*1 798 petition his grant that we request He’s America, of STATES UNITED not proceedings further and remand Plaintiff-Appellee, new evi- discover He does If
warranted. could available not that “was dence v. presented or discovered been not have ODACHYAN, Defendant- Petros the may he move hearing[s],” the former Appellant. C.F.R. 8 the case. reopen BIA to exer- may then 1003.2(c)(1). BIA 11-50253. No. deciding whether discretion cise its Appeals, of Court United States INS, F.3d v. 295 Singh reopen. not Ninth Circuit. Cir.2002). (9th present On 1037, 1039 to grant no reason however, have facts, we 7, 2014. Jan. Submitted Argued and petition. 17, 2014. April Filed DENIED. for review Petition Judge, REINHARDT, Circuit
concurring. his when
I concur because request that BIA, He did
before could that he IJ so to the
be remanded comply that would evidence
introduce his Thus, failed to exhaust he J-S-.
In re sought Had He remedies.
administrative denied, I would it been and had
a remand in- petition with present granted IJ. to the it be remanded
structions change law in the Cir.2009) light 500, (2d Holder, claim Fed.Appx. 502 353 J-S-, review our wrought by Matter Jiang’s argument that ("[T]here is no merit otherwise.”); us to conclude leads record decided after J-S- was Matter because Holder, 396 572 Wei v. remanding Shou Jin decision, by not erred BIA IJ’s Gen., (7th Cir.2009) (holding, a case where case.”); Att’y 360 Gui Chen Shan partner was China after Cir.2010) petitioner fled (3d (per cu- Fed.Appx. abortion, that "remand to have argues forced riam) Chen] ("Although [Shan pre- Jin because case be futile would consideration be remanded for case personally suffered that he issue, no evidence point sented he does resistance' the 'other population China’s a result of persecution sup- that could any in the record evidence Gen., Att'y v. U.S. Jie policies”); Sun allege control he finding, nor port such Cir.2009) (11th submitted, Fed.Appx. 979 n. facts, that could previously ("[T]here nothing in rec- curiam) (per finding.”); Peng Fei Ye support such a resis- evidence what other to indicate Holder, n. ord Fed.Appx. offered, Sun nor does could have Sun (“To argues he tance Cir.2013) extent Petitioner say.”). litigate opportunity to inadequate had *2 Background I. Brett A. (argued), E. Kenner David APC, Greenfield, Greenfield, & Kenner April December Between Defendant-Appellant. CA, Encino, Armenian other and two executed developed and Sartoris, immigrants Assistant Melanie Medicare *3 the federal CA, for to defraud Angeles, scheme Los Attorney, in- subsequently Odachyan was program. Plaintiff-Appellee. conspiracy charging counts on ten dicted fraud, care health care commit health to done, and to be fraud, causing an act plea on a Based criminal forfeiture. guilty to one Odachyan pled agreement, care health to commit conspiracy of count § 1347. of 18 in violation U.S.C. fraud and were dismissed. REINHARDT counts STEPHEN The Before: CLIFTON, Judges, Circuit R. RICHARD sentenc- agreement discussed plea The DORSEY, District A. and JENNIFER the between agreement an ing, including Judge.* the as to the defendant and government advisory the Sen- under offense level base
OPINION
parties reserved
The
tencing Guidelines.
and
argue
adjustments
for
right
to
the
CLIFTON,
Judge:
Circuit
noted
and
guidelines
the
departures under
guilty,
Odachyan pled
Petros
Defendant
to criminal
as
agreement
no
that there was
to
conspiracy
to
agreement,
plea
under a
noted that
also
history.
agreement
The
sen-
He was
care fraud.
health
commit
by
stipula-
the
not bound
the court was
months.
imprisonment
for
to
tenced
agreement.
tions
the
Armenia
immigrant
an
He is
agreement, Oda-
the
part of
As
the
argues
a
provided
right
appeal,
chyan waived
an anti-im-
sentencing evidenced
judge at
(a)
the statu-
was within
the sentence
his constitu-
violation
migrant bias
not unconstitution-
and was
tory maximum
sen-
illegal
resulting
rights,
tional
(b)
by the
imposed
al,
sentence
the
challenges
other
presents
He
tence.
