Take the Fifth

Designated for publication

• Benitez De Chavez v. United Parcel Service, Inc., 25-11146, appeal from N.D. Tex.
  • Ho, J. (Stewart, Higginson, Ho) (no oral argument), removal, diversity jurisdiction, personal tort
  • Vacating remand order in case removed on basis of diversity jurisdiction, and remanding to federal district court for further proceedings.
  • Rubidia De Chavez and other plaintiffs brought a state-law tort suit following the death of her husband against several defendants, including UPS. UPS removed the case to federal court, claiming complete diversity. The district court, acting sua sponte, remanded the case to state court because UPS’s notice of removal alleged only that the plaintiffs “resided” in Texas—not that they were citizens of Texas—and thus failed to conclusively establish diversity jurisdiction. The court remanded without giving UPS an opportunity to cure the deficiency.
  • At issue on appeal was (1) whether the Fifth Circuit had jurisdiction under 28 U.S.C. § 1447(d) to review the district court’s sua sponte remand order, and (2) whether UPS’s jurisdictional allegations were sufficient.
  • The court held that appellate review was available because the remand was based on a procedural defect—insufficient pleading of citizenship in the notice of removal—rather than an affirmative finding of no subject-matter jurisdiction. Under In re Allstate, a district court may not sua sponte remand for procedural defects; only a party’s motion can trigger remand on procedural grounds. Because the remand fell outside the scope of § 1447(c), § 1447(d) did not bar appellate review.
  • On the merits, the court found that UPS’s notice of removal alleged domicile and citizenship “upon information and belief,” supported by Plaintiffs’ stated residences, and that Fifth Circuit precedent permits such allegations “in the nascency of litigation.” The court noted the case was removed only one month after the suit was filed, far from the five-year delay found insufficient in PNC Bank.
  • Judge Ho closed with a pointed admonition: “‘Lawyers’ work is careful work. Attention to detail is critical. A mistake that might be immaterial in other professions can be devastating for attorneys and their clients.'” He cautioned that the pleading error “could have been fatal” to UPS’s choice of forum had Plaintiffs—rather than the court—moved for remand, because § 1447(d) would then have barred appellate review.

• Alamrew v. Morgan, 26-30387, appeal from W.D. La.
  • per curiam (Higginson, Willett, Oldham) (no oral argument), Oldham, J., issuing “Statement regarding dismissal (reads like a dissent, though perhaps more of a dubitante); immigration, habeas corpus, mootness
  • Granting immigrant detainee’s motion to dismiss appeal from denial of habeas relief to bar third-country deportation as moot, upon detainee’s release from detention.
  • Maeregu Bezabeh Alamrew, an Ethiopian citizen, entered the United States illegally in August 2024 and was placed in removal proceedings. An immigration judge found him removable but granted withholding of removal to Ethiopia under INA § 241(b)(3); Alamrew waived his right to appeal. The Government then notified Alamrew in December 2025 that it intended to remove him to Cameroon as a third country. After six months in custody—the presumptive Zadvydas period—Alamrew filed a habeas petition under 28 U.S.C. § 2241 claiming there was no significant likelihood of removal in the reasonably foreseeable future. When the Government then attempted to put him on a removal flight to Cameroon, Alamrew filed emergency motions seeking to block that very removal. The district court initially denied these contradictory motions, but a magistrate judge later recommended granting the habeas petition, and the district court ultimately ordered Alamrew released into the United States while prohibiting his removal or transfer. Alamrew then moved to dismiss his own appeal as moot.
  • At issue on appeal was the mootness of the appeal following the petitioner’s release; and, in Judge Oldham’s statement: (1) whether estoppel doctrines barred Alamrew’s claims, (2) whether IIRIRA and the REAL ID Act stripped the district court of habeas jurisdiction over removal orders, (3) whether the district court’s relief exceeded the scope of the writ of habeas corpus, and (4) whether Federal Rule of Appellate Procedure 23(b) permitted Alamrew’s initial appeal.
  • The per curiam order was brief, granting the appellant’s motion to correct the docket to reflect a civil appeal and granting his motion to dismiss the appeal as moot following his release from detention.
  • Judge Oldham wrote an extensive statement sharply criticizing both the petitioner’s litigation conduct and the district court’s orders. He called the case “a travesty” and accused Alamrew of having “violated our Nation’s immigration laws, abused our immigration system, and perverted the writ of habeas corpus.” He contended that Alamrew’s strategy was transparently contradictory: first demanding release from custody via habeas, then filing emergency motions to prevent the Government from releasing him via removal to Cameroon—”a habeas petitioner filed a second motion demanding that he stay in custody.”
  • On jurisdiction and the scope of habeas, Judge Oldham contended that Congress expressly stripped district courts of jurisdiction over removal orders through IIRIRA and the REAL ID Act, making Hobbs Act petitions in the courts of appeals “the sole and exclusive means for judicial review of an order of removal.” He contended the district court’s order—releasing Alamrew into the United States while prohibiting any removal or transfer—was “completely foreign to the Great Writ,” which historically provides only one remedy: release from unlawful custody. Quoting Thuraissigiam, Judge Oldham wrote that habeas “‘simply provide[s] a means of contesting the lawfulness of restraint and securing release'” and emphasized: “the Government is happy to release him—provided the release occurs in the cabin of a plane bound for” the third country.
  • Judge Oldham closed by lamenting that “as a consequence of the district court’s order, an inadmissible alien with a final order of removal is presently walking the streets of America. That’s deeply regrettable.” He situated the case within what he characterized as broader “profound misunderstandings about the judicial power generally and third-country removals specifically,” citing pending Supreme Court litigation in DHS v. D.V.D.

