author: JERRY E. SMITH, Circuit Judge:

text:
    Ron SOMMERS, Chapter 7 Trustee of Exquisite Designs by Castlerock & Company, Plaintiff-Appellee, v. BANK OF AMERICA, N.A., Defendant-Appellee, v. Brad Jones, Movant-Appellant.
    No. 15-20775
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed August 26, 2016

      William Ross Spence, Esq., Carolyn Virginia Carollo, Snow Spence Green, L.L.P., Houston, TX, for Plaintiff-Appellee.
    Connie Flores Jones, Kathryn Buza Davis, Winston & Strawn, L.L.P., Houston, TX, Phoebe Norton Coddington, Winston & Strawn, L.L.P., Charlotte, NC, for Defendanb-Appellee.
    Brad Jones, Pro Se.
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Brad Jones appeals, pro se, the denial of his motion to intervene in a lawsuit between the Chapter 7 Trustee of Exquisite Designs by Castleroek & Company (“Exquisite Designs”) and Bank of America, N.A. (“Bank of America”). He also appeals the order granting the stipulation of dismissal with prejudice filed by those parties. We affirm.

I.

Jones is the sole shareholder of Exquisite Designs, a company that filed for Chapter 11 bankruptcy in 2009 and 2012. In 2014, the second bankruptcy case was converted to a Chapter 7 proceeding, and Ron Sommers was appointed Trustee.

On November 3, 2014, the Trustee sued Bank of America in state court. After removal to federal court, the parties proceeded to mediation. On November 2, 2015, they filed a stipulation of dismissal. The next day, the district court signed an order, entered November 4, granting the stipulation.

On November 18, Jones moved to intervene. On December 1, the district court denied the motion without a hearing or offering findings or conclusions. Jones filed his notice of appeal on December 30.

II.

We begin by considering appellate jurisdiction. We conclude that we have jurisdiction, but limited to one issue.

A. .

Jones appeals both the denial of his motion to intervene and the order granting the stipulation of dismissal. His notice of appeal is untimely as to the latter. With exceptions not applicable here, Federal Rule of Appellate Procedure 4(a)(1)(A) requires that the notice of appeal “be filed with the district clerk within 30 days after entry of the judgment or order appealed from.” The requirement “is not jurisdictional but is a ‘prerequisite to the exercise of [subject matter] jurisdiction.’ ” Because the notice of appeal was filed well over thirty days after the order granting the stipulation of dismissal, we have no. jurisdiction to review that order even though the appellant’s objections go to the district court’s jurisdiction.

B. ■

In the district court, Jones moved for both intervention as of right and permissive intervention. Under our precedents, “[t]he denial of a motion to intervene of right is an appealable final order under 28 U.S.C. § 1291,” but “we have only provisional jurisdiction” to review the denial of permissive intervention. Edwards v. City ofHous., 78 F.3d 983, 992 (5th Cir. 1996) (en banc). “If the district court’s denial of permissive intervention does not constitute an abuse of discretion, we must dismiss the appeal for lack of jurisdiction.” Id.

For purposes of the instant appeal, however, we may ignore the distinction between absolute and provisional jurisdiction. Because Jones’s initial brief on appeal advances no argument as to why the district court erred in denying permissive intervention, that issue has been waived. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 417 (5th Cir. 2009). We thus consider only the denial of intervention as of right, which we review de novo. Texas v. United States, 805 F.3d 653, 656 (5th Cir. 2015) (citing Edwards, 78 F.3d at 995).

III.

The Federal Rules of Civil Procedure specify two situations in' which a person is permitted to intervene as of right: first, when a -federal statute grants “an unconditional right to intervene,” Fed. R. Civ. P. 24(a)(1); and second, when a person “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest,” Fed. R. Civ. P. 24(a)(2). Jones has asserted no federal statute giving him “an unconditional right to intervene,” so at issue is only whether he can intervene as of right under Rule 24(a)(2).

There is a four-prong test for intervention as of right under Rule 24(a)(2):

(1) the application for intervention must be timely; (2) the applicant must have an interest' relating to the property or transaction which is the subject of the action; (3) the applicant must- be so situated that the disposition of the action may, as a practical matter, impair his ability to protect that interest; (4) the applicant’s interest must be inadequately represented by the existing parties to the suit.

Texas, 805 F.3d at 657 (quoting New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir. 1984) (en banc)). In evaluating timeliness, a district court should consider four factors:

(1) The length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before it petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as it knew or reasonably should have known of its interest in the case; (3) the extent of the prejudice that the would-be intervenor may suffer if intervention is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely.

Ford v. City of Huntsville, 242 F.3d 235, 239 (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)). We generally review for abuse of discretion a district court’s determination regarding the timeliness of intervention. Id. But where, as here, “the district court failed to make any findings regarding its timeliness conclusion,” our review is de novo. Id.

Under these tests, the district court rightly denied intervention, because Jones’s motion was untimely. First, he knew of his alleged interest in the case long before he filed his motion. Although he claims that he “could not have been aware that his interests would be adversely affected until the case was dismissed,” that is not the relevant inquiry. What matters is not when he knew or should have known that his interests would be adversely affected but, instead, when he knew that he had an interest in the case.

Second, affirming the denial of intervention would not prejudice Jones. As a private agreement, the mediated settlement binds only its parties. It cannot affect any claims that Jones possesses in his personal capacity, nor does the agreement purport to do so.

Finally, also weighing against a finding of timeliness is the fact that Jones waited until after the court had already dismissed the case with prejudice before seeking to intervene. Though the appellees are incorrect in .suggesting that intervention is always improper after a case has been dismissed, they are accurate in asserting that it is a factor weighing against timeliness.

IV.

In addition to maintaining that he can intervene as of right, Jones advances arguments regarding the mediated settlement agreement and the merits of the Trustee’s suit. Those issues are outside the scope of the notice of appeal, so we do not consider them. Because Jones is proceeding pro se, however, we note that insofar as he is trying to attack the bankruptcy court’s approval of the agreement, he has chosen the wrong forum. This suit is an adversary proceeding independent of the bankruptcy-court proceedings. The district court never approved the agreement, so Jones would be unable to attack it in the instant suit even if we permitted him to intervene.

AFFIRMED.

