Take the Fifth

(Still in catch-up mode here, so the opinions designated for publication will get the same brief treatment as the unpublished opinions …)

Designated for publication

• Whole Woman’s Health v. Young, 18-50730, appeal from W.D. Tex.
  • per curiam (Barksdale, Stewart, Costa), abortion law
  • Vacating injunction of Texas law regarding disposal of embryonic and fetal tissue after abortion, and remanding for reconsideration in light of Dobbs.

• Abushagif v. Garland, 19-60807, petition for review of BIA order
  • per curiam (Smith, Higginson, Engelhardt), immigration
  • Denying Libyan citizen’s petition for review of BIA order dismissing appeal of IJ’s order denying petition for protection under the Convention Against Torture, finding no error in BIA conclusion that petitioner failed to provide sufficient evidence to corroborate his alleged conversion to Christianity or his bisexuality.

• U.S. v. Cooper, 20-10821, appeal from N.D. Tex.
  • Elrod, J. (Dennis, Elrod, Duncan), Dennis, J., concurring in part and concurring in judgment; criminal, sufficiency of evidence
  • Affirming in part, affirming convictions for conspiracy to commit health care fraud and receiving an illegal kickback payment, reversing in part on finding insufficient evidence to support conviction for paying illegal kickbacks, and remanding for resentencing.
  • Judge Dennis concurred, but would have reversed the conviction for payment of illegal kickbacks on different grounds, obviating the need to interpret whether 42 U.S.C. § 1320a-7b(b)(2)(a) prohibited payments to induce self-referrals.

• Watts v. Northside Independent School District, 20-50103, appeal from W.D. Tex.
  • Costa, J. (Wiener, Costa, Willett), § 1983
  • Reversing in part and affirming in part 12(b)(6) dismissal of football referee’s claims against school district and football coach arising from football coach’s directive to two of his players to make the referee pay for bad calls and racial comments by hitting him; affirming dismissal of § 1983 claim against school district, but reversing dismissal of the claim against football coach.

• Cargill v. Garland, 20-51016, appeal from W.D. Tex.
  • per curiam (Richman, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson), National Firearms Act, gun control
  • Vacating December 14, 2021, panel opinion that affirmed challenge to ATF rule that bump stocks qualify as machine guns for purposes of statutory bar on possession or sale of new machine guns, and ordering en banc rehearing.

• Garza-Flores v. Mayorkas, 20-60748, petition for review of Department of Homeland Security Order
  • Ho, J. (King, Graves, Ho), immigration
  • Granting petition and transferring to district court for de novo review of whether petitioner has a valid claim to U.S. citizenship based on parents’ citizenship and residence status at time of petitioner’s birth.

• Yogi Metals Group, Inc. v. Garland, 21-20615, appeal from S.D. Tex.
  • per curiam (Higginbotham, Haynes, Wilson), immigration
  • Affirming summary judgment in favor of U.S. Customs and Immigration Services regarding denial of EB-1C visa for employee.

• CANarchy Craft Brewery Collective, L.L.C. v. Texas Alcoholic Beverage Commission, 21-50195, appeal from W.D. Tex.
  • Wilson, J. (Dennis, Southwick, Wilson), administrative law
  • Affirming district court’s summary judgment in favor of craft brewer in interpretation of Texas Alcoholic Beverage Code regarding sales of beer-to-go at brewery facilities for off-premises consumption, holding that beer produced at leased facilities did not count toward the statute’s 225,000-barrel cap for eligibility to engage in such sales.

• Gabriel Investment Group, Inc. v. Texas Alcoholic Beverage Commission, 21-50322, appeal from W.D. Tex.
  • Willett, J. (King, Costa, Willett), administrative law
  • Upon receiving answer to certified question from the Texas Supreme Court, answering “yes” to both parts of the “two-part question over the scope of an exemption from a general prohibition on public corporations owning package-store permits: Does Texas Alcoholic Beverage Code Section 22.16(f) ‘continue[] to exempt a public corporation if that corporation sells some or all its shares to a non-exempt corporation, and, if so, whether the exempt corporation can acquire additional package store permits,'” reversing and remanding to district court.

