Fourteenth Amendment deliberate indifference claim under 42 USC § 1983; Qualified immunity; Whether plaintiff established that “defendants violated clearly established law at the time of the incident”; Farmer v Brennan; Whether the pretrial detainee’s condition was so obvious that even a lay person would easily recognize the need for medical attention by visual inspection; Lumbard v Lillywhite (Unpub 6th Cir); Blackmore v. Kalamazoo Cnty

[This appeal was from the ED-MI.] The court reversed the denial of qualified immunity for individual Livingston County defendants in this § 1983 deliberate indifference case, holding that plaintiff did not establish that the decedent (Griswold) had manifested sufficient signs that would have made his need for medical attention obvious to a lay person. Law enforcement took Griswold into custody after a domestic disturbance. They transported him to the hospital because he admitted to taking several pills. After he was medically cleared by doctors, he was then taken to a jail cell. He died several hours later from toxic levels of Trazodone, an antidepressant. His estate sued the County defendants for deliberate indifference to a serious medical need. The district court granted some of them summary judgment but denied it to others, ruling they were not entitled qualified immunity. On appeal, the court first explained the development of the standards in deliberate indifference cases involving pretrial detainees as opposed to convicted prisoners. It found that this particular case was unaffected because it could be resolved at the second step of the qualified immunity test, which required plaintiff to show that “defendants violated clearly established law at the time of the incident.” The court focused on the “seriousness” of Griswold’s medical needs, and the fact that he had been cleared for incarceration by examining doctors. Given this, to satisfy the objective prong, plaintiff had to “show that it was clearly established at the time of the incident that the seriousness of [Griswold’s] condition was ‘so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” The court noted the inconsistencies in case law as to what is considered “obvious,” but it applied the approach used by the parties and the district court, “‘requir[ing] that the medical need be easily detectable by a layman from visual inspection.’” Griswold vomited, exhibited lethargy, and needed “slight assistance” while walking but he “did not manifest other indicia that would have alerted jail officials that he had a serious need for medical attention.”

Fourteenth Amendment deliberate indifference claim under 42 USC § 1983; Qualified immunity; Whether plaintiff established that “defendants violated clearly established law at the time of the incident”; Farmer v Brennan; Whether the pretrial detainee’s condition was so obvious that even a lay person would easily recognize the need for medical attention by visual inspection; Lumbard v Lillywhite (Unpub 6th Cir); Blackmore v. Kalamazoo Cnty

[This appeal was from the ED-MI.] The court reversed the denial of qualified immunity for individual Livingston County defendants in this § 1983 deliberate indifference case, holding that plaintiff did not establish that the decedent (Griswold) had manifested sufficient signs that would have made his need for medical attention obvious to a lay person. Law enforcement took Griswold into custody after a domestic disturbance. They transported him to the hospital because he admitted to taking several pills. After he was medically cleared by doctors, he was then taken to a jail cell. He died several hours later from toxic levels of Trazodone, an antidepressant. His estate sued the County defendants for deliberate indifference to a serious medical need. The district court granted some of them summary judgment but denied it to others, ruling they were not entitled qualified immunity. On appeal, the court first explained the development of the standards in deliberate indifference cases involving pretrial detainees as opposed to convicted prisoners. It found that this particular case was unaffected because it could be resolved at the second step of the qualified immunity test, which required plaintiff to show that “defendants violated clearly established law at the time of the incident.” The court focused on the “seriousness” of Griswold’s medical needs, and the fact that he had been cleared for incarceration by examining doctors. Given this, to satisfy the objective prong, plaintiff had to “show that it was clearly established at the time of the incident that the seriousness of [Griswold’s] condition was ‘so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” The court noted the inconsistencies in case law as to what is considered “obvious,” but it applied the approach used by the parties and the district court, “‘requir[ing] that the medical need be easily detectable by a layman from visual inspection.’” Griswold vomited, exhibited lethargy, and needed “slight assistance” while walking but he “did not manifest other indicia that would have alerted jail officials that he had a serious need for medical attention.”

