Take the Fifth

Designated for publication

• Perez v. City of San Antonio, 23-50746, appeal from W.D. Tex.
  • Stewart, J. (Stewart, Richman, Higginson), Higginson, J., dissenting in part; First Amendment, mootness
  • Affirming district court’s preliminary injunction allowing plaintiffs access to park for religious ceremonies but declining to enjoin planned tree removal and cormorant rookery management measures.
  • This appeal arose after the Texas Supreme Court answered a certified question, holding that the state constitution’s religious-service-protection clause does not apply to government preservation and management of public lands. Plaintiffs Gary Perez and Matilde Torres, members of the Lipan-Apache Native American Church, sued San Antonio over its Brackenridge Park renovation plans, claiming the work would destroy the “Sacred Area” necessary for their religious ceremonies. They sought access for worship, preservation of certain trees, and allowance for cormorants to nest. The district court granted limited access for group ceremonies but declined to halt the city’s tree-removal and rookery-management measures, finding compelling safety and health interests. Plaintiffs appealed and filed an emergency motion for injunction pending appeal.
  • The Fifth Circuit first held that the access claim was moot because the City had removed fencing, granted ceremonial access, and no reasonable expectation existed that access would again be denied. Voluntary cessation did not apply because the record showed the City had gone beyond court-ordered measures to restore access, including permitting ceremonies at unusual hours. Thus, no live controversy remained on that point.
  • Turning to the Texas Religious Freedom Restoration Act (TRFRA) claims, the court explained that plaintiffs had to show a “real” and “significant” burden on their religious exercise, shifting the burden to the government to prove a compelling interest pursued by the least restrictive means. The plaintiffs failed to show likelihood of success on substantial burden because the park remained largely open for religious use, cormorants were only seasonal visitors, and no direct prohibition on worship existed. Even if there were a burden, the City demonstrated compelling interests in repairing crumbling retaining walls, preventing injury from hazardous trees, and mitigating public health hazards from bird guano.
  • The record contained extensive expert testimony and photographic evidence that dense bird rookeries degraded water quality, damaged facilities, and increased risk of zoonotic diseases. The court contrasted this with Barr v. City of Sinton, noting the district court here made specific findings after a four-day hearing rather than relying on conclusory assertions. It credited expert opinions from wildlife and health specialists describing severe health risks, infrastructure damage, and regulatory compliance requirements under the Migratory Bird Treaty Act.
  • On narrow tailoring, the court rejected plaintiffs’ assertion that the City refused to accommodate their religious exercise. The record showed that the City considered multiple engineering options, reduced tree removals from 70 to 48 with 21 relocated, and incorporated public feedback, including plaintiffs’ input, at numerous meetings. Engineering alternatives like the pier-and-spandrel method would not have saved more trees, risked damaging historic walls, violated preservation standards, and exceeded the budget. Bird deterrence measures were confined to the two-acre project zone, did not harm birds, and targeted nesting only. Experts testified that deterrence could not be species-specific and that proposed timing alternatives would not meet health and legal objectives.
  • The Fifth Circuit agreed with the district court that the City’s plans were the least restrictive means available. While some City statements suggested financial considerations or lack of study, these were outweighed by evidence of extensive evaluation, expert involvement, and adjustments to reduce impacts. Under TRFRA and strict scrutiny principles, the court found the City’s measures justified.
  • The court also disposed of plaintiffs’ First Amendment and Texas freedom-to-worship claims, finding them no stronger than the TRFRA claim. On the Texas religious-service-protection claim, the Texas Supreme Court’s answer foreclosed relief because the provision does not cover public land management. Consequently, plaintiffs failed to show likelihood of success on any claim.
  • Given this failure, the court denied the emergency injunction pending appeal without reaching the remaining injunction factors. The City’s expert-driven, multi-agency process, tree-removal reduction, and targeted rookery measures persuaded the court that the plans served compelling interests in the least restrictive way. The district court’s judgment was affirmed, and the access appeal dismissed as moot.
  • Judge Higginson dissented in part. The dissent opines that the City of San Antonio’s redevelopment plan for Brackenridge Park—particularly its tree-removal and anti-nesting measures—substantially burdens the religious exercise of members of the Lipan-Apache Native American Church in violation of the Texas Religious Freedom Restoration Act (TRFRA). The appellants’ sacred site is a specific bend in the San Antonio River whose “spiritual ecology” depends on certain trees and nesting cormorants, both integral to their creation story and religious ceremonies. Testimony from church members emphasized that without these elements, ceremonies at the riverbend would be meaningless and cannot be relocated, as no acceptable substitute site exists. The City’s plan, however, will remove nearly all the trees in the area and employ aggressive deterrence methods to drive cormorants away.
  • The dissent criticizes the majority’s conclusion that the burden is trivial because the City’s plan only indirectly affects religious practice and access to the park remains available. Citing precedent, the dissent stresses that TRFRA requires assessing burdens from the claimant’s perspective, not the government’s, and that even indirect restrictions can be substantial if they significantly curtail religious exercise. Here, the loss of the riverbend’s unique ecological and spiritual features will entirely prevent ceremonies central to appellants’ faith, satisfying the definition of a substantial burden under binding case law. The majority’s reasoning that cormorants could nest elsewhere or that other park areas remain accessible is legally irrelevant, as the appellants’ religious practice is tied specifically to this location and its conditions.
  • Finally, the dissent concludes the City failed to use the least restrictive means to achieve its goals. City officials admitted they did not study whether their objectives could be met while accommodating appellants’ beliefs, and key personnel only learned of the religious significance after designs were finalized. The City rejected possible alternatives—such as adjusting the timing of anti-nesting measures or seeking regulatory exemptions—because they would take time and money. Under TRFRA’s strict scrutiny standard, and consistent with Supreme Court guidance that governments must avoid burdening religion when possible, the dissent finds the City’s actions unjustified and likely unlawful, warning that ignoring unfamiliar Native American practices undermines the broader commitment to religious freedom.

