The Ninth Circuit Court of Appeals today released an opinion in DURAN GONZALES v. HOMELAND SECURITY, No. 07-35021, an appeal in a civil action against the United States. The panel consisted of William C. Canby, Jr., Cynthia Holcomb Hall, and Consuelo M. Callahan, Circuit Judges.

CALLAHAN, Circuit Judge:
On December 19, 2006, the District Court for the Western District of Washington entered an order granting preliminary injunctive relief to a class of aliens, enjoining defendants Department of Homeland Security and Secretary Michael Chertoff (collectively “DHS”) from denying certain applications for permission to reapply for admission into the United States, or from acting on any denied applications. We vacate the order and remand because we defer to the decision by the Board of Immigration Appeals (BIA) in In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), which is dispositive of plaintiffs’ request for injunctive relief. I In 1994, Congress amended the Immigration and Nationality Act (INA), providing for adjustment of status for certain aliens otherwise ineligible for such relief because of their unlawful status in the United States. Pub. L. No. 103-317, Title V § 506(b), 108 Stat. 1724, 1765-66 (1994) (the special adjustment provision). The special adjustment provision excepted these aliens from certain admissibility requirements for adjustment of status. See 8 U.S.C. § 1255(a). It allowed the Attorney General to adjust the status of an alien who had entered the United States without inspection to that of a legal permanent resident provided that the alien (1) was admissible . . .

The Ninth Circuit Court of Appeals today released an opinion in SEKIYA v. GATES, No. 06-15887, an appeal in a civil action against the United States. The panel consisted of Diarmuid F. O’Scannlain, A. Wallace Tashima, and Milan D. Smith, Jr., Circuit Judges.

PER CURIAM:
Plaintiff-Appellant, Linda Sekiya, appeals from the grant of a motion for summary judgment in favor of her employer, Defendant-Appellee, Robert M. Gates, in his official capacity as Secretary of Defense. Sekiya claims that her supervisor discriminated against her on the basis of her disability, in violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq. We strike Sekiya’s opening brief in its entirety pursuant to Ninth Circuit Rule 28-1 and dismiss the appeal. We publish this opinion as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated. Discussion [1] Federal Rule of Appellate Procedure 28 and our corresponding Circuit Rules 28-1 to -4 clearly outline the manda. . .

The Ninth Circuit Court of Appeals today released an opinion in ALVARADO v. TABLE MOUNTAIN, No. 06-15351, an appeal in a civil action against the United States. The panel consisted of Arthur L. Alarcón, David R. Thompson, and Richard C. Tallman, Circuit Judges.

ALARCÓN, Circuit Judge:
Appellants appeal from the district court’s order dismissing their complaint for lack of subject matter jurisdiction. Appellants are individuals who unsuccessfully petitioned the Table Mountain Tribal Council for admission to the Table Mountain Rancheria, an Indian tribe. Their complaint sought an order compelling the Table Mountain Rancheria to admit them as members. The district court concluded that it lacked subject matter jurisdiction over Appellants’ claims because this case was indistinguishable from those in which tribal immunity precludes federal court jurisdiction over tribal membership . . .

The Ninth Circuit Court of Appeals today released an opinion in CHALY-GARCIA v. USA, No. 05-35715, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Chief Judge, and Barry G. Silverman and Susan P. Graber, Circuit Judges.

GRABER, Circuit Judge:
Plaintiff Hugo Leonel Chaly-Garcia sued Defendants United States, the Attorney General of the United States, and the Secretary of Homeland Security of the United States, seeking relief as a class member under the class action settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (”ABC” or “ABC Agreement”). The district court granted summary judgment to Defendants, ruling that Plaintiff was not an ABC class member. On de novo review, Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005), we reverse and hold that Plaintiff is a member of the ABC class and is entitled to the benefits of the ABC Agreement. On December 14, 1990, Defendants agreed to settle a classaction filed by numerous churches, organizations, and individuals on behalf of more than 300,000 asylum applicants from El Salvador and Guatemala. The complaint in that case alleged that Defendants had systematically violated the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, in their . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. BROOKS, No. 05-30261, a criminal appeal. The panel consisted of Alex Kozinski and Raymond C. Fisher, Circuit Judges, and Andrew J. Guilford, District Judge.

GUILFORD, District Judge:
Appellant Alfonso Allan Brooks (”Brooks”) appeals his drug-related convictions, challenging aspects of the jury instructions, the indictment, the sentencing, and testimony he . . .

The Ninth Circuit Court of Appeals today released an order in IN RE KEITH THOMAS, No. 01-80091, a civil rights appeal. The panel consisted of Betty B. Fletcher, Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges.

PER CURIAM:
Respondent Keith Thomas has been a frequent and vexatious litigant in this court for at least seven years. In 2001, we entered a pre-filing review order precluding Thomas from filing new appeals or petitions in this court unless Thomas is appearing through counsel, the district court has certified that Thomas’s appeal is taken in good faith, or we have determined the appeal or petition has sufficient merit to proceed.. . .

The Ninth Circuit Court of Appeals today released an opinion in BIAS v. MOYNIHAN, No. 05-16752, a civil rights appeal. The panel consisted of Arthur L. Alarcón and Richard C. Tallman, Circuit Judges, and Kevin Thomas Duffy, Senior Judge.

