If a Sound Recording Is Copied and Nobody Hears It, Is There Copyright Infringement?

BACKGROUND

One of the exclusive rights of a sound recording copyright holder is the right to produce derivative works, or “copies that directly or indirectly recapture the actual sounds” of an original recording. 17 U.S.C. §114 (b). A copyright owner may rearrange, remix, or otherwise alter in sequence or quality “the actual sounds fixed in the sound recording” to create a derivative work. 17 U.S.C. §114 (b).  This right, however, does not prohibit “the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” 17 U.S.C. §114(b).

Sampling refers to the copying of audio from an existing sound recording, potentially changing the pitch or tempo of the original recording and incorporating the clip into a new recording. In a copyright infringement suit, the de minimis exception applies when the alleged copying is so minimal that it is not actionable copying. See Ringgold v. Black Entm’t Television Inc. (2d Cir. 1997). A copied product exceeds the de minimis threshold when the copy is substantially similar to the original. However, the Sixth and Ninth circuits have split as to whether the de minimis exception applies when copyrighted sound recordings are sampled.

THE ISSUE

Does 17 U.S.C. §114(b) expand the exclusive rights of sound recording copyright holders such that the de minimis exception does not apply?

THE SPLIT

The Sixth Circuit has held the de minimis exception inapplicable for claims alleging sound recording infringement and has adopted a bright-line rule that any sampling of a sound recording violates the exclusive rights of a copyright holder. The Ninth Circuit has held the exact opposite, applying the de minimis exception to sound recording sampling infringement actions.

In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit held that the de minimis inquiry did not apply when the defendant admitted to sampling, and therefore copying, a sound recording. The court argued that sampling violated a copyright owner’s exclusive right to create derivative works. The court concluded that a sample was a derivative work because of the statutory language in §114(b) describing derivative works as sounds from an original recording that “are rearranged, remixed, or otherwise altered.” Further supporting its holding, the Sixth Circuit interpreted the inclusion of the term “entirely” in §114(b) as signifying that a sound recording owner has the exclusive right to sample his own recording no matter the amount sampled. The court justified its elimination of the de minimisexception and adoption of this bright-line rule for three reasons. First, the court highlighted the “ease of enforcement” in requiring artists either “[g]et a license or do not sample.” The court did not view this bright-line rule as stifling creativity because an artist can imitate or duplicate a sound without sampling and infringing on the original. Second, the court maintained that the “market will control the license price” such that it will not become unreasonable. Third, the court argued that “sampling is never accidental.” The Sixth Circuit reasoned that because sampling “is a physical taking rather than an intellectual one,” the de minimis exception does not apply. 

In VMG Salsoul, LLC v. Ciccone, the Ninth Circuit expressly disagreed with its sister circuit’s decision, holding that sampling 0.23 seconds of audio did not exceed the de minimis threshold and therefore did not infringe on the original copyrighted sound recording. The court evaluated whether “an average audience would recognize the appropriation” to determine if the sampled audio exceeded the de minimis standard. Emphasizing that the plaintiff’s own expert witness could not discern which notes of the original sound recording were sampled, the court concluded that an “average audience would not do a better job,” and therefore, there was no infringement.

The plaintiff in VMG Salsoul urged the court to apply Bridgeport’s bright-line rule that for “copyrighted sound recordings, any unauthorized copying—no matter how trivial—constitutes infringement,” but the Ninth Circuit refused to do so. The court cited legal precedent showing that the “rule that infringement occurs only when a substantial portion is copied is firmly established in the law.” Then, the court turned to the statutory text. The court noted that 17 U.S.C. §102, which lists copyrightable works of authorship, “treats sound recordings identically to all other types of protected works” and nothing in the text indicates that sound recording should be treated differently than any other work. The court found nothing in the statutory text to suggest that “Congress intended to eliminate the de minimis exception” for sound recordings. The court then addressed 17 U.S.C. §114(b), which was central to the Sixth Circuit’s holding. Focusing on the sentence containing “entirely” just as the Sixth Circuit had, the court described the sentence as “imposing an express limitation on the rights of a copyright holder” and hesitated to “read an implicit expansion of rights into Congress’s statement of an express limitation on rights.” The court interpreted this provision as only dictating that a “new recording that mimics the copyrighted recording is not an infringement . . . so long as there was no actual copying” without eliminating the longstanding de minimis exception for sound recordings.

The court went so far as to call the Sixth Circuit’s decision illogical and emphasized that a “statement that rights do not extend to a particular circumstance does not automatically mean that rights extend in all other circumstances.” Further, the court explicitly rejected Bridgeport for three reasons. First, the court did not find the “physical taking” component of sampling as suitable justification for eliminating the de minimis exception. The court reasoned that physical taking “exists with respect to other kinds of artistic works as well, such as photographs,” and the de minimis rule still applies to those works. Second, the court acknowledged that even if sound recordings could be treated differently than other works according to the statute, “that theoretical difference does not mean that Congress actuallyadopted a different rule.” The court hesitated to eliminate the de minimis exception without Congress’s explicit intention to do so. Lastly, the court highlighted the contradiction between the Sixth Circuit’s argument that its decision would be beneficial for musicians by saving costs and the Supreme Court’s express assertion in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. that the Copyright Act does not protect the “sweat of the brow” or the fruit of an author’s labor.

LOOKING FORWARD

In the digital age, this issue cannot be left unresolved. Artists will continue to sample sound recordings as sampling is popular within the music industry, but this ambiguity makes it difficult to anticipate whether sampling invariably requires a license or whether a license requirement can be determined on a case-by-case basis. Because the deadline to submit a petition for certiorari to the Supreme Court has passed for both cases, this circuit split will remain unresolved for the foreseeable future.

Losing Your Second for a Lifetime: Does Prior Involuntary Institutionalization Trigger a Lifelong Ban on Firearm Possession?

BACKGROUND

Federal law prohibits the possession of firearms by persons who have been involuntarily committed to a mental health institution by a state court. This ban, part of the “Gun Control Act” and codified at 18 U.S.C. § 922(g), also applies to people who have been convicted of a felony, convicted of a domestic violence misdemeanor, or have been dishonorably discharged from the United States Armed Forces, among others. However, federal law does not dictate for how long one may be banned from possessing a firearm—is it weeks? Months? Years? Decades?

