it is reasonable to infer that the 3Com attorney-client relationship originated in Boston, thus further “centering” the privilege in Massachusetts.
 Boyce Aff. at ¶ 8.
 3Com, itself a Delaware corporation, draws the Court’s attention to the internal affairs doctrine. Delaware is a strict adherent to the internal affairs doctrine, which requires that the law of the state of incorporation determine issues related to internal corporate affairs. McDermott Inc. v. Lewis, 531 A.2d 206, 215 (Del. 1987). The Court in McDermott explained how the internal affairs doctrine “serves the vital need for a single, constant and equal law to avoid the fragmentation of continuing, interdependent internal relationships” and “facilitates planning and enhances predictability.”Id. at 216 (citation omitted). Although certainly not controlling here, the concerns underlying the internal affairs doctrine are also implicated when parties select a forum for dispute resolution and its law to govern significant corporate transactions, such as the possible 3Com-Newco merger.
note 23. Large-scale business transactions often involve collaboration among parties who did not previously have an especially close prior relationship with one another. Indeed, the size and complexity of these transactions generally require the engagement of specialized advisors — both legal and financial — who may not have previously worked with the client on any sustained basis.
 3Com’s Board of Directors met in Texas and California in addition to Massachusetts. 3Com claims that “[m]any other relevant Board of Directors and Board of Directors sub-committee meetings were telephonic; Board members participated from separate locations, including from outside Massachusetts[,] . . . and [e]lectronic mail communications were `received’ wherever 3Com personnel happened to be located at the time they read the communications, which again included locations outside of Massachusetts given personal residences and travel schedules.” Pl.’s Moving Br. in Supp. of its Mot. to Compel at 11-12. Moreover, the law firm that represented 3Com is based in California.
 This holding is also in line with this Court’s recognition of the attorney-client privilege as a vital means of obtaining and enhancing effective legal representation. See Cont’l Ins. Co. v. Rutledge Co., Inc., 1999 WL 66528, at *1 (Del. Ch. Jan. 26, 1999) (“The importance of the attorney-client privilege is central to the American model of adversarial litigation.”).
 When engaging in a choice-of-law analysis, this Court has turned not only to the Restatement’s claim-specific provisions (i.e., § 139, which governs “Privileged Communications”) but also to Restatement § 6, which contains a list of general policy objectives that should be considered when deciding any conflict of laws issue See In re Am. Int’l Group, Inc., 965 A.2d 763, 821 (Del. Ch. 2009) (“Having applied the Restatement’s tort-and contract-specific considerations, I must apply § 6 of the Restatement, which entitle me to consider general policy issues,. . . .”) (citing McBride v. Whiting-Turner Contracting, Co., 625 A.2d 279 (TABLE), 1993 WL 169110, at *3-4 (Del. 1993)). Section 6 of the Restatement directs the Court to consider, among other factors, the protection of justified expectations, certainty, predictability and uniformity of result, and ease in determining the law to be applied. The Court’s decision to apply Delaware law in this case furthers all of these directives.
 Newco’s reliance on Baxter International, Inc. v. Rhone-Poulenc Rorer, Inc. has been addressed at note 17, supra.
 See supra notes 16-18 accompanying text.
 Newco has drawn the Court’s attention to a withheld e-mail exchange that took place exclusively between Goldman Sachs personnel. Kim Aff., Ex. S at entry 51. The fact that such an e-mail does not include a 3Com attorney raises an inference that the communication is not privileged. It is possible, however, that the Goldman Sachs personnel were discussing information of a legal nature that they received from a communication that did, in fact, involve 3Com’s legal representatives. It is also possible that a Goldman Sachs employee was disclosing privileged information to a colleague. If confidential, such subsequent disclosure would not operate to waive the privilege because only 3Com may effectuate a waiver. Whether the communication was privileged as a threshold matter can be addressed by in camera review.
 Specifically, Newco has challenged the partial withholding of thirty-six communications or documents involving Mr. Goldman. Kim Aff., Ex. V.
 Boyce Aff. at ¶¶ 6, 8.
 Newco, however, has not challenged communications involving Mr. Goldman and outside counsel that were made for the purpose of seeking legal advice.
 See Amirsaleh v. Bd. of Trade of the City of N.Y., Inc., 2008 WL 241616, at *2 (Del. Ch. Jan. 17, 2008) (“[D]efendants have disclosed only the business advice communications — not those containing legal advice. Just because communications occurred on the same subjects between the same people does NOT mean that all such communications were business related. Some constitute legal advice and those communications are the ones for which defendants claim privilege.”); Khanna v. McMinn, 2006 WL 1388744, at *37-38 (Del. Ch. May 9, 2006) (discussing how advice transmitted to or offered by general counsel will not be privileged when it is “business diction” as opposed to legal advice). Neither party argues that Massachusetts or Delaware law is in disagreement on this issue, and both parties have applied Delaware law in their respective briefs.
 The parties are in substantial agreement that in camera review is appropriate and necessary to resolve this dispute.
 Both Delaware and Massachusetts follow the “because of” test to determine application of the attorney work-product privilege. Under this test, the Court asks whether a document would have been produced but for existing or expected litigation. Compare Hexion Specialty Chems., Inc. v. Huntsman Corp., 959 A.2d 47, 52 (Del. Ch. 2008) with Comcast, 901 N.E.2d at 1203-04.
 Of course, if Newco requests that the Court review any of those documents in camera to determine whether they involved primarily business matters, it will also review the documents to determine application of the attorney work-product privilege.
 There appear to be four documents that 3Com has labeled as attorney work-product, but which have not been labeled as privileged for any other reason. Kim Aff., Ex. A3 at entries 303, 313-14, 331. Newco has requested production of documents 313 and 331. These documents supposedly pertain to communications regarding CFIUS approval or withdrawal. Newco is skeptical that CFIUS-related documents were created because of anticipated litigation. The Court can review these document in camera as well.
 The Scheduling Order provides that “[t]he parties’ (and their advisors’) privilege logs shall contain the following information: As to documents withheld in their entirety, the logs shall include the author(s) of the documents, all recipients of the document, the date of the document, its title, and a brief description of the document, including the basis for assertion of privilege.” (emphasis added).