Sufficiency of the evidence; Fourth-degree fleeing & eluding; MCL 257.602a(2); People v Grayer; Right to counsel; Substitution of counsel; People v McFall; Ineffective assistance of counsel; Preparation for trial; Strickland v Washington; Due process; Sentencing & plea decisions; People v Pennington

The court held that sufficient evidence supported defendant’s fourth-degree fleeing-and-eluding conviction and that defendant was not denied his right to counsel or due process. Defendant drove approximately three-quarters of a city block after police activated lights and sirens, then exited his vehicle and ran toward his home while ignoring commands to stop. On appeal, the court held that the evidence was sufficient because the statute does not require speeding or extinguishing lights, and defendant’s conduct, including his actions after exiting the vehicle, supported an inference that he intended to flee and elude police. The court next held that the trial court did not abuse its discretion by denying substitution of counsel where defendant’s generalized claim that “trust has broke down” was insufficient and the record showed counsel was attentive and willing to proceed. It further held that defendant was not denied effective assistance when new counsel was appointed shortly before trial because counsel actively challenged the prosecution’s case and secured acquittals on two charges. The court also held that defendant’s sentence was not improperly influenced by his decision to proceed to trial, noting that the trial court did not threaten a harsher sentence and ultimately imposed a sentence at the low end of the guidelines range. Affirmed.

Sentencing; Scoring of OVs 3, 4, & 7; MCL 777.33(1)(d); People v Chaney; MCL 777.34(1)(a); People v Armstrong; MCL 777.37(1)(a); People v Walker

Holding that the trial court did not err in scoring 25 points for OV 3, 10 points for OV 4, and 50 points for OV 7, the court affirmed defendant’s sentence. He was convicted of AWIM, assault with intent to maim, mayhem, and tampering with evidence. He was sentenced as a second-offense habitual offender to 20 to 30 years for the AWIM conviction and concurrent 5 to 15-year terms for each of the others. On appeal, the court rejected his claim that he was entitled to resentencing. It first concluded the trial court’s 25-point score for OV 3 was supported by a preponderance of the evidence. The record showed “the victim suffered a traumatic subdural hemorrhage. [He] was rendered unconscious and was in a coma for a significant period of time. [He] suffered changes to several cognitive functions, including his memory and his ability to communicate.” While he “had made some improvement since the incident, it was possible that he would never fully recover.” The court also noted that defendant “took several videos of himself violently beating the unconscious and defenseless victim.” The evidence showed “beyond question that the victim suffered life-threatening and permanently disabling injuries.” The court further found that a preponderance of the evidence supported the 10-point score for OV 4. The victim’s trial testimony clearly indicated that he “suffered a serious psychological injury beyond the trauma expected of defendant’s assault and that he sought and obtained professional treatment for” it. Finally, as to OV 7, the record supported “the trial court’s determination that defendant engaged in excessive brutality.” The videos he took showed “him violently punching, kicking, and stomping on the unconscious and helpless victim’s blood-covered head while shouting at the victim.” The court noted that the “victim sustained significant trauma to his head resulting in a traumatic brain injury and bleeding in his brain, as well as fractures of his cheekbones and the amputation of his ear.” Further, evidence showed defendant left him “lying in a bathtub, half naked and bleeding, for over 36 hours.”

Custody; Best-interest factors; MCL 722.23; Sabatine v Sabatine; Legal custody; Joint custody; Kuebler v Kuebler; Parenting time; Established custodial environment (ECE); MCL 722.27(1)(c); Domestic violence; Factor (j) (MCL 722.23(j))

The court held that the trial court did not abuse its discretion by granting defendant-father sole legal custody and continuing equal parenting time, despite one harmless error in weighing the best-interest factors. After remand, the trial court held a two-day trial at which both parties presented witnesses and exhibits concerning the child’s medical care, school services, autism-related needs, allegations of domestic violence, and the parties’ ability to coparent. On appeal, the court held that the trial court’s best-interest findings were not against the great weight of the evidence as to all but one of the disputed factors. The court found that factor (j) was “the most concerning factor” because plaintiff-mother did not support coparenting, wanted defendant to have the least possible time, and had a history of failing to share information, while defendant was more likely to keep plaintiff informed. The court also held that the record supported findings favoring defendant as to guidance, medical care, and the child’s home, school, and community record because the child showed stronger progress in defendant’s care and defendant became more engaged with services after explanations from providers. Although the trial court should have weighed factor (e) neutrally because it concerns family permanence rather than hostility between households, the error was harmless because four other factors favored defendant and none favored plaintiff. Affirmed.

