July 25, 2024, opinions

Posted on by tadbartlett

Designated for publication

  • Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 23-20337, appeal from S.D. Tex.
    • Willett, J. (Dennis, Willett, Duncan), Duncan, J., concurring; removal, appellate jurisdiction
    • Dismissing for lack of appellate jurisdiction appeal from waiver-based remand order. “Edward Festeryga, an attorney embroiled in a dispute with his former law firm, wants this case heard in federal court and contends we have appellate jurisdiction over the district court’s remand order because waiver is neither an issue of subject-matter jurisdiction nor a defect in removal procedure under 28 U.S.C. § 1447(c). We agree, but our 40-plus-year-old precedent provides otherwise, holding that a waiver-based remand order is jurisdictional under § 1447(c) and thus unappealable under § 1447(d). Abiding by our rule of orderliness, we must dismiss for lack of appellate jurisdiction.”
    • Judge Duncan concurred, expressly calling for the en banc Court to overrule the precedent that the panel believes wrongly decided that participation-based waiver was a jurisdictional defect.
  • Keiland Construction, L.L.C. v. Weeks Marine, Inc., 23-30357, appeal from W.D. La.
    • Wilson, J. (Willett, Wilson, Ramirez), breach of contract, attorneys’ fees
    • Affirming summary judgment that construction contract was ambiguous and finding against the contract drafter on the contract-interpretation dispute, and affirming calculation of attorneys’ fees and award of prejudgment interest.
  • L.N. v. Garland, 23-60203, petition for review of BIA order
    • Jones, J. (Jones, Douglas, Doughty, by designation), Douglas, J., dissenting in part; immigration
    • Denying Angolan citizen’s petition for review of BIA order affirming IJ’s denial of applications for asylum, withholding of removal, and protection under the Convention Against Torture.
    • The Court held, “At a minimum, the BIA afforded L. N.’s claims the amount of consideration the law requires. … In an attempt to satisfy her burden, L. N. points to testimony that, in her view, undermines the BIA’s conclusion concerning state-sponsored persecution. But even if this evidence contradicts the BIA’s conclusion, there is also evidence in the record that supports it. Showing equipoise is not sufficient to compel a finding that the Petitioner was persecuted by the Angolan government.”
    • Judge Douglas dissented in part. “I agree with L. N. that the BIA and IJ legally erred by failing to explain its dismissal and discounting of credible evidence of state-sponsored persecution. Further, I believe that the record evidence compels the determination that the Angolan government was unwilling or unable to protect L. N. and remains unwilling to do so.” Judge Douglas concluded, “The majority errs in providing post hoc rationalizations for the BIA and compounds the BIA’s errors by downplaying the severity of the harms L. N. has suffered. Each applicant for asylum relief deserves to have their claims heard and any subsequent denial of a petition adequately explained. ‘Although we owe deference to the BIA, that deference is not blind.’ Argueta-Hernandez, 87 F.4th at 703. From the record, it is clear that the BIA legally erred in considering the evidence before it and that substantial evidence supports the conclusion that the Angolan government was unable and unwilling to protect L. N.. The BIA’s poorly reasoned decision, and the majority’s affirmance, leaves L. N. in peril.”

Unpublished

  • Malek v. U.S., 22-51050, appeal from W.D. Tex.
    • per curiam (Jones, Barksdale, Elrod), Federal Tort Claims Act
    • Affirming dismissal of FTCA claims for lack of jurisdiction.
  • Bakane v. Jaddou, 23-20226, appeal from S.D. Tex.
    • per curiam (Elrod, Willett, Duncan), Elrod, J., concurring; immigration
    • Affirming dismissal of plaintiffs’ challenge to withholding of I-485 applications and imposition of retrogressed cutoff date.
    • Judge Elrod concurred. She opined as to the inefficiencies of the immigration review system, concluding, “‘This case exemplifies why the immigration law of the United States is inexcusably complicated and in need of immediate revision.’ Villa v. Holder, 646 F. App’x 270, 272 (5th Cir. 2012). But no matter how frustrating our labyrinth of immigration laws may be, ‘[w]e are a court of law, not policymakers of [penultimate] resort.’ Arizona v. Mayorkas, 143 S. Ct. 478, 479 (2022) (Gorsuch, J., dissenting from grant of stay). With these thoughts in mind. I concur.”
  • Gupta v. Jaddou, 23-40424, appeal from E.D. Tex.
    • per curiam (Elrod, Willett, Duncan), Elrod, J., concurring; immigration
    • Affirming dismissal of plaintiffs’ challenge to withholding of I-485 applications and imposition of retrogressed cutoff date.
    • Judge Elrod entered the same concurrence as in Bakane v. Jaddou, supra.
  • Koppula v. Jaddou, 23-50399, appeal from W.D. Tex.
    • per curiam (Elrod, Willett, Duncan), Elrod, J., concurring; immigration
    • Affirming dismissal of plaintiffs’ challenge to withholding of I-485 applications and imposition of retrogressed cutoff date.
    • Judge Elrod entered the same concurrence as in Bakane v. Jaddou, supra.
  • U.S. v. Maldonado, 23-50859, appeal from W.D. Tex.
    • per curiam (Barksdale, Engelhardt, Wilson), criminal
    • Affirming conviction of conspiracy to possess with intent to distribute more than 50 grams of methamphetamine.
  • U.S. v. Candanoza-Hernandez, 24-40035, appeal from S.D. Tex.
    • per curiam (Haynes, Higginson, Douglas), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Rahman v. Garland, 24-60016, petition for review of BIA order
    • per curiam (Barksdale, Haynes, Wilson), immigration
    • Denying Bangladeshi citizen’s petition for review of BIA order denying his motion to reopen.