 The parties do not dispute that Delaware law governs this particular issue. Indeed, Newco contends that “Massachusetts law is not dissimilar.” Def.’s Mem. in Opp’n to Pl.’s Mot. to Compel at 5 n. 2 (citing Hanover Ins. Co. v. Rapo Jepsen Ins. Servs., Inc., 870 N.E.2d 1105, 1109 (Mass. 2007)); see also Mass. G. Evid. § 502(d)(5).
 Jedwab, 1986 WL 3426, at *2; see also Zirn v. VLI Corp., 1990 WL 119685, at *8 (Del. Ch. Aug. 13, 1990) (finding that certain communications could not be privileged “as a matter of common interest” because when formed the “parties still had adverse interests in renegotiating and restructuring the original agreement”).
 3Com’s challenges appear directed to communications between Newco and Huawei that may have been adversarial. Specifically, 3Com seeks the production of two documents concerning communications from February 15, 2008 regarding the Side Letter. 3Com also seeks production of twelve documents involving communications made after the CFIUS withdrawal; these communications supposedly pertained to potential amendments to the Merger Agreement or a new deal. Lastly, 3Com seeks the production of eleven communications regarding the CFIUS process that took place before the CFIUS withdrawal.
 Newco raises no objection to the possibility and appropriateness of in camera review.


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Lake v. First National Insurance Co. is an insurance dispute. James "Bryan" Lake and Terry Hall purchased some property "in pretty bad shape" in Hayward, California which was filled with valuable civil war era antiques previously owned by the home's previous resident Bob Ryan. Before they could get the antiques appraised burglars stole them and Ms. Hall submitted a personal property insurance claim for $162,736, the policy limit with an itemized list of each piece of property and a statement of what it was worth. After some back and forth the insurance company paid out $25,126.29. The plaintiffs sued for breach of contract stating that it provided adequate information to First National to obtain a larger payout. First National disagreed.
Trinton’s entire case rests precariously on the opinion of its expert, Douglas Bennett, who never examined the allegedly defective circuit breaker. This substantially impaired his ability to express a reliable expert opinion based upon specific facts. Therefore, we find that Bennett’s expert opinion and the inferences Trinton seeks to draw from it are not of sufficient quantum or quality to create genuine issues of material fact.
She granted summary judgment for the insurance company.
"An insurance company's right to seek reimbursement for certain defense costs already expended in underlying litigation, such as [First Financial] seeks here, was declared by the California Supreme Court in Buss v. Superior Court, (Cal. 1997)." United Nat. Ins. Co. v. R&D Latex Corp., (9th Cir. 2001).
Columbia Casualty Insurance Co. v. Gordon Trucking is another Buss claim. Here, Columbia insured Gordon trucking when one of Gordon's drivers struck another car causing personal injury to Drew Bianchi. At trial American International defended Gordon Trucking and Mr. Bianchi received an award of $18M. Gordon claimed Columbia owed it $5M for the settlement and Columbia denied that and sued both Gordon and American International. Now Columbia seeks to dismiss its claims against American International. Gordon Trucking opposes the motion. Judge Lucy H. Koh stated that Burnette v. Godshall (N.D. Cal. 1993) has explained the form for determining whether and what kind of dismissal to grant.
In exercising its discretion, the Court must make three separate determinations: (1) whether to allow the dismissal at all; (2) whether the dismissal should be with or without prejudice; and (3) what terms and conditions, if any, should be imposed.
Judge Koh found that dismissal should be granted with prejudice and without condition because Gordon could not adequately explain why it would be prejudiced by dismissing American International.
In Re Wells Fargo Residential Mortgage Discrimination Litigation is a class action alleging discriminatory impact in Wells Fargo's loaning practices in violation of the Equal Credit Opportunity Act (ECOA). Wells Fargo moves for summary judgment on the ECOA claim by arguing that statistical evidence that would support a finding that minority borrowers as a class paid more than non-minority borrowers would not be sufficient to establish that any particular minority borrower paid more than a similarly situated non-minority borrower. Judge Maxine M. Chesney disagreed.
"Proof of disparate impact is based not on an examination of individual claims, but on a statistical analysis of the class as a whole." Ramirez v. Greenpoint Mortgage Funding, Inc., (N.D. Cal. 2010).
Judge Chesney denied the motion to dismiss.
Das v. WMC Mortgage is a foreclosure action where Mr. Das and others claimed they were duped into taking a $975k loan they could not possibly repay and that the Mortgage Electronic Registration Systems, Inc. (MERS) failed to issue a proper foreclosure notice under California Civil Code Section 2923.5. That section provides: "a mortgagee, trustee, beneficiary or authorized agent may not file a notice of default [...] until 30 days after initial contact is made [...] or 30 days after satisfying the due diligence requirements."
Roberts v. JP Morgan Chase Bank, N.A. (N.D. Cal. Sept. 13 2010) (Trumball, J.); Kariguddaiah v. Wells Fargo Bank, N.A. (N.D. Cal. July 1, 2010) (Patel, J.) (it does); Davenport v. Litton Loan Servicing, LP (N.D. Cal. July 26, 2010) (Seeborg, J.) (finding the remedy to be stopping the foreclosure sale).
Atkins v. Litton Loan Servicing, LLP (N.D. Cal. Aug 11, 2010) (Seeborg, J.); Pham v. Bank of America, N.A. (N.D. Cal. Aug. 11 2010) (Lloyd, J.); Odinma v. Aurora Loan Services (N.D. Cal. March 23, 2010) (Laporte, J.).
I think Judge Samuel Conti has the best approach, he has found that it's not a claim in itself, but it can be the basis for a claim under UCL. Of course, he was the only judge given the question in this manner. Reynoso v. Paul Financial, LLC (N.D. Cal. Nov. 16 2009) (Conti, J.) (it doesn't); Zivanic v. Washington Mut. Bank, F.A. (N.D. Cal. June 9, 2010) (Conti, J.) (it can be the basis for a claim under California's Unfair Competition Law).
Judge Patricia Trumball stuck with her decision in Roberts v. JP Morgan Chase Bank, N.A. that it does grant a private right of action and allowed the claim to go into discovery.


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Brian Melendez is a veteran litigator with more than two decades of experience in trial and appellate practice, and a former president of the Minnesota State Bar Association. His practice focuses on consumer-credit litigation and business torts. He has defended consumer-financial-services providers in more than 300 cases in over 40 states.
