Susan P. Graber
How Judge Graber rules, drawn from 34 signed orders. Every observation links to the order it came from.
How Judge Graber decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
In an immigration reopening case, Graber began with the regulation's grammar and ordinary meaning. Because the applicant sought reconsideration of the same asylum basis and attached the original application, the text did not require a newly completed application.
“The plain and unambiguous text of § 1003.2(c)(1) does not require someone in Petitioner's shoes to attach a new application for relief to a motion to reopen.”
In applying the categorical approach to a California carjacking conviction, Graber examined the minimum force sufficient under state decisions. Because the offense could be committed with force below the federal violent-force threshold, it did not categorically qualify as a crime of violence.
“California's carjacking statute thus does not require the violent force that Johnson demands of a crime of violence.”
In a warrantless-entry case, Graber assessed whether a pursuit remained continuous by examining both the officers' knowledge of the suspect's location and whether they kept acting promptly after losing sight of him. A nine-minute search and coordination period did not break the chase on the undisputed record.
“In sum, on this record there is no genuine issue of material fact suggesting that the continuity of the chase was broken before Underhill entered Plaintiff's home.”
Procedural preferences
In a disability-benefits appeal, Graber required the hypothetical presented to the vocational expert to match the claimant's assessed limitations precisely. Dropping the word 'short' from a limitation to short, simple instructions materially expanded the hypothetical person's capacity and was not harmless.
“We hold only that, because the ALJ omitted the qualifying adjective ‘short’ when posing the question to the vocational expert, thereby describing a hypothetical person with greater functional capacity than Claimant possesses, the ALJ erred by relying on the vocational expert's testimony, and the error was not harmless.”
Cautions
In a vagueness challenge to an immigration statute, Graber followed directly controlling precedent despite later decisions that questioned some of its reasoning. A three-judge panel could distinguish those later cases but could not treat the on-point holding as displaced.
“First, we are obliged to follow on-point Supreme Court precedent—here, Jordan—even if later Supreme Court cases cast some doubt on its general reasoning.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“Reviewing de novo ... we uphold the statute against this Second Amendment challenge.”
“We now deny the petition for review.”
“The panel affirmed a sentence for reentry after removal and without permission, in violation of 8 U.S.C. 1326.”
“On remand from the United States Supreme Court, the panel granted Pedro Madrigal-Barcenas' petition for review of the Board of Immigration Appeals' decision finding him inadmissible on the ground that his Nevada state law conviction for possessing drug paraphernalia constituted a conviction for violation of a law relating to a controlled substance.”
“We review de novo ... and reverse and remand. We hold that federal, rather than California, privilege law applies.”
“The panel granted Roberto Solorio-Ruiz's petition for review of the Board of Immigration Appeals' decision, holding that his conviction for carjacking under California Penal Code 215(a) is not a crime of violence aggravated felony under 8 U.S.C. 1101(a)(43)(F) ... and remanded”
“The panel dismissed a petition for review as to the United States Merit Systems Protection Board; and denied in part, granted in part, and remanded the petition for review as to the United States Department of the Army”
“The panel denied a petition for review in an action brought by a senior auditor at the Defense Contract Audit Agency (‘DCAA’) under the Whistleblower Protection Act against the Department of Defense”
“Affirming the district court's summary judgment in favor of the defendant in an action under the Telephone Consumer Protection Act, the panel held that the plaintiff consented to receive quality assurance calls when she signed a health insurance enrollment form.”
“The panel affirmed the district court's imposition of supervised release conditions requiring that the defendant participate in a sex offense-specific assessment and that, if recommended by a probation officer, he submit to polygraph testing in conjunction with the assessment.”
“The panel denied a petition for review of the Board of Immigration Appeals' denial of Martinez-de Ryan's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude.”
“The panel denied in part and granted in part a petition for review of the Board of Immigration Appeals' final order of removal, holding that the statutory phrase ‘particularly serious crime,’ as set forth in 8 U.S.C. 1231(b)(3)(B), is not unconstitutionally vague on its face.”
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