Take the Fifth

Designated for publication

• Vazquez-Guerra v. Garland, 18-60828, petition for review of BIA order
  • Ho, J. (Smith, Graves, Ho), immigration
  • Denying petition for review of Mexican citizen’s petition for review of BIA order dismissing appeal of IJ order denying asylum and withholding of removal for her and her minor daughter based on an expressed fear that she would be killed or tortured by the Zetas, a Mexican drug cartel, because of her membership in the “particular social group” of her family. The Court held that the petitioner failed to demonstrate that substantial evidence compels a different result than the IJ’s and BIA’s determination that she “failed to establish a nexus between either the harm she suffered or her fears of future persecution and her particular social group.”
  • The Court held that there was no required nexus between the petitioner’s social group, her family, and the threat of persecution by the Zetas. The petitioner’s brother had been kidnapped and likely killed by the Zetas. When she checked with police about the status of the investigation, she began to be threatened by the Zetas, that they would kill her if she continued to look into it. The IJ, BIA, and Court held that the threat of persecution was not due to petitioner’s status as a member of her family (no one else in her family had been harmed by the Zetas), but was due to her actions in investigating her brother’s disappearance. Hence, no nexus. “The BIA and the IJ both correctly concluded that familial ties did not sufficiently motivate the Zetas to target Vazquez-Guerra. Rather, the record and Vazquez-Guerra’s own statements make clear that the Zetas were primarily motivated by a desire to prevent her from investigating her brother’s disappearance.”

• Ramey v. Lumpkin, 18-70034, appeal from S.D. Tex.
  • Higginson, J. (Smith, Higginson, Duncan), habeas corpus, Batson claim, ineffective assistance of counsel
  • Affirming district court’s denial of habeas petition for petitioner who received a death penalty sentence, who was seeking relief based on a Batson claim and on a claim of ineffective assistance of counsel under Strickland.
  • The Court held that the petitioner’s Batson claim could not clear AEDPA’s relitigation bar because the state habeas court had not unreasonably applied federal law. The Court found that the state court’s characterization of the non-race-based reason for the peremptory strike of a Black juror, though not verbatim the same reason articulated by the state at the trial, was substantially the same reason. The Court also held that the state courts had not unreasonably applied federal law in failing to consider all of the circumstances regarding a white juror who had expressed the same hesitancy toward the death penalty as the stricken Black juror in determining if the state’s race-neutral explanation for the peremptory strike was pretextual, because the petitioner had failed to direct the state courts to those circumstances. “Ramey cannot identify clearly established federal law requiring state courts sua sponte to find and resolve all facts and circumstances that may bear on whether a peremptory strike was pretextual and racially motivated when those facts and circumstances were not identified and urged by the strike’s challenger.”
  • The Court then held that the petitioner’s Strickland claim is procedurally defaulted because he failed to present it in state habeas proceedings, and was barred from doing so by Texas’s abuse-of-the-writ doctrine. Regardless, the Court also held that petitioner’s Strickland claim failed on the merits. The Court held that, even if petitioner’s trial counsel failed to properly investigate the state’s witnesses to find material with which to impeach their credibility, he failed to show prejudice because the testimony of unimpeachable witnesses was sufficient to support the verdict. “This ‘unaffected’ circumstantial evidence of Ramey’s crime—including Ramey’s direct confession—is overwhelming.”

• Wheeler v. Norfolk Southern Railway Co., 20-30693, appeal from E.D. La.
  • Barker, J., by desig. (Smith, Ho, Barker), Federal Employers Liability Act
  • Affirming district court’s summary judgment in favor of defendant on holding that plaintiff was not an employee of defendant for purposes of FELA claim arising from plaintiff’s loss of several fingers during an on-the-job accident, on basis that he failed to show that Norfolk “controlled the performance of his work or retained the right to do so.”
  • Plaintiff worked for Hulcher, which performed work for Norfolk under a Master Agreement for Derailment Cleanup and Repair Services. “The agreement gives Norfolk employees the right to inspect Hulcher’s work and demand that Hulcher remedy any deficiencies. It also provides that Norfolk may assign its personnel to work alongside or in the vicinity of Hulcher employees, and it clarifies that the employees of each party ‘shall remain under the direction and control of [their] supervisors, there being no intention to render the employees of either as ‘loaned’ employees of the other.'” Plaintiff, meanwhile, supplied a declaration that he was required to follow Norfolk’s safety rules and to stop work if ordered to do so by a Norfolk employee, and that he would be removed from Norfolk’s yard if he failed in either of these conditions.
  • While a person can be an employee of more than one employer simultaneously, be a “borrowed servant,” or be a subservant of a company that in turn serves the railroad, in order to be a FELA “employee,” the Court noted that “[t]he railroad need not have full supervisory control, but its supervisory role must be significant. The mere reservation of authority to ensure performance as contemplated by a contract is not sufficient control to turn a nominal contractor into an employee.” The Court held that, under these standards, the plaintiff’s argument that he was Norfolk’s employee failed as a matter of law. “The undisputed evidence demonstrates that Norfolk did not control the manner and details of Wheeler’s work, nor did it retain the right to do so.”