Duy Mai was seventeen years old in 1999, when he was involuntarily committed to a mental health institution by a Washington court. His commitment spanned more than nine months to account for the court’s ruling that Mai was “mentally ill and dangerous.” Since his release in 2000, Mai has earned a GED, a bachelor’s degree, and a master’s degree. He is a father and asserts that he is “socially-responsible, well-balanced, and accomplished.” And, he argues, he no longer has a mental illness. Now he wants to buy a gun. The Ninth Circuit Court of Appeals says he may not.

THE ISSUE

Does 18 U.S.C. § 922(g)(4) impose a lifetime ban on firearm possession after involuntary institutionalization?

THE SPLIT

The Ninth and Third Circuits have held that, yes, involuntary institutionalization does trigger a lifelong ban on firearm possession. The Sixth Circuit has held that it does not.

In Mai v. United States (2020), the Ninth Circuit affirmed the district court’s dismissal of Duy Mai’s claim. There, he argued that a lifelong imposition of 18 U.S.C. § 922(g)(4) violated his Second Amendment rights. Some states have been able to grant their citizens relief from this ban through inquiries allowed under 34 U.S.C. § 40915 (“Authority to Provide Relief from Certain Disabilities with Respect to Firearms”),  but Washington’s program did not meet the robust requirements to make Mai eligible for such relief. Assuming arguendo that the lifetime ban burdened Mai’s Second Amendment right to bear arms, the Ninth Circuit applied intermediate scrutiny to his claim. The judges balanced the statutory objectives and any important governmental purpose of § 922(g)(4) with the substantial limitations it places on Mai’s freedoms. Citing to prior United States Supreme Court precedent, the judges concluded that the government’s important responsibilities to prevent suicide and crime outweighed any as-applied limitation on Mai’s right to possess a firearm. After all, the Court noted, this right is not unlimited. The Ninth Circuit also cited to its own prior ruling on 18 U.S.C. § 922(g)(9) from United States v. Chovan, where the court determined that a lifetime ban on gun ownership was appropriate for someone who had been convicted of a domestic violence misdemeanor “regardless of present-day rectitude.”

The Sixth Circuit used the same general framework as the Ninth Circuit but came to a different conclusion. Like Mai, the plaintiff in Tyler v. Hillsdale County Sheriff’s Department (2016), argued that a lifetime ban on firearm ownership violated his Second Amendment right since he no longer suffered from mental illness. Tyler had been involuntarily committed more than thirty years ago following a particularly emotional divorce. Also like Mai, Tyler conceded that the ban may be appropriate where a person continues to suffer, which was not true in his case. The Court applied intermediate scrutiny for the same reasons as cited in Mai—assuming, arguendo, that the Second Amendment right is burdened, the decision to lifetime ban must be substantially related to the stated government justifications. Unlike Mai, however, the Sixth Circuit did not consider a lifetime ban fit for the justifications. The government failed to show that there was a substantial relationship between the two primary justifications (suicide prevention and crime reduction) and the ban, according to the Court. As such, the Sixth Circuit reversed and remanded for further application of as-applied intermediate scrutiny.

Like the Ninth Circuit, the Third Circuit also found that § 922(g)(4)’s lifetime ban passed muster. The plaintiff in Beers v. Attorney General of the United States (2020) was involuntarily committed to a mental health institution in Pennsylvania in 2005. He had expressed suicidal ideations to his parents and had also used a firearm to demonstrate these ideations. His mother noted that she feared his access to a firearm gave him the means to complete any plans to end his life. The state twice renewed Beers’s commitment before his final release in 2006. Not long after discharge, Beers attempted to purchase a firearm. His application was denied once a background check revealed his prior involuntary commitment.  Beers challenged this denial in the Eastern District of Pennsylvania, but that court dismissed the matter for failure to state a claim. Upon appeal, the Third Circuit affirmed the denial.

In a departure from the approaches taken by the Ninth and Sixth Circuits, the Third Circuit concluded that Beers’s Second Amendment rights were not substantially burdened, and therefore, the court did not apply intermediate scrutiny. The Third Circuit applied the framework it had established in Binderup v. Attorney General of the United States (2016), which requires a challenger to the federal firearm ban to “(1) identify the traditional justifications for excluding from Second Amendment protections the class of which he appears to be a member, and then (2) present facts about himself and his background that distinguish his circumstances from those of persons in the historically barred class.” Only if a litigant can demonstrate both elements will their rights be considered burdened, triggering intermediate scrutiny. In addition to outlining historical notions of mental illness in society, the Third Circuit also looked to pre-Second Amendment literature cited in Binderup. There, the court referenced The Address and Reasons of Dissent of the Minority of the Convention, of the State of Pennsylvania, to Their Constituents (1787). The Address notes that a citizen would be ineligible to bear arms if they were a “real danger of public injury.” The court interpreted this to extend to someone who creates a real danger to the self as well. In returning to Binderup’s logic, the Third Circuit concluded that Beers could not establish how he could distinguish himself from this class (mentally ill individuals). Binderuprecognized neither the passage of time nor evidence of rehabilitation as distinctions from the class of excluded individuals. With no other bases for distinction, the court concluded Beers’s right was not burdened. Beers filed a petition for certiorari to the U.S. Supreme Court, who granted certiorari, but remanded the case with instructions to dismiss as moot.

LOOKING FORWARD

            In 2019, nearly forty-thousand people were killed and thirty-thousand were injured by incidents involving a firearm. With the United States grappling with its relationship with guns and the Second Amendment, understanding the limits (or lack thereof) of Second Amendment rights is critical. This extends beyond the conversation here—who can have guns, when they may use them, and where they may be stored or taken is inherently a part of the national conversation on violence in this country. The issue, and many others, needs to be addressed at the highest level. Whether involuntary commitment to a mental health institution triggers a lifelong ban on firearm ownership is ripe for Supreme Court review—does such a record make you lose your Second [Amendment] for a lifetime?

