Take the Fifth

Designated for publication

• Rodriguez v. Garland, 20-60008, petition for review of BIA order
  • per curiam (Higginbotham, Willett, Duncan); Duncan, J., concurring (joined by Higginbotham, Southwick, Higginson, Willett, JJ.); Elrod, J., dissenting (joined by Jones, Smith, Wilson, JJ.); Ho, J., dissenting; immigration
  • Denying petition for panel rehearing and for en banc rehearing, with eight judges voting for rehearing (Richman, Jones, Smith, Elrod, Haynes, Ho, Oldham, Wilson) and nine judges voting against (Stewart, Dennis, Southwick, Graves, Higginson, Costa, Willett, Duncan, Engelhardt). The original panel opinion had held that “[b]oth the rescission of an in absentia order provision and the stop-time rule provision specifically reference the § 1229(a) notice requirements,” and that therefore, under Niz-Chavez, a notice of hearing for absentia removal must contain all the time-and-place language in a single document received by the petitioner.
  • Concurring in the denial of rehearing, Judge Duncan noted, “In this case, the only difference is the lack of one ‘a.’ Instead of ‘a notice to appear,’ the in absentia provision demands ‘notice in accordance with paragraph (1) or (2) of section 1229(a).’ 8 U.S.C. § 1229a(b)(5)(C)(ii) (emphasis added). The dissent thinks this difference makes all the difference. Post at 8 (Elrod, J., dissenting). It doesn’t. Niz Chavez underscored that § 1229(a)(1) ‘stubbornly require[s] ‘a’ written notice containing all the required information.’ 141 S. Ct. at 1480. The in absentia provision pointedly requires ‘notice in accordance with’ the very same definition, § 1229(a)(1)—which, again, stubbornly requires one document. 8 U.S.C. § 1229a(b)(5)(C)(ii). There is no meaningful difference between the two referencing provisions. They use different words (two ‘a’s’ vs. ‘in accordance with’) to require the same thing: a single notice.” Judge Duncan also held that the court need not accord Chevron deference to a recent BIA decision, because it was patently in conflict with the statute. “Finally, the main dissent warns that the panel decision botches an ‘extraordinarily important’ issue and will reopen many in absentia removals. Post at 1 (Elrod, J., dissenting). Those concerns are serious and, frankly, I share them. Not everyone loved Niz-Chavez. See 141 S. Ct. at 1488 (Kavanaugh, J., dissenting). But we have to apply it and that’s what the panel did.

• Edwards v. Stephens, 21-10366, appeal from N.D. Tex.
  • King, J. (King, Graves, Ho), Ho, J., dissenting; qualified immunity
  • Dismissing interlocutory appeal of denial of summary judgment for qualified immunity, for lack of jurisdiction, and remanding for further proceedings, on excessive force claim brought by parents of 15-year-old shot to death by police officer responding to a complaint about underage drinking (police officer was subsequently convicted of murder and sentenced to 15 years‘ imprisonment).
  • In reviewing a denial of qualified immunity summary judgment, “the district court’s finding that a genuine factual dispute exists is a factual determination that this court is prohibited from reviewing in this interlocutory appeal”; and that “[i]nstead we ask only whether the factual disputes that the district court identified are material to the application of qualified immunity.” (Internal quotation marks and citations omitted). The Court determined that the defendant’s challenge to the denial of the summary judgment motion was a challenge to the district court’s factual determinations and not to the materiality of those facts.
  • The Court rejected the dissent’s encouragement to compare the two body cam videos to determine whether the officer reasonably perceived a threat from the proximity of the car the 15-year-old boy was in to the officer’s partner at the time he shot into the car. “Conducting a comparison of the two videos would not only run counter to our court’s binding precedent regarding the scope of our role in interlocutory appeals in qualified immunity cases, but the conclusion our dissenting colleague would have us draw from that comparison would also implicitly overturn the lower court’s determination that a genuine factual dispute exists.”

