January 3, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Parada-Orellana v. Garland, 19-60645, petition for review of BIA order
    • Wilson, J. (Higginbotham, Stewart, Wilson), immigration
    • Denying petition for panel rehearing; withdrawing August 6, 2021, panel opinion and substituting new panel opinion denying Salvadoran citizen’s petition for review of BIA order dismissing appeal of IJ’s motion to rescind in absentia order of removal or, alternatively, to reopen removal proceedings to allow her to apply for cancellation of removal under the INA.
    • The Court held that, because she failed to preserve the argument regarding rescission of her in absentia removal order in her initial brief, it would decline to address the effect of the post-panel-decision decision in Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021). “‘It is of no consequence that then-valid Fifth Circuit precedent [at the time of her initial briefing] foreclosed [her] … argument at the time [s]he submitted h[er] opening brief because that argument was nonetheless available to h[er].'” (Quoting Spagnol-Bastos v. Garland, 19 F.4th 802, 808 (5th Cir. 2021)).
    • The Court then held that it had jurisdiction to review the petitioner’s argument that the BIA had failed to establish the correct legal standard to its review of the IJ’s denial of the motion to reopen, as it was a legal issue rather than a resolution of a factual dispute. The Court then held that the petitioner failed to show that the BIA articulated any incorrect standard, but correctly stated it was applying a standard that evaluates whether the petitioner had established prima facie eligibility for relief. “The BIA’s failure expressly to denote the standard of review does not make the BIA’s ruling incorrect. Indeed, failure to expound upon the law and failure to apply the law (or failure to apply the law correctly) are not the same.”
    • The Court then held that it also had jurisdiction to review the BIA’s prima facie hardship determination; but that, “[n]onetheless, the BIA did not abuse its discretion” in that determination.
  • D&G Holdings, L.L.C. v. Becerra, 20-30732, appeal from W.D. La.
    • Jones, J. (Owen, Jones, Wilson), Medicare
    • Reversing district court’s dismissal of action to recoup funds under the Medicare Act when an initial overpayment determination is overturned, and remanding for further proceedings.
    • The Court held that “‘effectuations’ of final agency decisions, when sought to liquidate the amount of repayment owed, are reviewable under 42 U.S.C. § 405(g) as continuous aspects of the initial, properly exhausted, administrative decision.”

Unpublished

  • Banister v. Lumpkin, 17-10826, appeal from N.D. Tex.
    • per curiam (Wiener, Graves, Ho), habeas corpus
    • Affirming dismissal of § 2254 petition on claims of ineffective assistance of counsel.
  • U.S. v. Flores, 19-40675, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Affirming conviction of possession of a firearm by a convicted felon.
  • Atkins v. Propst, 20-11008, appeal from N.D. Tex.
    • per curiam (Owen, Smith, Elrod), prisoner suit
    • Vacating sua sponte dismissal of prisoner’s pro se suit against former attorney, and remanding for further proceedings.
  • Ureteknologia de Mexico S.A. de C.V. v. Uretek (USA), Inc., 20-20073, appeal from S.D. Tex.
    • per curiam (Stewart, Haynes, Graves), breach of contract, attorneys’ fees
    • In contract dispute over the licensing of ground-stabilization processes, affirming denial of lost-profits damages and failure to grant full attorneys’ fees, grant of liquidated damages, and partial grant of attorneys’ fees.
  • Sanchez v. Garland, 20-60594, petition for review of BIA order
    • per curiam (Smith, Stewart, Graves), immigration
    • Denying Cuban citizen’s petition for review of BIA order upholding the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture.
  • U.S. v. Thompson, 20-60717, appeal from S.D. Miss.
    • per curiam (Owen, Dennis, Ho), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Sanchez-Lira v. Garland, 20-60799, petition for review of BIA order
    • per curiam (Barksdale, Costa, Engelhardt), immigration
    • Dismissing in part and denying in part Nicaraguan citizen’s petition for review of BIA order affirming, without an opinion, the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture.
  • U.S. v. Arredondo, 21-10363, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Guillen, 21-10512, appeal from N.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Williams, 21-20123, appeal from S.D. Tex.
    • per curiam (Owen, Smith, Elrod), 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).
  • U.S. v. Benitez-Cruz, 21-40284, appeal from S.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lara-Covarrubias, 21-40384, appeal from E.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Mince, 21-50127, appeal from W.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting summary affirmance of conviction of possession of a firearm by a felon.