      . United States v. Burns, 668 F.2d 855, 858 (5th Cir. 1982) (quoting Sanchez v. Bd. of Regents of Tex. S. Univ., 625 F.2d 521, 522 n.1 (5th Cir. 1980)).

      . See Thomas E. Baker, A Primer on the Jurisdiction of the U.S. Courts of Appeals 22 (2d ed. 2009) ("[B]ecause a timely appeal is a procedural prerequisite, a court of appeals may not consider an untimely appeal, even if the appeal only involves a challenge to the subject-matter jurisdiction of the district court.”).

      . Although Jones moved to intervene under Rule 24(a)(1), neither his motion in the district court nor his briefs on appeal identify any federal statute granting him an unconditional right to intervene.

      . Jones claims that the release provision of the mediated settlement agreement could be interpreted as taking away his right to litigate against Bank of America in the future. But he is mistaken. His interpretation rests on a misreading of "Sommers' Release.” He takes the pronoun "its” in the definition of the relea-sors to refer to Exquisite Designs and/or the loans at issue in this litigation. But the pronoun in fact refers to Sommers, the Trustee. Jones also expresses concern at language in' the release concerning "any past, present, or future person or any entity that held or holds any interest in the Loan(s), and the underlying Note, Deed of Trust and/or Mortgage.” That language, however, occurs in the definition of the releasees. Far from causing Jones injury, then, that language in fact confers on him a benefit: In consenting to this language, the Trustee has agreed not to sue Jones for conduct relating to the loans.

      . In Ford, 242 F.3d at 239, we found intervention as of right appropriate, even though the appellant did not file its motion for intervention until after the district court had entered an agreed order of dismissal. This case is materially indistinguishable.
      In support of the position that intervention after dismissal is always improper, the Trustee points to various cases in which we have stated that "[a] prerequisite of an intervention (which is an ancillary proceeding in an already instituted suit) is an existing suit within the Court’s jurisdiction.” Non Commissioned Officers Ass’n of U.S. v. Army Times Pub. Co., 637 F.2d 372, 373 (5th Cir. 1981) (per curiam). The Trustee misreads those decisions, which stand merely for the proposition that a person may not intervene as of right in a "jurisdictionally or procedurally defective” suit. Truvillion v. King's Daughters Hosp., 614 F.2d 520, 526 (5th Cir. 1980). Our caselaw does not forbid intervention as of right in a jurisdictionally and procedurally proper suit that has been dismissed voluntarily.
      In SmallBizPros, Inc. v. MacDonald, 618 F.3d 458 (5th Cir. 2010), we held that a voluntary stipulation of dismissal under Rule 41(a)(l)(A)(ii) deprives the district court of jurisdiction to enforce the terms of a settlement agreement unless the stipulation expressly provides for the retention of ancillary jurisdiction. The decision does not stand for the proposition that a voluntary stipulation of dismissal deprives the district court of jurisdiction from later making any decision whatsoever with regard to the case, some imprecise language in the opinion notwithstanding. Bank of America is thus mistaken when it asserts that “the District Court was powerless to do anything but adopt the Joint Stipulation of Dismissal, enter the Order of Dismissal ..., and deny the Motion to Intervene by Jones sixteen days after the District Court lost jurisdiction.’’


source: Caselaw Access Project

author: CARL E. STEWART, Chief Judge:

license: Public Domain

text:
    J. Gumaro Sanchez ZERMENO, also known as J. Gumaro Sanchez, also known as Gumaro Sanchez, also known as Juan Gumaro Sanchez Zermeno, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent
    No. 15-60206
    United States Court of Appeals, Fifth Circuit.
    Filed August 31, 2016

      Lawrence Erik Rushton, Rushton Law Firm, Bellaire, TX, for Petitioner.
    Virginia M. Lum, Andrew Jacob Oli-veira, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.
    Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit Judges.
   CARL E. STEWART, Chief Judge:

Petitioner J. Gumaro Sanchez Zermeno (“Zermeno”), a native and citizen of Mexico, seeks review of an order of the Board of Immigration Appeals (“BIA”) upholding the Immigration Judge’s (“IJ”) denial of his applications for adjustment of status and cancellation of removal. We DENY the petition.

I.

On August 1, 2012, Zermeno was issued a notice to appear for a charge of removability as an alien present in the United States without being admitted or paroled under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”). Zermeno conceded removability but applied for adjustment of status under INA Section 245(i) and cancellation of removal under INA Section 240A(b). The IJ concluded that Zermeno was barred from adjustment of status because he was inadmissible under Section 212(a)(9)(C)(i)(I) and did not meet Section 212(a)(9)(C)(ii)’s exception to inadmissibility. The IJ also concluded that she lacked authority to entertain Zermeno’s request for permission to reapply for admission. Finally, the IJ found that Zermeno was not eligible for cancellation of removal because he failed to establish ten years’ continuous physical presence in the United States. The IJ thus denied Zermeno’s applications and ordered Zermeno removed.

Zermeno appealed to the BIA. The BIA agreed with the IJ that Zermeno had not met the Section 212(a)(9)(C)(ii) exception to inadmissibility and that there was no basis to grant nunc pro tunc relief to allow Zermeno to reapply for admission. The BIA also concluded that the IJ’s finding that Zermeno failed to establish ten years’ continuous physical presence was not clearly erroneous. The BIA dismissed Zer-meno’s appeal. Zermeno timely petitioned for review.

II.

Generally, we review only the final decision of the BIA. Ojeda-Calderon v. Holder, 726 F.3d 669, 672 (5th Cir. 2013). When, as here, the IJ’s ruling affected the BIÁ’s decision, we also review the IJ’s decision. Id. “The BIA’s conclusions of law are reviewed de novo, although deference is. given to the BIA’s interpretation of immigration regulations if that interpretation is reasonable.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). We review “factual findings for substantial evidence, and we may not overturn the BIA’s factual findings unless the evidence compels a contrary conclusion.” Ojeda-Calderon, 726 F.3d at 672-73.

III.