Accuracy v. Finality: The Implications of Habeas Rights Based on AEDPA Interpretations

BACKGROUND

With the release of the film Just Mercy, the debate over balancing the prevention of wrongful convictions against the assurance of finality in serious criminal matters has once again come into the spotlight. This dispute is not only receiving national attention in pop culture, but is also making headlines in the judicial field with the emergence of a new circuit split.

A habeas petition is a method invoked by prisoners seeking an early release by challenging the legitimacy of their detention. In 1996, the ability to file habeas petitions was limited with the passage of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Under AEDPA, a prisoner has just one opportunity to file a motion to vacate the earlier sentence. A second opportunity is permitted only when the Supreme Court adopts a new and favorable rule of constitutional law. Prisoners are also restricted to just one habeas petition, unless they can demonstrate that AEDPA’s remedy is “inadequate or ineffective.”

THE ISSUE

Can the AEDPA remedy be considered inadequate or ineffective, thereby circumventing the single habeas restriction, when a new rule of statutory construction is adopted by a circuit court?

THE SPLIT

In Hueso v. Barnhart (2020), the Sixth Circuit split from the Fourth Circuit, interpreting AEDPA to increase restrictions on habeas rights. Hueso was convicted of drug trafficking in Alaska. He was initially sentenced to 10 years in prison; however, the term was doubled under a federal sentencing law. The year after his conviction, the Supreme Court rejected the interpretation permitting doubling. At the time, Hueso’s counsel had already filed a Motion to Vacate challenging evidence, which was rejected. Counsel then filed a habeas petition based on the Supreme Court ruling. The court denied the petition based on Sixth Circuit precedent that barred habeas cases from entertaining challenges based on sentencing. However, in 2016, the Sixth Circuit overturned its previous holding, thereby permitting sentencing-based habeas petitions.

As a result, Hueso’s counsel filed another habeas petition, but this time it was rejected under AEDPA. Hueso appealed to the Sixth Circuit, arguing that he should be permitted to file a second habeas under AEDPA because the AEDPA remedy was inadequate and ineffective. The Sixth Circuit denied the appeal on two bases. First, the Sixth Circuit reasoned that the Supreme Court ruling rejecting double sentencing could not be introduced in a subsequent challenge as the decision was made while Hueso’s first Motion to Vacate was pending. The court reasoned that the decision was available at the time of the challenge and, therefore, the failure to mention it barred a second attempt. Second, the Sixth Circuit held that the second habeas petition was correctly denied because the basis of the petition centered on a circuit court decision to permit sentencing-based habeas petitions. The Sixth Circuit rationalized that this decision was not constitutional law, as required under AEDPA, and thus could not be a basis for seeking to file subsequent petitions.

The Sixth Circuit’s reasoning diverged from the Fourth Circuit’s prior interpretation in United States v. Wheeler (2018). Wheeler was charged with conspiracy to possess with intent to distribute cocaine and possession of a firearm. Wheeler entered into a plea deal, agreeing to an enhanced sentence with a mandatory minimum of 120 months. The next year, Wheeler’s counsel filed a Motion to Vacate, citing both inefficient counsel and the fact that the conviction did not qualify for an enhanced sentence. The Motion was denied based on Fourth Circuit precedent allowing a maximum aggravated sentence to be imposed. Wheeler’s counsel sought to appeal by filing a certificate of appealability. While the appeal was pending, the previous precedent relied upon was overturned by the Fourth Circuit with a finding that a district court could only consider the maximum sentence that the particular defendant could receive in enhanced sentence matters. However, Wheeler’s appeal was still denied based on the reasoning that the new decision could not be applied retroactively.

Wheeler’s counsel subsequently filed a habeas petition, arguing that the AEDPA remedy was inadequate and ineffective. In this case, the Fourth Circuit upheld the inadequacy on appeal. The court reasoned:

“[W]e conclude that [AEDPA] is inadequate and ineffective to test the legality of a sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; subsequent to the prisoner’s direct appeal and first … motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping requirements … for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

LOOKING FORWARD

Following the Wheeler decision, the Solicitor General, on behalf of the United States, filed a writ of certiorari with the United States Supreme Court. The petition was denied in March 2019, before the split emerged. The developing split has the potential for unfortunate consequences for prisoners based solely on the region they are imprisoned in. The split will inevitably result in disparate results concerning a prisoner’s rights to seek relief and retrial in the case of wrongful convictions. In the Sixth Circuit, Judge Karen Nelson Moore acknowledged the disparity in her dissent, pointing out that Hueso would “almost certainly prevail” had he attacked his sentence the first time, and noting that, as a result of the majority interpretation, Hueso would be spending another decade incarcerated.

To Be Eligible or Ineligible: The Implications of Service Animals When Donating Plasma

Background

The Americans with Disabilities Act (“ADA”) prohibits discrimination based on disability. All places of public accommodations are subject to the ADA, and 42 U.S.C. § 12181(7)(F) lists the service-based entities that are considered public accommodations for purposes of the Act, including a catch-all of “other service establishments.” The list includes: “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment.”

Plasma centers collect donated plasma from humans to be used in medical therapy and research. People who give plasma are paid in return for their donation. Many plasma centers have policies barring ineligible donors, basing eligibility on things like medical history, prescribed medication, and the recency of a new tattoo or piercing, or other “risky” activities. In recent years, one specific plasma center – CSL Plasma, Inc. – has become subject to controversy for its safety policy, which bars all who use service animals for anxiety from eligibility.

The Issue

Are plasma centers considered “service establishments” and therefore subject to the ADA’s prohibition on discrimination for public accommodations?

The Split

The Fifth Circuit has split from the Third and Tenth Circuits on the issue of whether plasma centers are considered service establishments. All three circuits considered the dictionary definitions of the words “service” and “establishment,” referencing Webster’s Third International Dictionary. According to the dictionary, “service” means “conduct or performance that assists or benefits someone or something” and “establishment” means a “place of business.” The issue of whether a plasma center is a place of business is not contested.