Brian was named by Minnesota Lawyer magazine in 2002 as one of the Top Ten Attorneys of the Year; he won the award a second time in 2008, only the second person to win twice. He has been named to the Minnesota Super Lawyers list in every year since 2003, and is listed in The Best Lawyers in America.
Brian earned his bachelor’s degree with honors from Harvard College in 1986; his J.D. with honors from Harvard Law School in 1991, where he wrote on “Districting a Diverse Society,” and a master’s degree in Theological Studies from Harvard Divinity School in 1991, concentrating in ethics.
Brian has defended clients, including several Fortune 100 companies, in litigation ranging from contractual disputes to business torts to sophisticated consumer-protection claims. He has litigated more than 300 cases under federal and state consumer-protection statutes, including the Telephone Consumer Protection Act, the Consumer Credit Protection Act, the Truth in Lending Act, the Fair Credit Reporting Act, the Fair & Accurate Credit Transactions Act, the Fair Debt Collection Practices Act, and the Minnesota Prevention of Consumer Fraud Act. Please click here for a more complete list. Brian has appeared in more than 30 federal district courts and in state courts in more than 20 states. He serves on the Federal Practice Committee for the U.S. District Court for the District of Minnesota, where he chairs the style committee.
Brian is admitted to the bar in Minnesota and Florida. He is admitted to practice before the U.S. District Courts for the District of Minnesota, District of Colorado, Middle District of Florida, Southern District of Florida, Eastern District of Michigan, Eastern District of Wisconsin, and Western District of Wisconsin, in addition to the appellate courts listed below.
Brian has defended more than a dozen putative nationwide class actions involving federal consumer-protection statutes, including one of the earliest class-action claims under the Telephone Consumer Protection Act in 2000. Please click here for a list.
Brian has argued cases before the U.S. Courts of Appeals for the Seventh, Eighth, and Tenth circuits, and is admitted to practice before the U.S. Supreme Court and 12 of the 14 federal courts of appeals. He has filed amicus briefs in the Supreme Court and nine federal circuits. He represented the lead petitioner in ACA International v. Federal Communications Commission (D.C. Cir. 2018), the consolidated challenge to the commission's 2015 ruling on the Telephone Consumer Protection Act (the 2015 TCPA Order).
Brian has served as parliamentarian for more than a dozen organizations, including seven terms for the ABA Young Lawyers Division, and two years on the Committee on Rules & Calendar for the ABA House of Delegates. He chaired the ABA Standing Committee on Constitution & Bylaws, and has written the constitution or bylaws for over two dozen organizations. He has taught seminars on parliamentary law for many bar-association, political, and other groups. He is a contributing editor defining more than 400 parliamentary-law terms for the eighth (2004), ninth (2009), and tenth (2014) editions of Black’s Law Dictionary. Brian is a member of the American Institute of Parliamentarians and the National Association of Parliamentarians.
Brian has also written and taught about legal writing and drafting. He was a contributor to The Redbook: A Manual on Legal Style, published by the West Group; and the second through fourth editions of Garner’s Modern English Usage by Bryan A. Garner, published by Oxford University Press.
Barry v. Dell Computer Corp., No. C8-00-3437 (Minn. 2d Jud. Dist.). Telephone Consumer Protection Act. Class certification denied.
Muro v. Target Corp., No. 1:04-cv-06267 (N.D. Ill.), on appeal No. 081256 (7th Cir.). Truth in Lending Act. Class certification denied, affirmed on appeal. Published opinions, 250 F.R.D. 350 (N.D. Ill. 2007); 580 F.3d 485 (7th Cir. 2009).
Acosta v. Target Corp., No. 1:05-cv-07068 (N.D. Ill.), on appeal No. 132706 (7th Cir.). Truth in Lending Act. Class certification denied, affirmed on appeal. Published opinion, 745 F.3d 853 (7th Cir. 2014).
Higgins v. Patenaude & Felix, A.P.C., No. 2:05-mc-02025 (W.D. Pa.). Dismissed; no class certified.
Todd v. Target Corp., No. 1:10-cv-05598 (N.D. Ill.). Fair & Accurate Credit Transactions Act. Dismissed; no class certified.
Giannangeli v. Target Nat’l Bank, N.A., No. 1:11-cv-02154-WJM-MEH (D. Colo.), on appeal No. 12-1344 (10th Cir.). Usury; National Banking Act. Dismissed, no class certified; affirmed on appeal. Appellate opinion, 543 F. App’x 785 (10th Cir. 2013).
Joy v. Target Stores, Inc., No. 1:13-cv-05085 (N.D. Ill.). Telephone Consumer Protection Act. Dismissed; no recovery.
Muransky v. Godiva Chocolatier, Inc., No. 0:15-cv-60716-WPD (S.D. Fla.). Fair & Accurate Credit Transactions Act. Settlement class certified. On appeal, Price v. Godiva Chocolatier, Inc., No. 16-16486 (11th Cir.); Muransky v. Isaacson, No. 16-16783 (11th Cir.).
Serrano v. Target Corp., No. 5:15-cv-03908 (N.D. Cal.). Telephone Consumer Protection Act. Dismissed; no class certified.
Young v. Target Corp., No. 2:16-cv-00769-BRO-RAO (C.D. Cal.). Fair Credit Reporting Act. Dismissed; no class certified.
Garcia v. Target Corp., No. 0:16-cv-02574-MJD-BRT (D. Minn.), transferred from No. 1:16-cv-20727-JEM (S.D. Fla.). Telephone Consumer Protection Act. Pending.
Prukala v. TD Bank USA, No. 3:16-cv-00894-MEM (M.D. Pa.). Fair Debt Collection Practices Act; Pennsylvania Fair Credit Extension Uniformity Act. Complaint dismissed.
Diaz-Lebel v. TD Bank USA, N.A., No. 1:17-cv-1611-JBS-AMD (D.N.J.). Telephone Consumer Protection Act. Pending.
*All of these matters occurred prior to joining Barnes & Thornburg. Lead counsel unless otherwise noted.


(1) The provisions of this chapter [18 USCS §§ 921 et seq.], except for sections 922(d)(9) and 922(g)(9) [18 USCS §§ 922(d)(9) and 922(g)(9)] and provisions relating to firearms subject to the prohibitions of section 922(p) [18 USCS § 922(p)], shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.