“Section 245 of the INA provides for the ‘[ajdjustment of status of nonimmigrant to that of person admitted for permanent resident.’ ” Sattani v. Holder, 749 F.3d 368, 371 (5th Cir. 2014) (alteration in original) (quoting 8 U.S.C. § 1255). Section 245(i) “provides that ‘an alien physically present in the United States who entered the United States without inspection^] or is within one of the classes enumerated in subsection (c) of this section ... may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.’ ” Id. (quoting 8 U.S.C. § 1255(i)(l)(A)-(C)). Section 245(i) allows for adjustment of status if, inter alia, “the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.” Id. (emphasis omitted) (quoting 8 U.S.C. § 1255(i)(2)(A)). Because eligibility for visas and admissibility is governed by Section 212(a) of the INA, “an applicant for adjustment of status under INA § 245(i) must establish that she is ‘not inadmissible under any of the various paragraphs of [§ ] 212(a) ... or that [she is] eligible for a waiver of any applicable ground of inadmissibility.’ ” Id. (alterations and omission in original) (quoting Matter of Lemus-Losa, 25 I. & N. Dec. 734, 736 (BIA 2012)).

Under Section 212(a)(9)(C)(i)(I) of the INA, “[a]ny alien who ... has been unlawfully present in the United States for an aggregate period of more than 1 year, ... and who enters or attempts to reenter the United States without being admitted is inadmissible.” 8 U.S.C. § 1182(a)(9)(C)®®. The BIA concluded that Zermeno is inadmissible under this section. Zermeno does not dispute that he was unlawfully in the United States for more than one year and that he then reentered the country. Instead, Zermeno contends that the BIA erred in concluding that he did not meet the Section 212(a)(9)(C)(ii) exception to permanent inadmissibility and that nunc pro tunc relief was unavailable.

Zermeno asserts that he is eligible for adjustment of status because he falls into the exception to Section 212(a)(9)(C)(i)(I), which provides:

Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s reapplying for admission.

8 U.S.C. § 1182(a)(9)(C)®. As an initial matter, the BIA agreed with the IJ’s finding that Zermeno did not obtain consent to reapply for admission from the Secretary of Homeland Security. This finding is not disputed.

Notwithstanding his failure to obtain the Secretary of Homeland Security’s consent, Zermeno contends that the IJ could have granted him nunc pro tunc permission to reapply for admission because ten years had elapsed from his previous unlawful entry. The BIA relied on In re Torres-Garda, 23 I. & N. Dec. 866 (BIA 2006), to conclude that Zermeno did not meet the Section 212(a)(9)(C)(ii) exception to inadmissibility. Zermeno argues that Torres-Garda, which held that an alien must be outside the United States for at least ten years before reapplying for admission under Section 212(a)(9)(C)(ii), is not entitled to deference and is distinguishable.

This issue implicates a legal matter, the statutory interpretation of Section 212(a)(9)(C)(ii). We review the BIA’s interpretation of the INA de novo, but we give “considerable deference to the BIA’s interpretation of the legislative scheme it is entrusted to administer.” Mercado v. Lynch, 823 F.3d 276, 278 (5th Cir. 2016) (citation and internal quotation marks omitted). Because the BIA relied upon Torres-Garda in holding that an alien must be outside the United States for ten years to be eligible for the Section 212(a)(9)(C)(ii) exception to inadmissibility, we apply the Chevron two-part inquiry to our review of this issue. See Siwe v. Holder, 742 F.3d 603, 607 n.24 (5th Cir. 2014). Under Chevron, we must first determine “whether Congress has directly spoken to the question at issue.” Orellana-Monson v. Holder, 685 F.Sd 511, 517 (5th Cir. 2012). “If so, the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. But, “[i]f not, the court must determine whether the agency’s answer is based on a permissible construction of the statute.” Id. “Courts give agency interpretations ‘controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.’ ” Id. (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Section 212(a)(9)(C)(ii)’s exception to inadmissibility provides that Section 212(a)(9)(C)(i) “shall not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s reapplying for admission.” 8 U.S.C. § 1182(a)(9)(C)(ii). The BIA has interpreted this provision as requiring an alien to remain outside the United States for at least ten years. Torres-Garda, 23 I. & N. Dec. at 875 (con-eluding that Section 212(a)(9)(C)(ii) applies “only, after the alien has been outside the United States for ten years” (quoting Berrum-Garcia v. Comfort, 390 F.3d 1158, 1167 (10th Cir. 2004))); see also Mortera-Cruz v. Gonzales, 409 F.3d 246, 250 n.4 (5th Cir. 2005) (stating that prior version of Section 212(a)(9)(C)(ii) applies to “an alien who has been outside the United States more than 10 years since his or her last departure”).

We defer to the BIA’s interpretation in Torres-Garcia because it is based on a permissible construction of Section 212(a)(9)(C)(ii). This exception applies when it has been “more than 10 years after the date of the alien’s last departure from the United States.” 8 U.S.C. § 1182(a)(9)(C)(ii). The BIA’s interpretation of this section as requiring the alien to remain outside the United States for ten years is consistent with the statutory language. In fact, the statute requires an alien to wait ten years after departing the United States and then seek the Secretary of Homeland Security’s consent prior to returning. “If ten years must elapse between departure and return, then it necessarily follows that those ten years must be spent outside the United States.” Carrillo de Palacios v. Holder, 708 F.3d 1066, 1074 (9th Cir. 2013).

The BIA and our sister circuits have all concluded that Section 212(a)(9)(C)(ii) requires the alien to be absent from the United States more than ten years before applying to the Secretary of Homeland Security. See id. at 1073; Delgado v. Mukasey, 516 F.3d 65, 73 (2d Cir. 2008) (holding that Section 212(a)(9)(C)(ii) “requires that [an alien] seek permission to reapply for admission from outside of the United States after ten years have passed since his most recent departure from the United States”); Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 885 (10th Cir. 2005) (noting that an alien may seek Section 212(a)(9)(C)(ii) relief only after “the completion of an unwaivable ten-year period outside of the United States”); see also Torres-Garcia, 23 I. & N. Dec. at 876. We see no compelling reason to depart from this unanimous view.