 In Silguero v. CSL Plasma, Inc (2018), the Fifth Circuit held that plasma centers are not service establishments, and therefore not subject to the ADA’s prohibition on discrimination. The court first looked at the dictionary definition and reasoned that donors receive no detectable benefit from the act of donation. As Webster’s definition considers a service to be a benefit received, the Fifth Circuit held that the plasma collection cannot be considered a “service.”

In addition, the Fifth Circuit implemented ejusdem generis, a canon of statutory interpretation that interprets a general term in a statute by looking to the preceding examples. The court found that the examples prior to “service establishment,” which included hospitals, barbershops, lawyers, and gas stations among the many, all offered a public a service in exchange for monetary compensation, whereas plasma centers pay the public for donations. As plasma centers do not receive money from the public, and instead give money to the public, the Fifth Circuit further confirmed its holding that plasma centers are not service establishments that must follow the ADA.

The Tenth Circuit disagreed with this interpretation in Levorsen v. Octapharma Plasma, Inc. (2016) and found plasma centers to be service establishments. Instead, the Tenth Circuit reasoned that the “service” requirement was fulfilled as the donors who provided plasma for medical use were indeed “benefited” by the monetary compensation they received in exchange, whether the benefit was altruistic or pecuniary gain.

The Third Circuit agreed with the Tenth and expanded its reasoning in Matheis v. CSL Plasma, Inc (2019). The Third Circuit focused its analysis on the benefit aspect, affirming that the receipt of money is a clear benefit to the donor. Moreover, the Third Circuit diverged even further from the Fifth Circuit, countering the assertion that a public service must involve the receipt of compensation from customers, stating that this emphasis on the direction of compensation is “unhelpful.”

To support this argument, the Third Circuit referenced the fact that § 12181(7)(F) includes “bank” as a service entity. The Third Circuit argued this inclusion made it clear that the Fifth Circuit’s narrow reading was flawed, as customers of banks receive compensation for using the bank’s services. In regard to plasma centers, the Third Circuit held that these facilities “[offer] a service to the public, the extracting of plasma for money, with the plasma then used by the center in its business of supplying a vital product to healthcare providers. That both the center and members of the public derive economic value from the center’s provision and public’s use of a commercial service does not divorce the center from the other listed examples in § 12181(7)(F).”

Accordingly, the Third Circuit ruled that plasma centers were subject to the ADA. The Third Circuit went on to hold that CSL’s service animal policy was not a valid safety rule as its reasoning was speculative and generalized “widely about individuals who use service animals, all of whom CSL apparently views as people with ‘severe anxiety,’” rather than based on medical or scientific evidence.

Looking Forward

The circuit split on the matter of “service establishments” is troubling. Until this split is reconciled, it is possible that other establishments could argue exemption from discrimination on the basis of disability due to the narrow reading of “service” in the Fifth Circuit’s reasoning. It is important to ensure that establishments are not making safety assessments based on generalizations or stereotypes surrounding disability, and that service is not denied to owners of canine caregivers or other service animals.

Pollution’s Travel Plans: The Clean Water Act and Pollution’s Indirect Journey to Navigable Waters

Background

The objective of the Clean Water Act (“CWA”) is to “restore and maintain” the waters of the United States by regulating the pollution of navigable waters. 33 U.S.C. § 1251(a). While the CWA emphasizes maintaining the integrity of the waters as a national goal, it also tasks the States with the primary responsibility of regulating pollution and water resources. 33 U.S.C. § 1251(b).

The CWA bars “the discharge of any pollutant by any person” who does not have an appropriate permit. 33 U.S.C. § 1311(a). The “discharge of a pollutant” is the “addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The CWA defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any… well… from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Therefore, when a party without a permit discharges a pollutant from a point source to navigable waters, the party violates the CWA. Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir. 2001). Although the plain language of the CWA may appear straightforward, the law has left much open to judicial interpretation.

The Issue

Is the discharge of pollutants without a permit from a point source into groundwater, which then leads to the discharge of these pollutants into navigable waters, prohibited under the CWA? Or does the CWA ban only the discharge of pollutants from point sources directly into navigable waters?

The Split

The Fourth and Ninth Circuits have interpreted the CWA to ban the indirect discharge of pollutants from point sources via groundwater into navigable waters. Hawai’i Wildlife Fund v. Cty. Of Maui (9th Cir. 2018); Upstate Forever v. Kinder Morgan Energy Partners (4th Cir. 2018). However, the Sixth Circuit has interpreted the CWA as prohibiting only the direct discharge of pollutants into navigable waters and has disallowed pollutants that pass through groundwater from being included in the CWA. Kentucky Waterways Alliance v. Kentucky Utilities Co. (6th Cir. 2018); Tennessee Clean Water Network v. TVA (6th Cir. 2018).

In Hawai’i, a tracer dye study confirmed that the County of Maui’s effluent waste collection wells discharged pollutants into groundwater, which then traveled into the Pacific Ocean. The County of Maui contended that the pollution was not discharged by the wells, but by the groundwater, a nonpoint source and that the CWA requires permits only for point sources that convey “pollutants directly into navigable water.” Holding for the plaintiff, the Court reasoned that because there was ample evidence that the pollution in the Pacific Ocean originated from the county’s wells, which qualify as point sources, it was immaterial that the pollutants travelled through groundwater before entering the Pacific Ocean. The Court stated the because the path of the pollutants from the wells to the navigable waters was “traceable,” the pollutants were discharged from the wells, not the groundwater. Further, the Court emphasized that precedent recognizing CWA liability when a “direct connection” exists between polluting point sources and polluted navigable waters does not preclude CWA liability arising from indirect discharges. The court reasoned that although the pollution passed through groundwater, the discharge was “the functional equivalent of a discharge into navigable water” directly from the wells because the pollutants were traceable back to their original point source.

Presented with the same issue, the Fourth Circuit reasoned in Upstate Forever that if the plaintiff can show “a direct hydrological connection between ground water and navigable waters,” the pollution of navigable waters via groundwater can violate the CWA. The omission of the terms “direct” or “directly” from the CWA, according to the Court, supports that “a discharge through ground water” incurs liability under the CWA when a clear connection between the originating point source and the polluted navigable waters exists. The Court upheld this interpretation of the CWA in Sierra Club, holding that the discharge of pollutants into navigable waters through groundwater without a permit violated the CWA.

