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Indictment of White Supremacist Reinstated, & Immigration and Insurance Matters

By FindLaw Staff | Last updated on

Kenseth v. Dean Health Plan, Inc., No. 08-3219, concerned a plaintiff's suit against her HMO pursuant to ERISA, arising from the denial of coverage for a surgical procedure to resolve the severe acid reflux related to her original vertical gastric banding surgery for morbid obesity.  The court affirmed in part the district court's grant of summary judgment to defendant on plaintiff's claims for equitable estoppel and for alleged violation of state law limit on exclusions for preexisting conditions.  However, the court vacated the district court's grant of summary judgment on plaintiff's claim for breach of fiduciary and remanded for a determination of whether plaintiff is seeking any form of equitable relief that is authorized by 29 U.S.C. section 1132(a)(3).

Restrepo v. Holder, No. 08-4029, involved a Colombian national's petition for review of a decision denying his application for asylum and related relief.  In denying the petition, the court held that a BIA's denial of application for asylum is unreviewable for lack of jurisdiction under 8 U.S.C. section 1158(a)(3).  Furthermore, the court held that the BIA did not err in concluding that petitioner had failed to make the necessary showing required for withholding of removal.  And consequently, because Convention Against Torture has a higher standard than withholding of removal, relief for petitioner on this claim is foreclosed as well.

In US v. White, No. 09-2916, the court faced a challenge to an indictment of defendant for soliciting a crime of violence in violation of 18 U.S.C. section 373, for posting on his website personal information about a juror who served on a jury in a prosecution of a leader of a white supremacy organization and postings calling for the use of violence on enemies of white supremacy.  In reversing the district court's dismissal of the indictment on the ground that the postings were protected by the First Amendment, the court first addressed the issue of validity of the indictment and held that the indictment is valid on its face.  The court held that the potential First Amendment concern is addressed by the requirement of proof beyond a reasonable doubt at trial, and not by a dismissal at the indictment stage, as whether or not the First Amendment protects defendant's right to post personal information about the juror first turns on his intent in posting that informaiton.

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