Zermeno’s suggestion that the BIA’s interpretation of Section 212(a)(9)(C)(ii) in Torres-Garcia creates a statutory redundancy is meritless. The relevant language provides that the alien must receive the • Secretary of Homeland Security’s consent “prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory.” 8 U.S.C. § 1182(a)(9)(C)(ii) (emphasis added). Zermeno insists that it would be “contrary to the plain language of the statute” for both of these provisions to apply to an alien outside the United States. We are not persuaded. The latter provision may narrowly be read to apply to aliens in Canada or Mexico while the former applies to aliens seeking to enter from virtually any other foreign territory. See Carrillo de Palacios, 708 F.3d at 1074 (concluding that “ten years must elapse between the time the alien ‘depart[s]’ the United States and the time the alien ‘reembark[s]’ or otherwise returns to the United States” (alterations in original) (emphasis omitted)).

One final point. Zermeno contends that Torres-Garcia is inapposite because there the petitioner sought Section 212(a)(9)(C)(ii) relief before the requisite ten years had elapsed. But here, however, more than ten years have elapsed since Zermeno’s 2003 departure and his 2004 reentry. This distinction makes no difference; allowing aliens to seek Section 212(a)(9)(C)(ii) relief from inside the United States after returning unlawfully is at odds with the congressional policy underlying Section 212(a)(9)(C). The BIA has explained that “[t]he purpose of [Section 212(a)(9)(C)] was to single out recidivist immigration violators and make it more difficult for them to be admitted to the United States after having departed.” In re Briones, 24 I. & N. Dec. 355, 358 (BIA 2007). An unwaivable ten-year period outside the United States for such immigration recidivists accomplishes this goal. We thus decline to interpret Section 212(a)(9)(C)(ii) such that it “allow[s] an alien to circumvent the statutory 10-year limitation on section 212(a)(9)(C)(ii) waivers by simply reentering unlawfully before requesting the waiver.” Torres-Garcia, 23 1. & N. Dec. at 876 (noting that such an interpretation “plae[es the petitioner] in a better position by asking forgiveness than he'would have been in had he asked permission”). Instead, “requiring repeat immigration offenders to pay the penalty of waiting ten years outside the United States before receiving the privilege of lawful reentry ... promotes Congress’s underlying policy goals of making admission more difficult for immigration recidivists.” Carrillo de Palacios, 708 F.3d at 1074.

In sum, we defer to the BIA’s interpretation of Section 212(a)(9)(C)(ii) in Torres-Garcia. Though ten years have elapsed since Zermeno’s last departure from the United States, he failed to remain outside the United States for ten years before returning to the United States. Accordingly, he does not meet Section 212(a)(9)(C)(ii)’s exception to inadmissibility.

IV.

Zermeno’s final challenge is that the BIA erred in finding that'he was ineligible for cancellation of removal. To be eligible for cancellation of removal, an alien must demonstrate, inter alia, ten years’ continuous physical presence in the United States. 8 U.S.C. § 1229b(b)(l)(A); see also Mireles-Valdez v. Ashcroft, 349 F.3d 213, 214 (5th Cir. 2003). The BIA agreed with the IJ’s factual finding that Zermeno had not established ten years’ continuous physical presence for the relevant time period, here, from 2002 through 2012, noting that Zermeno’s testimony “indicates that he was absent from the United States for a period of six months to one year prior to his last arrival in 2004.” We review this factual determination under the substantial evidence standard. Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003).

Zermeno testified that he entered the United States in 2002, voluntarily returned to Mexico in 2003, and last entered the United States in July 2004. Zermeno testified that he could not “exactly” remember how long he was absent from the United States between 2003 and 2004, but his testimony indicated that it was at least six months to one year. Though Zermeno insists that his own testimony was “uncertain” and that the Government lacked an official record of a voluntary departure, he has not provided evidence of continuous physical presence “so compelling that no reasonable factfinder could conclude against it.” Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016).

V.

The petition for review is DENIED.

      . Zermeno also suggests that Torres-Garcia is "suspect” because it ignores a provision of the Violence Against Women and Department of Justice Reauthorization Act of 2005 ("VAWA”). Section 813(b) of the VAWA provided that "[t]he Secretary of Homeland Security, the Attorney General, and the Secretary of State shall continue to have discretion to consent to an alien’s reapplication for admission after a previous order of removal, deportation, or exclusion.” Pub.L. No. 109—162, 119 Stat. 2960 (enacted Jan. 5, 2006). That provision, however, was later removed by statutory amendment. We agree with the Seventh Circuit that this provides no basis to reject Torres-Garcia. See Nunez-Moron v. Holder, 702 F.3d 353, 357 n.8 (7th Cir. 2012); see also Delgado, 516 F.3d at 73-74.

      . Because Zermeno does not meet the statutory requirement that he remain outside the United States for ten years, we need not decide whether the IJ had jurisdiction to grant nunc pro tunc permission to reapply for admission.


author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

text:
    Christopher YOUNG, Petitioner-Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee
    No. 15-70023
    United States Court of Appeals, Fifth Circuit.
    FILED August 31, 2016

      David R. Dow, University of Houston, Law Center, Houston, TX, for Petitioner-Appellant.
    Stephen M. Hoffman, Ellen Stewart-Klein, Assistant Attorneys General, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appel-lee.
    Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

Christopher Young awaits execution in a Texas prison. He challenged the constitutionality of his confinement and sentence in federal district court, but the district court rejected his claims. He now seeks a certificate of appealability (COA) in order to contest the district court’s ruling. We GRANT the COA in part and DENY it in part.

I

On November 21, 2004, an intoxicated Young forced his way into a woman’s apartment, sexually assaulted her in the presence of her children, stole her car, drove it to a convenience store, and tried to rob the store’s owner at gunpoint. The owner resisted, and Young shot him to death. In February 2006, Young was convicted of capital murder and sentenced to die. On automatic appeal to the Texas Court of Criminal Appeals (TCCA), he alleged fifteen points of error in the prior proceedings. The appeals court rejected each as meritless, and the U.S. Supreme Court denied his subsequent petition for writ of certiorari.

Young filed a state habeas corpus petition in September 2009. The state trial court held a hearing and issued an order recommending rejection of each of Young’s twenty claims for relief. The TCCA adopted the recommendation.

In 2014, Young filed a federal habeas petition in the Western District of Texas. The petition, as later amended, argued (among other things) that the state’s use of a peremptory strike against venire member Myrtlene Williams during his initial trial was discriminatory, that his trial counsel was ineffective, and that the trial court’s jury instructions were constitutionally deficient insofar as they a) did not inform the jury of the potential effect of a single holdout juror and b) did not include all of the elements required by the Texas Code of Criminal Procedure. The district court denied all of Young’s claims, denied his request for an evidentiary hearing, and denied a certificate of appealability (COA). Young appealed.

