December 1-2, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Campos-Chavez v. Garland, 20-60262, petition for review of BIA order
    • per curiam (Soutwick, Oldham, Wilson), immigration
    • Denying petition for rehearing of August 3 decision, and substituting new opinion denying Salvadoran citizen’s petition for review of BIA order dismissing appeal of IJ decision denying motion to reopen; the Court held that the petitioner’s receipt of a Notice of Hearing after an allegedly defective Notice to Appear rendered his arguments distinguishable from those in Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).
  • Eneugwu v. Garland, 20-61162, petition for review of BIA order
    • Southwick, J. (Jones, Southwick, Ho), immigration
    • Denying Nigerian citizens’ petition for review of BIA order denying reopening of removal proceedings.
    • The Court rejected petitioners’ argument that “their counsel’s ineffectiveness caused their application for asylum and other relief to be incomplete and therefore denied, and that counsel’s failures constituted extraordinary circumstances justifying reopening of their removal proceedings.” The Court side-stepped the question of whether ineffective assistance of counsel could ever be an extraordinary circumstance justifying equitable tolling of the time period for moving to reopen, because there was no argument that the ineffectiveness in the initial proceeding was a cause of the delay in moving to reopen.
  • Freedom From Religion Foundation, Inc. v. Mack, 21-20279, appeal from S.D. Tex.
    • per curiam (Jolly, Smith, Engelhardt), Higginson, J., dissenting (joined by Graves, J.); First Amendment
    • Denying rehearing en banc of September 29 decision reversing summary judgment in favor of plaintiffs challenging Texas Justice of the Peace Wayne Mack’s opening of court with a ceremony that includes a prayer, and rendering judgment in favor of Mack. Judges Dennis, Graves, and Higginson voted in favor of rehearing; Judges Richman, Jones, Smith, Stewart, Elrod, Southwick, Haynes, Willett, Duncan, Engelhardt, Oldham, and Wilson voted against rehearing; Judge Ho was recused.
    • Judge Higginson dissented, noting, “A command to bow for prayer in a public courtroom, coupled with retaliation against those who do not submit, violates the Establishment Clause of the First Amendment.”

Unpublished

  • Escobarrivera v. Whitaker, 21-30147, appeal from M.D. La.
    • per curiam (Davis, Elrod, Haynes), Haynes, J., concurring in part and dissenting in part; prisoner suit
    • Affirming summary judgment dismissal of suit against various corrections officials.
    • Despite the opinion being denominated as “per curiam,” Judge Haynes issued an opinion concurring in part and dissenting in part. She would have had the duration of solitary confinement (at the time of the district court opinion, three years; at the time of the appeal decision, five years) be treated as only one element of the liberty-interest analysis, and had the district court also examine the analytical impact of the conditions of the plaintiff’s solitary confinement.
  • U.S. v. Loston, 21-30772, appeal from W.D. La.
    • per curiam (Stewart, Willett, Oldham), criminal, sentencing
    • Affirming 360-month sentence on conviction of conspiracy to possess and distribute 50 or more grams of methamphetamine.
  • U.S. v. Dominguez-Giron, 21-50849, c/w 21-50868, appeal from W.D. Tex.
    • per curiam (Smith, Dennis, Southwick), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
  • Ruiz-Balmaceda v. Garland, 21-60632, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying Salvadoran citizen’s petition for review of BIA order upholding denial of asylum claims.
  • Osman v. Garland, 21-60893, petition for review of BIA order
    • per curiam (Jolly, Jones, Ho), immigration
    • Dismissing in part and denying in part Ghanaian citizens’ petition for review of BIA order dismissing appeal from IJ order denying applications for asylum, withholding of removal, and protection under the CAT.
  • U.S. v. Luna-Casas, 22-10402, appeal from N.D. Tex.
    • per curiam (King, Higginson, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Johnson v. Dolgencorp, L.L.C., 22-30173, appeal from M.D. La.
    • per curiam (Wiener, Elrod, Engelhardt), personal tort
    • Affirming summary judgment dismissal of plaintiff’s personal injury claims.
  • Naseer v. Cox, 22-40114, appeal from S.D. Tex.
    • per curiam (Wiener, Elrod, Engelhardt), habeas corpus
    • Affirming dismissal of § 2241 petition.
  • U.S. v. Marshall, 22-60090, appeal from S.D. Miss.
    • per curiam (King, Higginson, Willett), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Scarneo-Lozano v. Garland, 22-60112, petition for review of BIA order
    • per curiam (King, Higginson, Willett), immigration
    • Denying in part and dismissing in part Peruvian citizens’ petition for review of BIA order dismissing appeal from IJ’s denial of applications for asylum, withholding of removal, and relief under the CAT.