• Bodin v. City of New Orleans, 25-30524, appeal from E.D. La.
  • en banc (oral argument at panel stage), takings, preemption, en banc
  • Denying en banc rehearing of August 5, 2026, panel opinion (Wiener, Haynes, Graves), which had affirmed dismissal of challenges to City’s short-term rentals regulations.
  • Upon poll of the en banc court, nine judges voted against rehearing (Stewart, Richman, Southwick, Haynes, Graves, Higginson, Wilson, Douglas, Ramirez), and eight judges voted for rehearing (Elrod, Jones, Smith, Willett, Ho, Duncan, Engelhardt, Oldham).

• Trader Joe’s Company v. NLRB, 24-60367, petition for review of NLRB order
  • en banc (oral argument at panel stage), labor law, en banc
  • Granting en banc rehearing of February 18, 2026, panel opinion (Dennis, Oldham, Douglas; Oldham, J., dissenting) that had denied Trader Joe’s petition to review NLRB order that found that Trader Joe’s violated the National Labor Relations Act in its treatment of employees who had opposed the grocery chain’s responses to the COVID-19 pandemic and had granted the NLRB’s cross-petition to enforce.

Unpublished opinions

• United States v. Sanchez-Varela, 25-50704, appeal from W.D. Tex.
  • per curiam (Clement, Engelhardt, Wilson) (no oral argument), criminal, sentencing
  • Affirming sentence on illegal-reentry conviction.
  • At issue on appeal was whether the district court relied on impermissible factors—specifically, promoting respect for the law, imposing a just sentence, deterring future criminal conduct, and protecting the public—when imposing a three-year term of supervised release following a guilty-plea conviction for illegal reentry. Because the defendant did not object at sentencing, the court reviewed for plain error.
  • Even assuming the district court’s stated rationale constituted clear or obvious error under Esteras v. United States, 606 U.S. 185 (2025), the defendant failed to carry his burden on the remaining prongs of the plain-error analysis. The court noted that the impermissible rehabilitative factor was “not a dominant factor” in the sentencing decision.