• Students for Fair Admissions, Inc. v. University of Texas, 21-50715, appeal from W.D. Tex.
  • Duncan, J. (King, Jones, Duncan), affirmative action, res judicata, standing
  • Reversing district court’s dismissal of challenge to the University of Texas’s use of race in its admissions policies on res judicata grounds, holding that the plaintiff is not identical to or in privity with the plaintiffs in Fisher v. University of Texas, even though the plaintiff’s members include the Fisher plaintiff, and remanding for further proceedings. The Court also held that the district court correctly held that the plaintiff had standing.

• Ueckert v. Guerra, 22-40263, appeal from S.D. Tex.
  • Willett, J. (Smith, Higginson, Willett), timeliness, appellate jurisdiction
  • Dismissing appeal as untimely where it was filed 412 days after denial of summary judgment motion from the bench.

Unpublished

• Flowers v. Sutterfield, 20-10988, appeal from N.D. Tex.
  • Higginson, J. (Higginbotham, Higginson, Oldham), prisoner suit
  • Affirming dismissal brought by representative of deceased inmate of state’s Chronically Mentally Ill program.

• Continental Automotive Systems, Inc. v. Avanci, L.L.C., 20-11032, appeal from N.D. Tex.
  • per curiam (Stewart, Ho, Engelhardt), antitrust law
  • Affirming 12(b)(6) dismissal of Sherman Act claims.

• Trevino v. Lumpkin, 20-50535, appeal from W.D. Tex.
  • per curiam (Higginbotham, Haynes, Wilson), habeas corpus
  • Affirming dismissal of § 2254 petition asserting IAC claims.

• Valladares-Blanco v. Garland, 20-60560, petition for review of BIA order
  • per curiam (Barksdale, Willett, Wilson), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order dismissing his appeal from an immigration judge’s denial of his motion to reopen and rescind his 2005 in absentia order of removal.

• Quintero v. Garland, 20-60649, petition for review of BIA order
  • per curiam (Smith, Stewart, Graves), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order dismissing her appeal from the denial of her application for asylum, withholding of removal, and relief under the CAT.

• Tamayo-Lara v. Garland, 20-60770, petition for review of BIA order
  • per curiam (Southwick, Oldham, Wilson), immigration
  • Granting Honduran citizen’s petition for review of BIA order dismissing appeal of IJ denial of motion to reopen removal proceedings and rescind in absentia removal order, vacating BIA decision, and remanding for further proceedings.

• Ngutese v. Garland, 20-61080, petition for review of BIA order
  • per curiam (Barksdale, Willett, Wilson), immigration
  • Denying Cameroonian citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for: asylum; withholding of removal; and relief under the Convention Against Torture.

• U.S. v. Martinez, 21-10383, appeal from N.D. Tex.
  • per curiam (Clement, Graves, Costa), criminal
  • Affirming conviction and life sentence for enticing an eleven-year-old to engage in sexual activity.

• U.S. v. Maldonado, 21-10533, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
  • Affirming 70-month sentence on conviction of conspiring to possess firearms in furtherance of drug trafficking.

• U.S. v. Rodriguez, 21-10850, appeal from N.D. Tex.
  • per curiam (Barksdale, Willett, Wilson), criminal, sentencing
  • Affirming 24-month sentence on revocation of supervised release.

• U.S. v. Bonifacio-Alvarez, 21-11073, appeal from N.D. Tex.
  • per curiam (Elrod, Southwick, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Fuller v. Rabalais Oil and Gas, 21-11083, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), mineral law
  • Affirming summary judgment in favor of defendant on plaintiffs’ claims for unpaid mineral royalties.

