Idalia Sosa-Perdomo v. Loretta Lynch
644 F. App'x 320
5th Cir.
2016
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Docket

Harold J. Blakely v. City of Laurel, et al.

United States Court of Appeals, Fifth Circuit

March 28, 2016

320

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

This case arises from Harold J. Blakely‘s arrest based on charges filed by his sister, Sonya Payton (“Payton“). Blakely sued the arresting officers, the judge who issued the warrants, the deputy clerk, the City of Laurel (“Municipal Defendants“), as well as his sister. He appeals the district court‘s denial of his motions for default judgment and dismissal of his claims. Blakely‘s notice of appeal referenced “orders entered in this civil action on the 17th day of September, 2015.” Federal Rule of Civil Procedure 3 states that the contents of the notice of appeal must “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). Blakely‘s reference to “orders” entered on a certain date may pass muster. On appeal, Blakely does not adequately explain his arguments or provide supporting authority. Arguments not adequately briefed are deemed to be waived.

. Notwithstanding, his claims fail on the merits and we affirm for the following reasons.

First, Blakely filed a motion for default judgment against the Municipal Defendants. The district court correctly denied the motion, finding that the defendants had all properly appeared and defended the matter. Additionally, in its order the court disposed of Blakely‘s request to disqualify Defendant‘s counsel, Brett Woods Robinson, appropriately concluding that Blakely presented no evidence of a conflict of interest or of defense counsel‘s impropriety.

Next, as to Blakely‘s motion for default judgment against Payton, the district court was well within its discretion in denying the motion as premature. It was also proper for the court to decline to exercise its supplemental jurisdiction over the claim against Payton, because it had dismissed all claims over which it had original jurisdiction. See 28 U.S.C. § 1367(3).

Finally, in its Memorandum Opinion and Order, the court thoroughly analyzed the issues and accurately held that the Municipal Defendants were entitled to immunity and that Blakely failed to assert valid claims for which relief could be granted.

AFFIRMED.

Idalia SOSA-PERDOMO, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent.

No. 14-60328

United States Court of Appeals, Fifth Circuit

March 28, 2016

321

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.

Daniel W. Thomann, Chicago, IL, for Petitioner. Eric Warren Marsteller, Esq., Senior Litigation Counsel, Tangerlia Cox, Don George Scroggin, Trial Attorney, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

PER CURIAM:*

Idalia Sosa-Perdomo, a native and citizen of Guatemala, petitions for review of the order of the Board of Immigration Appeals (BIA) dismissing her appeal of the immigration judge‘s (IJ) denial of her motion to reopen her in absentia removal proceedings. She also petitions for review of the BIA‘s order denying her motion for reconsideration. We have jurisdiction to review the denials of these motions. See

.

We review the BIA‘s denials of motions to reopen or reconsider under a “highly deferential abuse-of-discretion standard.”

. The BIA “abuses its discretion when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.”
.

We review the BIA‘s rulings of law de novo and its findings of fact for substantial evidence.

. Under the substantial-evidence test, “this court may not overturn the BIA‘s factual findings unless the evidence compels a contrary conclusion.”
. Because the BIA affirmed the IJ‘s decision based, in part, on the reasons articulated by the IJ, we will also consider the IJ‘s decision. See

To the extent that Sosa-Perdomo argues under 8 U.S.C. § 1229a(b)(5)(C)(ii) that she did not receive the notice of hearing mailed to the Illinois address set forth in her Form I-830 because she did not supply an address to immigration officials as required by 8 U.S.C. § 1229(a)(1)(F), reopening is not warranted. See

. Further, despite her affidavit to the contrary, the record evidence, including the Form I-830, does not compel the conclusion that the BIA erred by finding that Sosa-Perdomo provided the Illinois address. See
.

In considering whether Sosa-Perdomo had overcome the weaker presumption of delivery accorded to mailed hearing notices, the BIA did not misapply

, by taking into account Sosa-Perdomo‘s lack of diligence in failing to file her motion to reopen until over nine years after she was ordered removed in absentia. See
(setting forth a non-exclusive list of factors which may be considered but instructing that “all relevant evidence submitted to overcome the weaker presumption of delivery must be considered“). As Sosa-Perdomo‘s motions sought discretionary relief, she had no liberty interest at stake and cannot show that the BIA violated her due process rights. See
. Finally, Sosa-Perdomo fails to show that her case met the standard for assignment to a three-member panel. See 8 C.F.R. § 1003.1(e)(6). The BIA did not abuse its discretion. See
.

The petitions for review are DENIED.

UNITED STATES of America, Plaintiff-Appellee v. Genaro GARCIA-GARCIA, Defendant-Appellant.

No. 15-40869 Summary Calendar

United States Court of Appeals, Fifth Circuit

March 28, 2016

322

Before DAVIS, JONES and GRAVES, Circuit Judges.

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee. Oscar Alvarez, Esq., Law Office of Oscar Alvarez, Patricia Ann Rigney, Esq., Rigney Law Firm, McAllen, TX, for Defendant-Appellant.

PER CURIAM:*

Genaro Garcia-Garcia pleaded guilty to one count of illegal reentry and received a below-guidelines sentence of 36 months of imprisonment and a two-year term of supervised release. On appeal, Garcia-Garcia argues that the district court committed procedural error when it failed to consider his request for a downward departure based on cultural assimilation and articulate why it denied this request. Garcia-Garcia also argues that his sentence was substantively unreasonable and greater than necessary to satisfy the sentencing goals under 18 U.S.C. § 3553(a).

We engage in a bifurcated review of the sentence imposed by the district court, first considering whether the district court committed a “significant procedural error,” such as “failing to consider the § 3553(a) factors,” or “failing to adequately explain the chosen sentence,” and then reviewing the substantive reasonableness of the sentence for an abuse of discretion.

. Notwithstanding the above, Garcia-Garcia concedes that our review is for plain error because he failed to object below. See
. Nevertheless, Garcia-Garcia argues that plain error review should not apply to preserve the issue for further review. To show plain error, Garcia-Garcia must show a forfeited error that is clear or obvious and that affects his substantial rights.
. If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Notes

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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