An alien facing removal may not raise new issues not raised before the BIA.
“While Duarte may have requested that the IJ and the Board consider the same evidence for other claims, he did not ask them to consider the same arguments that he now asks us to consider. To determine whether an issue has been raised at an earlier proceeding, courts look to whether a party actually argued it, not whether the argument bears some relation to the evidentiary record. Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th Cir. 2010). To do otherwise would effectively eliminate waiver and preserve every issue for review. At no point in the earlier proceedings did Duarte argue that he would be tortured upon return to Mexico. Because no such arguments were made, neither the IJ nor the Board issued a ruling on the matter. For us to review this issue, we would have to speculate about which arguments Duarte would have made in earlier proceedings as well as the specific grounds for denying them. In other words, there is nothing for us to review.”
Petition Denied.
14-2276 Duarte-Salagosa v. Holder
On Petition for Review of an Order of the Board of Immigration Appeals, Manion, J.
Where the entire loss was reasonably foreseeable to the defendant convicted of bank fraud, she was properly held accountable for it in calculating her offense level.
“The evidence of knowledge and coordination are just as strong in the present case as in Adeniji. Ms. Sykes, along with her fellow recruiters, coordinated their efforts with Hicks and took nearly identical steps to defraud their victims. Further, Ms. Sykes’s involvement in this scheme was not limited to her relationship with Hicks, the scheme’s leader. Rather, she personally knew and worked closely with at least one other recruiter in this scheme, namely Terence Sykes. On these facts, the district court was entitled to conclude that Ms. Sykes reasonably could foresee the total intended fraud loss caused by her codefendants. The district court did not clearly err in holding Ms. Sykes accountable for the total fraud loss caused by her codefendants.”
Affirmed.
14-1510 U.S. v. Sykes
Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Ripple, J.
APPEAL from an order of the circuit court for Rock County: RICHARD T. WERNER, Judge. Reversed and cause remanded.
The State appeals an order suppressing evidence obtained against defendant David Kline in an operating while intoxicated (OWI) and prohibited alcohol concentration (PAC) case. The circuit court concluded that the investigating officer transformed an investigatory stop into an arrest without probable cause when he transported defendant David Kline to the police department garage to perform sobriety tests. We will assume for the sake of argument that the transportation constituted an arrest. However, for the reasons discussed below, we conclude that the officer had probable cause for arrest at that time. Accordingly, we reverse the suppression order and remand for further proceedings.
DISTRICT IV; Rock County; RICHARD T. WERNER, Judge; Blanchard, P.J., Sherman and Kloppenburg, JJ.
2013AP002628-CR State v. David L. Kline, Jr.
Attorneys: For Appellant: Urbik, Gerald A.; Winter, Tiffany M. For Respondent: Alesia, Susan E.
APPEAL from a judgment and an order of the circuit court for Brown County: THOMAS J. WALSH, Judge. Affirmed.
Patricia Perez appeals a judgment, entered upon her no contest pleas, convicting her of arson and two counts of second-degree reckless endangerment, all counts as party to a crime (PTAC). Perez also appeals the order denying her postconviction motion for plea withdrawal. Perez argues the circuit court erred by denying her plea withdrawal motion because she was not accurately informed of PTAC liability and did not otherwise understand the concept. Because the record supports the conclusion Perez understood PTAC liability at the time she entered her no contest pleas, we affirm the judgment and order.
DISTRICT III; Brown County; THOMAS J. WALSH; Hoover, P.J., Stark and Hruz, JJ.
2014AP000010-CR State v. Patricia A. Perez
Attorneys: For Appellant: Krahn, Ellen J. For Respondent: Lasee, David L.; Burgundy, Sarah
APPEAL from a judgment and an order of the circuit court for Milwaukee County: REBECCA F. DALLET, Judge. Affirmed.
