July 12, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Singh v. Garland, 19-60937, petition for review of BIA order
    • Higginbotham, J. (Higginbotham, Southwick, Willett), immigration
    • Granting stay pending review of petition for review of BIA order dismissing Indian citizen’s appeal of IJ decision denying his application for asylum and protection under the Convention Against Torture and finding petitioner not credible. Petitioner’s application for asylum and protection under the CAT is based on his claim that he fears persecution in India based on his membership in the Akali Dal Amritsar (“Mann Party”), a Sikh-dominated political party.
    • Petitioner claims he was twice assaulted by members of the party in power in Punjab, the Bharatiya Janata Party (“BJP”) due to his activities supporting the Mann Party, one beating leaving him in the hospital for two days and the next beating putting him in the hospital for five days. He unsuccessfully tried to report the first assault to police, who refused because the BJP were in power, and who instead threatened to arrest him for making a false report. After the second beating, which culminated in his assailants threatening to kill him the net time, petitioner fled first to his sister’s home and then via smuggler to Mexico and across into the United States. Since he left, his father has been attacked twice and his mother once.
    • The IJ noted that there had been a wave of Indian asylum seekers, all with very similar fact patterns as those alleged by the petitioner. Petitioner’s counsel provided explanations for the similarities, but the IJ found “Respondent’s counsel’s explanation insufficient to rebut the repetitive narrative of applicants from India.”
    • The Court held that the petitioner has showed a likelihood of success on both arguments raised in his petition: (1) “that the IJ’s near total denial rate for asylum applications reflected a bias and violated Singh’s due process rights”; and (2) challenging “the BIA’s conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination.”
    • As to the denial rate, the Court noted that the IJ denied relief to asylum seekers in 203 of 204 cases between 2014 and 2019, a denial rate of 99.5%, compared to a nationwide denial rate of 25-50% in the same time period.
    • The Court then reviewed the three-part framework adopted by the Matter if R-K-K- BIA panel regarding use of inter-proceeding similarities: “First, the Immigration Judge should give the applicant meaningful notice of the similarities that are considered to be significant. Second, the Immigration Judge should give the applicant a reasonable opportunity to explain the similarities. Finally, the Immigration Judge should consider the totality of the circumstances in making a credibility determination. Each of these steps must be done on the record in a manner that will allow the Board and any reviewing court to ensure that the procedures have been followed.” The Court noted that the IJ appeared to fail to follow all three steps.
    • The Court conclude, “The appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ’s adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. We do not suggest that a high percentage of denials is sufficient to avoid an IJ’s otherwise valid credibility determinations. Indeed, patterns in applicants’ presentations are likely and may necessarily result in a higher denial rate if the shared basis for relief is inadequate. But here, the incredibly high denial rate, when coupled with the IJ’s noncompliance with Matter of R-K-K-, presents a substantial likelihood that Singh will be entitled to relief upon full consideration by a merits panel.”

Unpublished

  • U.S. v. Palmer, 19-11012, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jackson, 19-30433, appeal from E.D. La.
    • per curiam (Haynes, Willett, Ho), habeas corpus
    • Affirming district court’s denial of § 2255 petition asserting ineffective assistance of counsel.
  • Pazos-Toledano v. Garland, 19-60516, petition for review of BIA order
    • per curiam (Jones, Southwick, Costa), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order dismissing his appeal from an Immigration Judge’s (“IJ’s”) denial of relief.
  • U.S. v. Faulkner, 20-10897, appeal from N.D. Tex.
    • per curiam (Jolly, Ho, Engelhardt), criminal, compassionate release
    • Vacating denial of motion for compassionate release and remanding for further proceedings in light of United States v. Shkambi, 993 F.3d 388, 392-93 (5th Cir. 2021).
  • Environmental Packaging Technologies, Ltd. v. Arch Insurance Co., 20-20431, appeal from S.D. Tex.
    • per curiam (Owen, Smith, Graves), insurance
    • Affirming summary judgment in insurance coverage dispute in favor of the insurer defendants, concluding that either the fraud exclusions or the personal-profits exclusions precluded coverage.
  • Washington v. Mayweather, 20-30474, appeal from E.D. La.
    • per curiam (Davis, Stewart, Dennis), breach of contract, subject matter jurisdiction
    • Affirming district court’s dismissal of breach of contract claims for lack of subject matter jurisdiction due to failure to meet the diversity amount in controversy.
  • U.S. v. Green, 20-30621, appeal from W.D. La.
    • per curiam (Davis, Stewart, Dennis), criminal, search and seizure
    • Affirming conviction of possession of a firearm and ammunition after a felony conviction, and upholding district court’s denial of motion to suppress.
  • U.S. v. Ramos-Lopez, 20-50153, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Marquez, 20-50891, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Bagby, 20-50992, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Marroquin-Santiago, 20-51043, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of 30-month sentence for illegal reentry after removal.
  • Grizzle v. Lumpkin, 21-10090, appeal from N.D. Tex.
    • per curiam (Stewart, Haynes, Ho), habeas corpus
    • Holding in abeyance and remanding to district court to determine whether certificate of appealability should be issued from denial of § 2254 petition.
  • U.S. v. Ramos-Ramos, 21-50086 c/w 21-50111, appeal from W.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Affirming 24-month sentence for illegal reentry after removal, and sentence on revocation of supervised release.