Cancellation of removal under § 240A(b)(1) of the Immigration & Nationality Act (INA); Whether petitioner’s deportation would cause his U.S.-citizen children “exceptional and extremely unusual hardship”; 8 USC § 1229b(b)(1)(D); Standard of review; Urias-Orellana v Bondi; Substantial-evidence review under the Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA); § 1252(b)(4)(B); Immigration judge (IJ); Board of Immigration Appeals (BIA)

The court denied petitioner-Baltazar Us’s petition for review of the denial of his application for cancellation of removal based on “exceptional and extremely unusual hardship” for his U.S.-citizen children, holding for the first time in this circuit that the IIRIRA’s substantial-evidence review applies to cancellation-of-removal hardship determinations. Baltazar Us, a native and citizen of Guatemala, entered the U.S. “unlawfully in 2000 and has been living here since. [He] is the sole provider for his family[.]” An IJ denied his application for cancellation of removal, rejecting his argument that removing him from the country would “cause his U.S.-citizen children to suffer an ‘exceptional and extremely unusual hardship.’” The BIA affirmed. On petition for review, the court concluded that the Supreme Court’s reasoning in Urias-Orellana “was not limited to the asylum context” – rather, it contemplated “the same standard of review for any kind of mixed determination involving the application of the INA to a given set of established facts reviewed under § 242 of that statute.” And the court reviews “mixed determinations involving the application of § 240A(b)(1)’s hardship standard to the IJ’s factual findings under § 242.” Thus, the BIA’s “determination that a given set of undisputed facts does not rise to the level of exceptional and extremely unusual hardship is ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” The court held that in this case, “no reasonable adjudicator would be compelled to conclude that Baltazar Us’s ‘removal would result in exceptional and extremely unusual hardship’ for his two U.S.-citizen children.” It rejected his argument that the BIA erred by looking “at the factors in isolation,” rather than considering them “in the aggregate,” and found that the “hardships, even in the aggregate, do not suggest anything truly extraordinary would result from Baltazar Us’s deportation.” Based on the record, it held that no reasonable adjudicator would be compelled to disagree with the IJ’s and the BIA’s “conclusion that the hardships from removal would not go ‘beyond that which would normally be expected to occur upon the removal of a close family member.’” Lastly, it denied his request to have the case remanded to the BIA.

Application for asylum, withholding of removal, & protection under the Convention Against Torture (CAT); Motion to reopen; Alleged interpreter mistranslations; “Inconsistent testimony”; Whether the allegedly inaccurate interpretation violated petitioner’s due process rights; Board of Immigration Appeals (BIA); Immigration judge (IJ)

The court denied petitioner-Deh’s petition for review of the BIA’s denial of his motion to reopen his petition for asylum, withholding of removal, and protection under the CAT where he was unable to identify any specific translation errors in his immigration hearings. Deh is a Mauritanian citizen. He asserted that he was forced to work as a slave and that he was repeatedly arrested and tortured by police. The IJ denied his petition, citing inconsistencies in his testimony. He did not appeal to the BIA but instead moved to reopen proceedings, claiming that his court-appointed interpreter, who had later been disqualified, mistranslated parts of his immigration hearings. The IJ denied the motion, and the BIA affirmed. The court explained that an IJ may only grant a motion to reopen if the petitioner offers “material” evidence that was not available, discoverable, or presented at the prior hearing. The court held that Deh failed to offer “any evidence likely to change the outcome of this case.” He was unable to identify any specific translation errors, and he failed to obtain the transcript and audio of his hearings, which could have been reviewed by another interpreter. The court also noted that he failed to explain “what he meant to say at the third hearing. After all, the [IJ] identified the ‘most important concerns’ from Deh’s testimony that contributed to determining he wasn’t credible. So even if Deh can’t pinpoint a translation error, he could at least explain what he meant to say at his third hearing and how that would have alleviated the credibility concerns. But he” did not do so. The court added that the inconsistencies in Deh’s testimony from his prior hearings already supported the IJ’s “finding that he wasn’t credible, regardless of what he said at the third hearing.” It also found it significant that he did not seek asylum in any country he traveled through on his way to the U.S. As to his due process claim, given that he could not “point to any specific interpretation errors, even on appeal, . . . the [IJ] couldn’t have known about any alleged interpretation issues during the hearing. Thus, the hearing didn’t violate Deh’s due-process rights.” Finally, the court dismissed his claim that “the agency erred by failing to sua sponte reopen the immigration proceedings” for lack of jurisdiction.

