Jessica PATE, in her individual capacity and on behalf of J.L.C., in her capacity as his parent and his legal guardian; J. L. C., a minor, by and through his parent and legal guardian, Jessica Pate, Plaintiffs-Appellants, v. Karin HARBERS, in her individual capacity; Brenda Chatman, in her individual capacity; Charleen Hunter, in her individual capacity, Defendants-Appellees.
No. 15-50883
United States Court of Appeals, Fifth Circuit.
Date Filed: 07/14/2016
487
Laura Alicia Barbour, Assistant Attorney General, William T. Deane, Assistant Attorney General, Austin, TX, for Defendants-Appellees.
Before KING, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Jessica Pate and J.L.C. appeal the district court‘s dismissal of their claims brought under
Although the defendants were presented with a close case relative to balancing the interests of this two-year-old child and the rights of the parent, we do not think the defendants acted unreasonably in the light of the established law. The defendants are therefore entitled to claim qualified immunity and the judgment of the district court is AFFIRMED.
Claudia HERNANDEZ-ABREGON, Petitioner, v. Loretta LYNCH, U.S. Attorney General, Respondent.
No. 15-60461
Summary Calendar
United States Court of Appeals, Fifth Circuit.
Date Filed: 07/14/2016
Donglai Yang, Law Office of Donglai Yang, New Orleans, LA, for Petitioner.
Before HIGGINBOTHAM, ELROD and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Claudia Hernandez-Abregon, a native and citizen of Guatemala, petitions this court to review the decision of the Board of Immigration Appeals (BIA) dismissing her appeal from the order of the Immigration Judge (IJ) denying her application for withholding of removal. Hernandez-Abregon contends that she was entitled to withholding of removal because she was persecuted and fears persecution on account of her membership in a particular social group, specifically, individuals who were sexually assaulted by gangs and resisted gang recruitment.
We review the BIA‘s decision and consider the IJ‘s decision to the extent that it influenced the BIA. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Agency legal conclusions are reviewed de novo “unless a conclusion embodies [the BIA‘s] interpretation of an ambiguous provision of a statute that it administers,” in which case deference is required. Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Such deference is required where, as here, the BIA has applied the social distinction and particularity test to determine that a proposed group does not qualify as a “particular social group.” See Orellana-Monson, 685 F.3d at 521. Therefore, this court should defer to the BIA‘s conclusion unless it was arbitrary and capricious. See id. at 517, 521.
A particular social group is “a group of persons that share a common immutable characteristic that they either cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” Orellana-Monson, 685 F.3d at 518. “[T]he risk of persecution alone does not create a particular social group-and the term should not be a catch all for all persons alleging persecution who do not fit elsewhere.” Id. at 518-19. This court defers to the BIA‘s requirements that a particular social group have “social visibility,” meaning that “members of a society perceive those with the characteristic in question as members of a social group,” and “particularity,” meaning that the group “can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.” Id. at 519 (internal quotation marks and citations omitted).
Like the petitioner in Orellana-Monson, Hernandez-Abregon‘s purported group lacks particularity because it “encompasses a wide swath of society crossing many political orientations, lifestyles, and identifying factors.” Orellana-Monson, 685 F.3d at 522. Additionally, Hernandez-Abregon‘s purported group lacks social visibility because there is no evidence that individuals who were sexually assaulted by gangs and resisted gang recruitment would be perceived by society as a distinct group. See id. Thus, the BIA‘s determination that Hernandez-Abregon failed to show persecution on account of membership in a particular social group, as required to succeed on her claim for withholding of removal,
Accordingly, her petition is DENIED.
UNITED STATES of America, Plaintiff-Appellee, v. Michael St. David WILLIAMS, Defendant-Appellant.
No. 15-60544
Summary Calendar
United States Court of Appeals, Fifth Circuit.
Date Filed: 07/14/2016
489
Robert Henry Norman, Assistant U.S. Attorney, Oxford, MS, for Plaintiff-Appellee.
Michael St. David Williams, Lexington, KY, Pro Se.
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM:*
Michael St. David Williams was convicted by a jury of conspiracy to commit arson and of aiding and abetting the commission of arson. The district court sentenced him to concurrent 60-month terms of imprisonment and three-year terms of supervised release. Williams timely appealed.
The attorney appointed to represent Williams on appeal has filed a brief arguing that Williams‘s convictions should be reversed because trial counsel rendered ineffective assistance. The claims of ineffective assistance raised here were not raised in the district court, and the record thus is inadequately developed to allow us to fairly evaluate the merits of the claims on direct appeal. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). Accordingly, we deny this ground for appeal without prejudice to Williams‘s ability to bring his claims on collateral review. See id.
Williams has moved for leave to file a pro se supplemental brief raising his own appellate claims. Williams does not have a “constitutional right to hybrid representation.” See United States v. Ogbonna, 184 F.3d 447, 449 n.1 (5th Cir. 1999) (internal quotation marks, alteration, and citation omitted); see also 5th Cir. R. 28.6 (“Unless specifically directed by court order, pro se motions, briefs or correspondence will not be filed if the party is represented by counsel.“); cf. Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996) (per curiam) (stating that “when a criminal appellant accepts the assistance of counsel, but later objects to his attorney‘s appeal strategy or preparation of the brief, the criminal appellant cannot then expect to be allowed to file a supplemental pro se brief. By accepting the assistance of counsel the criminal appellant waives his right to present pro se briefs on direct appeal.“). Accordingly, Williams‘s motion to file a supplemental