June 2, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Cardenas v. Garland, 20-60778, petition for review of BIA order
    • Southwick, J. (Stewart, Dennis, Southwick), immigration
    • Denying Ecuadoran citizen’s petition for review of BIA order denying motion to reopen removal proceedings and rescind in absentia order of removal; holding that it was the petitioner’s duty to correct the address he had provided to immigration officials that misspelled (by one letter) the city where he could receive notice or to provide changed address information.
  • Raskin v. Dallas Independent School District, 21-11180, appeal from N.D. Tex.
    • Higginson, J. (Higginbotham, Higginson, Oldham), Oldham, J., dissenting in part; standing, pro se
    • Vacating district court’s dismissal of parent’s pro se suit that school district violated her child’s rights under the Genetic Information Nodiscrimination Act, and remanding for the district court to determine under 28 U.S.C. § 1654 whether the parent’s GINA claims belong to her or exclusively to her child.
    • Sec. 1654 allows for pro se representation in federal courts when the case is the party’s “own.” While non-attorneys cannot litigate the cases of another person, the operative question for a parent’s pro se case is whether the child’s claim that is being vindicated is the parent’s “own.” The Court held, “[A] child’s case only belongs to the parent under § 1654 if some other source of law alters the common-law backdrop.”
    • The Court noted that “[t]he absolute bar in our fellow circuits [against parental pro se representation of children] is designed to ensure that when children have claims that require adjudication, they receive trained legal assistance so their rights may be fully protected. This policy concern is reflected in the common law and prevails absent federal or state law to the contrary. But where a state has decided that pro se parental representation does adequately protect children’s rights, the text of § 1654 does not allow us to interfere absent extenuating circumstances.” (Internal quotation marks and citation omitted).
    • Judge Oldham dissented in part. Rather than remanding to the district court to determine if the GINA claim were the parent’s “own,” he would render judgment allowing the pro se representation. “Since the First Judiciary Act in 1789, every person—including a minor—has enjoyed a right to litigate pro se in federal court. The question presented is whether a parent can vindicate that right for her children, just as she can vindicate her children’s other rights. The district court said no. The majority says maybe. I would say absolutely.”

Unpublished

  • U.S. v. Garrett, 22-10487, appeal from N.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Affirming 180-month sentence enhanced by the ACCA after resentencing on remand, as consistent with the remand order.
  • Dunsmore v. Barchak, 22-40336, appeal from S.D. Tex.
    • per curiam (Elrod, Graves, Ho), prisoner suit
    • Dismissing as frivolous appeal from dismissal of Texas civil detainee’s § 1983 suit.
  • U.S. v. Barajas-Pulido, 22-40467, appeal from S.D. Tex.
    • per curiam (Smith, Clement, Southwick), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Hernandez-Mendez, 22-51076, appeal from W.D. Tex.
    • per curiam (Jones, Stewart, Duncan), criminal, sentencing
    • Affirming 30-month sentence on conviction of illegal reentry.