However, the Sixth Circuit has interpreted the CWA to have a complete opposite meaning. In Kentucky Waterways Alliance, the court rejected the “hydrological connection theory” outright, disagreeing with the decisions of its sister circuits. The court emphasized that the term “into” in the CWA “indicates directness,” reasoning that the term “leaves no room for intermediary mediums to carry the pollutants.” The court asserted that including pollution which passes through groundwater into navigable waters within the CWA is an overextension of liability. In Tennessee Clean Water, the Sixth Circuit restated its narrow reading of the CWA, holding that “a plaintiff may never—as a matter of law—prove that a defendant has unlawfully added pollutants to navigable waterways via groundwater.” Unlike the Ninth Circuit, the Sixth Circuit concurred with the argument that pollutants passing through groundwater into navigable waters are coming “from a nonpoint source” rather the originating point source.

Looking Forward

The County of Maui and Kinder Morgan petitioners have filed for writ of certiorari for the Supreme Court to review the respective circuits’ decisions. The Supreme Court granted certiorari to County of Maui and began hearing oral arguments for the case on November 6, 2019. This issue will have widespread implications on the scope of environmental protection afforded by the CWA. For instance, dissenting in Tennessee Clean Water, Judge Clay acknowledged that, under the majority’s opinion, a polluter may escape liability under the CWA by taking advantage of the groundwater loophole by intentionally diverting pollutants into groundwater. The Supreme Court’s decision regarding the case will have powerful influence over holding polluters accountable for their waste.

For further reading, see: the EPA’s recent “Interpretative Statement” excluding the pollutants released from a point source through groundwater from coverage and liability under the CWA regardless of hydrological connection; filed brief amici curiae of Former EPA Officials and of Former EPA Administrators in favor of Hawai’i Wildlife Fund; Concerned Residents for Envi. v. Southview Farm (2nd Cir. 1994); Sierra Club v. Abston Construction Co., Inc. (5th Cir. 1980).

Road to Recovery: Recouping Profits From Trademark Infringement

BACKGROUND

Since 1947, the Lanham Act (also known as the Trademark Act of 1946) has governed trademark infringement litigation in the United States. When a defendant is found to have infringed on a plaintiff’s trademark under § 1125 of the Act, § 1117(a) allows the plaintiff to recover the defendant’s profits from the violation. It was never entirely clear whether the infringement must be willful in order for the plaintiff to recover. However, in 1999, Congress added to the confusion. That year, Congress amended § 1117 of the Act, allowing profits, damages to the plaintiff, and costs to be recovered for a violation under section 43(a) or (d), or a willful violation under section 43(c).

THE ISSUE

The statutory construction of §1117(a) appears to attach the word “willful” only to dilution-related violations under §1125(c). However, the statute requires recovery to be “subject to the principles of equity,” which suggests judicial discretion on the matter. If the courts decide that willful conduct is required for plaintiffs to recover, will that result in unjust enrichment of unwittingly infringing defendants? Or do the principles of equity point the courts away from punishing unintentional violators?

The question dividing the courts is as follows: Does §1117(a) allow a plaintiff to recover a defendant’s profits from an unintentional violation of a trademark?

THE SPLIT

There are two sides to this split: The first view generally requires the defendant’s conduct to be willful in order for a plaintiff to recover profits. This includes the First, Second, Eighth, Ninth, Tenth, and D.C. Circuits. The treatment of willfulness does have some variation within this side. For example, the First Circuit only requires evidence of willful infringement in cases where the parties were not direct competitors. In Fishman Transducers, Inc. v. Paul (2012), the First Circuit described the direct competition rule as an exception to the willfulness requirement.

The second view does not require willfulness for a plaintiff to recover. Instead, willfulness is often treated as one factor in a multi-factor test for recovery, and in other circuits, one situation in which recovery is warranted. This general side is represented by the Third, Fourth, Fifth, Sixth, Seventh, and Eleventh Circuits. The Eleventh Circuit illustrated its multiple-situations approach in Optimum Techs., Inc. v. Home Depot U.S.A., Inc. (2007). In this opinion, the court listed as potential circumstances leading to recovery: “(1) the defendant’s conduct was willful and deliberate, (2) the defendant was unjustly enriched, or (3) it is necessary to deter future conduct.” Based on the logic of the Optimum opinion, the absence of willful conduct may yield a requirement of causation between the infringement and the enrichment of the defendant through sales. There is a strong consideration of unjust enrichment in these circuits.

It should be noted that in no Circuit can a plaintiff automatically recover profits from an infringing defendant. Even when willfulness is not a requirement, recovery is still “subject to the principles of equity” through varying tests.

LOOKING FORWARD

The Supreme Court will directly address this issue in the upcoming term. On June 28, the Court granted the petition for certiorari to hear Romag Fasteners, Inc. v. Fossil, Inc. In this case, Fossil was found to have unwilfully infringed on Romag’s trademark. The Second Circuit applied its longstanding willfulness requirement and affirmed a judgment barring recovery of profits from Fossil. In its respondent brief, Fossil argued that “no meaningful conflict exists,” asserting that in the Circuits hearing the majority of trademark cases (the Second and Ninth), the willfulness requirement prevails. Fossil also claims that even in circuits treating willfulness as a factor, it is rare for a plaintiff to recover in its absence.

As the case awaits adjudication, the Intellectual Property Owners Association has filed an amicus brief in favor of the interpretation requiring willfulness for recovery. In its brief, the Association argued that prior to the addition of the word “willful” in 1999, courts largely held willfulness as a requirement based on the “principles of equity” language of the statute. The American Intellectual Property Law Association disagreed with that statement in its amicus brief, calling a willfulness requirement “antithetical to the principles of equity.” The majority of amicus briefs already filed appear to align more closely with the latter view.

If the petitioners prevail, there is no guarantee that they will recover. However, a verdict for either party would most likely change the standard for recovery in half of the circuits. The decades-long difference in approaches will hopefully be resolved and provide a more uniform law nationwide.