• Rollerson v. Brazos River Harbor Navigation District of Brazoria County, 20-40027, appeal from S.D. Tex.
  • Haynes, J. (Jones, Haynes, Ho), Jones, J., concurring; Ho, J., concurring; Title VI, Administrative Procedure Act
  • Affirming in part and reversing in part 12(b)(6) dismissal of plaintiff’s claims, and remanding for further proceedings. Plaintiff, owner of property in the East End neighborhood of Freeport, brought suit against the Corps of Engineers arising from the buyout program of East End properties as part of a port expansion project, claiming that the buyout program used federal funds in a discriminatory manner through methods that artificially depressed the values of properties in the historically majority-minority East End neighborhood, and that the Corps’ denial of his administrative complaint violated the APA. The district court dismissed plaintiff’s claims under Rule 12(b)(6). The Court affirmed the dismissal of the Title VI claim, but reversed the dismissal of his APA claim.
  • The Court held that, for purposes of plaintiff’s Title VI claim, he failed to allege that discrimination was intentional. “To plead that the Port acted with discriminatory intent, Rollerson must allege that the Port is expanding into the East End at least in part because of, not merely in spite of, [the expansion’s] adverse effects on the East End’s minority population. … If the disparate impact is clearly unexplainable on grounds other than race, then a court may infer racial animus. If not, the court must perform a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” (Internal quotation marks and citations omitted).
  • The Court held that “the critical problem for Rollerson is that the ‘sequence of events’ leading to the Port’s decision shows no sign of racial animus.”
  • The Court held that the district court erred on plaintiff’s APA claim because the Title VI claim was no an “adequate remedy” that would preclude relief under the APA. “Importantly, the question of whether a remedy is ‘adequate’ under § 704 is distinct from the question of whether that remedy presents the plaintiff with a viable path to relief.” However, under Alexander v. Sandoval, 532 U.S. 275, 280 (2001), the Court held that “plaintiffs who seek to enforce disparate-impact regulations have no adequate alternative remedy to APA review.” Because DOD has promulgated such regulations that plaintiff argued were not enforced in the property-acquisition process, the Court held that his APA claim should go forward. The Court also held that the Corps’ denial of plaintiff’s administrative complaint on jurisdictional grounds was not intertwined with a policy decision and therefore was not a decision immune from challenge under the APA because it was committed to agency discretion.
  • Judge Jones concurred. She would have not reviewed the factors under Village of Arlington Heights in dismissing the plaintiff’s Title VI claim because she “would find Rollerson’s theory of intentional discrimination wholly wanting on its face.”
  • Judge Ho concurred. “With respect to the intentional discrimination claim, we all agree that this case turns on geography, not race. With respect to the disparate impact claim, we all agree that remand is appropriate. I write separately to explain why I share Judge Jones’s concerns about unelected agency officials usurping Congress’s authority when it comes to disparate impact theory.”

Unpublished

• Simms v. Preston E. Smith Medical Department, 20-10782, appeal from N.D. Tex.
  • per curiam (Stewart, Haynes, Ho), prisoner suit
  • Dismissing as frivolous prisoner’s appeal of dismissal of § 1983 claim as moot.

• U.S. v. Hernandes, 20-50413, appeal from W.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Nsai v. Garland, 20-60932, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying petition for review of BIA order denying motion to reopen.

• Reynoso v. Lumpkin, 20-70023, appeal from S.D. Tex.
  • per curiam (Willett, Ho, Duncan), habeas corpus
  • Denying certificate of appealability on district court’s denial of ineffective assistance of counsel claims as procedurally barred and meritless.

• In re: The Boeing Co., 21-40190, on petition for mandamus to E.D. Tex.
  • per curiam (Clement, Elrod, Haynes), mandamus, attorney-client privilege
  • Denying petition for writ of mandamus in part and granting in part on district court’s order of Boeing to produce fifty-three documents that Boeing contends are protected by attorney-client privilege, of which Boeing claims district court erred in holding that nineteen of those documents lacked attorney-client privilege and that the other thirty-four were subject to the crime-fraud exception.

• U.S. v. Contreras-Roman, 21-50204, appeal from W.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Granting summary affirmance of 46-month sentence on conviction of illegal reentry.