Nicholas James Fuchs appeals a judgment convicting him of two counts of child abuse/recklessly causing harm, one count of child abuse/recklessly causing great harm, and one count of second-degree recklessly endangering safety. He also appeals an order denying his motion to modify his sentence. He argues that he is entitled to sentence modification based on two “new factors.” We affirm.
DISTRICT I; Milwaukee County; REBECCA F. DALLET, Judge; Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge
2014AP000299-CR State v. Nicholas James Fuchs
Attorneys: For Appellant: Marion, Colleen For Respondent: Loebel, Karen A.; Weinstein, Warren D.
APPEAL from a judgment and an order of the circuit court for Milwaukee County: DENNIS P. MORONEY, Judge. Affirmed.
Terrance Ware appeals a judgment entered on a jury verdict convicting him of being a felon in possession of a firearm, and an order denying his motion for a new trial, arguing ineffective assistance of counsel. Ware first contends that the trial court erred by denying his suppression motion because the officers lacked reasonable suspicion to do a protective search of the car Ware was driving after a traffic stop. Ware also argues he was denied effective assistance of counsel because his trial counsel did not object to testimony of an officer regarding the veracity of another witness’s testimony, and because his trial counsel did not object when the prosecutor made an incorrect statement in closing argument. Ware contends the trial court erred when it denied his ineffective assistance claim without a Machner hearing.
DISTRICT I; Milwaukee County; DENNIS P. MORONEY, Judge; Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge
2014AP000378-CR State v. Terrance L. Ware
Attorneys: For Appellant: Mullins, Brian Patrick For Respondent: Loebel, Karen A.; Larson, Sarah K.
APPEAL from an order of the circuit court for Langlade County: FRED W. KAWALSKI, Judge. Affirmed.
Richard Selenske, pro se, appeals an order denying his petition to probate the will of his father, Peter Selenske, twenty-eight years after Peter’s death. This is Selenske’s ninth appeal related to the probate and distribution of assets from his parents’ respective estates. For the reasons outlined below, we affirm the order.
DISTRICT III; Langlade County; FRED W. KAWALSKI, Judge; Hoover, P.J., Stark and Hruz, JJ.
2014AP000578 Richard Selenske v. Estate of Louise Selenske
Attorneys: For Appellant: For Respondent: De Vos, Robyn J.
APPEAL from a judgment and an order of the circuit court for Brown County: THOMAS J. WALSH, Judge. Affirmed.
Charles McIntyre appeals the denial of his motion to amend his judgment of conviction. McIntyre argues the judgment of conviction sets forth an ambiguous sentence that should be resolved in his favor. We affirm.
DISTRICT III; Brown County; THOMAS J. WALSH, Judge; STARK, J.
2014AP000800-CR State v. Charles A. McIntyre
Attorneys: For Appellant: Schaefer, Linda J. For Respondent: Weber, Gregory M.; Lemkuil, Wendy W.; Lasee, David L.; Belair, Sarah Elyse
APPEALS from judgments and orders of the circuit court for Milwaukee County: MEL FLANAGAN, Judge. Affirmed.
Marvin Dewayne Clements appeals from judgments of convictions, entered upon a jury’s verdicts, on twenty-five charges. He also appeals from the trial court’s orders denying his postconviction motion for a new trial. Clements contends that he has new evidence warranting a new trial, and that his removal from the courtroom for disruptive behavior violated his constitutional and statutory rights to be present during voir dire and the trial. We agree with the trial court’s rejection of these claims, so we affirm.
DISTRICT I; Milwaukee County; MEL FLANAGAN, Judge; Curley, P.J., Kessler and Brennan, JJ.
2014AP000856-CR State v. Marvin Dewayne Clements
Attorneys: For Appellant: Novack, Gregg H. For Respondent: Loebel, Karen A.; Johnson-Karp, Gabe
APPEAL from judgments of the circuit court for Fond du lac County: GARY R. SHARPE, Judge. Affirmed.