Joining Forces: Whether § 2 of the VRA Permits Aggregation to Create Majority-Minority Coalition Districts

BACKGROUND

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified in the VRA. In 1982, Congress amended § 2 to allow a plaintiff to establish a violation of the Section if the evidence established by a “totality of the circumstance of the local election process” that the standard, practice or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process and to elect representatives of their choice. In effect, this empowered voters to challenge district lines drawn to either dilute or pack minority voters to decrease their influence on the political process.

In its first case following the passage of the 1982 amendments, the Supreme Court explained in Thornburg v. Gingles that the “essence of the Section 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.”

The Court in Gingles held the following:

  • That the use of multimember districts generally will not impede the ability of minority voters to elect representatives unless: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority group votes sufficiently as a bloc to enable it to usually defeat the minority’s preferred candidate.
  • That a showing that a significant number of minority group members usually vote for the same candidates is one way of proving the requisite political cohesiveness.
  • A white bloc vote that normally will defeat the combined strength of minority support plus white “crossover” votes rises to the level of legally significant white bloc voting.
  • That the “clearly erroneous test” of Rule 52(a) of the Federal Rules of Civil Procedure is the appropriate standard of appellate review for a finding of vote dilution.

Despite these findings, the Court did not consider whether § 2 permits a claim brought by a minority group that is not sufficiently large and compact enough to constitute a majority in a single-member district.

In Growe v. Emison, Johnson v. DeGrandy, and LULAC v. Perry, the Supreme Court continued to sidestep the question by assuming, without deciding, that it is possible to state a § 2 claim for a racial group that makes up less than 50% of the population.

In Bartlett v. Strickland, the Court considered the “minimum-size” question under the first requirement of Gingles. It made clear that the holding only addressed the issue as it pertains to crossover districts, not coalition districts. In crossover districts, minority voters make up less than a majority of the voting population, but the minority population, at least potentially, is large enough to elect the candidate of its choice with the help of voters who are members of the majority and who cross over to support the minority’s preferred candidate. Coalition-district claims, on the other hand, involve two minority groups that form a coalition to elect the candidate of the coalition’s choice. The Court held that crossover districts are not protected under § 2.

THE ISSUE

Pursuant to § 2 of the Voting Rights Act, is the majority-minority requirement under the first Gingles precondition satisfied when minorities from more than one racial or ethnic group, joined together, constitute a majority of the citizen voting age population?

THE SPLIT

The 5th Circuit has been most explicit in permitting coalition districts. In Campos v. City of Baytown, the court held that minority voters can be aggregated so that “together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.” Still, the plaintiffs must prove the minorities actually vote together in a cohesive manner. The court determined that the standard for proving cohesion is whether the minority group together votes in a cohesive manner for the minority candidate.

Following Campos, the 2nd Circuit, 9th Circuit, and 11th Circuit have tacitly permitted coalition districts, though not as explicitly as the 5th Circuit. In both Badillo v. City of Stockton and Concerned Citizens of Hardee County v. Hardee County Board of Commissioners, the courts assumed it was acceptable to aggregate voters of different minority groups, but the plaintiffs in both cases failed to prove the requisite political cohesion necessary to satisfy the second Gingles requirement. In Bridgeport Coalition for Fair Representation v. City of Bridgeport, the 2nd Circuit assumed the coalition districts were covered under § 2 and that requisite political cohesion was proven to satisfy the elements of Gingles.

Deviating from the other circuits, the 6th Circuit refused to extend § 2 coverage to a minority group that includes more than one race or ethnicity. In Nixon v. Kent County, the court held that if Congress wanted to protect a minority group that was composed of more than one race or ethnicity, it would have used more words in the plural form in § 2, such as “protected classes” rather than “protected class.”

LOOKING FORWARD

Recently, the Supreme Court seems more willing to take on cases dealing with issues of independent redistricting commissions and partisan gerrymandering. It also has been willing to take on cases regarding § 5 of the Voting Rights Act, as well as the application of the Gingles factors in § 2 claims. While the Court has not yet signaled a willingness to take on the issue of coalition districts, the number of cases arising from the use of African-American and Hispanic voters to create the majority-minority districts will likely continue to increase as the Hispanic population continues to grow. If the Supreme Court does not take up the issue, there may be an increase in coalition districts drawn following the 2020 Census.

The Tapia Tap Dance: When Does Considering Rehabilitation in Imposing a Sentence Violate Tapia?

BACKGROUND

In 1984, Congress passed the Sentencing Reform Act, as part of the Comprehensive Crime Control Act. The Act, among other things, abolished federal parole in all but a few instances and created the United States Sentencing Commission. It also required courts to consider the factors outlined in 18 U.S.C. § 3553(a)—which include the nature of the crime, the characteristics of the defendant, the justification for the sentence, the kinds of available sentences, any relevant policies promulgated by the Sentencing Commission, the need for consistency, and the value of any potential restitution to victims.

However, §3582 of the Act went one step further. In a nod to concerns about excessive prison sentences imposed during the height of the War on Drugs, it provided that the above factors should be considered while also “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” In Tapia v. United States (2011), the Supreme Court interpreted that provision of the Act to mean that “the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation.”

THE ISSUE

What is the standard for determining when a sentencing court violates Tapia? When a court considers rehabilitation in imposing a sentence at all, does it violate Tapia? Or is Tapia only violated when a sentencing court uses rehabilitation as the determining factor?

THE SPLIT

As it turns out, every Circuit in the country—save for the D.C. Circuit—has taken a position on this issue. They’re divided into two camps.

The Seventh, Ninth, Tenth, and Eleventh Circuits apply an easy-to-satisfy standard: they hold that Tapia is violated when the sentencing judge even considers rehabilitation or bases his sentence even in part on rehabilitation. As articulated by the Tenth Circuit in United States v. Thornton (2017), for example, “A rule requiring reversal only when rehabilitation is the sole motivation would not make sense. The federal sentencing statute mandates that judges consider other factors. . . . Therefore, there will almost always be some valid reasons advanced by the district court for imposing the sentence issued.” The Eleventh Circuit in United States v. Vandergrift (2014) arrived at the same conclusion, and based its analysis on an interpretation “faithful to Tapia’s reasoning.” It noted that the Supreme Court held that sentencing courts “‘should consider the specified rationales of punishment except for rehabilitation’” when “determining whether to impose or lengthen a sentence of imprisonment.” Accordingly, any consideration of rehabilitation is improper.