(2) The provisions of this chapter [18 USCS §§ 921 et seq.], except for provisions relating to firearms subject to the prohibitions of section 922(p) [18 USCS § 922(p)], shall not apply with respect to (A) the shipment or receipt of firearms or ammunition when sold or issued by the Secretary of the Army pursuant to section 4308 of title 10 before the repeal of such section by section 1624(a) of the Corporation for the Promotion of Rifle Practice and Firearms Safety Act, and (B) the transportation of any such firearm or ammunition carried out to enable a person, who lawfully received such firearm or ammunition from the Secretary of the Army, to engage in military training or in competitions.
(3) Unless otherwise prohibited by this chapter [18 USCS §§ 921 et seq.], except for provisions relating to firearms subject to the prohibitions of section 922(p) [18 USCS § 922(p)], or any other Federal law, a licensed importer, licensed manufacturer, or licensed dealer may ship to a member of the United States Armed Forces on active duty outside the United States or to clubs, recognized by the Department of Defense, whose entire membership is composed of such members, and such members or clubs may receive a firearm or ammunition determined by the Attorney General to be generally recognized as particularly suitable for sporting purposes and intended for the personal use of such member or club.
(4) When established to the satisfaction of the Attorney General to be consistent with the provisions of this chapter [18 USCS §§ 921 et seq.], except for provisions relating to firearms subject to the prohibitions of section 922(p) [18 USCS § 922(p)], and other applicable Federal and State laws and published ordinances, the Attorney General may authorize the transportation, shipment, receipt, or importation into the United States to the place of residence of any member of the United States Armed Forces who is on active duty outside the United States (or who has been on active duty outside the United States within the sixty day period immediately preceding the transportation, shipment, receipt, or importation), of any firearm or ammunition which is (A) determined by the Attorney General to be generally recognized as particularly suitable for sporting purposes, or determined by the Department of Defense to be a type of firearm normally classified as a war souvenir, and (B) intended for the personal use of such member.
(5) For the purpose of paragraph (3) of this subsection, the term "United States" means each of the several States and the District of Columbia.
(b) A licensed importer, licensed manufacturer, licensed dealer, or licensed collector who is indicted for a crime punishable by imprisonment for a term exceeding one year, may, notwithstanding any other provision of this chapter [18 USCS §§ 921 et seq.], continue operation pursuant to his existing license (if prior to the expiration of the term of the existing license timely application is made for a new license) during the term of such indictment and until any conviction pursuant to the indictment becomes final.
(c) A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms, and the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial. The court may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice. A licensed importer, licensed manufacturer, licensed dealer, or licensed collector conducting operations under this chapter [18 USCS §§ 921 et seq.], who makes application for relief from the disabilities incurred under this chapter [18 USCS §§ 921 et seq.], shall not be barred by such disability, from further operations under his license pending final action on an application for relief filed pursuant to this section. Whenever the Attorney General grants relief to any person pursuant to this section he shall promptly publish in the Federal Register notice of such action, together with the reasons therefor.
(4) was previously taken out of the United States or a possession by the person who is bringing in the firearm or ammunition.
(2) All handguns, listed as curios or relics by the Attorney General pursuant to section 921(a)(13) [18 USCS § 921(a)(13)], provided that such handguns are generally recognized as particularly suitable for or readily adaptable to sporting purposes.
(f) The Attorney General shall not authorize, under subsection (d), the importation of any firearm the importation of which is prohibited by section 922(p) [18 USCS § 922(p)].


A petition for review, by natives and citizens of Philippines, a BIA's affirmance of an IJ's finding that petitioners are removable from the United States under 8 U.S.C. section 1227(a)(1) and ineligible for cancellation of removal under 8 U.S.C. section 1154(a)(1)(A)(iii), is denied as, while it may be prudent to require that certain appeals to the BIA be adjudicated by a three-member panel instead of a single member acting alone, the BIA did not violate the review procedures set forth in section 1003.1(e) when a single member rendered a decision on petitioners' appeal in his discretion without referring it to a panel of three.
Ms. Ward and her daughter entered the United States on a K visa march 2004. Ms. Ward married her U.S. citizen fiancé May 2004. The marriage dissolved shortly thereafter without a filing of an adjustment of status application. Ms. Ward was placed in removal proceedings November 2006. Ms. Ward submitted a VAWA self petition which was denied April 2007. In December 2008 an immigration judge denied her application for VAWA cancellation finding that Ms. Ward was by "clear and convincing evidence" ineligible for cancellation. The BIA affirmed the IJ’s decision on March 31, 2010; a single board member issued a three page decision.
Ms. Ward’s counsel appealed to the Seventh Circuit arguing that the lengthy opinion demonstrated that the board member went beyond the scope of his power to affirm, modify, or remand an immigration decision in a "brief order" pursuant to 8 CFR Sec. 1003.1(e)(5). In other words, if the case merited a decision of such length, then it merited a three-judge panel review.
The Seventh Circuit in Martinez-Camargo v. INS 282 F.3d 487 (7th Cir. 2002) established a two-pronged test to evaluate whether the failure to adhere to an immigration administrative guideline rendered the underlying action taken invalid. The first prong is to ask whether the regulation in question serves a "purpose of benefit to the alien." The government in the present case argued that Sec. 1003.1(e)(5) was a case management regulation to help the Board handle cases and therefore not intended to benefit the alien. The Seventh Circuit disagreed stating that "The fact that the presence of a ‘need to review a clearly erroneous factual determination’ is a basis for three-member panel review underscores that the regulations were designed in the interest of justice as well as efficiency."
The second Martinez-Camargo prong requires the court to determine whether the alleged violation of the regulation set forth therein prejudices the petitioner. The Circuit found that there was neither prejudice nor a violation. 8 CFR Sec. 1003.1(e)(5) has been found not to be prejudicial in general. As to the plaintiff’s contention that the fact that the BIA board member issued a longer than average decision was not conceivable under the regulatory scheme, the circuit countered that "To require referral to a three-member panel in each case that lends itself to more than a cookie-cutter order would be contrary to the plain language of Sec. 1003.1(e)."
Elizabeth P. WARD, individually and as parent and natural guardian to Estefanie Ebrada Cainto, a minor child, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
Before BAUER, MANION and HAMILTON, Circuit Judges.
Daniel P. Cory, Plews, Shadley, Racher & Braun, South Bend, IN, for Petitioners.Timothy G. Hayes, Department of Justice, Washington, DC, for Respondent.
