Take the Fifth

Designated for publication

• Morin v. Bondi, 24-60590, petition for review of BIA order
  • Oldham, J. (Haynes, Ho, Oldham), immigration
  • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order denying motion to reopen removal proceedings.
  • The Fifth Circuit reviewed Juan Jose Garcia Morin’s petition challenging the Board of Immigration Appeals’ refusal to reopen his removal proceedings. Garcia Morin, a Mexican citizen admitted to the United States in 1982 as a lawful permanent resident, was convicted twice of violent crimes involving weapons: in 2011, for shooting his ex-wife in the head, and in 2018, for stabbing a roommate. His firearm-related convictions triggered removability under the Immigration and Nationality Act (INA). In 2018, an immigration judge ordered him removed after serving his sentences, and the BIA affirmed in 2020. His first petition for review to the Fifth Circuit was dismissed as untimely.
  • In 2022, Garcia Morin filed a motion to reopen, relying on the Supreme Court’s decision in Borden v. United States, which limited the definition of aggravated felonies to exclude crimes committed with a mens rea of recklessness. He argued that Borden undermined the basis for his removal. The BIA denied the motion, explaining that his removal was grounded on a firearm offense, not an aggravated felony, so Borden was irrelevant. The Board also found his motion untimely and declined to reopen sua sponte. A year and a half later, Garcia Morin filed a second motion raising the same arguments, but the BIA again denied relief, emphasizing that the INA permits only one motion to reopen, and that equitable tolling does not apply to the numerical bar.
  • On review, the Fifth Circuit dismissed in part and denied in part Garcia Morin’s petition. The court held that it lacked jurisdiction to review the BIA’s refusal to reopen sua sponte and reaffirmed that the statutory number bar on motions to reopen is absolute, save for one exception involving battered spouses, children, or parents—which Garcia Morin did not qualify for. Unlike time limits, which courts sometimes equitably toll, the number bar is a substantive limitation grounded in finality and congressional choice. The court rejected arguments for extending equitable tolling, found no due process violation since motions to reopen are discretionary, and concluded that the BIA acted within its discretion. Accordingly, Garcia Morin’s petition was dismissed in part and denied in part.

Unpublished decisions

• U.S. v. Munoz, 25-20031, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Wilson), criminal, sentencing
  • Affirming sentence on revocation of supervised release.

• U.S. v. Porter, 25-30165, c/w 25-30167, appeal from W.D. La.
  • per curiam (Elrod, Higginson, Ramirez), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Nabor-Hernandez, 25-50189, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Garza-Gomez, 24-50914, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal, sentencing
  • Affirming conviction of possession of a firearm by a felon, but vacating 120-month sentence and remanding for resentencing.

• AbbVie, Inc. v. Fitch, 24-60375, appeal from S.D. Miss.
  • per curiam (Elrod, Clement, Ramirez), preliminary injunction, preemption, Medicaid
  • Affirming denial of preliminary injunction to plaintiff group of contract pharmacies alleging federal preemption of Mississippi statute that sought to close a loophole in Medicaid drug coverage. “If H.B. 728 works the way that AbbVie alleges it does—allowing covered entities and contract pharmacies to flout Section 340B’s diversion ban by improperly reselling discounted Section 340B drugs—it would undoubtedly be a problematic statute. But on the specific claims and sparse record before us, we cannot say that injunctive relief is appropriate.”