Designated for publication
- Tibakweitira v. Wilkinson, 18-60459, petition for review of BIA order
- Engelhardt, J. (Haynes, Duncan, Engelhardt), immigration
- Dismissing in part and denying in part Tanzanian citizen’s petitions for review of a BIA order dismissing his appeal from the IJ decision denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”) and for review of BIA order denying his motion to reconsider and reopen and denying his request for review of that motion by a three-member panel.
- Petitioner had fled Tanzania in 1992 on a tourist visa, after having been recruited to join the Tanzanian Intelligence and Security Service (“TISS”) and being trained to suppress political opponents through violent means, then over-stayed his visa and became a real estate professional. In 2015 he pled guilty to conspiracy to commit wire fraud and aggravated identity theft, arising from an indictment based on charged of mortgage fraud. In 2017 he was ordered to be removed based on the commission of an aggravated felony. His application for withholding of removal and protection under CAT was denied; in his appeal to the BIA he argued in part that IJ erred in categorizing his wire fraud conviction as a “particularly serious crime” rendering him ineligible for withholding of removal.
- The Court first noted that petitioner’s crime, for which the sentence in part required him to pay $2.5 million in restitution, qualified as an aggravated felony because it was a “conspiracy to commit an offense” that “involve[d] fraud . . . in which the loss to the victim or victims exceed[ed] $10,000.” 8 U.S.C. § 1101(a)(43)(M)(i) & (U). The Court then noted that it did not have jurisdiction to essentially re-weigh the facts related to that crime to arrive at a different conclusion than the IJ and BIA as to whether it was a “particularly serious crime.”
- The Court then noted that substantial evidence in the record supports the IJ’s conclusion that the petitioner had failed to meet his burden of proving that CAT relief was warranted.
- The Court held that petitioner’s claims regarding the Convention Against Transnational Crime had not been presented to the BIA and therefore was unexhausted; and that it further lacked jurisdiction to review the BIA member’s discretionary decision to not impanel a three-member BIA hearing board.
- Haddock v. Tarrant County, Texas, 19-11327, appeal from N.D. Tex.
- Clement, J. (Clement, Ho, Duncan), § 1983, First Amendment
- Affirming dismissal of suit by Tarrant County associate family court judge arising from her termination by a majority vote of the family court judges after her husband made public comments against a candidate running for a position as a judge on the court and the plaintiff herself refused to support that candidate.
- As to the plaintiff’s First Amendment-based claims and the district court’s denial of her claims for injunctive relief, the Court recognized that “[t]he First Amendment generally prohibits adverse employment actions against government employees based on political affiliation, Elrod v. Burns, 427 U.S. 347, 373 (1976), but, where ‘an employee’s private political beliefs would interfere with the discharge of [her] public duties, [her] First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency,’ Branti v. Finkel, 445 U.S. 507, 517 (1980). Sometimes called the Elrod/Branti exception, this maxim most often applies to employees in policymaking or confidential positions.” The Court held, “Haddock’s pleadings, combined with Texas law, make clear that she is a policymaker subject to the Elrod/Branti exception, and political affiliation is relevant to her qualification for the associate judge position.”
- The Court noted that “[t]he reason the Elrod/Branti exception typically applies to policymakers is that such employees are uniquely positioned to frustrate the policy agendas of the elected officials for whom they work.” Rejecting the plaintiff’s argument that the associate family court judges cannot be “policymakers” vis a vis the family court judges because judges merely apply the law to the facts of a case, the Court held, “Although we appreciate this aspirational view of the judiciary generally, both the structure of the judiciary in Texas and Haddock’s pleadings refute this argument.” The Court cited to the fact that the judges in Texas are elected officials and that there is “no requirement or expectation that voters ever knowingly select a judge with whom they disagree.” The Court also noted the associate judges’ broad power, bounded only by appellate review, to conclude that “[t]here can be no question that Haddock was entrusted with the type of broad discretion that paradigmatically characterizes a policymaker.” The Court concluded, “[D]istrict judges are entitled to select associate judges they trust to carry out their policy preferences. Haddock was a policymaker, so, to the extent that her claims are premised on perceived political disloyalty—whether because she refused to support Munford, was believed to agree with her husband’s anti-Munford advocacy, or for whatever other reason—her termination was constitutional under the Elrod/Branti doctrine.”