• U.S. v. Zuniga, 21-11210, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Thomas, 21-11211, appeal from N.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Granting summary affirmance of conviction and sentence for possession of a firearm by a prohibited person.

• U.S. v. Hernandez, 21-11219, appeal from N.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Springer v. U.S., 21-11248, appeal from N.D. Tex.
  • per curiam (Clement, Ho, Oldham), Bivens claim
  • Affirming dismissal of Bivens claim arising from alleged toxic exposures while working an inmate job.

• U.S. v. Nwoko, 21-20558, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Affirming conviction of conspiracy to commit healthcare fraud and three counts of aiding and abetting healthcare fraud.

• U.S. v. Senteno, 21-20572, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Davis, 21-20631, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Estrada, 21-20637, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Traweek v. LeBlanc, 21-30096, appeal from E.D. La.
  • per curiam (King, Higginson, Wilson), qualified immunity
  • Vacating denial of qualified immunity for failure to adequately articulate which facts the district court found genuinely disputed, and remanding for further proceedings.

• U.S. v. Luna, 21-40575, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Espino-Trejo, 21-40654, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Affirming 240-month sentence on conviction of conspiracy to import 500 grams or more of methamphetamine.

• U.S. v. Garcia-Gloria, 21-40729, appeal from S.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Affirming 168-month sentence on conviction of conspiracy to possess with intent to distribute methamphetamine.

• U.S. v. Olmedo-Martinez, 21-40777, appeal from S.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Landaverde-Leon, 21-40808, appeal from S.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing, Armed Career Criminal Act
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Pulido-Yanez, 21-40859, appeal from S.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Jimenez-Guzman, 21-40866, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Straughn, 21-50079, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Rey-Acosta, 21-50260, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Garcia-Correa, 21-50493, appeal from W.D. Tex.
  • per curiam (Davis, Higginson, Willett), criminal
  • Affirming conviction for conspiracy to possess with intent to distribute at least 500 grams of methamphetamine.

• U.S. v. Castaneda-Acevedo, 21-50675, appeal from W.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
  • Affirming 16-month sentence on conviction of illegal reentry.

• Palomo v. Flowers Baking Co. of San Antonio, L.L.C., 21-50706, appeal from W.D. Tex.
  • per curiam (Davis, Elrod, Haynes), employment discrimination
  • Affirming summary judgment dismissal of age and sex discrimination claims.

• U.S. v. Manriquez-Nunez, 21-50968, appeal from W.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Granting summary affirmance of sentence for conviction of illegal reentry.

• U.S. v. Guzman, 21-51017, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Amparano-Torres, 21-51074, appeal from W.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal, sentencing
  • Affirming 30-month sentence on conviction of illegal reentry.

• U.S. v. Johnson, 21-51111, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Elrod), criminal, sentencing
  • Affirming 24-month sentence on revocation of supervised release.

• U.S. v. Sanchez-Lugo, 21-51143, c/w 21-51144, appeal from W.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Affirming convictions of illegal reentry and revocation of supervised release.

• U.S. v. Webb, 21-51148, appeal from W.D. Tex.
  • per curiam (Jones, Elrod, Higginson), criminal, sentencing
  • Affirming 36-month sentence on revocation of supervised release.

• U.S. v. Cruz-Hernandez, 21-51152, appeal from W.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Affirming 46-month sentence on conviction of conspiracy to transport illegal aliens.

• U.S. v. Pizarro-Espinoza, 21-51220, appeal from W.D. Tex.
  • per curiam (King, Costa, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Hernandez-Ramos v. Garland, 21-60037, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying Honduran citizens’ petition for review of BIA order dismissing their appeal from an order of the Immigration Judge (IJ) denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture.

• Zelaya-Esquivel v. Garland, 21-60055, petition for review of BIA order
  • per curiam (Southwick, Oldham, Wilson), immigration
  • Denying Honduran citizen’s petition for review of BIA order affirming the denial of her motion to reopen and rescind her in absentia order of removal.

