Take the Fifth: May 12, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Nguyen v. Garland, 19-60342, petition for review of BIA order
    • Graves, J. (Jones, Clement, Graves), immigration
    • Denying Vietnamese citizen’s petition for review of BIA decision that affirmed the ruling of an immigration judge who had found that Mr. Nguyen was subject to removal from the United States because he had been convicted of a crime involving moral turpitude.
    • The underlying crime of moral turpitude was a state conviction in California for forgery. The Court held that a plea agreement and terms of probation form in that underlying matter signed by Mr. Nguyen, his lawyer, the prosecutor, interpreter, and the deputy clerk of court, and stamped as filed by the deputy clerk of court, even though not signed by the judge, “can serve as clear and convincing evidence of a conviction[.]”
  • Olivares v. T-Mobile USA, Inc., 20-20463, appeal from S.D. Tex.
    • Ho, J. (Smith, Stewart, Ho), Title VII, employment discrimination
    • Affirming 12(b)(6) dismissal of employment discrimination claims by transgender employee. The Court held that, while Title VII protects against transgender discrimination under Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the district court correctly dismissed the plaintiff’s claims in this case because of the plaintiff’s failure to meet the burden: “Elijah Olivarez alleges transgender discrimination under Title VII. But Olivarez does not allege facts sufficient to support an inference of transgender discrimination—that is, that T-Mobile would have behaved differently toward an employee with a different gender identity. So we are left with this: An employer discharged a sales employee who happens to be transgender—but who took six months of leave, and then sought further leave for the indefinite future. That is not discrimination—that is ordinary business practice.”
  • Mirza v. Garland, 20-60132, petition for review of BIA order
    • Oldham, J. (Jolly, Stewart, Oldham), immigration
    • Denying Pakistani citizen’s petition for review of BIA order upholding IJ’s order of revocation of asylum and removal.
    • The Court held that the revocation of asylum status was based on a correct interpretation of the law and on substantial evidence. The Court held that the IJ and BIA correctly relied on “Matter of AH-. In that decision, the Attorney General first determined that the plain meaning of ‘reasonable grounds’ comports with the well-established standard for ‘probable cause.’ See 23 I. & N. at 788–89.” The Court then held that the Attorney General’s interpretation of “danger” as “any non-trivial degree of risk” was permissible, rejecting the petitioner’s argument that this allowed for speculative, as well as actual, danger. “All dangers and all risks are inherently matters of probability. For example, a danger is an ‘[e]xposure or liability to injury, loss, pain, or other evil.’ Danger, Webster’s New International Dictionary 667 (2d ed. 1934; 1950) (‘Webster’s Second’). And a risk is a ‘[h]azard; danger; peril; exposure to loss, injury, disadvantage, or destruction.’ Risk, Webster’s Second at 2154. Some risks (like smoking) are higher than others (like walking outside)—but they’re still risks. The question is whether Congress required some particular quantum of risk before triggering the asylum bar. Mirza points to nothing in the statutory text or structure to suggest Congress did so.” The Court concluded, “We agree that a speculative risk is insufficient to trigger the statutory bar on asylum. But Matter of A-H- did not hold otherwise. Read in context, that decision said an alien can lose asylee status when a reasonable person has probable cause to believe that an alien may pose a danger to national security. A purely hypothetical or speculative danger is not enough—just as the purely hypothetical or speculative risk of a crime does not provide a reasonable person with probable cause to think a crime occurred.”
    • The Court then reviewed the record and held that substantial evidence supported the IJ’s and BIA’s finding that the petitioner presented an actual risk. The Court noted the petitioner’s admission that he had made a threat to kill 30 to 50 non-believers; and found that the petitioner presented no evidence to demonstrate that he lacked the ability to carry through on that threat.
    • The Court then held that it had jurisdiction to consider the petitioner’s argument that he should not be removed because he was not a member of an organization that had been deemed a terrorist organization; but held that substantial evidence supported the IJ’s determination that he was, in fact, a member of that organization.

Unpublished

  • U.S. v. Serra-Romero, 19-11350, appeal from N.D. Tex.
    • per curiam (Jones, Clement, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gassaway, 19-20154, appeal from S.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, sufficiency of evidence, restitution
    • Affirming conviction for wire fraud, finding the evidence was sufficient to support the conviction, and the amount of restitution ordered.
  • U.S. v. Raven, 19-40522, appeal from S.D. Tex.
    • per curiam (Haynes, Graves, Willett), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.
  • Ulloa-Guzman v. Garland, 19-60799, petition for review of BIA order
    • per curiam (Higginbotham, Jones, Costa), immigration
    • Denying in part and dismissing in part petitioner’s petition for review of BIA order denying reconsideration of its order vacating the grant of a motion to reopen his 1996 deportation proceeding.
  • Gonzales v. Garland, 19-60828, petition for review of BIA order
    • per curiam (Jones, Barksdale, Stewart), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal from the immigration judge’s (IJ) denying his applications for: asylum; withholding of removal; and protection under the Convention Against Torture.
  • U.S. v. Ontanon-Espinoza, 20-11093, appeal from N.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Garcia-Melchor, 20-40287, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Drennen, 20-40406, appeal from E.D. Tex.
    • per curiam (Barksdale, Graves, Oldham), criminal, compassionate release
    • Affirming denial of defendant’s motion for compassionate release.
  • U.S. v. Delgadillo, 20-50862, appeal from W.D. Tex.
    • per curiam (Jones, Barksdale, Stewart), criminal, sentencing
    • Affirming 46-month prison sentence on guilty plea conviction for one count of importing 50 grams or more of methamphetamine into the United States and one count of possession, with intent to distribute, 50 grams or more of methamphetamine.
  • Rodriguez-Granados v. Garland, 20-60290, petition for review of BIA order
    • per curiam (Jolly, Graves, Costa), immigration
    • Dismissing in part and denying in part petition for review of dismissal by the Board of Immigration Appeals (BIA) of petitioner’s appeal from the denial by the Immigration Judge (IJ) of her applications for asylum and withholding of removal.
  • Diaz-Barriga v. Garland, 20-60459, petition for review of BIA order
    • per curiam (King, Smith, Wilson), immigration
    • Denying Mexican citizen’s petition for review of BIA order summarily affirming the decision of the Immigration Judge (IJ) denying his application for withholding of removal and relief under the Convention Against Torture.
  • U.S. v. Kizzee, 20-60825, appeal from S.D. Miss.
    • per curiam (Barksdale, Graves, Oldham), criminal, First Step Act
    • Affirming denial of motion for sentence reduction under the First Step Act.