Petitioners seek review of a decision of the Board of Immigration Appeals (the “BIA”) upholding an immigration judge's finding that they are removable from the United States under 8 U.S.C. § 1227(a)(1) and ineligible for cancellation of removal under 8 U.S.C. § 1154(a)(1)(A)(iii). Petitioners contend that a single member of the BIA issued an improper written opinion that went beyond the scope of an individual BIA member's power to affirm, modify, or remand an immigration judge's decision in a “brief order” pursuant to 8 C.F.R. § 1003.1(e)(5). This court's jurisdiction over final orders of removal is governed by 8 U.S.C. § 1252. The written order issued by the BIA on March 31, 2010 constitutes a final order of removal under 8 C.F.R. § 1003.1(d)(7); therefore the case is properly before this court.
Petitioner Ward and her daughter Cainto, natives and citizens of the Philippines, entered the United States in March 2004 on non-immigrant K visas. Ward entered on a K-1 visa as the fiancée of a United States citizen and Cainto entered on a K-2 visa as a minor child accompanying her mother to the United States.
Ward married her citizen fiancé in May 2004. The marriage dissolved shortly thereafter and Ward never applied for permanent resident status based upon her marriage. In November 2006, the Department of Homeland Security (“DHS”) ordered petitioners to appear before an immigration judge to explain why they should not be removed from the United States for having overstayed their visas. Prior to her removal hearing, Ward petitioned DHS for an immigrant visa under 8 U.S.C. § 1154(a)(1)(A)(iii), a statute which enables the former spouse of a United States citizen who was subjected to battery or extreme cruelty to remain in the United States. DHS denied Ward's petition for this special visa in April 2007. In December 2008, an immigration judge conducted a merits hearing to adjudicate whether petitioners were removable and, if so, whether their application for cancellation of removal was properly denied. The immigration judge found that removability had been established by evidence that was “clear and convincing” and that petitioners were ineligible for cancellation of removal. The BIA affirmed in a three-page decision issued by a single member on March 31, 2010.
Petitioners urge us to remand their case to the BIA with instructions to review their appeal in a three-member panel. In their view, the order issued by a single member pursuant to 8 C.F.R. § 1003.1(e)(5) overstepped the BIA's own bounds for reviewing immigration appeals in such a manner. For the reasons described below, we decline to grant petitioners the relief they seek in this matter.
We begin with the question of jurisdiction. Only constitutional claims and questions of law properly raised in connection with an order of removal are reviewable. 8 U.S.C. § 1252(a)(2)(D). Legal questions include “challenges to the BIA's interpretation of a statute, regulation, or constitutional provision, claims that the BIA misread its own precedent or applied the wrong legal standard, or claims that the BIA failed to exercise discretion at all.” Patel v. Holder, 563 F.3d 565, 568 (7th Cir.2009). We find that the question raised by petitioners is a legal one, since it involves interpretation of the guidelines set for review of immigration appeals under 8 C.F.R. § 1003.1(e).
In the immigration context, a two-pronged analysis governs whether failure to adhere to an administrative guideline renders the underlying action taken invalid. First, the regulation in question must serve a “purpose of benefit to the alien.” Martinez-Camargo v. INS, 282 F.3d 487, 491 (7th Cir.2002) (quoting Matter of Garcia-Flores, 17 I. & N. Dec. 325 (B.I.A.1980). If the regulation is found to serve a purpose of benefit to the alien, the action is then invalid only if the violation “prejudiced the interests of the alien protected by the regulation.” Id. As the BIA itself put it in Garcia-Flores, “where an entire procedural framework, designed to insure the fair processing of an action affecting an individual is created but then not followed by an agency, it can be deemed prejudicial.” Garcia-Flores, 17 I. & N. at 329. The analysis adopted in Martinez-Camargo endeavors to strike a balance between “recognizing the need for administrative agencies to follow their own rules” and acknowledging “the practical reality that not every agency violation impacts an alien's substantive rights.” Martinez-Camargo, 282 F.3d at 491. In order to assess whether the regulation serves a purpose of benefit to the alien, we must first look to the language of 8 C.F.R. § 1003.1.
Section 1003.1 of Title 8 of the Code of Federal Regulations governs the organization, jurisdiction, and powers of the BIA. Under subsection (e)(3), a single board member is initially assigned to an appeal using the BIA's case management system. The member assigned to that appeal is then vested with the authority to determine how it should be handled by the BIA. The member may summarily dismiss the appeal once the record is complete or may elect to have the case decided on the merits. A decision on the merits is issued in one of three ways. In the most straightforward cases, a formulaic “affirmance without opinion” is issued by the member pursuant to subsection (e)(4). In cases requiring more in-depth analysis, the member may issue a brief order pursuant to subsection (e)(5) or designate the appeal for review by a three-member panel pursuant to subsection (e)(6). The default is single member review. (“[T]he Board member shall issue a brief order ․ unless the Board member designates the case for decision by a three-member panel under paragraph (e)(6)․” 8 C.F.R. § 1003.1(e)(5) (emphasis added).
Various circumstances set forth in subsection (e)(6) provide a basis for referral of an appeal to a three-member panel. These circumstances include the need to settle inconsistencies among rulings of different judges, the need to establish precedent, the need to review a decision not in conformity with the law, and the need to review a clearly erroneous factual determination by a judge. 8 C.F.R. § 1003.1(e)(6). While we agree with the respondent that a “designed effect” of the case management provisions set forth in § 1003.1(e) is to assist the BIA in managing its caseload, we find that the provisions nonetheless serve a purpose of benefit to the alien. Though settling inconsistencies and establishing precedent undoubtedly assists the BIA in managing its caseload, such action is also designed to rectify errors below that may have unfairly prejudiced an alien. The fact that the presence of a “need to review a clearly erroneous factual determination” is a basis for three-member panel review underscores that the regulations were designed in the interests of justice as well as efficiency.
Having found that § 1003.1(e) serves a purpose of benefit to aliens, we are left to consider whether a violation of the regulations set forth therein prejudiced petitioners. Since we have held that a streamlined review process withstands constitutional challenges on due process grounds1 , absent a violation of the applicable streamlining procedures, petitioners cannot be entitled to relief.