• Galo-Betancourt v. Garland, 21-60196, petition for review of BIA order
  • per curiam (Southwick, Oldham, Wilson), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order dismissing her appeal from an order of the Immigration Judge (“IJ”) denying her application for asylum, withholding of removal, and protection under the CAT.

• Rodas-Ayala v. Garland, 21-60267, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying in part and dismissing in part Honduran citizens’ petition for review of BIA order affirming the decision of the immigration judge (IJ) concluding that they were ineligible for asylum, withholding of removal, and relief under the Convention Against Torture.

• Cruz-Herrera v. Garland, 21-60292, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying Honduran citizen’s petition for review of BIA order affirming the Immigration Judge’s (IJ) decision that he was ineligible for asylum, withholding of removal, and relief under the Convention Against Torture.

• Choudhary v. Garland, 21-60328, petition for review of BIA order
  • per curiam (Smith, Stewart, Graves), immigration
  • Denying in part and dismissing in part Pakistani citizen’s petition for review of BIA order dismissing his appeal of an order of the Immigration Judge (I.J.) concluding that he was ineligible for asylum, withholding of removal, and protection under the CAT.

• Martinez v. Garland, 21-60329, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order dismissing her appeal from an order of the Immigration Judge (IJ) denying her application for asylum, withholding of removal, and protection under the CAT.

• Leke v. Garland, 21-60330, petition for review of BIA order
  • per curiam (Smith, Wiener, Southwick), immigration
  • Dismissing Cameroonian citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of request for protection under the CAT.

• Penaloza-Megana v. Garland, 21-60363, petition for review of BIA order
  • per curiam (King, Costa, Ho), immigration
  • Denying Mexican citizen’s petition for review of BIA order dismissing her appeal from an order of the immigration judge (IJ) denying withholding of removal and relief under the Convention Against Torture.

• Appiah-Kubi v. Garland, 21-60408, petition for review of BIA order
  • per curiam (Smith, Stewart, Graves), immigration
  • Denying in part and dismissing in part Ghanian citizen’s petition for review of BIA order dismissing his appeal of a decision of the Immigration Judge (I.J.) concluding that he was ineligible for asylum, withholding of removal, and relief under the CAT.

• Aguirre-Cano v. Garland, 21-60468, petition for review of BIA order
  • per curiam (Wiener, Dennis, Haynes), immigration
  • Denying Mexican citizen’s petition for review of BIA order dismissing his appeal from the denial of his application for cancellation of removal.

• Sanchez v. Garland, 21-60605, petition for review of BIA order
  • per curiam (Southwick, Oldham, Wilson), immigration
  • Denying in part and dismissing in part Honduran citizens’ petition for review of BIA order dismissing their appeal from an order of the Immigration Judge (“IJ”) denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture.

• Ulysse v. Garland, 21-60670, petition for review of BIA order
  • per curiam (Higginbotham, Haynes, Wilson), immigration
  • Dismissing Canadian citizen’s petition for review of BIA order reversing an immigration judge’s (IJ) grant of his application for cancellation of removal.

• Howard v. Office of the Special Deputy Receiver, 22-10240, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), insurance
  • Affirming dismissal of claims against former employer’s insurer.

• U.S. v. Silva, 22-10255, appeal from N.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Perez-Montano, 22-20027, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Fuentes-Barriga, 22-40015, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Longoria v. Paxton, 22-50110, appeal from W.D. Tex.
  • per curiam (Southwick, Haynes, Higginson), election law, standing, Ex parte Young
  • On receiving answers to questions certified to Texas Supreme Court, finding that volunteer deputy registrar is not a “public official” and therefore does not have standing to challenge anti-solicitation provision, and that state attorney general lacks authority to enforce election law’s civil liability provision; therefore, vacating injunctions as to defendants and remanding to district court to dismiss claims for lack of jurisdiction.