The First, Second, Third, Fourth, Fifth, Sixth, and Eighth Circuits come out differently. For a sentencing court to run afoul of Tapia, they require a demonstration that rehabilitation was the determining factor in the sentencing court’s decision to impose or enhance a sentence in order to find a Tapia violation. They, too, base their rationale in the Supreme Court’s language in Tapia. For example, in United States v. Garza (2018), the Fifth Circuit noted:

in Tapia the Court made clear that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” A district court also may legitimately “urge the [Bureau of Prisons] to place an offender in a prison treatment program.” However, when the district court’s concern for rehabilitative needs goes further—when the sentencing record discloses “that the court may have calculated the length of [the defendant’s] sentence to ensure that she receive certain rehabilitative services”—§ 3582(a) has been violated.

Similarly, in United States v. Bennett (2012), the Fourth Circuit focused on looking at the specific error that the Supreme Court was attempting to remedy in Tapia. To glean the Supreme Court’s meaning, it looked at the sentencing court’s proceedings in Tapia and observed that the district court judge said that the “‘number one’ consideration ‘[was] the need to provide treatment.’” It observed that the Tapia decision was a “close question . . . whether the rehabilitation rationale drove the sentencing decision,” despite the sentencing court’s brazen discussion of rehabilitation. Accordingly, the Court couldn’t possibly mean that a district court judge’s mere discussion of rehabilitation ran afoul of Tapia.

The Third Circuit, which arrived at a conclusion on the proper interpretation of Tapia only ten days ago, articulated a related—but distinct—rationale. It noted in United States v. Schonewolf (2018) that that the first approach, taken by the Seventh, Ninth, Tenth, and Eleventh Circuits, would “risk a chilling effect on district courts ‘discussing the opportunities for rehabilitation within prison,’ a subject that ‘a court properly may address.’”

LOOKING FORWARD

Given that virtually every Circuit in the country has arrived at a conclusion on the meaning of Tapia—and that those meanings differ and are supported by different rationales—the Supreme Court has a strong incentive to take an appeal from one of these cases to resolve the split. Even more persuasively, the Sentencing Reform Act was intended to promote consistency in sentencing across the country. It’s a cruel twist of irony for the drafters of the Act that it, in turned, spurred even more inconsistency.

Do Federal Courts Have Jurisdiction over Civil Actions under the Federal Tort Claims Act by Immigrants Alleging Wrongful Removal from the United States?

The Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows those who have suffered an injury, or whose property is damaged, to file a claim with the federal government for reimbursement for that injury or damage. Under 28 U.S.C. § 2674, the federal government recognizes its liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The FTCA positions the United States—not the individual employee—as the defendant, and transfers all liability to the federal government. Therefore, the United States is liable the same way that a private party would be liable in a normal civil action.

The Issue

Two cases, each with similar factual backgrounds, help illustrate the question at hand. In both cases, the plaintiffs—Lopez Silva and Claudio Anaya Arce—were erroneously deported and subsequently sued the federal government under the FTCA. In Silva’s case, he was a Mexican citizen who resided in the United States as a lawful permanent resident since 1992. After he was convicted of two criminal offenses in Minnesota, the Department of Homeland Security commenced removal proceedings against him in 2012. Silva appealed to the Board of Immigration Appeals, which issued a stay of Silva’s removal while his appeal was pending. However, in July 2013, DHS mistakenly removed Silva to Mexico before the BIA heard his appeal. DHS subsequently returned Silva to the United States several months later. An immigration judge subsequently granted Silva’s application for cancellation of his removal—allowing him to lawfully remain in the country.

In Arce’s case, he was apprehended by Customs and Border Patrol and detained in Adelanto, California in April 2014. He expressed a fear of harm if he was removed to Mexico, but an asylum officer determined that he had not demonstrated a reasonable fear of persecution or torture. This decision was affirmed by an immigration judge on February 4, 2015, and the DHS began the process of removing him to Mexico. However, on February 6, Arce filed an emergency petition for review and a motion for a stay of removal with the Ninth Circuit. The court immediately issued a temporary stay of removal, but Arce was removed to Mexico later that day—despite the fact that Arce’s counsel put DHS on notice of the stay. Arce remained in Mexico until February 20, when he was returned to the United States.

Both Silva and Arce sued the federal government for harm arising from their unlawful removal. The District Courts of Minnesota and the Central District of California dismissed both cases on the ground that Section 242(g) of the Immigration and Nationality Act deprived them of jurisdiction. Specifically, they held Section 242(g), which applies to agency decisions or actions to “commence proceedings, adjudicate cases, or execute removal orders” divested them of subject-matter jurisdiction. Silva and Arce appealed to the Eighth and Ninth Circuits, respectively.

The Circuit Split

Both cases raise the question: do federal courts have jurisdiction over civil actions brought under the FTCA by immigrants alleging wrongful removal from the United States?

In Silva v. United States (2017), the Eighth Circuit affirmed the district court’s decision in a 2-1 ruling that it lacked jurisdiction under the FTCA. The court held that Silva’s claims were directly connected to the execution of the removal order, and that Section 242(g) applied to bar the plaintiff’s civil action.

Judge Kelly dissented, however, and argued that the United States Supreme Court rejected the assumption that Section 242(g) covered that kind of deportation claim in Reno v. American-Arab Anti-Discrimination Committee (1999). She would have held that the mandatory automatic stay in Silva’s case “suspended the source of authority for the agency to act” on the removal order and therefore “temporarily divested the order of enforceability.” Accordingly, Silva’s claims did not arise “from the government’s decision or action to execute a removal order,” because a valid removal order did not exist at the time he was removed. She noted that the Third Circuit had held in Garcia v. Attorney General (2009), that Section 242(g) doesn’t apply when the petitioner is challenging the government’s authority to commence removal proceedings, not the discretionary decision to commence proceedings.