• 82 Glenwood Avenue, L.L.C. v. Kane, 26-10079, appeal from N.D. Tex.
  • per curiam (Richman, Haynes, Douglas) (no oral argument), breach of contract, breach of fiduciary duty
  • Affirming dismissal of claims arising from escrow agreement.
  • At issue on appeal was whether a New York LLC that wired $3 million in earnest money to an escrow agent stated viable claims under Texas law for breach of contract, breach of fiduciary duty, negligence, and promissory estoppel after a third-party partner fraudulently requested—and received—the funds back from the escrow agent. Key sub-issues included (1) whether email correspondence between the parties established mutual assent to an escrow agreement between the LLC and the escrow agent, (2) whether the escrow agent’s disbursement of funds to the fraudster was a foreseeable harm supporting proximate cause, and (3) whether the agent’s statement of his “opinion” about the draft contract constituted a promise for promissory estoppel purposes.
  • On breach of contract, the court held that the emails did not demonstrate mutual assent between 82 Glenwood and the escrow agent because 82 Glenwood was never identified in the correspondence, and the agent could not have understood that the funds would be returned only to 82 Glenwood. On breach of fiduciary duty and negligence, the court found no proximate cause because the fraudster’s theft of the funds was unforeseeable as a matter of law; the escrow agent had no reason to be suspicious of a request from one of the acknowledged “partners on the deal.” On promissory estoppel, the court concluded that the escrow agent’s email expressing his “opinion” about the interpretation of a draft contract was not a promise, and even if it were, 82 Glenwood did not sufficiently allege foreseeability of reliance.

• Barber v. State of Mississippi, 26-60016, appeal from N.D. Miss.
  • per curiam (Jones, Ho, Wilson) (no oral argument), prisoner suit, appellate jurisdiction
  • Dismissing appeal from dismissal of Mississippi prisoner’s § 1983 claims due to untimeliness of notice of appeal.

• Perez Rojas v. Blanche, 26-60044, petition for review of BIA order
  • per curiam (Elrod, King, Stewart) (no oral argument), immigration
  • Granting petition for review of BIA order and remanding to BIA.
  • At issue on petition was whether the BIA abused its discretion by summarily dismissing a Venezuelan asylum-seeker’s appeal as untimely without fully considering whether extraordinary circumstances—specifically, the petitioner’s inability to access her mailbox and her infant child’s terminal cancer diagnosis requiring around-the-clock care in a pediatric intensive care unit—justified equitable tolling of the appeal deadline.
  • The court found no dispute that Perez Rojas pursued her appeal with reasonable diligence. Turning to the extraordinary-circumstances prong, the court held that the BIA abused its discretion by ignoring Perez Rojas’s evidence that her child was terminally ill and hospitalized in the PICU throughout the relevant period, focusing only on the mailbox-access issue. The court remanded for further factual development and determination of whether equitable tolling is appropriate.

• Persaud v. Blanche, 26-60208, petition for review of BIA order
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), immigration
  • Denying Guyanese national’s petition for review of BIA order dismissing appeal of IJ’s denial of motion to reopen and motion to reconsider.
  • At issue on petition was whether the BIA abused its discretion by (1) summarily dismissing a Guyanese national’s untimely appeal from an IJ’s denial of a motion to reopen, and (2) affirming the IJ’s denial of a motion to reconsider. Sub-issues included whether equitable tolling should apply, whether the departure bar in 8 C.F.R. § 1003.23(b)(1) applied to a request for sua sponte reopening, whether Kisor v. Wilkie displaced circuit precedent on the departure bar, and whether the petitioner’s stipulated removal order was invalid.
  • The BIA did not err in deeming the appeal untimely because the petitioner failed to raise an equitable tolling argument before the BIA, and the government raised exhaustion. The court also rejected the petitioner’s challenges to his stipulated removal order, finding the record did not support the claim that the stipulation was not entered knowingly, voluntarily, or intelligently. Due process claims failed because aliens have no due process rights with respect to discretionary relief such as reopening and reconsideration.

• Fucich v. Ashe, 26-60298, appeal from S.D. Miss.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), Rule 60, civil
  • Affirming dismissal of Rule 60(b)(4) motion to declare federal court’s judgments and proceedings void.
  • At issue on appeal was whether the district court erred in denying a pro se plaintiff’s motion under Federal Rule of Civil Procedure 60(b)(4) to declare void the judgments, orders, and proceedings of a federal judge in the Eastern District of Louisiana, based on what the lower court characterized as “some type of fanciful involuntary servitude argument.”
  • The court noted that a judgment is void under Rule 60(b)(4) “only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard,” citing United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010). The court found that filing a Rule 60(b)(4) motion against the judge in a different district was not an appropriate avenue for the challenge, and after reviewing the briefs and record with the benefit of liberal construction, found no reversible error.