October 4-5, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • DeMarco v. Bynum, 20-11047, appeal from N.D. Tex.
    • per curiam (Clement, Duncan, Wilson), prisoner suit, First Amendment
    • Affirming summary judgment dismissal of Texas state prisoner’s § 1983 claims that confiscation of religious materials violated his First Amendment rights.
    • The Court held that TDJC policies regarding storage of personal property and the confiscation of any personal property not stored properly according to those policies do not infringe on a prisoner’s right to free exercise of religion. Accordingly, the Court held that the confiscation of the plaintiff’s improperly stored religious materials was rationally related to a legitimate penological objective, “insofar as the policy is aimed at reducing the access of others to an inmate’s personal property and preventing the trafficking of contraband.”
  • Ndifon v. Garland, 20-60997, petition for review of BIA order
    • Duncan, J. (Clement, Duncan, Wilson), immigration
    • Granting Cameroonian citizen’s petition for review of BIA order affirming IJ’s denial of claim for protection under the Convention Against Torture.
    • The Court agreed with the petitioner that the BIA failed to consider country conditions evidence when separately analyzing the CAT claim. Instead, the BIA had upheld the IJ’s CAT denial based solely on a review of the IJ’s credibility determination, without separately reviewing the country condition evidence of persecution of Anglophones by the Cameroonian military.
  • Texas v. U.S., 21-40680, appeal from S.D. Tex.
    • Richman, C.J. (Richman, Ho, Engelhardt), immigration, Administrative Procedure Act
    • Affirming in part district court’s judgment that the Department of Homeland Security’s 2012 DACA memorandum and policy violated procedural and substantive requirements of the Administrative Procedure Act; but vacating the district court’s order remanding the 2012 memorandum to DHS and remanding instead to the district court to review in light of a final DACA rule promulgated by DHS in August 2022. “Today, we consider only the challenges to the 2012 DACA Memorandum,” and not the final DACA Rule that goes into effect on November 1, 2022.
    • The Court first held that Texas has standing to challenge DACA, analyzing in depth whether Texas has a quasi-sovereign interest in the classification of immigrants. “Texas warrants special solicitude because of its procedural right under the APA to challenge DACA and Texas’ quasi-sovereign interest in alien classification, an area in which the State would like to, but cannot, regulate.” The Court held that Texas established injury in fact, in the form of “pocketbook injuries” in increased healthcare, education, and social service costs. “It may be true that standing theories based on social services costs could spurt policy-oriented litigation. However, our precedent rejects the significance of this risk.” The Court then held that Texas demonstrated that its injury was fairly traceable to DACA; and that rescission of DACA would redress its injury.
    • The Court then held that the appeal of the district court’s ruling was not moot, because a reversal of the district court would allow the 2012 memorandum to go back into full effect for the next 26 days, through October 31, before the 2022 final rule takes effect.
    • The Court held that the claims of the States challenging the 2012 memorandum fell within the zone of interests of the Immigration and Naturalization Act, noting that the “zone of interests” test is “not especially demanding.”
    • As to the APA, the Court affirmed that the 2012 Memorandum was procedurally defective under the APA, rejecting the Government’s argument that DACA was a “general statement of policy exempt from notice and comment” rulemaking. Noting that the Memorandum stated it conferred no substantive rights, the Court held that, nevertheless, the agency’s own characterization of its action is only a “starting point,” and that it is the actual contents of the action that matter. The Court then held that, though there is some evidence to suggest a dispute as to whether the DACA memorandum left agents with discretion in accepting or denying an otherwise-qualifying DACA applicant’s deferral application, “[t]he mere existence of some discretion is not sufficient” to render an action a general statement of policy rather than an action subject to notice and comment. Because the 2012 Memorandum was not subject to notice and comment, the Court held that it was procedurally defective.
    • The Court also affirmed the district court’s holding that the 2012 DACA Memorandum was substantively defective, even applying Chevron deference to DHS’s interpretation of the INA. “Congress’s rigorous classification scheme forecloses the contrary scheme in the DACA Memorandum. … DACA creates a new class of otherwise removable aliens who may obtain lawful presence, work authorization, and associated benefits.” The Court held that the INA did not allow for the “prosecutorial discretion” enabled by the 2012 Memorandum.
    • The Court then held that the adoption of the new final rule in August 2022 required vacatur of the district court’s remand to DHS; and directed the district court on remand to itself engage in a review of challenges to the 2022 Rule. The Court then preserved the existing stay as to the effect of the district court’s nationwide injunction as to existing recipients of DACA deferrals.
  • Sneed v. Austin Independent School District, 21-50966, appeal from N.D. Tex.