II

On appeal, Young seeks a COA for four of his federal habeas claims. As we recently explained:

This court may issue a COA only if the applicant has “made a substantial showing of the denial of a constitutional right.” ... To make a substantial showing, a petitioner must show that “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”

Although a petitioner seeking a COA must demonstrate “ ‘something more than the absence of frivolity’ or the existence of mere ‘good faith,’ ” our analysis of a COA application entails only a “limit[ed],” “threshold inquiry,” and “[wjhere the petitioner faces the death penalty, ‘any doubts as to whether a COA should issue must be resolved’ in the petitioner’s favor.”

The federal district court denied Young’s habeas petition pursuant to 28 U.S.C. § 2254(d), which provides that

[ a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

We “review pure questions of law under the ‘contrary to’ standard of subsection (d)(1), mixed questions of law and fact under the ‘unreasonable application’ standard of sub-section (d)(1), and pure questions of fact under the ‘unreasonable determination of facts’ standard of subsection (d)(2).”

III

We begin with Young’s first issue on appeal, in which he asserts that the state violated the Constitution in striking a potential juror on the purported basis of her work with a prison ministry group. Venire member Myrtlene Williams, an African-American woman, was called for questioning on January 17, 2006, the fifth day of individual voir dire interviews for Young’s initial trial. Her initial questionnaire and interview revealed that she was a member of Calvary Baptist Church, and participated in the church’s outreach ministry program; that other participants in that program ministered to prisoners, although she had not; and that two of her children had had legal trouble, although she did not know the specifics. The state exercised a peremptory strike, and the defense raised a Batson challenge, commenting, “of course we recognize the fact she’s a Black female.” The state justified its strike on the basis of Williams’s involvement with the church outreach group and her daughter’s criminal history. The judge denied the Batson challenge without explanation and excused Williams.

Young challenged Williams’s exclusion in the state and federal district courts. However, the nature of his challenge has changed over time. On direct appeal to the TCCA, Young argued that in striking Williams and two other African-American venirewomen, the state “purposeful[ly] use[d] peremptory strikes in a racially discriminatory manner,” violating the federal Constitution and the Texas Code of Criminal Procedure. He labeled the state’s explanation that it struck Williams because of her participation in the outreach ministry program “specious” and “an artifice calculated to keep a black person off of the jury.”

In Young’s subsequent state habe-as petition, he did not mention Williams or Batson at all. Then, in his federal habeas petitions, he shifted gears, claiming both (1) that the state’s ministry-group explanation was a pretext for racial discrimination and, in the alternative (and for the first time), that (2) the state’s ministry-group explanation was genuine and evinced unconstitutional religious discrimination. The district court found the latter argument defaulted. We agree.

“[Procedural default ... occurs when a prisoner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” “ ‘To exhaust, a petitioner must have fairly presented the substance of his claim to the state courts.’ It is not enough that the facts applicable to the federal claim were all before the State court .... The federal claim must be the ‘substantial equivalent’ of the claim brought before the State court.”

Young’s unambiguously and solely race-based Batson claim in the state courts was not the “substantial equivalent” of the religion-based claim he presents on appeal. Accordingly, Young’s religion-based claim is defaulted, and a COA is not merited, unless he could still present the claim in state court. To do so, Young would have to file a successive habeas petition. In Texas, such petitions are barred absent certain special circumstances. But Young does not argue that any of these circumstances are present. Thus, his religion-based claim is unmistakably defaulted. In turn, reasonable jurists could not debate the district court’s rejection of this claim, nor does it deserve encouragement to proceed further. We deny a COA for Young’s first claim.

IV

Second, Young claims that the trial court caused the jurors to misapprehend the proper mechanics of the punishment-phase voting process. Article 37.071 of the Texas Code of Criminal Procedure set forth two special issues for the jury to consider during this process. First, the jury had to consider “whether there [was] a probability that [Young] would commit criminal acts of violence that would constitute a continuing threat to society.” The jury could only answer “yes” if every one of its 12 members agreed, and it could only answer “no” if 10 or more members agreed. If the jury answered “no,” or could not reach the specified thresholds for a “yes” or “no” answer, Young would be sentenced to life in prison without parole. If it answered “yes,” the jury would then have to consider

[ w]hether, taking into consideration all of the evidence, including the circumstances of the offense, [Young’s] character and background, and [Young’s] personal moral culpability ... there [was] a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.

The jury could only answer “no” if every member agreed, and it could only answer “yes” if 10 or more members agreed. If the jury answered “yes,” or could not reach the specified thresholds for a “yes” or “no” answer, Young would be sentenced to life in prison without parole. If the jury answered “no,” Young would be sentenced to death.

The trial judge instructed the jury on the special issues, the voting thresholds (which are collectively known as “the 12/10 rule”), and the consequences of “yes” and “no” answers. However, he did not tell the jury that if it could not reach a specified voting threshold for one or both of the issues — that is, if more than zero but less than 10 jurors voted “no” as to Young’s future dangerousness or “yes” as to the presence of sufficient mitigating evidence — then Young would receive a life sentence. Article 37.071 did not require such an instruction. Nevertheless, Young argues that the jury charge was misleading without one and that he was entitled to one under the Supreme Court’s decision in Simmons v. South Carolina, He offers affidavits from four jurors in which each claimed to have erroneously believed that' he or she could not compel a life sentence on his or her own.

The district court correctly found this claim defaulted. Young did not raise his Simmons claim or anything like it on direct appeal to the Texas Court of Criminal Appeals. Because of this, the claim is barred.