• Dynamic CRM Recruiting Solutions, LLC v. UMA Education, Inc., 21-20351, appeal from S.D. Tex.
  • Willett, J. (Higginson, Willett, Ho), breach of contract, forum selection clause
  • Affirming district court’s remand to state court pursuant to parties’ forum selection clause in a computer software licensing agreement.
  • The parties’ forum selection clause read, “Any dispute arising out of or under this Agreement shall be brought before the district courts of Harris County Texas, situated in the city of Houston.” The defendant argued that this clause was not an exclusive forum clause and that, even if it were, “the district courts of Harris County Texas” could also include federal district courts in Harris County.
  • As to the defendant’s first argument, the Court held, “Although the provision does not use words such as ‘exclusive’ or ‘sole,’ the natural import of its language, read holistically is that the choice of Harris County district courts is exclusive of other fora: ‘Any dispute arising out of or under this Agreement shall be brought before the district courts of Harris County . . . unless mutually agreed otherwise.’ The sentence uses ‘shall,’ the paradigmatic mandatory word, in specifying where disputes must be brought, and ends with the proviso, ‘unless mutually agreed otherwise.’ This qualifying phrase specifies one of two exceptions—mutual agreement—to the choice of Harris County district courts as the exclusive forum.”
  • The Court then rejected defendant’s argument that the “shall be brought before” phrase was satisfied by the initial filing of the suit in Harris County district court and that the subsequent removal was still allowed. “To remove this litigation would be to ‘br[ing] [it] before’ a federal district court for determination. Since the Agreement provides that disputes arising thereunder must be ‘brought before the district courts of Harris County’—a choice that is, as we have explained, exclusive of other fora—UMA has contractually waived its right to remove this suit.”

Unpublished

• Burch v. Bank of America N.A., 20-10872, appeal from N.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), bankruptcy
  • Dismissing as frivolous appeal from district court’s dismissal, for failure to pay the filing fee, of debtor’s appeal of a judgment of the bankruptcy court.

• Ramirez-Lopez v. Garland, 20-60654, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying Guatemalan citizen’s petition for review of BIA order upholding the Immigration Judge’s denial of asylum, withholding of removal, and protection under the CAT.

• Singh v. Garland, 20-60766, petition for review of BIA order
  • per curiam (Davis, Jones, Elrod), immigration
  • Denying Indian citizen’s petition for review of BIA order dismissing his appeal from an order by an immigration judge (“IJ”) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture.

• U.S. v. Williams, 21-20452, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Stokes v. Matranga, 21-30129, appeal from E.D. La.
  • per curiam (Jones, Higginson, Duncan), Duncan, J., dissenting; qualified immunity
  • Affirming qualified immunity summary judgment in favor of officer on claims of arrest without probable cause.
  • Judge Duncan dissented. “No reasonable officer, knowing what Sergeant Matranga knew, would have thought Lennon Betancourt was guilty of anything. Lennon’s arrest was based on an obviously satiric photo (1) that Lennon didn’t take, (2) that Lennon didn’t post online, and (3) that grew out of a classroom prank Lennon’s own teacher was in on. Matranga knew all that—and yet he arrested Lennon, clapped him in jail, and misled the district attorney into charging him with ‘terrorizing,’ a crime punishable by a $15,000 fine and 15 years in prison. Before these absurd charges were dropped, Lennon’s mother had to hire a lawyer and Lennon was expelled from school. Qualified immunity does not protect the officer who orchestrated this outrageous clown show.”

• U.S. v. Varela-Gonzalez, 21-50279, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal, sentencing
  • Affirming 57-month sentence on conviction of possession of false immigration documents and illegal reentry.

• Gonzalez v. Gillis, 21-60764, appeal from S.D. Miss.
  • per curiam (Smith, Higginson, Willett), Bivens claim
  • Dismissing as frivolous appeal from dismissal of immigration detainee’s Bivens claim.