also
cor-
range
the
or below
“within
court was
that the
argues
to his sentence
offense
a total
level
responding to
he assented
to which
right
appeal
catego-
applicable
the
intended
was not
plea agreement
in the
court.
by the
determined
ry,” as
he
We
arguments
presents.
the
preclude
right
appeal
the
government waived
court’s statement
that the district
hold
terms,
long as it
as
similar
the sentence
constitutional
sentencing
not evidence
does
based
range
within or above
Odachyan validly waived
and that
error
re-
Odachyan also
of 17.
level
offense
he
remaining issues
right
elements
other
tained
affirm the sentence
argue.
seeks to
We
super-
or terms
order
of the restitution
and dismiss
challenge
to the constitutional
release.
vised
the appeal.
remainder of
*
designation.
Dorsey, District
A.
Honorable Jennifer
Nevada,
sitting
Judge
District
In sentencing Odachyan,
the district Carignan,
763-64
Cir.
1979).
court received and
position
considered
pa-
Nor
argue for dis
pers from
parties,
qualification
re-
presentencing
under
455(a),
port and recommendation from
proba-
requires
a judge to recuse himself
office,
tion
and the plea agreement
“in
itself.
proceeding in which his impartiali
During
sentencing hearing,
ty might
the court
reasonably
questioned,”
be
in
made a
cluding
is the basis for
“[w]here he has a personal bias or
prejudice
current claim of
concerning party.”
constitutional
Liteky
error:
v. United
510 U.S.
114 S.Ct.
(1994).
were
at courtroom
ordinary efforts
I,
judge’s
some
War
during World
Act
nage
short-
a stern and
Germany.
in
administration —even
born
had been
the defendants
at
ordinary
efforts
judge’s
over
presided
judge
tempered
who
The district
im-
in sub-
have said
administration —remain
reported
courtroom
trial was
must have
trial: “One
mune.
prior
stance
indeed,
preju-
mind,
not to be
very judicial
(emphases
555-56, 114 S.Ct.
Id. at
the German-Americans
against
diced
original).
reeking
hearts
country. Their
persuaded
are not
We
28, 41
230.
at
S.Ct.
Id.
disloyalty.”
with
case
court in
by the district
judge
held
The Court
of favoritism
“high degree
reflected
in re-
himself
disqualified
judgment
make fair
as to
antagonism
Id.
motion.
to the defendants’
sponse
555,
1147.
Id. at
S.Ct.
impossible.”
230.
41 S.Ct.
would
of cases
most extreme
“[Ojnly in the
Berger
discussed
episode
constitu
this basis be
disqualification
Liteky v. Unit
by the Court
later cited
Co. v.
Ins.
Aetna
tionally required.”
Life
1147, 127
540, 114
S.Ct.
510 U.S.
ed
Lavoie,
S.Ct.
475 U.S.
(1994),
only other authori
L.Ed.2d
(1986)
that a
(explaining
89 L.Ed.2d
in connection
ty cited
*5
compa
insurance
with
“general frustration
af
Liteky the Court
In
argument.
constitutionally
a
not establish
nies” does
that
concluded
and
firmed conviction
a
Liteky, 510
bias);
also
see
disqualifying
a
denying
err
did not
court
J.,
(Kennedy,
558,
1147
114
at
S.Ct.