The district court further examined Young’s claim on the merits and found it wanting, holding that “[tjhere is simply no ‘clearly established’ federal law, as enunciated by the United States Supreme Court, holding the Fourteenth Amendment’s Due Process Clause requires capital sentencing juries at the time of [Young’s] capital murder trial to be informed of the impact of a single holdout juror on any of the Texas capital sentencing special issues.” Again, this is correct. In Jones v. United States, the Supreme Court disavowed the notion that “the Eighth Amendment requires a jury be instructed as to the consequences of a breakdown in the deliberative process.” Consistent with this view, we have repeatedly rejected arguments similar to Young’s at the COA stage. The only apparently novel element of his version of the argument is the citation to Simmons. However, the Supreme Court has never suggested that Simmons requires informing jurors of the consequences of a breakdown in deliberations. Rather, Simmons held that if state law does not allow parole from a life sentence, a capital defendant is entitled to have the jury notified of that fact. Nothing in the Supreme Court’s or our subsequent interpretation of Simmons indicates that that decision qualifies Jones or is otherwise relevant to jury instructions concerning voting thresholds, nor does Young cite authority to that effect. Simmons is irrelevant, and Young’s argument fails on the merits.

In his appeal brief, Young does not contest the district court’s analysis of Simmons, but instead attacks that court’s decision to exclude the juror affidavits. “Under Rule 606(b) of the Federal Rules of Evidence, jurors’ affidavits are inadmissible ‘regarding ... [among other things] the effect of any particular thing upon an outcome in the deliberations ... and ... the testifying juror’s own mental process during the deliberations.’ ” Young argues that Rule 606(b) does not exclude the affidavits because his habeas challenge implicates “the legality of his confinement and state court judgment,” whereas the rale applies only “upon an inquiry into the validity of either the verdict or indictment.” At bottom, however, Young’s ha-beas claim relies on the notion that the jury’s penalty phase verdict was invalid because the jurors were misled by faulty instructions. The affidavits are meant to show as much, so Rule 606(b) applies to them. In any event, we have repeatedly held that Rule 606(b) forbids consideration of juror affidavits in federal habeas cases. And the claim the affidavits support is both defaulted and meritless. We deny a COA for Young’s second issue.

V

Third, Young claims -the trial court violated his constitutional rights by omitting a statutorily required jury instruction. Article 37.071 § 2(f)(3) requires a trial judge to “charge the jury that [it] need not agree on what particular evidence” constituted mitigating evidence sufficient to justify a life sentence. Young’s trial judge failed to do so. Young did not object to the incomplete jury charge, but on direct appeal, he claimed the omission amounted to a denial of his Eighth and Fourteenth Amendment rights, because it “impermissibly limited the jurors’ ability not only to consider, but to give unilateral effect to the mitigation evidence before them, and therefore violated the same principle as the instructions held to be unconstitutional in Mills [v. Maryland].” The TCCA disagreed, reasoning that

even when presented with the circumstances in Mills, the Supreme Court did not go so far as to say it is a constitutional requirement that every jury deliberating punishment in a capital case should be explicitly instructed that the jurors need not agree on the particular mitigating circumstances.... [The jurors] unanimously found that no sufficient mitigating circumstance or circumstances warranted that a life sentence be imposed.... [Therefore,] there was no possibility that the jurors would be confused about a need to agree on a particular circumstance or circumstances. Although the trial court erred in failing to give the statutory instruction, in this case, the appellant was not deprived of the constitutional guarantee of a unanimous verdict.... [n]or was the appellant denied a fair trial.

Judge Price dissented, arguing that even though the jury’s mitigating-circumstances finding was unanimous, the jurors could still have reasonably construed their instructions, taken as a whole, to allow a particular circumstance to be taken into account only if every juror agreed it existed and was sufficient.

Young re-raised this claim in his state habeas petition. The state district court recommended denying it, and the TCCA summarily adopted the state district court’s recommendation. Young raised the claim again in his original and amended federal habeas petitions, to no avail. He now offers it again on appeal. We have reviewed the Supreme Court’s relevant decisions and the discussions of this claim in the state and federal district courts, including Judge Price’s firm dissent. We find that the claim is adequate to deserve encouragement to proceed further. Accordingly, we grant a COA for Young’s Mills claim.

VI

Fourth, and finally, Young claims that his counsel was ineffective in failing to object to the trial court’s incomplete jury instructions. Having found that the trial court’s incomplete instruction could not have misled the jury, the state and federal district courts concluded that even if counsel’s failure to object amounted to deficient performance, Young was not prejudiced. However, given our grant of a COA as to the harm Young suffered from the faulty instruction, the issue of prejudice is adequate to deserve encouragement to proceed further. Nor do we find strong evidence in the record before us that Young’s counsel’s performance was not deficient (thus foreclosing Young’s claim regardless of prejudice). Accordingly, we grant a COA for Young’s fourth issue.

CONCLUSION

We GRANT a COA for Young’s third issue, relating to the incomplete jury instructions, and his fourth issue, relating to his counsel’s purportedly ineffective assistance. We DENY a COA for Young’s first and second issues.

      . See Young v. State, 283 S.W.3d 854, 860-61, 863-65 (Tex. Crim. App. 2009) (per curiam).

      . Id. at 860.

        .See 558 U.S. 1093, 130 S.Ct. 1015, 175 L.Ed.2d 622 (2009). All subsequent references to the “Supreme Court” denote the U.S. Supreme Court.

      . See Findings of Fact & Conclusions of Law, Ex parte Young, No. 2005-CR-1183-W1 (187th Dist. Ct., Bexar County, Tex. Nov. 28, 2012) (hereinafter "187th District Court Opinion”).

      . Ex parte Young, No. WR-70,513-01, 2013 WL 2446428 (Tex. Crim. App. June 5, 2013) (unpublished).

      . Young filed an initial petition on March 18, 2014, an amended petition on May 16, and a subsequent petition, which he styled a “first amended petition,” on June 27. On appeal, the parties dispute which of these petitions is the operative one and which, if any, were untimely under the district court’s scheduling orders and the applicable statute of limitations. However, each of the claims now before us was present either in his March 18 petition, which was undisputedly timely under the court’s scheduling orders, or in his May 16 petition, which was untimely under the scheduling orders but timely under the statute of limitations. The district court chose to consider each of the claims on the merits, and did not assert that any of them were barred for failure to comply with the court’s scheduling orders. Therefore, we may consider them on appeal. See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 58 (1st Cir. 2000) (magistrate judge did not abuse his discretion in entertaining a motion entered after the judge’s deadline for dispositive motions); Edwards v. Cass Cty., Tex., 919 F.2d 273, 275 (5th Cir. 1990) (The district court has broad discretion in controlling its own docket. This includes the ambit of scheduling orders and the like.”); Yates v. Mobile Cty. Pers. Bd., 658 F.2d 298, 300 (5th Cir.1981) (per curiam) (a district court effectively allows a litigant leave to amend an earlier pleading when it allows the litigant to present a defense after a court-imposed deadline expires).