The Ninth Circuit charted a different course than the Eighth Circuit, and instead embrace the position that Judge Kelly articulated in dissent. In Arce v. United States (2018), the court rejected the government’s argument that Arce’s claims were foreclosed by Section 242(g) because they arose from the Attorney General’s decision or action to execute the removal order. Citing Judge Kelly’s dissent in Silva, the court held that the statute does not “sweep as broadly as the government contends.” Arce, it found, was not attacking the removal itself but the authority of the Attorney General to execute the removal order in light of the stay of removal that the court had issued.

Looking Forward

Though these cases have mostly flown under the radar—especially given the recency of the Ninth Circuit’s opinion—they raise important ramifications for those who wish to bring claims under the FTCA for wrongful removal. In many ways, this split is a perfect embodiment of the reason that the Supreme Court wishes to avoid circuit splits in the first place. In some parts of the country, the federal government is financially liable for actions that it is not liable for in other parts of the country, raising the need for the Supreme Court to resolve the split.

Is the Board of Immigration Appeals Entitled to Chevron Deference When Interpreting What Constitutes Child Abuse?

BACKGROUND

Chevron U.S.A., Inc. v. Natural Resources Defense Council established a framework for determining whether the decisions of administrative bodies are entitled to judicial deference. In very simplified terms, Chevron states that, when a statute is ambiguous, the decisions of administrative agencies should be granted judicial deference unless they are arbitrary or capricious. This determination is made in two steps. First, the court must determine whether the plain language of the statute in question is ambiguous. Second, if the language is determined to be ambiguous, the court must determine whether the administrative agency’s decision was arbitrary or capricious.

The Board of Immigration Appeals (BIA) is the “highest administrative body for interpreting and applying immigration laws,” and has nationwide jurisdiction to hear appeals of decisions rendered by immigration judges. In this capacity, the BIA often finds itself interpreting the Immigration and Naturalization Act (INA) during immigration proceedings.

In the Ninth Circuit case Martinez-Cedillo v. Sessions (2018), Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code §273a(a). Mr. Martinez-Cedillo was ordered removed from the United States on the grounds that his conviction constituted “a crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). On appeal, the primary issue—and the source of the circuit split—was whether BIA’s interpretation of “child abuse, child neglect, or child abandonment,” as written in the INA, was entitled to Chevron deference.

THE NINTH CIRCUIT’S CHEVRON ANALYSIS

The Ninth Circuit held, in a 2-1 decision, that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” was entitled to Chevron deference. Writing for the majority, Judge Bybee acknowledged that, regarding Chevron Step One, “every circuit court to have considered [the definition of “a crime of child abuse, child neglect, or child abandonment] noted its ambiguity,” and proceeded to Chevron Step Two without much discussion. Under Chevron Step Two, Judge Bybee determined that the BIA’s interpretation was “reasonable and entitled to deference.”

In dissent, Judge Wardlaw characterized the BIA’s interpretation as “unreasonable,” noting that the BIA’s definition had “inexplicably changed its generic definition three times in the past two decades.” Judge Wardlaw, quoting the Supreme Court in Sessions v. Dimaya (2018), further stated that the BIA’s “generic definition of the ‘crime of child abuse’ is so imprecise, it violates ‘essential’ tenets of due process, most specifically ‘the prohibition of vagueness in criminal statutes.’”

THE CIRCUIT SPLIT

Here, the Ninth Circuit joins the Second, Third, and Eleventh Circuits in holding that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” should be granted judicial deference under Chevron. On the other hand, the Tenth Circuit held that the BIA’s interpretation should not be granted judicial deference.

In the Second Circuit case Florez v. Holder (2015), the BIA determined that Nilfor Yosel Florez’s action of driving while intoxicated with children in the back seat of his vehicle constituted “a crime of child abuse,” noting that the BIA’s interpretation of what constituted “a crime of child abuse” was “intentionally broad.” Of note in this case, Florez’s children were not harmed during the incident that led to his arrest and order of removal. The court determined that the BIA’s determination that actual injury to a child was not a required element of this definition was a reasonable one.

In the Third Circuit case Mondragon-Gonzales v. Attorney General of the United States (2018), Judge Vanaskie noted that the portion of the INA that listed general categories of crimes “was enacted…as part of an aggressive legislative movement to expand the criminal grounds of deportability … and to create a comprehensive statutory scheme to cover crimes against children in particular.” Similarly, in the Eleventh Circuit case Martinez v. United States Attorney General (2011), the court granted deference to the BIA’s determination that proof of actual harm or injury to the child by the petitioner was not required.

But the Tenth Circuit disagreed—in Ibarra v. Holder (2013), the court refused to grant deference to the BIA’s determination that a Colorado conviction for “child abuse—negligence—no injury” constituted a “crime of child abuse, child neglect, or child abandonment” under the INA. The court noted that the plain language of the statute applied only to crimes, but that not all states criminalize certain acts of child neglect, particularly in the absence of mens rea beyond criminal neglect or in the absence of proof of actual injury to the child. The court reasoned that in effect, the BIA’s interpretation of “a crime of child abuse” and its subsequent application would vary from one jurisdiction to another, depending on whether certain acts of child neglect were criminalized.

LOOKING FORWARD

With at least five circuits speaking to whether the BIA’s interpretation of “a crime of child abuse” should be granted judicial deference, the issue is ripe for review by the Supreme Court. However, these decisions point to a larger problem—the vagueness of some of the language in the INA combined with the latitude granted to the BIA, which often acts as the final voice on deportation decisions, to make broad interpretations of certain portions of the statute. It is especially important to note that these immigration decisions are not limited to undocumented immigrants—for example, Mr. Florez, the defendant in Florez, was a legal permanent resident at the time that his removal was ordered. In today’s climate, where deportation is all but actively encouraged, two additional steps besides eventual Supreme Court review would be particularly helpful: (1) clarification of the language of the statute by Congress, and (2) closer scrutiny by courts as to whether the BIA’s interpretations—not just limited to the BIA’s interpretation of child abuse—have become overly broad, especially in light of the administration’s anti-immigrant stance.