The § 1003.1(e) streamlining procedures afford the single member initially assigned to any given appeal significant discretion. Prior to the enactment of subsection (e)(5) in 2002, a single member could only affirm without opinion. By adopting subsection (e)(5), the drafters intentionally expanded single member review. Subsection (e)(5) now gives BIA members the power to modify and remand the decisions of immigration judges in their sole discretion. It also confers upon them the right to explain their decisions if they don't feel a formulaic disposition of the appeal is appropriate. While subsection (e)(5) provides that a single member may refer an appeal to a three-member panel, this court has not interpreted the subsection to require such a referral. See Gutnik v. Gonzales, 469 F.3d 683, 691 (7th Cir.2006). The fact that petitioners' appeal may have been eligible for review by a three-member panel under the standards of the BIA's case management plan but was instead reviewed by a single member acting alone is irrelevant. In our view, it is apparent from the plain language of § 1003.1(e) that discretion in these matters is left to the panel member assigned to the case.
The heart of petitioners' argument is that the decision issued by a single BIA member in the case was not a “brief” order, as the language of subsection (e)(5) describes. Because the decision was perhaps lengthier than the average single-member decision, they argue the decision could only have appropriately been rendered by a three-member panel. This dogged focus on what is or is not “brief” provides no substantive evidence of abuse of discretion under the guidelines. To require referral to a three-member panel in each case that lends itself to more than a cookie-cutter order would be contrary to the plain language of § 1003.1(e). It would also “greatly weaken the designed effect [of the regulations] by encouraging BIA members to ignore the subsection (e)(5) procedure altogether and send anything requiring elaboration to a three-member panel.” Id. at 692. We find that the language of 8 C.F.R. § 1003.1 is sufficiently clear in allowing a single member of the BIA to issue an order such as the one rendered in petitioners' case. Ergo, we cannot find that the BIA violated the review procedures set forth in § 1003.1(e) when a single member rendered a decision on petitioners' appeal in his discretion without referring it to a panel of three. Having found no violation, we need not consider whether petitioners were prejudiced by the way the appeal was handled.
While it may be prudent to require that certain appeals to the BIA be adjudicated by a three-member panel instead of a single member acting alone, we leave it to the drafters of the regulations to enact such a change if they find it to be necessary. In so doing, we preserve the spirit of judicial restraint that has long guided appellate review of administrative agency rules. Petitioners' request to have their appeal remanded for further proceedings before a three-member panel of the BIA is Denied.
1. See Gutnik v. Gonzales, 469 F.3d 683, 691 (7th Cir.2006) (citing Georgis v. Ashcroft, 328 F.3d 962 (7th Cir.2003)).
The DHS had determined that if the petitioner died before a case was complete the beneficiary was not permitted to receive the benefit of the petition. The immigration law was changed to allow the beneficiary in such circumstance to obtain the benefit through a 'qualifying relative' of the deceased petitioner.
principal asylee, who was granted asylum.
To avoid having a public charge inadmissibility ground, most immediate relatives and family-based immigrants, and some employment-based immigrants, must file an affidavit of support on their behalf that meets the requirements. If, after the death of a qualifying relative, a visa petition is approved or not revoked, then another individual who qualifies as a "substitute sponsor" must submit an, Affidavit of Support. If the alien is not required to have a legally binding affidavit of support, then there is no need for a substitute sponsor to submit an affidavit of support.
HB 2281 (you know, Arizona's other new racist law), the one ostensibly meant to protect American students from anti-American curriculum in the state's public schools. The law forbids any public school course that does any of these things: encourages students to "resent or hate other races or classes of people; promote[s] the overthrow of the United States government; promote[s] resentment toward a race or class of people" or "is designed primarily for pupils of a particular ethnic group" or "advocate[s] ethnic solidarity instead of the treatment of pupils as individuals."
A Mexican citizen's petition for review of the BIA's dismissal of his appeal of an IJ's deportation order on the ground that his 1984 state court conviction for armed robbery constituted an aggravated felony, is denied where: 1) because petitioner failed to exhaust his administrative remedies, his argument that Anti-Drug Abuse Act of 1988, section 7344(b) bars his deportation, cannot be considered; and 2) In light of the Supreme Court's statement in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) that, deportation "is not, in a strict sense, a criminal sanction," Padilla does not provide sufficient guidance to deviate from the long line cases establishing that statutes retroactively setting criteria for deportation do not violate the ex post facto clause.
Clemente ALVARADO-FONSECA, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
Before FLAUM, ROVNER and EVANS, Circuit Judges.
An immigration judge ordered Clemente Alvarado-Fonseca, a Mexican citizen, removed to Mexico on the ground that his 1984 state court conviction for armed robbery constituted an aggravated felony, a deportable offense. On appeal to the Board of Immigration Appeals (“BIA”), Alvarado-Fonseca argued that he was not removable because the definition of aggravated felony in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) could not be applied retroactively. The BIA dismissed the appeal. Alvarado-Fonseca now argues that a provision in the Anti-Drug Abuse Act of 1988 (“ADAA”) precludes his deportation. Alvarado-Fonseca waived that argument by failing to raise it before the BIA. In light of that failure to exhaust, we must deny the petition.
Alvarado-Fonseca, a citizen of Mexico, was admitted to the United States as a lawful permanent resident alien on April 27, 1973, at the age of ten. In 1984, a twenty-one-year-old Alvarado-Fonseca was convicted of armed robbery in Illinois state court, and was sentenced to six-years in prison. Now 47 years old, Alvarado-Fonseca has since married a United States citizen, with whom he has two children.
On April 2, 2007, the Department of Homeland Security commenced removal proceedings against Alvarado-Fonseca by filing a Notice to Appear (“NTA”) against him in the Immigration Court. The NTA charged that Alvarado-Fonseca was removable from the United States under three provisions of the Immigration and Nationality Act (“INA”): (1) section 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a theft or burglary offense as defined in § 101(a)(43)(G) of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(G)); (2) section 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a crime of violence as defined in § 101(a)(43)(F) of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F)); and (3) section 237(a)(2)(C) for a conviction that involved the use or possession of a firearm (see 8 U.S.C. § 1227(a)(2)(C)).
The thrust of Alvarado-Fonseca's argument in this Court turns on the interplay of several amendments to the federal immigration laws. A short discussion of each of the relevant enactments is helpful.
