AMERICAN HOTEL INTERNATIONAL GROUP, INC., Aramarine Brokerage, Inc., Ara Purchasing Group, Inc., Asta PG, Inc., Livery PG, Inc., Naa Purchasing Group, Inc., Restaurant Group, doing business as Restaurant Group Delaware, Inc., and Silver Car Purchasing Group, Inc., Plaintiff-Counter-Defendants, Aramarine, Brokerage, Inc., Plaintiff-Counter-Defendant-Appellant, v. ONEBEACON INSURANCE COMPANY, Defendant-Movant-Counter-Claimant-Appellee, CGU Corporation, Defendant, Potomac Insurance Company of Illinois, Defendant-Counter-Claimant.
No. 09-2627-cv.
United States Court of Appeals, Second Circuit.
March 12, 2010.
Our prior precedent does not support the agency‘s conclusions. Both this Court and the BIA have recognized that, because “prosecution for an offense may be a pretext for punishing an individual for his political opinion,” ” ‘a combination of motives’ [can] suffice” to establish persecution due to a protected ground. Vumi v. Gonzales, 502 F.3d 150, 157 (2d. Cir. 2007) (quoting Matter of S-P-, 21 I. & N. Dec. 486, 494 (BIA 1996)). Here, Sy‘s testimony strongly indicates that her persecutors were motivated, at least in part, by racial animus. See Matter of J-B-N & S-M-, 24 I. & N. Dec. 208, 211 (BIA 2007) (recognizing that, because “persecutors may have differing motives for engaging in acts of persecution,” an applicant need only produce evidence “from which it is reasonable to believe that the harm was . . . motivated in part by an actual or imputed protected ground.“) (alteration and internal quotation marks omitted).
More significantly, the agency‘s finding that Sy‘s mistreatment was solely the consequence of a criminal investigation failed to properly take account of the record evidence indicating that racial tension is prevalent in Mauritanian society and that the government has largely failed to eradicate racially-based persecution. See Vumi, 502 F.3d at 156-59 (rejecting the agency‘s finding that petitioner‘s persecution bore no nexus to a protected ground when the agency‘s analysis failed to take into account the overall political context in which the persecution took place); Osorio v. I.N.S., 18 F.3d 1017, 1029 (2d Cir. 1994) (“[B]y drawing the conclusion that the dispute between Osorio and Guatemala was economic and not political, the BIA ignored the political context of the dispute.“). Therefore, we conclude that remand is necessary for the agency to do so in the first instance. See Vumi, 502 F.3d at 159; see also Gonzales v. Thomas, 547 U.S. 183, 186-87, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006).
Finally, Sy does not meaningfully challenge the agency‘s denial of her CAT claim before this Court, waiving that argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005).
For the foregoing reasons, the petition for review is GRANTED and the case REMANDED for further proceedings consistent with this order.
Richard I. Ifft (Benjamin Joseph Theisman, on the brief), Wiley Rein LLP, Washington, DC; Gregory J. Castano, Castano Quigley, L.L.C., West Caldwell, NJ, for Defendant-Movant-Counter-Claimant-Appellee.
PRESENT: JOHN M. WALKER, JR., DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Plaintiff-Counter-Defendant-Appellant Aramarine Brokerage, Inc. (“Aramarine“), an insurance agent and broker, appeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.) granting Defendant-Movant-Counter-Claimant-Appellee OneBeacon Insurance Company (“OneBeacon“) summary judgment on its counterclaim. We assume the parties’ familiarity with the underlying facts and procedural history of the case, which we reference only as necessary to explain our decision.
On remand, the district court determined that our conclusion regarding the correct choice of law for the first alleged oral agreement necessarily governed choice of law for the Elmasri-Freyberger Agreement, and accordingly concluded that the statute of frauds was no bar to the validity of the latter as a defense to OneBeacon‘s counterclaim. The court also concluded, however, that our order did not address its previous, alternative holding that the Elmasri-Freyberger Agreement failed for want of consideration. After reviewing the requirements of the law of the case doctrine, the court elected to adhere to its “no consideration” holding, and again entered summary judgment in favor of OneBeacon on its counterclaim before proceeding to trial on Aramarine‘s claims.
Aramarine now argues that the district court failed to comply with our previous mandate, contending that our order, by vacating the district court‘s judgment in its entirety, impliedly rejected the district court‘s alternative holding. It further asserts that the district court erred by even considering the lack of consideration argument, because it was originally presented to Judge Casey by way of OneBeacon‘s reply brief in support of summary judgment. Finally, Aramarine argues that even if our summary order left the alternative holding undisturbed and the argument supporting that holding was properly considered by the district court in the first instance, the court abused its discretion in adhering to that holding. For the following reasons, we disagree.
“Under the doctrine of law of the case, a district court generally may not deviate from a mandate issued by an appellate court, and the appellate court retains the right to control the actions of the district court where the mandate has been misconstrued or has not been given full effect.” In re Ivan F. Boesky Sec. Litig., 957 F.2d 65, 69 (2d Cir. 1992) (internal citations omitted). Accordingly, this Court “retains the authority to determine whether the terms of the mandate have been ‘scrupulously and fully carried out,” id. (quoting United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 325, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961)), and reviews the judgment of the district court de novo for
Aramarine is correct that a finding that has been vacated ceases to be the law of the case, and that this includes a finding not expressly addressed but necessarily rejected by an appellate court‘s reasoning. See United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993). Yet it is equally true that the findings of a district court not expressly or implicitly addressed on appeal remain the law of the case. See In re PCH Assocs., 949 F.2d 585, 593 (2d Cir. 1991). Our previous summary order referenced OneBeacon‘s counterclaim only in describing the extent of the district court‘s order, and expressly addressed only the oral agreement related to Aramarine‘s primary claims. Moreover, we carefully qualified the scope of our order, stating:
We express no views on whether Aramarine obtained an oral agreement, and if so, what were its terms. Nor do we express a view on whether any oral agreement made was a modification of the Broker‘s Agreement. We simply note that because the district court assumed the alleged oral agreement to be a modification of the Broker‘s Agreement, which specified a choice of Pennsylvania law, in the absence of reasons for rejecting the choice of law made by the parties, the district court should enforce such a contractual choice of law. Aramarine Brokerage, 307 Fed.Appx. at 565.
While, on remand, this analysis necessarily dictated choice of law with respect to the Elmasri-Freyberger Agreement as well, see
We turn next to Aramarine‘s contention that the district court erred by considering the “no consideration” argument in the first instance, because the argument was first raised in a reply brief. This assignment of error is untimely. “Under [the law of the case] doctrine, a decision made at a previous stage of litigation, which could have been challenged in the ensuing appeal but was not, becomes the law of the case; the parties are deemed to have waived the right to challenge that decision, for ‘[i]t would be absurd that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.’ ” County of Suffolk v. Stone & Webster Eng‘g Corp., 106 F.3d 1112, 1117 (2d Cir. 1997) (quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981)). As Aramarine admits, the opening brief of its first appeal “treated the ‘alternative’ basis [for the district court‘s decision] as a nullity.” Appellant‘s Br. at 14. Accordingly, Aramarine is no longer in a position to challenge the district court‘s decision to consider the “no consideration” argument that informed its holding. For the same reasons, Aramarine‘s argument that Judge McMahon should not have treated Judge Casey‘s ruling on consideration as the law of the case is incorrect.
We have considered all of Aramarine‘s other arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.