CopyCited 37 times | Published | Court of Appeals for the Eleventh Circuit | 2006 WL 940667, 2006 U.S. App. LEXIS 9157
...Alexandre argues
that applying the five-year bar to him produces an impermissibly retroactive effect.
5
We have not yet been called upon to identify the standard of review
applicable to a denial of a motion to reopen brought pursuant to 8 C.F.R.
§ 1003.44....
...repealer provisions. St. Cyr,
533 U.S. at 326,
121 S.Ct. at 2293. If an alien pled
guilty or nolo contendere to certain crimes before April 1, 1997, he may file a
motion to reopen his deportation proceedings in order to seek § 212(c) relief. 8
C.F.R. §
1003.44....
...An alien is ineligible for § 212(c) relief if he has been convicted
of an aggravated felony, unless he was convicted between 1990 and 1996 and
served less than 5 years of his sentence, or he was convicted pursuant to a guilty
plea before 1990. §§ 1003.44(c), 1212.3(f)(4)(i)-(ii).
This § 212(c) relief is not available to aliens who were convicted after a trial
instead of on a guilty plea. § 1003.44(a)....
...Even if the retroactivity
rationale of St. Cyr did apply to IMMACT-90, it would not apply to Alexandre
because he did not plead guilty to his drug trafficking charges, but instead
proceeded to trial and was convicted by a jury. Even without the five-year bar, the
plain language of §
1003.44 also precludes those who did not plead guilty from
relief. See §
1003.44(a); § 1212.3(f)(4)(ii); Brooks,
283 F.3d at 1274.
III.
PETITION DENIED.
7
CopyCited 14 times | Published | Court of Appeals for the Eleventh Circuit | 2008 U.S. App. LEXIS 15546, 2008 WL 2811853
..._________________________________________
(July 23, 2008)
Before EDMONDSON, Chief Judge, HILL and ALARCÓN,* Circuit Judges.
PER CURIAM:
This case involves Florida’s Pledge of Allegiance statute, section
1003.44(1), Florida Statutes (“Pledge Statute”), which applies to students at all
grade levels from kindergarten to twelfth grade....
...student must be excused from reciting the pledge. When the pledge is
given, civilians must show full respect to the flag by standing at
attention, men removing the headdress, except when such headdress
is worn for religious purposes . . . .
Fla. Stat. § 1003.44(1) (emphasis added).
*
Honorable Arthur L....
... Plaintiff (a minor), through his mother, filed a complaint challenging the
constitutionality of the Pledge Statute, both facially and as applied to him as a
then-eleventh grade student in a Palm Beach County public high school.1 Plaintiff
contended that section 1003.44(1) is facially invalid because it requires that a
student obtain a parent’s permission before being excused from reciting the Pledge
of Allegiance and stand during the Pledge of Allegiance even if excused....
...whether the statute is facially unconstitutional.
4
The Pledge Statute states, in part, that “When the pledge is given, civilians
must show full respect to the flag by standing at attention . . . .” Fla. Stat. §
1003.44(1)....
...Instead, the State
argues that this Court—to avoid constitutional problems—should interpret the
statute as requiring only students not exempted from the Pledge to stand.
3
The statute requires students who pledge to stand when reciting the Pledge. See Fla. Stat. §
1003.44(1) (“The pledge of allegiance to the flag ....
...Parental Consent Requirement
The Pledge Statute states that “The pledge . . . shall be rendered by students
. . . . The pledge of allegiance to the flag shall be recited at the beginning of the
day in each public elementary, middle, and high school in the state.” Fla. Stat. §
1003.44(1)....
...neutral on the Pledge in the statute’s deference to a parent’s expressed wishes.6
Should a parent request that his child not recite the Pledge—even where the child
wishes to recite—the statute provides that the school must excuse the student. Fla.
Stat. § 1003.44(1) (“Upon written request by his or her parent, the student must be
5
None of the decisions relied upon by Plaintiff and the district court decide the rights of custodial
parents in opposition to the rights of their children becau...
CopyPublished | District Court, S.D. Florida | 2006 U.S. Dist. LEXIS 38561, 2006 WL 1528791
...ounty School District, Florida. (Am.Compl.¶ 1.) Because of his personal political beliefs and convictions, he does not want to recite, or stand during, the pledge of allegiance each morning. (Am.Compl.¶ 1.) The District Board, following Fla. Stat. § 1003.44(1) [2] , has a policy mandating that students, unless *1353 by written request of a parent, recite the pledge of allegiance....
...dge of allegiance, and to remain seated during the pledge of allegiance, in violation of the First and Fourteenth Amendments to the United States Constitution. (Am.Compl.¶ 37.) Count IV, brought against the State Defendants, alleges that Fla. Stat. § 1003.44(1), to the extent it requires a student to obtain a parent's permission before being excused from reciting the pledge of allegiance and requires a student to stand during the pledge of allegiance, violates plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution....