- The Court also held that the plaintiff was a “confidential” employee, because the judge-associate judge relationship required a close professional relationship requiring the ability to engage in confidential communications regarding highly sensitive material in the administration of policy-based decisionmaking.
- The Court also held that the Elrod/Branti analysis was appropriate both for compelled-speech claims (such as the plaintiff’s claim that she was being retaliated against for not supporting the judge candidate) and for intimate-association claims (such as plaintiff’s claims that she was being retaliated against for her husband’s public opposition to the judge candidate). “[A]s a matter of common experience and the loyalty that spouses (hopefully) feel toward one another, there is reason to believe that Haddock’s loyalty would be to her husband first and to the District Judges second. So long as this created no conflict, it was fine; when Haddock’s husband became several judges’ fierce political enemy, it became a problem.”
- Sullivan v. Texas A&M University System, 20-20248, appeal from S.D. Tex.
- Oldham, J. (Haynes, Higginson, Oldham), employment discrimination, sovereign immunity
- Affirming without-prejudice dismissal of disability-discrimination claim against university system on sovereign immunity grounds.
- The Court held that the university system is an agency of the State, and therefore entitled to share in the State’s sovereign immunity. The Court held that Congress had not validly abrogated the states’ sovereign immunity under the Americans with Disabilities Act or the self-care provision of the Families and Medical Leave Act. The Court then held that those provisions were not among those covered by 42 U.S.C. § 2000d-7(a)(1)’s clause triggering a state waiver of sovereign immunity for “any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.”
- Rice v. Gonzalez, 20-20263, appeal from S.D. Tex.
- Jones, J. (Jones, Smith, Elrod), habeas corpus
- Affirming denial of § 2241 petition for release from confinement due to Covid-19 concerns arising from the petitioner’s health complications (asthma and hypertension). The Court held that “the Great Writ does not, in this circuit, afford release for prisoners held in state custody due to adverse conditions of confinement.” The Court noted that the increased risk of infection in confinement and the preexisting health conditions of the petitioner “do not impugn the underlying legal basis for the fact or duration of his confinement. Rice seeks an extension of federal habeas corpus law that this court is not authorized to grant.”
Unpublished
- Vetcher v. Immigration and Customs Enforcement, 19-10156, appeal from N.D. Tex.
- per curiam (King, Smith, Wilson), Bivens claim
- Affirming dismissal of former ICE detainee’s Bivens claims.
- U.S. v. Jones, 19-10600, appeal from N.D. Tex.
- per curiam (Owen, Dennis, Haynes), criminal, guilty plea
- Affirming conviction guilty plea to two counts of racketeering, one of which was predicated on child sex trafficking, rejecting argument that plea was not knowing and voluntary because defendant was misled about the collateral consequence of mandatory sex offender registration under the federal Sex Offender Registration and Notification Act.
- U.S. v. White, 19-11010, appeal from N.D. Tex.
- per curiam (King, Elrod, Willett), criminal, sentencing
- Affirming sentence of 94 months’ imprisonment and three years’ supervised release on guilty plea to possession with intent to distribute a controlled substance and possession of a firearm by a felon.
- U.S. v. Sanchez, 19-11261, appeal from N.D. Tex.
- per curiam (Jones, Smith, Elrod), criminal, supervised release
- Affirming conditions of supervised release, finding that the treatment condition, location restriction, and computer-monitoring conditions are reasonably related to Sanchez’s criminal history.
- Sabre Industries, Inc. v. Module X Solutions, LLC, 19-30887, appeal from W.D. La.
- per curiam (Barksdale, Southwick, Graves), breach of contract, negligent misrepresentation, fraud, attorneys’ fees
- Affirming partial summary judgments and judgment based on jury verdict in cross-claims arising from joint venture agreement relationship regarding breach of contract, fraud, negligent misrepresentation, and entitlement to attorneys’ fees.
- Shields v. Weaver, 19-40557, appeal from S.D. Tex.
- per curiam (King, Elrod, Willett), jurisdiction
- Dismissing appeal for lack of appellate jurisdiction on the basis that it appealed from a non-final judgment.
- U.S. v. Becerra, 19-50447, appeal from W.D. Tex.
- per curiam (King, Stewart, Southwick), criminal, supervised release
- Vacating special conditions of supervised release that prevent defendant from using the Internet, computers, and other electronic devices for the ten years following his initial sentence of 151 months, and remanding for resentencing.