U.S.
the follow
disqualification,
motion for
(“I
that a
agree
think all would
concurring)
ing observation:
satisfy this
to
required
threshold
high
of a
[Jjudicial
the course
during
remarks
standard.”).
case.
an extreme
This is not
of,
disapproving
or
are critical
trial that
counsel,
to,
the parties,
hostile
or even
that
suggest
judge did
cases, ordinarily
support
do not
or their
heart re-
criminals at
are
immigrants
all
They
challenge.
partiality
or
a bias
conduct, as had
culpable
their
gardless of
that
opinion
they
if
reveal
may do so
in this
judge
judge
Berger.
source;
extrajudicial
from an
derives
Odachyan’s
responding
was
instance
a
they
if
reveal
they will do so
and
supple-
Odachyan’s
sentencing position.
antagonism
or
favoritism
degree of
high
highlight-
sentencing memorandum
mental
judgment
impossible.
fair
to make
as
coming
prior to
experiences
ed
(and
perhaps
the latter
example
An
family
States, including his
to the United
well)
that
the statement
as
the former
Armenia,
childhood
history and his own
by the
made
to have been
alleged
and
death,
earthquake,
his brother’s
v. United
Berger
Judge in
District
family’s emi-
led to his
shortages that
food
230, 65
S.Ct.
[41
255 U.S.
sentenc-
factors in
mitigating
as
gration,
(1921),
espio-
War I
World
a
481]
L.Ed.
many
the memo were
ing. Attached
de-
against
case
German-American
nage
describing
condi-
these
others
letters
establishing bias
... Not
fendants
tions.
however,
expressions
partiality,
dis-
context,
that
appears
In
dissatisfaction, annoyance,
impatience,
response to
inwas
court’s
trict
are within
anger,
and even
and was
Odachyan
made
arguments
men
wom-
imperfect
and
of what
bounds
court
why the district
explain
offered
confirmed as
en,
having
after
been
even
persuaded by
most,
was not
them.
At
el of
applicable
and the
criminal history
a “general
category
reflects
frustration”
determined
the [c]ourt.”
type
argument
with the
Odachyan made
None of the exceptions contemplated by
Lavoie,
sentencing.
475 U.S. at
agreement apply here. The court
821,
I am in class. constant wonder and amazement unjustly remarks demean the why it is many so desire of people come to this immigrants to life, seek a better country seeking a belittle better life and then the hardship persecution prey they government’s may this institutions as experienced in their land, their own native personal piggybanks and then suggest that “so many” direct the court to them look the terrible engaged in exploiting country’s conditions from insti- they came as rather tutions than contributing somehow an excuse or them mitigating factor. as immigrants have throughout history. The majority is correct that this statement — Arizona v. United U.S. likely in response made -, S.Ct. 183 L.Ed.2d sentencing memorandum, which highlight- (2012) (“The history of the United ed, as mitigating factors sentencing, his States is in part stories, made of the tal- Armenia, childhood in death, his brother’s ents, and lasting contributions of those earthquake, food shortages, and his who crossed oceans and deserts to come eventual immigration to the United States. here.”). The judge, as an officer not, however, context does make the court, should avoid the appearance acceptable. more On the of stereotyping, and refrain from giving contrary, the statement wholly inappro- voice at sentencing hearings his per- priate and particularly when made con- sonal feelings about members of minority nection with the sentencing aof defendant. groups, including immigrants, and their First, the statement demonstrates an connection with general crime in or with approach to sentencing adverse to in- types various of crimes in particular. struction of 18 U.S.C. 3553. That sec- Certainly a judge should not announce provides tion that a sentencing judge must those beliefs in connection with the im- make an individualized determination re- position of an above-guidelines sentence. garding the appropriate sentence for each sum, In judge’s statement, person to come before him. It is the although to the rising level of a con- judge’s duty to consider the “nature and violation, stitutional has place no at a sen- specific circumstances” offense and tencing hearing, both because it is con- the “history and characteristics” of the trary to the requirement a judge particular defendant. sentence on an individual basis and be- § 3553(a)(1); see also United cause it lends the appearance of stereo- Barker, Cir.1985) typical thinking regarding alienage or (“[T]he concept of individualized sentenc- membership in particular racial, ethnic, ing is firmly entrenched in our present or religious group. Judges forgo jurisprudence.”). The district judge’s making statements at all times but case, far from being a *8 especially when judging the of in- conduct signal of an determination, individualized dividuals the course of pro- has no purpose but to inform the defen- ceedings. dant that his sentencer considers him to be
one of those immigrants who come to this
country prey on its institutions and the judge will sentence him in that
light.