• Rubio v. Bondi, 24-60392, petition for review of BIA order
  • Clement, J. (Stewart, Clement, Wilson), immigration
  • Denying Venezuelan citizen’s petition for review of BIA order upholding an Immigration Judge’s determination that he failed to demonstrate eligibility for asylum, withholding of removal, or protection from the Convention Against Torture.
  • Miguel Angel Montiel Rubio, a Venezuelan citizen, entered the United States in June 2019 on a six-month visitor visa and applied for asylum in October 2019, citing fear of persecution for his political opposition to the Maduro regime and membership in the Primero Justicia Party. He testified that between 2010 and 2019 he participated in numerous protests, was shot in the leg by a pro-government paramilitary group known as the “colectivos” in 2015, received threats, and faced tear gas during demonstrations. Rubio also described incidents in 2017 and 2019 involving accusations from a neighbor, threats from colectivos, and a final incident that led him to stay in the United States. However, he had traveled freely between Venezuela and the U.S. multiple times during the relevant period, lived unharmed in Venezuela for extended stretches, and his home there remained intact.
  • The Immigration Judge (IJ) found Rubio credible but concluded that his experiences, taken individually or together, did not amount to “persecution” under asylum law, noting the incidents were spread over nine years and the threats lacked specificity and immediacy. The IJ also determined Rubio lacked a well-founded fear of future persecution, emphasizing his history of safe returns to Venezuela, the absence of evidence that the government had targeted him as a significant opposition figure, and his ability to relocate within the country. Because he failed to meet the lower asylum standard, Rubio necessarily did not meet the higher threshold for withholding of removal. As to Convention Against Torture (CAT) relief, the IJ found insufficient evidence that Rubio was likely to face torture with government involvement or acquiescence if returned.
  • The Board of Immigration Appeals (BIA) affirmed, agreeing that Rubio’s harm did not rise to the level of past persecution and that he lacked an objectively reasonable fear of future harm. The BIA noted that while Venezuela has widespread abuses against opposition figures, the record did not suggest Rubio was personally targeted by the government or its agents in a way that would make persecution or torture more likely than not. It credited his safe travel history, intact home, and ability to live elsewhere in Venezuela as evidence against both persecution and torture claims.
  • On petition for review, the Fifth Circuit applied the substantial evidence standard and found the record did not compel a contrary result. The court agreed that Rubio’s incidents, while troubling, resembled isolated acts rather than a systematic campaign of persecution and that his past conduct, including safe returns and continued activism, undercut claims of genuine, well-founded fear. It further held that general country conditions cannot substitute for a particularized risk and that Rubio had not shown the necessary likelihood of torture for CAT relief. Consequently, the petition for review was denied, leaving the removal order in place.

Unpublished decisions

• U.S. v. Darcus, 25-10219, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Smith, 25-10428, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Olali v. CVS, Inc., 25-10445, appeal from N.D. Tex.
  • per curiam (Davis, Wilson, Douglas), Title VII, arbitration
  • Affirming confirmation of arbitration decision that Title VII claims in arbitration demand were untimely.

• Kemp v. Belanger, 24-30269, c/w 24-30270, c/w 24-30271, c/w 24-30470, appeal from W.D. La.
  • per curiam (Jones, Duncan, Douglas), sec. 1983, Batson challenge, sufficiency of evidence
  • Affirming judgment on jury verdict in favor of officer defendant on plaintiff’s sec. 1983 excessive force claim.

• U.S. v. Abercrombie, 24-30483, appeal from W.D. La.
  • per curiam (Wiener, Douglas, Ramirez), criminal, sentencing
  • Affirming 132-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Caldwell, 24-40529, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Lerma-Martinez, 24-51028, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.