- U.S. v. Ramos, 19-50932, appeal from W.D. Tex.
- per curiam (Wiener, Southwick, Duncan), criminal, guilty plea, sentencing
- Affirming conviction and sentence on finding sufficient factual basis for guilty plea to one count of conspiracy to interfere with commerce by threats or violence, one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine and 100 grams or more of heroin, and (3) one count of possession of a firearm by a convicted felon.
- Alvarenga-Quijano v. Wilkinson, 19-60710, petition for review of BIA order
- per curiam (King, Smith, Wilson), immigration
- Dismissing in part and denying in part El Salvadoran citizen’s petition for review of BIA order dismissing her appeal of IJ denial of her motion to reopen the proceedings in order to rescind her 2004 in absentia removal.
- Chavez-Dominguez v. Wilkinson, 19-60834, petition for review of BIA order
- per curiam (Jolly, Elrod, Graves), immigration
- Dismissing in part and denying in part El Salvadoran citizen’s petition for review of BIA dismissal of his appeal from the denial of his application for asylum, withholding of removal, and protection under CAT.
- U.S. v. Martinez, 20-10434, appeal from N.D. Tex.
- per curiam (Clement, Higginson, Engelhardt), criminal, sentencing
- Affirming 188-month above-guidelines sentence imposed following guilty plea conviction for conspiracy to possess with intent to distribute a controlled substance and 16-month revocation sentence imposed on the related revocation of term of supervised release on an earlier conviction for felony possession of a firearm.
- Ermuraki v. Cuccinelli, 20-20370, appeal from S.D. Tex.
- per curiam (Clement, Higginson, Engelhardt), immigration
- In review of USCIS denial of application to adjust immigration status to lawful permanent residents under the diversity visa program, on finding of mootness vacating agency order and dismissing.
- Wells v. Collier, 20-40251, appeal from E.D. Tex.
- per curiam (Wiener, Southwick, Duncan), prisoner suit
- Affirming dismissal of suit seeking redress after plaintiff was exposed to unhygienic conditions at the prison and became ill.
- Byerly v. Standard Insurance Co., 20-40302, appeal from E.D. Tex.
- per curiam (Jolly, Southwick, Costa), ERISA
- Affirming dismissal of suit for coverage under ERISA plan for lack of a qualifying loss.
- U.S. v. McAllister, 20-50141, appeal from W.D. Tex.
- per curiam (Haynes, Duncan, Engelhardt), criminal, sufficiency of evidence
- Affirming conviction after five-day jury trial on aiding and abetting wire fraud and unlawfully engaging in a monetary transaction.
- U.S. v. Leyva, 20-50587, appeal from W.D. Tex.
- per curiam (Davis, Stewart, Dennis), criminal, sentencing
- Affirming sentence upon application of 8 U.S.C. § 1326(b)(1).
- U.S. v. Ybarra, 20-50601, appeal from W.D. Tex.
- per curiam (Clement, Elrod, Haynes), criminal, sentencing
- Affirming denial of motion for sentence reduction.
- U.S. v. Rinestine, 20-50621, appeal from W.D. Tex.
- per curiam (Dennis, Southwick, Engelhardt), criminal
- Dismissing as frivolous appeal from denial of compassionate release.
- U.S. v. Limon, 20-50792, appeal from W.D. Tex.
- per curiam (Clement, Elrod, Haynes), habeas corpus
- Granting COA from district court’s dismissal of § 2255 petition as untimely, vacating district court’s dismissal, and remanding for further proceedings.
- U.S. v. Valles-Morales, 20-50861, appeal from W.D. Tex.
- per curiam (Wiener, Southwick, Duncan), criminal, sentencing
- Granting summary affirmance of sentence of 27 months of imprisonment and three years of supervised release, which the district court imposed following guilty plea conviction for illegal reentry.
- U.S. v. Powell, 20-60701, appeal from S.D. Miss.
- per curiam (Stewart, Higginson, Engelhardt), criminal, First Step Act
- Affirming denial of sentence reduction under First Step Act.
- Shumate v. Hurdle, 20-60784, appeal from S.D. Miss.
- per curiam (King, Smith, Wilson), employment discrimination, Age Discrimination in Employment Act
- Affirming dismissal of age discrimination claims.
Take the Fifth 