Congress first made conviction for an “aggravated felony” a deportable offense in 1988, when it amended the INA through the Anti-Drug Abuse Act of 1988 (“ADAA”). See ADAA § 7344(a). At that time, the statutory definition of “aggravated felony” did not include theft offenses or crimes of violence. Section 7344(b) of the ADAA provided that the amendments applied only “to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony.” Therefore, under the ADAA, only aliens convicted of an aggravated felony on or after November 18, 1988 were deportable. In his petition, Alvarado-Fonseca relies on the temporal restriction set forth in ADAA § 7344(b) for his position that he cannot be deported for his 1984 conviction.
In 1990, Congress enacted the IMMAct, § 501(a) of which broadened the definition of “aggravated felony” to include any crime of violence for which a term of imprisonment of at least 5 years is imposed. The new definition applied only to crimes committed on or after November 29, 1990. See IMMAct § 501(b).
SAVINGS PROVISION.-Notwithstanding the amendments made by this section, any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that (1) any such alien entered the United States before the date of enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act.
See 104 Stat. 5081-82 (1990).
On October 25, 1994, Congress again broadened the definition of “aggravated felony” to include theft offenses for which the term of imprisonment imposed is at least five years. See ITCA § 222(a). The ITCA provided that “[t]he amendments made by ․ section [222(a) ] shall apply to convictions entered on or after the date of enactment of this Act.” ITCA § 222(b).
In the proceedings before the Immigration Judge (“IJ”), Alvarado-Fonseca contended that he had previously appeared before an IJ and had been granted a waiver of deportation; however he could produce no evidence of such a waiver. Alvarado-Fonseca also applied for cancellation of removal. On April 14, 2009, the IJ concluded in a written opinion that Alvarado-Fonseca was removable on all three charges based on his conviction for armed robbery. Specifically, the IJ found that armed robbery “certainly is an offense relating to a theft offense, identified in § 101(a)(43)(G) of the INA.” Furthermore, the IJ determined that armed robbery constitutes a crime of violence as defined in INA § 101(a)(43)(F) because it involves a clear risk of harm to an individual. Finally, the IJ found that Alvarado-Fonseca was removable pursuant to § 237(a)(2)(C) because he had been convicted of a crime that involved the use or possession of a firearm. The IJ dismissed Alvarado-Fonseca's application for cancellation of removal, concluding that he was ineligible for cancellation because he had been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (barring a permanent resident alien from eligibility for cancellation of removal if he has been convicted of an aggravated felony).
On appeal of the IJ's decision to the BIA, Alvarado-Fonseca argued that he was not removable pursuant to § 237(a)(2)(C) because he had not been convicted of a firearm offense.1 Alvarado-Fonseca also maintained that, because he was not deportable at the time he was convicted, he cannot be removed today. Specifically, Alvarado-Fonseca argued that the IIRIRA's expanded the definition of “aggravated felony”-enacted in 1996-could not be applied to his 1984 conviction because (1) there is a presumption against retroactive application, and (2) retroactive application would violate his due process rights.
On March 17, 2010, the BIA dismissed Alvarado-Fonseca's appeal, rejecting Alvarado-Fonseca's argument that the IIRIRA's aggravated felony provision should not apply retroactively. For that conclusion the BIA relied in part on our decision in Flores-Leon v. INS, 272 F.3d 433 (7th Cir.2001), which we discuss further below. The BIA did not determine whether Alvarado-Fonseca was removable under § 237(a)(2)(C), noting that even if he was not, he had failed to establish that he was not otherwise removable under § 237(a)(2)(A)(iii).
Generally, we lack jurisdiction to review an order removing an alien who has been convicted of committing an “aggravated felony.” See 8 U.S.C. § 1252(a)(2)(C); Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir.2009). However, pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review questions of law and constitutional claims. Here, Alvarado-Fonseca raises legal questions regarding the interpretation of the aggravated felony provisions of the INA and a constitutional claim founded on the ex post facto clause. Therefore, we have jurisdiction to consider the petition. While we review questions of law and constitutional claims de novo, we defer to the BIA's reasonable interpretation of the INA, “so long as it is ‘consistent with the language and purposes of the statute.’ “ Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir.2005).
In the instant petition, Alvarado-Fonseca effectively concedes that he is removable under our decision in Flores-Leon v. INS, 272 F.3d 433 (7th Cir.2001), but argues that we instead should follow the Ninth Circuit's decision in Ledezma-Galicia v. Holder, 599 F.3d 1055 (9th Cir.2010). As the discussion below demonstrates, contrary to Alvarado-Fonseca's interpretation, the two cases are not necessarily in conflict. More importantly, Alvarado-Fonseca's failure to raise before the BIA the arguments addressed in Ledezma-Galicia, which he effectively adopts in his petition, precludes us from considering this line of reasoning.
In Flores-Leon, we squarely rejected the argument Alvarado-Fonseca advanced before the BIA-namely, that the IIRIRA's definition of aggravated felony cannot be applied retroactively. The petitioner in Flores-Leon had been convicted in 1994 of a crime that was not classified as an aggravated felony until 1996. We concluded that the amended definition could be applied to the earlier conviction, holding that “the amended definition of ‘aggravated felony’ [set forth in IIRIRA § 321(a) ] should be applied to any and all criminal violations committed by an alien after his or her entry into the United States, regardless of whether they were committed before or after the amended definition went into effect.” 272 F.3d at 439. We reasoned that Congress had “clearly manifested an intent to apply the amended definition of ‘aggravated felony’ retroactively” in IIRIRA § 321(b), which states that “[n]otwithstanding any other provision of law (including any effective date), [the amended definition of aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996.” Id.
Ledezma-Galicia involved a petitioner who, like Alvarado-Fonseca and unlike Flores-Leon, was convicted before Congress enacted the ADAA in 1988, thereby making conviction for an “aggravated felony” a deportable offense for the first time. 599 F.3d at 1058. Ledezma-Galicia argued that the temporal limitation set forth in ADAA § 7344(b) remains in effect and prohibits his removal. Id. at 1061. The government responded that the ADAA's temporal limitation on the aggravated felony ground of deportation did not survive the later passage of the IMMAct in 1990 and the IIRIRA in 1996. Specifically, the government argued that IMMAct § 602(c) and IIRIRA § 321(b) override ADAA § 7344(b). Id. In a split decision, the Ninth Circuit rejected both of the government's arguments and found that the petitioner could not be deported.