      . Allen v. Stephens, 805 F.3d 617, 624-25 (5th Cir. 2015) (quoting 28 U.S.C. § 2253(c)(2) and Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)); see Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 ("We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason.”).

      . Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

      . Id. at 327, 123 S.Ct. 1029; Allen, 805 F.3d at 625 (quoting Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004)). See generally Miller-El, 537 U.S. at 337-38, 123 S.Ct. 1029 ("It is consistent with [AEDPA] that a COA will issue in some instances where there is no certainty of ultimate relief.... [and where] every jurist of reason might agree, after the COA has been granted and the case received full consideration, that the petitioner will not prevail.'').

      . Simmons v. Epps, 654 F.3d 526, 534 (5th Cir. 2011) (quoting Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000)).

      . 8 R.R. 114.

      . See id. at 116:
      Q. And I’ve had some individuals in the past who have been associated with some things that they called Outreach Ministries, so they've dealt with going to the jails and the prisons and helping them.
      A. I have not done that, no.
      Q. Do the people in your group do that?
      A. Yes some of them do that.
      Q. And tell me, what's the purpose that, the people in your group who do that?
      A. Well, I guess, trying to get them you know to understand — I guess to understand about getting closer to God, you know, maybe help them through what they are going through in the jail, I guess.
      Q. So, an attempt to try to rehabilitate them while they’re incarcerated?
      A. Yes.
      Q. And that is something that Outreach Ministry does do?
      A. Yes. Uh-huh.

        .Id. at 118.

      . Id. at 118, 120; see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (forbidding racial discrimination in the use of peremptory challenges).

      . Id. at 118-19, 106 S.Ct. 1712.

      . Id. at 120, 106 S.Ct. 1712.

      . Id. at 46.

      . This two-pronged argument was present in varying form in each of Young’s three petitions filed with the federal district court. Young re-urges both prongs on appeal, but he heavily emphasizes the religion-based argument.

      . Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997)).

      . Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003) (citations omitted) (quoting Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001), and Fisher v. Texas, 169 F.3d 295, 303 (5th Cir. 1999)).

      . Young’s default could also be excused on a showing of cause arid prejudice or of fundamental miscarriage of justice, see Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), but he does not argue either exception applies.

      . See Williams v. Thaler, 602 F.3d 291, 306 (5th Cir. 2010). To summarize, the three circumstances are (1) the factual or legal basis of the successive claim was not previously available; (2) no rational juror could have found the petitioner guilty; and (3) no rational juror could have answered a capital sentencing special issue in the state's favor. Id. (citing Tex. Code Crim. Proc. Ann. art 11.071 § 5(a)(1)-(3) (Vernon 2007)).

      . Given this, we need not reach the district court's alternative holding that Young’s religion-based claim is barred under the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 306, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Blue v. Thaler, 665 F.3d 647, 670 (5th Cir. 2011) (explaining that under Teague, "[n]ew rules of constitutional criminal procedure cannot be announced on federal habeas review,” with certain exceptions not applicable here, and that " 'a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government,' which is to say, when its 'result was not dictated by precedent existing at the time the defendant’s conviction became final' ” (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060)). Young correctly notes that by the time his conviction became final in December 2009, the Second Circuit had opined that the Constitution forbids striking jurors on the basis of religion, as had two Justices of the Supreme Court and various state courts. See Davis v. Minnesota, 511 U.S. 1115, 114 S.Ct. 2120, 2120-22, 128 L.Ed.2d 679 (1994) (Thomas, J., joined by Scalia, J., dissenting from the denial of certiorari); United States v. Brown, 352 F.3d 654, 669 (2d Cir. 2003); Highler v. State, 854 N.E.2d 823, 829-30 (Ind. 2006); State v. Hodge, 248 Conn. 207, 726 A.2d 531, 552-53 (1999); State v. Purcell, 199 Ariz. 319, 18 P.3d 113, 120 (App. 2001), review denied (Oct. 3, 2001); People v. Martin, 64 Cal.App.4th 378, 75 Cal.Rptr.2d 147, 151 (1998); see also United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.), modified, 136 F.3d 1115 (7th Cir. 1998) (suggesting a similar view in dicta); State v. Fuller, 182 N.J. 174, 862 A.2d 1130, 1140-42 (2004) (same). But see State v. Davis, 504 N.W.2d 767, 771 (Minn. 1993); Casarez v. State, 913 S.W.2d 468, 495 (Tex. Crim. App. 1994). We note in passing that these authorities generally address strikes made on the basis of religious affiliation, whereas it is at least arguable that the state’s explanation for striking Williams related to her religious activity (i.e., her participation in a prison outreach group). Thus, even if these authorities "dictate” a constitutional rule against peremptory strikes motivated by jurors’ religious affiliation, they may not be apposite to Young’s case. See Brown, 352 F.3d at 669 ("Differentiating among prospective jurors on the basis of their activities does not plainly implicate the same unconstitutional proxies as distinctions based solely on religious identity.”); United States v. DeJesus, 347 F.3d 500, 510 (3d Cir. 2003) (accepting as constitutional peremptory strikes based on "jurors’ heightened religious involvement”).

      . In his COA application and in filings in the district court, Young appears to briefly argue in the alternative that the state’s religion-based justifications were merely pretextual, and that Williams was really struck because of her race. Young’s presentation of this alternative claim was sufficiently fleeting that the district court did not notice he was making it, and his discussions of race discrimination in this court have been cryptic at best. To the extent Young has articulated a solely race-based Batson claim, it is waived due to inadequate argument. See United States v. Brace, 145 F.3d 247, 255 (5th Cir. 1998) (en banc) (”[W]e review only those issues presented to us; we do not craft new issues or otherwise search for them in the record.”); F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (”[I]f a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court. If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on appeal.”).

      . Tex. Code Crim. Proc. Ann. art 37.071 § 2(b)(1) (West). Another issue under § 2(b) was not relevant in Young’s case, and the jury did not consider it. See id. § 2(b)(2) (addressing guilt as a party); 18 R.R. 68-70.

