April 8, 2022, opinions

Designated for publication

  • Boch-Saban v. Garland, 20-60540, petition for review of BIA order
    • per curiam (Southwick, Haynes, Higginson), immigration
    • Vacating BIA order dismissing as untimely a Guatemalan citizen’s appeal from an IJ’s order denying as time- and number-barred a motion to reopen and dismiss, and remanding to BIA to consider in the first instance the issue of equitable tolling.
    • The Court held that the 30-day appeal filing period in 8 U.S.C. § 1003.38(b) is non-jurisdictional and is therefore subject to equitable tolling.
  • Gosby v. Apache Industrial Services, Inc., 21-40406, appeal from E.D. Tex.
    • Southwick, J. (Southwick, Haynes, Higginson), Americans with Disabilities Act
    • Reversing summary judgment in favor of employer on ADA claim brought by temporary employee who had been terminated six days after she had suffered a diabetic attack at work, and remanding for further proceedings.
    • The Court held that, under the McDonnell Douglas framework, the plaintiff “Carried her light burden” in establishing a prima facie case of ADA discrimination. While the Court acknowledged that analyzing temporal proximity between a protected activity and an adverse employment action “in the context of employment that is understood to be short-term cannot ignore that context,” the six-day proximity between the plaintiff’s diabetic episode and her termination was sufficient to provide a prima facie case on the causation element that the district court had found lacking.
    • The Court then held that there was enough evidence that the employer’s proffered reduction-in-force reason for termination was false or unworthy of credence, in that different explanations were given for how the employees included in the reduction-in-force were selected, that a genuine issue as to pretext was presented to defeat summary judgment.

Unpublished

  • U.S. v. Segovia-Lopez, 18-40460, appeal from S.D. Tex.
    • per curiam (Davis, Smith, Higginson), criminal, sentencing, Armed Career Criminal Act
    • On remand from the U.S. Supreme Court, vacating sentence that was enhanced under the ACCA based on a prior Texas state conviction for aggravated assault, and remanding for resentencing pursuant to Borden v. United States, 141 S. Ct. 1817 (2021).
  • U.S. v. Lott, 20-20656, appeal from S.D. Tex.
    • per curiam (Clement, Haynes, Higginson), prisoner suit
    • Affirming judgment of district court denying prisoner’s motion for appointment of counsel to challenge writ of garnishment in favor of Government.
  • Salvador v. Garland, 20-60517, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying United Kingdom citizen’s petition for review of BIA order dismissing her appeal from the immigration judge’s (IJ) order denying her motion to terminate proceedings and determining that she had failed to establish eligibility for asylum and related protection in asylum-only proceedings held pursuant to the Visa Waiver Program.
  • Gonzalez v. Gills, 20-60547, appeal from S.D. Miss.
    • per curiam (Wiener, Dennis, Haynes), habeas corpus
    • Affirming denial of § 2241 petition regarding detention beyond 90 days of an immigrant subject to an order of removal.
  • U.S. v. Joe, 21-10206, appeal from N.D. Tex.
    • per curiam (Stewart, Clement, Elrod), criminal, restitution
    • Reversing restitution order following guilty plea conviction for aiding and assisting in preparation of false and fraudulent tax returns.
  • Scott v. MEI, Inc., 21-10680, appeal from N.D. Tex.
    • per curiam (Davis, Smith, Engelhardt), attorney discipline
    • Affirming minor sanction imposed on attorney for failure to follow district court’s order to file amended complaint.
  • U.S. v. Velasquez-Jimenez, 21-10737, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Thomas, 21-10747, appeal from N.D. Tex.
    • per curiam (Davis, Smith, Engelhardt), criminal, sentencing
    • Affirming 240-month sentence on conviction of two drug offenses.
  • U.S. v. White, 21-10908, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming 60-month sentence on conviction of possession of a firearm by a convicted felon.
  • U.S. v. Phillips, 21-11008, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Barratt, 21-11010, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Kanu-Bradley, 21-20244, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming 144-month sentence on conviction of two counts of aiding and abetting assault on a federal officer; aiding and abetting a robbery of a person in lawful control and custody of money of the United States; conspiracy to interfere with commerce by robbery; aiding and abetting interference with commerce by robbery; and aiding and abetting the brandishing of a firearm in furtherance of a crime of violence.
  • Cross v. The Bank of New York Mellon, 21-20384, appeal from S.D. Tex.
    • per curiam (King, Jones, Duncan), foreclosure
    • Affirming summary judgment in favor of lender in action arising from attempted foreclosure.
  • Lain v. Entergy Louisiana, L.L.C., 21-30497, appeal from W.D. La.
    • per curiam (King, Costa, Ho), employment discrimination
    • Affirming summary judgment dismissal of employment discrimination claims.
  • White v. Coffield Medical Staff, 21-40211, appeal from E.D. Tex.
    • per curiam (King, Costa, Ho), excessive force
    • Affirming summary judgment dismissing plaintiff’s § 1983 excessive force claims.
  • U.S. v. Gordon, 21-40647, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Galo-Lopez, 21-40815, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Aziz, 21-40878, appeal from E.D. Tex.
    • per curiam (Southwick, Haynes, Higginson), criminal, pretrial detention
    • Affirming district court’s pretrial detention order on the basis that brothers charged with conspiracy to commit wire fraud, mail fraud, and money laundering presented a serious flight risk.
  • Chupka v. Phlugerville Independent School District, 21-50356, appeal from W.D. Tex.
    • per curiam (Southwick, Haynes, Higginson), Americans with Disabilities Act
    • Affirming dismissal of parents’ claim that school’s failure to call emergency services when their child fell in P.E. class amounted to ADA discrimination.
  • U.S. v. Oliva-Santos, 21-51073, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • U.S. v. Ochoa-Fabian, 21-51100, c/w 21-51121, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming conviction and sentences for illegal reentry and revocation of supervised release.
  • U.S. v. Morris, 21-60660, appeal from N.D. Miss.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming 8-month sentence on revocation of supervised release.
  • Barber v. Burke, 21-60725, appeal from N.D. Miss.
    • per curiam (Smith, Higginson, Willett), prisoner suit
    • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claims.
  • U.S. v. Harper, 21-60860, appeal from S.D. Miss.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Dismissing as moot appeal from 87-month sentence on conviction of possession of a firearm after a felony conviction.