Habeas corpus: The Illegal Immigration Reform & Immigrant Responsibility Act (IIRIRA); Whether a noncitizen detained within the interior of the U.S. who never affirmatively applied for admission is subject to 8 USC § 1225(b)(2)(A)’s mandatory detention scheme or § 1226’s permissive detention scheme; Jennings v Rodriguez; Matter of Yajure Hurtado (BIA); Fifth Amendment Due Process Clause claims; Reno v Flores; Board of Immigration Appeals (BIA); Immigration judge (IJ)

[This appeal was from the ED-MI & WD-MI.] In a consolidated appeal, the court joined other circuits by holding that noncitizens detained within the U.S. interior who never affirmatively applied for admission are not subject to § 1225(b)(2)(A)’s mandatory detention scheme but are instead subject to § 1226’s permissive detention scheme. Petitioners, who are from Mexico, El Salvador, Venezuela, Nicaragua, and Guatemala, are noncitizens who have lived in the U.S. without lawful status for years and who were detained under § 1225(b)(2)(A). They sought writs of habeas corpus. They claimed that they were unlawfully seized under § 1225(b)(2)(A), which requires mandatory detention, when they should have been detained under “§ 1226, which permits detention or release on bond or probation.” They also argued that they were improperly denied bond hearings in violation of their due process rights. Both of the district courts granted their petitions, agreeing that § 1226(a) governed their detention and thus, they should have had a bond hearing before an IJ. In all but one case the district courts also found that petitioners’ Fifth Amendment due process rights were violated when they were not provided bond hearings. All petitioners have been released. The issue on appeal was whether, pending completion of removal proceedings, “a noncitizen detained within the interior of the United States who never affirmatively applied for admission is subject to 8 U.S.C. § 1225(b)(2)(A)’s mandatory detention scheme or to § 1226’s permissive detention scheme.” The court considered “what it means for a noncitizen to be ‘seeking’ admission in § 1225(b)(2)(A).” It concluded that noncitizens, like petitioners, “who did not attempt lawful entry into the United States and are actively avoiding being inspected for lawful entry, are not ‘seeking admission’ and are thus not subject to § 1225(b)(2)(A)’s mandatory detention scheme.” Accordingly, the court joined the Second and Eleventh Circuits “in holding that § 1225(b)(2)(A) does not apply to noncitizens like Petitioners.” As to their due process claim, it “‘is well established that the Fifth Amendment entitles aliens to due process of law in [removal] proceedings.’” The court found “no error in the district courts’ conclusions that Petitioners were due individualized bond hearings in light of the significant time they have spent within the interior of the United States.” Affirmed.

The Immigration & Nationality Act (INA); Whether the petition for judicial review of the Board of Immigration Appeals’ (BIA) asylum denial was untimely under 8 USC § 1252(b)(1); Whether § 1252(b)(1) is subject to “equitable tolling”; Riley v Bondi; Whether petitioner was entitled to equitable tolling; Jin Yin Zhou v Bondi; Actual notice of the filing requirement; Constructive knowledge; Convention Against Torture (CAT); Immigration judge (IJ)

The court dismissed as untimely petitioner-Oxlaj-Perez’s petition for review of the BIA’s decision affirming denial of his asylum, withholding of removal, and CAT protection application. It held that under Riley, § 1252(b)(1) is subject to equitable tolling, but he was not entitled to it where, among other things, he had actual notice of the filing requirement. Oxlaj-Perez sought asylum, withholding of removal, and CAT protection based on his persecution as an Indigenous Quiche Mayan in Guatemala. The IJ denied his application and the BIA affirmed the decision. The government argued that his petition for the court’s review was untimely because he filed it after § 1252(b)(1)'s 30-day limitations period had expired, and that the statute was not subject to equitable tolling. The court began by holding that contrary to its prior precedent, § 1252(b)(1) is subject to equitable tolling under the Supreme Court’s decision in Riley, where the Supreme Court held that the statutory deadline is not jurisdictional but is instead a “claims-processing rule.” Considering the text of the statute, and the presumption that “Congress intends for tolling, the fact that the statute ‘does not expressly prohibit equitable tolling’ is critical.” The statute’s plain language did not “displace the presumption of tolling.” Additionally, the court found that “the INA’s overall scheme” supported allowing equitable tolling. It rejected the government’s attempts to rebut the presumption and its “argument that Oxlaj-Perez waived any challenge to the timeliness of his petition for review by failing to raise it in his opening brief.” Turning to the question of whether he was entitled to equitable tolling, the court applied the factors in Jin Yin Zhou and held that he was not where he “had actual notice of the filing requirement because it was included with the” BIA’s decision. And even if he did not have actual notice, he had “constructive knowledge of the” requirement. He also failed to establish “that he acted diligently during the 79 days before he filed his petition for review.” Further, the government might be prejudiced by the delay, and “it was not reasonable for Oxlaj-Perez to remain ignorant of the legal requirement for filing his claim” under the circumstances.