January 4, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Aviles-Tavera v. Garland, 20-60587, petition for review of BIA order
    • Higginbotham, J. (Higginbotham, Stewart, Wilson), immigration
    • Denying Mexican citizen’s petition for review of BIA determination that he is statutorily ineligible for withholding of removal and not entitled to protection under the Convention Against Torture.
    • In a prior removal proceeding, the IJ determined that a felony assault conviction was not a “particularly serious crime” rendering the petition ineligible for withholding of removal, because it would have only been a misdemeanor assault if the petitioner did not have a prior misdemeanor assault conviction. Nevertheless, the IJ in that prior proceeding ruled on the merits of the petitioner’s application that he was not entitled to withholding of removal or protection under the CAT. When petitioner reentered the United States two years later and applied for withholding of removal and protection under the CAT, in the instant proceeding, the new IJ reconsidered the prior IJ’s finding of eligibility and held that the felony assault charge was a “particularly serious crime” and that the petitioner was ineligible for withholding of removal. The IJ also held as to his CAT claim that the petitioner failed in his burden to show that it was more likely than not that he would be tortured on return to Mexico at the instigation or with the acquiescence of the Mexican government. The BIA dismissed the appeal, echoing the IJ’s findings.
    • The Court held that the second IJ was not precluded from reconsidering the petitioner’s eligibility for withholding of removal because the applicable legal standard had changed, because an intervening court decision–United States v. Gracia-Cantu, 920 F.3d 252, 254 (5th Cir. 2019)–held that the particular assault he had been charged with (Assault-Family Violence) was a “crime of violence” under 18 U.S.C. § 16(a). The Court then held that the petitioner’s argument on appeal that Borden v. United States, 141 S. Ct. 1817, 1825 (2021), changed the standard back to what it was at the time of the first IJ’s determination was forfeited because he did not raise it in his opening brief.
    • As to petitioner’s CAT claim, the Court held that “a foreign government’s failure to apprehend the persons threatening the alien or the lack of financial resources to eradicate the threat or risk of torture do not constitute sufficient state action.” (Internal quotation marks and citations omitted).

Unpublished

  • Jinsun, L.L.C. v. Mireskandari, 20-20563, appeal from S.D. Tex.
    • per curiam (Owen, Dennis, Ho), attorneys’ fees
    • Affirming award of $73,824.91 in attorneys’ fees for post-trial discovery abuses.
  • Foerster v. Bleess, 20-20583, appeal from S.D. Tex.
    • per curiam (Jones, Southwick, Costa), First Amendment
    • Affirming dismissal on the pleadings of former police chief’s claims against the city that he was terminated in retaliation for exercising his free speech rights in revealing blackmailing of city councilman.
  • Tindle v. Blair, 20-40205, appeal from E.D. Tex.
    • per curiam (Owen, Smith, Elrod), prisoner suit
    • Dismissing for lack of appellate jurisdiction prisoner plaintiff’s appeal from denial of preliminary injunction.
  • Pearson v. William, 20-40650, appeal from E.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), prisoner suit
    • Affirming dismissal of prisoner’s § 1983 action.
  • Garcia-Sanchez v. Garland, 20-60223, petition for review of BIA order
    • per curiam (Owen, Smith, Elrod), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing his appeal from the denial of his motion to reopen.
  • Singh v. Garland, 20-60425, petition for review of BIA order
    • per curiam (Owen, Smith, Elrod), immigration
    • Denying Indian citizen’s petition for review of BIA order dismissing his appeal of a decision by an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the CAT.
  • U.S. v. Cowards, 20-60529, appeal from S.D. Miss.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Affirming conviction of Hobbs Act Robbery and use of a firearm during a crime of violence.
  • Lopez-Temaj v. Garland, 20-60763, petition for review of BIA order
    • per curiam (Owen, Smith, Elrod), immigration
    • Denying Guatemalan citizen’s petition for review of BIA order affirming without opinion the denial by an Immigration Judge (IJ) of her application for asylum, withholding of removal, and protection under the CAT.
  • U.S. v. Sarmiento, 21-10354, appeal from N.D. Tex.
    • per curiam (Southwick, Graves, Costa), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
  • U.S. v. Nweme, 21-20107, appeal from S.D. Tex.
    • per curiam (Owen, Clement, Engelhardt), criminal, compassionate release
    • Vacating denial of motion for compassionate release and remanding for consideration in light of United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021).
  • Su v. F Elephant, Inc., 21-20146, appeal from S.D. Tex.
    • per curiam (Stewart, Haynes, Graves), bankruptcy
    • Affirming judgment for debtor in former president’s claims of unjust enrichment and for proceeds from sale of vessel.
  • Shephard v. St. Paul Fire & Marine Ins. Co., 21-30199, appeal from W.D. La.
    • per curiam (Stewart, Haynes, Graves), timeliness
    • Affirming dismissal of plaintiff’s claim for misrepresentation under Louisiana Revised Statute § 22:1973(B)(1) as untimely under Louisiana’s one-year prescriptive period.
  • Taylor v. B&J Martin, Inc., 21-30347, appeal from E.D. La.
    • per curiam (Jolly, Willett, Engelhardt), maritime law
    • Affirming district court’s bench trial judgment in favor of defendant on seaman’s slip-and-fall claim, based on district court’s findings that defendant did not negligently cause injuries, that vessel was seaworthy, and that plaintiff was not entitled to additional cure and maintenance.
  • U.S. v. Martinez, 21-40311, appeal from S.D. Tex.
    • per curiam (Owen, Smith, Elrod), criminal, sentencing
    • Affirming 262-month sentence on conviction of possession with intent to distribute 500 grams or more of methamphetamine.
  • U.S. v. Duran, 21-50104, appeal from W.D. Tex.
    • per curiam (Southwick, Graves, Costa), criminal, compassionate release
    • Dismissing as untimely appeal from denial of motion for compassionate release.
  • U.S. v. Duran, 21-50249, appeal from W.D. Tex.
    • per curiam (Southwick, Graves, Costa), criminal, First Step Act
    • Dismissing as frivolous appeal from denial of motion for sentence reduction under the First Step Act.
  • U.S. v. Medina-Castillo, 21-50255, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Affirming conviction of illegal reentry.
  • U.S. v. Armstead, 21-50397, appeal from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal
    • Granting Anders motion for withdrawal, and dismissing appeal.
  • Roberts v. Gonzalez, 21-50670, appeal from W.D. Tex.
    • per curiam (Southwick, Graves, Costa), prisoner suit
    • Dismissing as frivolous appeal from dismissal of pretrial detainee’s § 1983 claim.
  • Zrgua v. Garland, 21-60062, petition for review of BIA order
    • per curiam (Davis, Jones, Elrod), immigration
    • Denying Ethiopian citizen’s petition for review of BIA order dismissing her appeal from the denial of her application for asylum, withholding of removal, and protection under the CAT.
  • Easley v. Lowndes County, 21-60136, appeal from N.D. Miss.
    • per curiam (Higginbotham, Smith, Ho), employment discrimination, Age Discrimination in Employment Act
    • Affirming summary judgment in favor of county employer on part-time public defender’s ADEA claims.