    • Duncan, J. (Clement, Duncan, Wilson), Title VI
    • Affirming final judgment after bench trial in favor of school district on plaintiff student’s Title VI claim alleging racial discrimination by other students and the school district’s deliberate indifference to that discrimination.
    • The Court held that the district court did not err in its fact-findings that the school district did not have knowledge of one alleged incident of discrimination, and that the school district was not deliberately indifferent as to other incidents when it timely initiated investigations and meted out consequences to the students found to have engaged in discrimination.
  • Cordero-Chavez v. Garland, 21-60370, petition for review of BIA order
    • Duncan, J. (Clement, Duncan, Wilson), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order affirming IJ’s credibility finding in denying application for asylum and withholding of removal and concluding that petitioner failed to raise a CAT claim.
    • The Court found no clear error in the BIA’s affirmance of the IJ’s finding that the petitioner’s testimony regarding fear of abuse by her boyfriend was not credible.
    • The Court also found no error in the BIA’s determination that the petitioner had failed to properly raise a CAT claim when she left the CAT box unchecked on her I-589 form, even though she had answered affirmatively another question on the form regarding whether she was afraid of being subjected to torture if she returned to El Salvador.

Unpublished

  • Douthit v. Collier, 20-20550, appeal from S.D. Tex.
    • per curiam (Graves, Willett, Engelhardt), prisoner suit
    • Affirming in part and vacating in part dismissal of prisoner’s ADA claims against various prison defendants, and remanding for further proceedings.
  • Gomez-Vargas v. Garland, 20-60429, petition for review of BIA order
    • per curiam (Clement, Duncan, Wilson), immigration
    • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA order denying motion to remand to consider new evidence.
  • U.S. v. Robinson, 21-20636, appeal from S.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Gutierrez-Munoz, 21-40903, appeal from S.D. Tex.
    • per curiam (Clement, Duncan, Wilson), criminal, sentencing
    • Affirming 360-month sentence on conviction of conspiracy to distribute 500 grams of more of methamphetamine and one kilogram or more of heroin
  • U.S. v. Lee, 21-50591, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sufficiency of evidence
    • Affirming conviction of conspiracy to commit an offense against the United States in passing or uttering counterfeit obligations or securities, and passing or uttering counterfeit obligations or securities.
  • Welsh v. Collier, 21-50878, appeal from W.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), prisoner suit
    • Affirming dismissal of civil committee’s civil rights suit against TDCJ officials.
  • Kizito v. Garland, 21-60491, petition for review of BIA order
    • per curiam (Barksdale, Higginson, Ho), immigration
    • Dismissing in part and denying in part Ugandan citizen’s petition for review of BIA order dismissing appeal from IJ’s denial of claims for asylum, withholding of removal, and protection under the CAT.
  • Alvarado-Ferman v. Garland, 21-60862, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Ho), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order dismissing appeal of IJ denial of application for asylum, withholding of removal, and protection under the CAT.
  • Serpa v. Garland, 21-60938, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Dismissing Peruvian citizen’s petition for review of BIA order dismissing her appeal from IJ decision ordering removal.
  • U.S. v. Dominguez-Morales, 22-10037, appeal from N.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
    • Granting summary affirmance of conviction and sentence for illegal reentry.
  • Logan v. Hennigan, 22-10076, appeal from N.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), § 1983, Americans with Disabilities Act
    • Affirming dismissal of § 1983 and ADA claims against family court judge for lack of subject matter jurisdiction.
  • Manzo v. Mateware, 22-10091, appeal from N.D. Tex.
    • per curiam (Smith, Dennis, Southwick), Bivens claim
    • Affirming dismissal of federal prisoner’s Bivens claims.
  • U.S. v. Gibson, 22-20006, appeal from S.D. Tex.
    • per curiam (King, Higginson, Willett), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Cahee, 22-20218, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Butler v. E I DuPont de Nemours & Co., 22-30069, appeal from E.D. La.
    • per curiam (Clement, Duncan, Wilson), toxic tort
    • Affirming dismissal of plaintiff’s claims DuPont and against the Louisiana Department of Health arising from emissions of chloroprene from the former DuPont neoprene manufacturing facility in Louisiana’s “cancer alley.”
  • U.S. v. Gentry, 22-30138, appeal from W.D. La.
    • per curiam (Elrod, Graves, Ho), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for sentence reduction.
  • Tercero v. Texas Southmost College District, 22-40004, appeal from S.D. Tex.
    • per curiam (Clement, Duncan, Wilson), employment
    • Affirming judgment in favor of plaintiff in claims arising from employment contract with junior college district.
  • U.S. v. Giron-Vargas, 22-40260, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Nieto-Uribe, 22-50077, appeal from W.D. Tex.
    • per curiam (Higginbotham, Graves, Ho), criminal, sentencing
    • Affirming 57-month sentence on conviction of illegal reentry.