September 24, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Abushagif v. Garland, 19-60807, petition for review of BIA order
    • Smith, J. (Smith, Higginson, Engelhardt), immigration
    • Granting in part, denying in part, and remanding to the BIA to assess the Libyan citizen’s petition for assessment of his claim for protection under the Convention Against Torture (denying petition for review of denial of application for asylum and for withholding of removal).
    • After petitioner had sought asylum, withholding of removal and protection under the CAT in 2011, claiming that he feared being arrested for resisting conscription into Quadafi’s forces to put down the rebel groups in Libya’s civil war, and had then voluntarily withdrawn his petition and assented to removal, he subsequently did not leave the United States. In 2019 he moved to reopen his petition. “Abushagif declared that his father had been kidnapped and tortured by militias because of his work for the Qadhafi administration and that those militias planned to kidnap him once he landed in Libya. Abushagif also stated that he feared torture or death because he had converted to Christianity and come out as bisexual. Finally, he stated that he feared persecution because he had served in the Qadhafi regime’s national guard.”
    • Upholding the denial of a motion to reopen his asylum application, the Court rejected the petitioner’s argument that it should apply the standard that his allegations are presumed true unless “inherently unbelievable.” “That the Board must credit factual allegations as true in a motion to reopen unless they are ‘inherently unbelievable’ is found nowhere in the INA or the relevant regulations. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.23. We thus do not adopt the judge-made ‘inherently unbelievable’ standard.” The Court then held that the Board did not abuse its discretion in denying the motion to reopen his asylum application “because its determination that he failed to establish a prima facie case was not irrational.” The Court relied on the Board’s findings of inconsistency in the petitioner’s statements and arguments in 2011 and 2019. “[W]e do not require the BIA to engage in speculative gymnastics to reconcile conflicts in an applicant’s account.”
    • The Court also held that the Board did not abuse its discretion in “not accepting claims of being a Christian and a bisexual man without corroboration.”
    • The Court held, however, that the Board did abuse its discretion in “entirely failing to address his CAT claim.” “A CAT ‘claim is separate from … claims for asylum and withholding of removal and should receive separate analytical attention.’ Efe v. Ashcroft, 293 F.3d 899, 906–07 (5th Cir. 2002). Moreover, the BIA must not leave asserted CAT claims unaddressed.”
  • McDonnel Group, L.L.C. v. Starr Surplus Lines Insurance Co., 20-10140, c/w 20-30175, appeals from E.D. La.
    • Smith, J. (Smith, Clement, Oldham), insurance
    • Reversing partial summary judgment in favor of insurer on claim for declaratory relief involving flood deductible on $3 million loss in construction project, and remanding for further proceedings, upon holding that insurance policy was ambiguous.
    • “During the spring and summer of 2017, the project suffered a number of water intrusions, culminating in a heavy rain that caused extensive damage. McDonnel submitted a notice of loss to the insurers, claiming damages of $3,226,164.30. The parties’ divergent views on the proper deductible give rise to the dispute. The plaintiffs assert that the correct flood deductible is $500,000 and that the insurers should therefore pay a claim of $2,726,164.30—the flood damage less $500,000. The insurers contend that the proper deductible is $3,443,475. Thus, the claim, in their view, fell $217,310.70 below the deductible, entitling the plaintiffs to nothing under the policy.”
    • Under a policy insuring the construction project for a total value of $86,086,833, the policy capped damages that could be claimed from flood damage at $10 million. The policy’s deductible language set the deductible as “5% of the total insured values at risk at the time and place of loss subject to a $500,000 minimum deduction as respects as respects [sic] FLOOD*.” The plaintiff argued that the deductible for flood damages was then $500,000, 5% of the “insured value” for flood purposes of $10 million. The insurer argued that the “5% of the total insured values” applied to $68,869,506, or 80% of the total insured project value because the project was 80% complete at the time.
    • The Court noted that the plaintiff’s interpretation would have the phrase, “as respects FLOOD” modify the phrase “total insured values at risk,” while the insurer’s interpretation would have that phrase only relate to “$500,000 minimum deduction.” The Court held, “Both parties’ interpretations are reasonable, so the policy is ambiguous.”
  • U.S. v. Garrett, 20-61083, appeal from S.D. Miss.
    • per curiam (Owen, Smith, Graves), criminal, compassionate release
    • Denying petition for rehearing, but withdrawing September 9, 2021 opinion and substituting new opinion with same result, affirming district court’s denial of motion for compassionate release on basis that movant had failed to exhaust his administrative remedies.

Unpublished

  • Maradiaga-Vardalez v. Garland, 19-60867, petition for review of BIA order
    • per curiam (King, Costa, Ho), immigration
    • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order denying motion to reopen.
  • U.S. v. Spear, 20-10857, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Ward, 20-50765, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming 240-month sentence on conviction for possession of child pornography.
  • Inuwa v. Garland, 20-60283, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying Nigerian citizen’s petition for review of BIA order dismissing appeal from IJ order denying adjustment of status, asylum, withholding of removal, and protection under the Convention Against Torture.
  • Rowaid v. Garland, 20-60525, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Dismissing Yemeni citizen’s petition for review of BIA order dismissing his appeal from the denial of his applications for applications for asylum, withholding of removal, and protection under the Convention Against Torture.
  • Goodno v. Endurance American Specialty Insurance Co., 21-30071, appeal from E.D. La.
    • per curiam (Higginbotham, Willett, Duncan), insurance
    • Affirming the district court’s granting of motions to dismiss claims arising from fatal auto accident by excess insurer and by insured entities that were only still in the suit under a Gasquet release.
  • Kennedy v. Braskem America, Inc., 21-30198, appeal from E.D. La.
    • per curiam (King, Costa, Ho), personal tort
    • Affirming dismissal of claims against property owner and general contractor on tort claims by plaintiff who had been injured on construction project while working as a foreman of a subcontractor.
  • U.S. v. Felipe-Reyes, 21-40271, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Portillo-Duarte, 21-50125, c/w 21-50129, appeals from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Granting summary affirmance of conviction and sentence on revocation of supervised release.
  • Carroll v. Cornish, 21-50395, appeal from W.D. Tex.
    • per curiam (Clement, Ho, Oldham), § 1983
    • Affirming dismissal of § 1983 claims on finding that there were no non-frivolous argument made on appeal.