...(Am.Compl.¶ 38.) Count V, brought against all Defendants, alleges that the Supremacy Clause *1356 of the U.S. Constitution, Art. VI, Clause 2, provides that the federal Constitution is "the supreme Law of the Land" notwithstanding any state or local law to the contrary. (Am.Compl.¶ 39.) Frazier alleges that Fla. Stat. § 1003.44(1), and District policies, directly contravene the Constitution as set out above and are therefore pre-empted by the Constitution to the extent of the contradiction. (Am. Compl.¶ 40.) Frazier requests a declaratory judgment that Fla. Stat. § 1003.44(1) and the District policy, to the extent they require a student to obtain a parent's permission before being excused from reciting the pledge of allegiance and require a student to stand during the pledge of allegiance, are unconstitutional on their face and as applied to him....
...t to stand during the pledge of allegiance, as well as a permanent injunction enjoining the State Defendants from taking affirmative steps to ensure that Florida school districts comply with the United States Constitution by not enforcing Fla. Stat. § 1003.44(1), or any school district policies based upon that statute, to the extent they require a student to obtain a parent's permission before being excused from reciting the pledge of allegiance and require a student to stand during the pledge of allegiance....
...judgment on the pleadings pursuant to Rule 12(c), (here, treated as a Rule 56 motion for summary judgment) without the need for an answer to be filed. The District stipulated that, for purposes of this lawsuit only, it, normally following Fla. Stat. § 1003.44(1), has a custom or practice mandating that students, unless excused by written request of a parent, recite the pledge of allegiance....
...ity under Monell v. Department of Social Services,
436 U.S. 658, 694,
98 S.Ct. 2018, 2037-38, 56 LE d.2d 611 (1978), if Frazier is correct in his constitutional claims. Otherwise stated, these parties believe that the constitutionality of Fla. Stat. §
1003.44(1) is dispositive of Frazier's claims: if the statute is unconstitutional, the District's customs and practices based thereon are unconstitutional as well....
...remain standing. (Am.Compl.¶ 18, 26.) See Holloman v. Harland,
370 F.3d 1252, 1268-69 (11th Cir.2004) (verbal censure and singling student out constitutes punishment). These injuries in fact resulted from practices and customs based upon Fla. Stat. §
1003.44(1)....
...Frazier argues that the statute requires non-participating students to stand. He notes that the statute is found in Chapter 1003 of Florida's Education Code, which covers "Public K-12 Education." The specific section itself is located in Part IV "Public K-12 Educational Instruction;" the title of § 1003.44 is "Patriotic programs; rules," and the section authorizes "district school board[s][to] adopt rules to require" patriotic programs and requires the pledge to be recited in Florida's public schools each morning....
...between "students" and "non-student civilians" as suggested by the State Defendants. A plain reading of the statute confirms that the Palm Beach County School Board's customs and practices are indeed based upon a correct interpretation of Fla. Stat. § 1003.44(1)....
..."Pledge autonomy" has been the state of the law for over 60 years; it is the State Defendants who attempt to create a new rule of constitutional law by requiring prior parental approval of the exercise of First Amendment rights in a school setting. Fl. Stat. ¶ 1003.44(1), to the extent that it requires a student to obtain a parent's permission to be excused from reciting the pledge of allegiance and requires a student to stand during the pledge of allegiance, is unconstitutional on its face and as applied to Frazier in violation of his First and Fourteenth Amendment rights....
...ring the pledge of allegiance. The School Board need not otherwise refrain from disciplining a student for disruptive conduct. Finally, the School Defendants, and anyone acting in concert with them, are permanently enjoined from enforcing Fla. Stat. § 1003.44(1) to the extent that it requires a student to obtain a parent's permission before being excused from reciting the pledge of allegiance and require a student to stand during the pledge of allegiance....
...n removing the headdress, except when such headdress is worn for religious purposes, as provided by Pub.L. ch. 77-435, s. 7, approved June 22, 1942, 56 Stat. 377, as amended by Pub.L. ch. 77-806, 56 Stat. 1074, approved December 22, 1942. Fla. Stat. § 1003.44(1). The school district policy based thereon provides as follows: The Pledge of Allegiance Florida Statutes Section 1003.44 requires the Pledge of allegiance to be recited at the beginning of the day in every public elementary, middle and high school in the state....
...g at attention while the pledge is recited; men must remove any headdress, except when it is worn for religious purposes. (Am. Compl. Ex. 1.) [3] The school district policy based thereon provides as follows: The Pledge of Allegiance Florida Statutes Section 1003.44 requires the Pledge of allegiance to be recited at the beginning of the day in every public elementary, middle and high school in the state....
...cept when it is worn for religious purposes. (Am.Compl.Ex. 1.) The District's Student and Family Handbook provides as follows: Students have a right to be excused from reciting the Pledge of Allegiance upon written request by a parent or guardian (F.S. 1003.44(1))....
...[5] Deference is also inappropriate where there is no agency adjudication at issue. Under Florida's Administrative Procedure Act, an agency adjudication is effected only by a rule, Fla. Stat. §
120.52(15), or an order, §
120.52(7). The State Defendants cite no agency decision or rule construing §
1003.44(1)....
