U.S. Court of Appeals for Tenth Circuit, 1216 COBJ, Vol. 45, No. 12
Summaries of Selected Opinions
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on “Opinions/Rules/Statutes”).
No. 14-9593. Osuna-Gutierrez v. Johnson. 9/22/2016. Dep’t of Homeland Sec. Judge Ebel. Immigration—Expedited Removal—Aggravated Felony—Clear, Convincing, and Unequivocal Evidence.
Petitioner, a citizen of Mexico, pleaded guilty to possession of marijuana with intent to distribute. Based on his status as an aggravated felon, he was deported to Mexico through the Department of Homeland Security’s (DHS) expedited removal process.
Petitioner appealed the removal order, claiming that DHS’s expedited removal process is illegal because only immigration judges have the power to order removal. Congress empowered the Attorney General to create an expedited removal process, and the Attorney General properly transferred those powers to DHS. Thus, DHS had authority to have its officers hold expedited removal processes and no order from an immigration judge was required.
Petitioner also argued that the use of expedited removal against him was improper because it was not based on clear and convincing evidence and he pleaded guilty to a misdemeanor, not an aggravated felony. The Tenth Circuit held that use of expedited removal in this case was appropriate because there was clear, convincing, and unequivocal evidence that he pleaded guilty to an aggravated drug felony.
The petition for review was denied.
No. 15-1141. Onyx Properties LLC v. Board of County Commissioners of Elbert County. 10/3/2016. D.Colo. Judge Hartz. Colorado Zoning—Procedural Due Process—Substantive Due Process—Legislative Act—Conduct Not Conscience Shocking.
The Board of County Commissioners of Elbert County (Board) enacted comprehensive zoning regulations in 1983, but by 1997 the zoning regulations and maps had been lost, so the Board a uthorized the planning director to create replacement regulations and maps based on historical information (the Wolf Documents). The Board then treated the Wolf Documents as authoritative, even though no public proceedings were conducted to approve them.
Plaintiffs are owners of property in Elbert County who wanted to subdivide their properties. The Board informed them that their properties had to be rezoned to be subdivided. After plaintiffs had incurred substantial rezoning expenses, they discovered that the Board had not formally adopted the Wolf Documents, which required the rezoning. They sued the Board, seeking injunctive relief and damages based on claims that their federal rights to substantive and procedural due process were violated. The claims were filed in different lawsuits: the Onyx litigation and the Quinn litigation. The district court in Onyx dismissed the substantive due process claim on the pleadings and granted summary judgment in the Board’s favor on the procedural due process claim. The district court...
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