Jeffrey K. Krueger attacks his convictions for operating a vehicle while intoxicated and with a prohibited alcohol concentration by claiming that there was no reasonable suspicion for a stop. He contends that the squad video directly contradicts the deputy’s testimony that Krueger’s vehicle swerved three feet over the center line while negotiating a curve in the roadway. But the trial court found the video to be inconclusive and the deputy’s testimony credible. Those findings are not clearly erroneous and we affirm.
DISTRICT II; Fond du lac County; GARY R. SHARPE, Judge; BROWN, C.J.
2014AP001494 County of Fond du Lac v. Jeffrey K. Krueger
Attorneys: For Appellant: Piel, Walter Arthur, Jr. For Respondent: Edelstein, Douglas R.
APPEAL from an order of the circuit court for Outagamie County: DEE R. DYER, Judge. Reversed and cause remanded for further proceedings.
Donald Pulda appeals a postdivorce order denying modification of child support. We conclude the circuit court erroneously exercised its discretion by determining Donald’s actions precluded modification of his child support obligation. Accordingly, we reverse the order and remand for further proceedings.
2014AP001706-FT Susan Pulda v. Donald Pulda
DISTRICT III; Outagamie County; DEE R. DYER; Hoover, P.J., Stark and Hruz, JJ.
Attorneys: For Appellant: Metz, Scott D. For Respondent: Hoff, Alan S.
Gregg Herman is a shareholder with Loeb & Herman SC, Milwaukee, which practices exclusively family law. Herman can be reached at [email protected].
Two questions regarding removal were addressed by the District 2 Court of Appeals in Shulka v. Sikraji, No. 2013AP2080, which was recommended for publication.
The first dealt with the requirement that a notice of intent to remove minor children specify the proposed location of the move. The second deals with whether the parent proposing the move can change his or her mind about the move if the court would change placement rather than approve the proposed removal.
In Shulka, the parties divorced in 2007 with the mother given primary placement of the children. In October 2011, she filed a motion to remove the children from Lake Geneva to Lake County, Ill., which was granted by the family court commissioner. However, she moved from Lake Geneva to Round Lake, Ill., which is not in Lake County. The FCC then ordered her to move back to Lake Geneva and re-enroll the children in the schools there, or lose primary placement.
The Court of Appeals affirmed the trial court, finding that a substantial change in circumstances had occurred when she moved to a different location than she had proposed in her motion. The appellate court affirmed the order that the children be enrolled in the Lake Geneva schools and that she return so their enrollment could be accomplished, or lose primary placement.
While the decision simply affirms the trial court’s exercise of discretion as being appropriate, there are two aspects of the removal law, Wis. Stats. §767.481, which should be noted.
First, the statute was amended in 1995, changes I was involved in drafting and lobbying for. Part of that amendment required persons seeking to remove with a minor child to specify the “specific beginning and ending dates and location of the removal.” Wis. Stats. §767.481(1)1(b). This is the first case to deal with that portion of the statute and, appropriately, affirms the trial court for holding the mother to her representation. In simple terms, if you tell the child’s other parent where you intend to take the child, permission to remove is specific to that location. The removing parent doesn’t have carte blanche to move wherever he or she chooses.
The second interesting aspect of the case was the trial court, by ordering the mother to move back to Wisconsin, was allowing her to change her mind about moving rather than having primary placement changed. While there is no provision in the statute to allow a “never mind” decision, it makes a great deal of sense. After all, placement is awarded to a parent, not a location. If one parent intends to change that location, permission must be sought and one possible result may be to change primary placement to the other parent. But, if the moving parent doesn’t move, then matters should remain as they are.
Most courts, in my experience, allow the “never mind” option. While this case doesn’t expressly adopt that option as a matter of law, by affirming the trial court, it implicitly approves it.
Therefore, this is a handy case for family-law attorneys to have at their disposal for those cases where a client wants to move, but would forgo it if it means losing primary placement.
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