Martinez sought withholding of removal based on his status as a former member of the MS-13 gang in El Salvador. A single commissioner ruled that former membership is not immutable and denied withholding. He also denied relief under the Convention Against Torture. The panel affirmed in part, reversed in part and remanded. It reveres the withholding decision because former member in a gang is “immutable” for purposes of determining if an applicant is part of particular social group as it would be unconscionable to require the former member to rejoin the gang in order to escape persecution. The panel distinguished the cases relied upon by the government noting each of them involved a current gang member not someone who was persecuted for abandoning a gang. The panel affirmed as to the torture ruling holding the evidence supported the decision as Martinez did nto report the violent attacks to the authorities and there some evidence that El Salvador is attempting to crack down on gangs. The case was remanded for further analysis of the social group issue.
Williams sought to suppress the gun seized during a traffic stop and to introduce evidence of prior misconduct by the arresting officers. The district court denied both motions and Williams was ultimately convicted of being a felon I possession of a firearm. The panel affirmed. It held that the arresting officers had probable cause that Williams was violating the traffic code by stopping in the middle of a residential road even though the citation mentioned a traffic code section that did not apply because another section did apply and that is sufficient. The panel also affirmed on the past conduct ruling as the evidence was dated and of marginal probative value and the district court could reasonably conclude its introduction would be confusing and time consuming.
Dehlinger sought habeas relief arguing his trial counsel had an actual conflict of interest based on his prior representation of a potential witness in Dehlinger’s case. The district court denied relief and the panel, with one judge concurring in judgment, affirmed. It held that the district court permissibly found that the trail attorney chose to not call the witness based on sound analysis that the witness would be problematic and add nothing to the proposed defense. Thus, even if there was a conflict of interest, it did not cause any cognizable harm and denial of relief was appropriate. One judge concurred in judgment arguing Dehinger failed to meet his burden of proof.
Summers sued for wrongful discharge under the Americans with Disabilities Act as amended alleging he was discharged because of his broken leg which made it impossible for him to walk and thus work at the company headquarters for several months. The district court granted a motion to dismiss on the grounds that temporary disabilities are not covered by the Act. The panel reversed. Answering a question of first impression at the federal appellate level, the panel noted that Congress amended the Act to require a liberal construction and that the implementing regulations extends coverage to temporary lifting restrictions and held that Summers’ injuries were sufficiently severe to qualify as a disability under the amended act. The panel rejected Altarum’s counterarguments holding the Act is ambiguous as to temporary injuries and there is no basis in the regulations to treat temporary disabilities form temporary conditions differently form temporary disability form permanent conditions.