With respect to IIRIRA § 321 (the only provision at issue in Flores-Leon ), the Ninth Circuit stated that “it is settled law that the ․ definitional statute, IIRIRA § 321, which defines certain crimes as aggravated felonies, applies regardless of the date of the crime.” Id. at 1074 (quoting Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir.2006)) (emphasis in original). That is precisely what we said in Flores-Leon. The Ledezma-Galicia court went on to explain that, under Ninth Circuit precedent, “the IIRIRA's effective date provisions do not control ‘the substantive immigration consequences of IIRIRA’ (emphasis added)-even when those consequences turn on an aggravated felony conviction.” Id. (quoting Lopez-Castellanos, 437 F.3d at 852-54). In other words, the Ninth Circuit has held that while the definition of “aggravated felony” applies to all aliens, that does not necessarily mean that all aliens convicted of an aggravated felony can be deported as a result. We have never explicitly considered whether the consequences of being an aggravated felon, such as removability, should be considered separately from the definition. Flores-Leon may be read as implicitly holding that both the definition and consequences of being an aggravated felon apply retroactively. But even if that is the case, such that our case law is in conflict with the Ninth Circuit's, we cannot resolve that tension here, for the reasons below.
The Ledezma-Galicia court went on to conclude that nothing in the IIRIRA affected the temporal limitation set forth in ADAA § 7344(b). 599 F.3d at 1074-75. It also found that IMMAct § 602(c) does not override ADAA § 7344(b). In reaching that conclusion, the Ninth Circuit refused to defer to the BIA's contrary interpretation that the second sentence of IMMAct § 602(c) overrides ADAA § 7344(b)). Id. at 1062-73. Based on those determinations, the Ninth Circuit found that Ledezma-Galicia was not removable as an aggravated felon.
Thus, the decision on which Alvarado-Fonseca now relies turns on ADAA § 7344(b), and its relationship to IIRIRA § 321(b) and IMMAct § 602(c). By relying on Ledezma-Galicia, Alvarado-Fonseca is asking us to consider whether ADAA § 7344(b) remains in effect.2 But Alvarado-Fonseca did not raise the potential relevance of either ADAA § 7344(b) or IMMAct § 602(c) before the IJ or the BIA. Rather, in his administrative proceedings, Alvarado-Fonseca focused on the fact that he was convicted before the IIRIRA was enacted in 1996; now he bases his argument on the fact that he was convicted before the 1988 passage of the ADAA.
Consequently, as the government contends, Alvarado-Fonseca failed to exhaust the argument he now advances.3 “An alien ordered removed from this country is required to exhaust the administrative remedies available to him before seeking judicial review of the removal order.” Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir.2008); see also 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if ․ the alien has exhausted all administrative remedies available to the alien as of right”). Part of the duty to exhaust is the obligation to present all arguments to the BIA in the first instance that it has the power to address. Ghaffar, 551 F.3d at 655. Because Alvarado-Fonseca failed to exhaust his administrative remedies, we cannot consider his argument that ADAA § 7344(b) bars his deportation.
Alvarado-Fonseca also contends that deporting him for the commission of an aggravated felony would violate the ex post facto clause, which prohibits the retroactive application of criminal laws that materially disadvantage the defendant. See U.S. Const. art. I, § 9, cl. 3; Flores-Leon, 272 F.3d at 440. Alvarado-Fonseca concedes that the ex post facto clause applies only to criminal laws, and that both this circuit and the Supreme Court have long held that removal under the immigration laws is a civil proceeding, not a criminal punishment. See Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (“And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation.”); Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir.2004); Flores-Leon, 272 F.3d at 440. However, he argues that we should revisit that conclusion in light of the Supreme Court's recent decision Padilla v. Kentucky, --- U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
In Padilla, the Court held that counsel for an alien charged with a crime has a constitutional obligation to tell the client that a guilty plea carries a risk of deportation. Id. at 1486. In reaching that conclusion, the Court noted that “deportation is a particularly severe ‘penalty,’ “ and that removal proceedings, while “civil in nature,” are “intimately related to the criminal process.” Id. at 1481. However, the Court also reaffirmed that deportation “is not, in a strict sense, a criminal sanction.” Id. In light of that statement, we cannot agree that Padilla provides sufficient guidance to deviate from the long line cases establishing that statutes retroactively setting criteria for deportation do not violate the ex post facto clause.
1. Alvarado-Fonseca offered no explanation for his position that armed robbery should not be considered a conviction for “using, owning, possessing, or carrying, ․ any weapon ․ in violation of any law” under INS § 237(a)(2)(C), and we can think of none. See 8 U.S.C. § 1227(a)(2)(C). However, contrary to the government's request, we cannot deny the petition on the ground that Alvarado-Fonseca is removable pursuant to INS § 237(a)(2)(C). While the BIA noted that the IJ found Alvarado-Fonseca to be removable under § 237(a)(2)(C), it did not rely on § 237(a)(2)(C) as a basis for its ruling. Nor did the BIA adopt the IJ's opinion. Therefore, the BIA's decision is “the exclusive focus of our review.” Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). Under SEC v. Chenery Corp., 332 U.S. 194 (1947), we cannot uphold the BIA's ruling on “a ground that is not articulated-or at least discernable-in the decision itself.” Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir.2008). Because the BIA did not rely on § 237(a)(2)(C) in dismissing Alvarado-Fonseca's appeal, we cannot deny the petition on that basis.
2. We have not addressed that issue. Both the BIA and a number of our sister circuits have considered it, and have reached varying conclusions based on the interplay of the ADAA, the IMMAct, and the IIRIRA. See Lewis v. INS, 194 F.3d 539, 543 n. 5 (4th Cir.1999) (deferring to BIA's interpretation that the second sentence of IMMAct § 602(c) overrides ADAA § 7344(b)); Lettman v. Reno, 207 F.3d 1368 (11th Cir.2000) (same); Bell v. Reno, 218 F.3d 86 (2d Cir.2000) (rejecting BIA's interpretation that IMMAct § 602(c) overrides ADAA § 7344(b), but nevertheless concluding that petitioner convicted before 1988 is deportable under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony after entry into the United States, because IMMAct § 602(d) overrides ADAA § 7344(b)); Ledezma-Galicia, 599 F.3d 1055 (concluding that neither IMMAct § 602 nor IIRIRA § 321(b) overrides ADAA § 7344(b)).
3. Alvarado-Fonseca did not file a reply brief to refute the government's exhaustion argument and argue that he properly preserved this issue.