Week 6 (2020)

Week of February 10, 2020, through February 14, 2020

Hassan Bah v. William Barr (Rushing 2/13/2020): The Fourth Circuit held that a noncitizen’s conviction for possession of ethylone, a substance illegal under both Virginia and federal law, triggers removal under 8 U.S.C. § 1227(a)(2)(B). Petitioner Bah, a native and citizen of Sierra Leone, was found guilty for possession of ethylone by a Virginia court and the Department of Homeland Security subsequently initiated removal proceedings against Bah. The Immigration Judge deemed Bah removable. Bah argued before the Board of Immigration Appeals that the Virginia statute was overbroad and indivisible, but the Board rejected his argument. The Fourth Circuit affirmed, holding that even though Virginia’s controlled substance statute is broader than its federal counterpart, it was divisible by substance and the modified categorical approach was appropriate. Full Opinion

Felipe Perez v. Kenneth Cuccinelli (King 2/10/2020): The Fourth Circuit held that the U.S. Citizenship and Immigration Services’ interpretation of clause (i) of 8 U.S.C. § 1101(a)(27)(J) as requiring a permanent custody order “is entitled to no deference, defies the plain statutory language, and impermissibly intrudes into issues of state domestic relations law. Accordingly, the court reversed the judgment of the district court and remanded with instructions to grant Felipe’s motion to set aside the U.S. Citizenship and Immigration Services’ final action denying Felipe’s special immigrant juvenile status application. Full Opinion


Highlight Case

FERC v. Powhatan Energy Fund, LLC

Decided: February 11, 2020  

The Fourth Circuit held that the Federal Energy Regulatory Commission (FERC) did not have a complete and present cause of action to file suit in federal district court until 60 days after it had issued appellants the penalty assessment order and appellants refused to pay the assessed penalty. Therefore, FERC’s claim had not “accrued” until that point, so this action was timely filed within the five-year statute of limitations on civil penalty actions under 28 U.S.C. § 2462.

Appellants are various financial entities who allegedly engaged in fraudulent and unlawful electricity trading prohibited by the Federal Power Act. The FERC notified appellants of its intent to seek civil penalties against appellants. Appellants denied the allegations and chose to have the case decided in federal district court rather than by an administrative law judge. After FERC filed the action in district court, appellants moved to dismiss in part, arguing that most of the conduct underlying the claim fell outside the five-year statute of limitations because the limitations period commenced at the time of their alleged illicit trading activity. The district court disagreed and held that the claim did not accrue for statute of limitations purposes until FERC fulfilled each of the Federal Power Act’s prerequisites to filing suit in federal district court. 

The Court looked at the meaning of 28 U.S.C. § 2462 in the context of the Federal Power Act to determine when FERC’s “claim first accrued” for purposes of filing that action. The Court reasoned that statutes of limitation do not run until a claim accrues, and that a claim accrues when a plaintiff has a complete and present cause of action. Until a plaintiff satisfies any prerequisites and has a legal right to initiate the action, the claim has not “accrued.” The Court reasoned that since FERC could not initiate the action in federal district court until 60 days after it issued the penalty assessment order and appellants refused to pay, the action had not “accrued,” and thus the statute of limitations did not commence until after the 60 days. Therefore, the Court reasoned the action was timely filed. The Court affirmed the district court’s holding and remanded for further proceedings. 

Full Opinion

Kate Heil