ALARCÓN, Circuit Judge:
Alice Bias appeals from the order of the district court granting summary judgment in favor of Officer Frank Moynihan, Police Chief Joseph Kitchen, and the City of San Leandro. She contends that the district court erred in concluding that she failed to demonstrate that there were genuine issues of facts in dispute regarding whether the Appellees detained her for psychiatric evaluation without probable cause in violation of her federal and state law rights. Ms. Bias also claims that the district court abused its discretion in its evidentiary and procedural rulings. We affirm because we conclude that probable cause existed to justify detaining her on two occasions, and the district court’s evidentiary and procedural rulings do not compel a reversal of the judgment. I A The record shows that in May 2002, Ms. Bias was the plaintiff in a civil action before Alameda County Superior . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. KRIESEL, No. 06-30110, a criminal appeal. The panel consisted of Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and William W Schwarzer, District Judge.

McKEOWN, Circuit Judge:
In 2004 we held that the DNA Analysis Backlog Elimination Act of 2000 “satisfies the requirements of the Fourth Amendment” with respect to individuals on supervised release. United States v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004) (en banc). The 2000 Act required collection of DNA samples from individuals in custody and on probation, parole, or supervised release who had been convicted of “qualifying Federal offenses,” then defined as certain violent crimes. 42 U.S.C. § 14135a (2000). Congress amended the Act in 2004 to expand the qualifying offenses to all felonies. Joining every other circuit to consider the 2004 Act, we hold that the amended statute passes constitutional muster with respect to a convicted felon on supervised release. I. STATUTORY AND REGULATORY BACKGROUND In 2000, Congress enacted the DNA Analysis Backlog Elimination Act (the “DNA Act” or the “Act”), which required DNA samples to be collected from individuals in custody and those on probation, parole, or supervised release after being convicted of “qualifying Federal offenses.” 42 U.S.C. § 14135a. The DNA Act originally defined “qualifying Federal offenses” as the following: (A) murder, voluntary manslaughter, or other offense relating to homicide, (B) an offense relating to sexual abuse, to sexual exploitation or other abuse of children, or to transportation for illegal sexual activity, (C) an offense relating to peonage and slavery, (D) kidnaping, (E) an offense involving robbery or burglary, (F). . .

B. FLETCHER, Circuit Judge, dissenting:
The majority holds, with an air of shrugging inevitability, that without a warrant, without probable cause, indeed without any suspicion whatsoever, the federal government may seize and repeatedly search the DNA of all federal felons on supervised release, regardless of their offense or their likelihood to re-offend. They sanction the inclusion of that DNA in a massive and permanent computer database, the sole purpose of which is to aid generalized criminal investigation. This offends not only the Fourth Amendment but our precedents. I respectfully dissent. I. FACTUAL BACKGROUND AND STATUTORY FRAMEWORK In March of 1999, Kriesel was convicted of a non-violent drug offense, conspiracy to possess methamphetamine with intent to distribute. He was sentenced to thirty months imprisonment and placed on supervised release. After his release in February 2003, Kriesel failed three urinalyses, testing positive once for morphine and twice for marijuana. In light of his steady employment and established ties to the community,. . .

The Ninth Circuit Court of Appeals today released an opinion in UFO CHUTING OF HAWAII, INC. v. SMITH, No. 05-16545, a civil rights appeal. The panel consisted of David R. Thompson, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

TALLMAN, Circuit Judge:
UFO Chuting of Hawaii, Inc. and K.M.B.S., Inc. (collectively “UFO”) appeal the district court’s summary judgment in favor of Defendants, the State of Hawaii and the United States as Intervenor (collectively “State”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We hold that UFO’s right to operate vessels under its federal maritime coasting licenses does not preempt Hawaii law prohibiting parasailing off the coast of Maui during limited portions of the year to protect mating humpback whales. Because UFO does not qualify as a “prevailing party,” the district court did not abuse its discretion in denying UFO’s motion for attorney’s fees. I UFO operates a commercial parasailing business offering parasailing excursions to adventure seekers off the coast of Maui and the Big Island of Hawaii. Parasailing is an “activity in which an individual is transported or carried aloft by a parachute, sail, or other material attached to a towline which is towed by a vessel.” Haw. Code R. § 13-250-5. The United States Coast Guard inspects and licenses UFO’s two vessels –the M/V UFO and the M/V CASEY ANN–to carry up to twelve passengers in the “coastwise” trade between McGregor Point and Lipoa Point on the western coast of Maui. A portion of this area is located within the “Maui Humpback Whale Protected Waters.” See Haw. Code R. § 13-256-112. Between December 15 and May 15 of each year, when humpback whales are mating, bearing calves, and caring for their young, Hawaii state law prohibits any person from “operat[ing] a thrill craft, or engag[ing] in parasailing, water sledding, or commercial high speed boating, or operat[ing] a motor vessel towing a person engaged in water sledding or . . .

The Ninth Circuit Court of Appeals today released an opinion in BEATY v. SCHRIRO, No. 05-99013, a habeas corpus appeal. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and M. Margaret McKeown, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We previously remanded this capital habeas appeal to the district court with instructions to conduct an evidentiary hearing on whether Petitioner’s inculpatory statements to a prison psychologist were voluntary within the meaning of the Fifth Amendment. We must now decide whether the district court erred in subsequently concluding that such statements were constitutionally voluntary and therefore properly admitted at Petitioner’s trial. I A Donald Edward Beaty was convicted in Arizona state court for the murder and sexual assault of thirteen-year-old Christy Ann Fornoff. The facts surrounding this crime were detailed in our previous opinion:
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