      . Id. § 2(d)(2), (g).

      . Id.% 2(e)(1).

      . Id. § 2(f)(2).

      . Id. § 2(g).

      . Id.

      . See, e.g., Reed v. Stephens, 739 F.3d 753, 779 & n.17 (5th Cir.), cert. denied, - U.S. -, 135 S.Ct. 435, 190 L.Ed.2d 327 (2014).

      . 18 R.R. 68-70.

      . Tex. Code Crim. Proc. Ann. art 37.071 § 2(g) (West).

      . 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

      . It is also uncertain whether Young adequately raised the claim in his subsequent state habeas petition. The federal district court noted that while Young had presented a somewhat similar argument in that petition, that argument did not invoke Simmons, so Young “did not fairly present the state habeas court with the same legal arguments he has presented to this Court.” See, e.g., Baldwin v. Reese, 541 U.S. 27, 29-32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (“[W]here petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement.” (quoting Vela v. Estelle, 708 F.2d 954, 958 n.5 (5th Cir. 1983))). But even if Young "fairly presented” his claim for state habeas review, he did not present it on direct appeal, so it is defaulted.

        .See Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007) ("The Texas Court of Criminal Appeals has held that record based claims not raised on direct appeal will not be considered in habeas proceedings.... This procedural rule [is] firmly established ... [and] sets forth an adequate state ground capable of barring federal habeas review.” (citations omitted)). Young’s default could be excused on a showing of cause and prejudice or of fundamental miscarriage of justice, see Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), but he does not argue either exception applies, and because Young’s Simmons argument is merit-less (as explained below), there is no prejudice.

      . 527 U.S. 373, 382, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

      . See, e.g., Reed v. Stephens, 739 F.3d 753, 779 (5th Cir.), cert. denied, - U.S. -, 135 S.Ct. 435, 190 L.Ed.2d 327 (2014), and cases cited therein; Hughes v. Dretke, 412 F.3d 582, 594 (5th Cir. 2005); Alexander v. Johnson, 211 F.3d 895, 897 & n.5 (5th Cir. 2000) (per curiam) (addressing the Eighth and Fourteenth Amendments).

      . 512 U.S. 154, 169, 171, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

      . Summers v. Dretke, 431 F.3d 861, 873 (5th Cir. 2005) (quoting Pyles v. Johnson, 136 F.3d 986, 991 (5th Cir. 1998)).

      . Fed. R. Evid. 606(b); Young’s Brief at 25-26.

      . See Jones v. United States, 527 U.S. 373, 381-82, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) ("[A] jury cannot be ‘affirmatively misled regarding its role in the sentencing process.’ ”) (quoting Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994)).

      . For the same reason, the affidavits are inadmissible to support Young’s other issues on appeal.

      . See Summers, 431 F.3d at 873 (in a capital habeas appeal, refusing to consider a juror affidavit alleging that certain purportedly false testimony was "the most influential testimony from the penalty phase" (quotation omitted)); United States v. Jones, 132 F.3d 232, 245-56 (5th Cir. 1998), aff'd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

      . Tex. Code Crim. Proc. Ann. art 37.071 § 2(f) (West).

      . This was indisputably error, as the TCCA recognized. See Young v. State, 283 S.W.3d 854, 879 (Tex. Crim. App. 2009) (per curiam); id. at 886 (Price, J., dissenting).

      . At Young’s state habeas hearing, his trial counsel testified that the failure to object was inadvertent and not a strategic choice. State Habeas Hearing Transcript at 16-17.

      . TCCA Brief at 108 (referring to Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)).

      . Young, 283 S.W.3d at 879.

      . Id. at 886-89 (Price, J., dissenting).

      . Ex parte Young, No. WR-70, 513-01, 2013 WL 2446428 (Tex. Crim. App. June 5, 2013) (unpublished); 187th District Court Opinion at 7-19.

      . Young again sought to introduce juror affidavits to demonstrate that the jurors had been confused by the instructions given. Those affidavits are inadmissible under Rule 606(b), as explained above.

      .187th District Court Opinion at 9-10.

      . The record is sparse on this point. It is undisputed that the omission of the § 2(f)(3) instruction was in error, and at Young’s state habeas hearing, his trial counsel admitted that the omission was significant and that he did not notice it at the time. See 187th District Court Opinion at 13-14. Nevertheless, neither side has briefed the “performance” prong of Strickland in any detail and no court has addressed it.


text:
    LSR CONSULTING, LLC, as Assignee of Vinay K. Karna and Mridula L. Karna, Plaintiff-Appellant, v. WELLS FARGO BANK, N.A., Defendant-Appellee.
    No. 15-20774
    United States Court of Appeals, Fifth Circuit.
    Filed August 31, 2016

      John Chris Juravich, Houston, TX, for Plaintiff-Appellant.
    George A. Kurisky, Jr., Esq., Damian William Abreo, Johnson, Deluca, Kurisky & Gould, P.C., Houston, TX, for Defendant-Appellee.
    Before KING, SMITH, and COSTA, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

LSR Consulting, LLC (“LSR”), appeals a summary judgment denying its wrongful-foreclosure claims and awarding attorneys’ fees to Wells Fargo Bank, N.A. (“Wells Fargo”). Finding no error, we affirm.

I.

In 2006, Mridula Lai Kama and Vinay Karna bought real property on Wichita Street (the “Wichita Property”) and Cle-burne Street (the “Cleburne Property”) in Houston. The original mortgagee of the Wichita Property was Wells Fargo; the original mortgagee of the Cleburne Property was First National Bank of Arizona and/or Mortgage Electronic Registration Systems, Inc., as its nominee. Wells Fargo was the mortgage servicer for both loans.

The Karnas defaulted, and in 2010 Wells Fargo foreclosed. Before the foreclosures, the Karnas, through counsel, requested that Wells Fargo verify the debt as to both properties under the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692g. Wells Fargo responded but, according to LSR, failed' to provide accurate and required information.

In 2014, the Karnas assigned their alleged claims against Wells Fargo to their wholly owned company, LSR, agreeing to pay LSR the first $2,000 of any funds it collected from Wells Fargo and permitting LSR to retain the funds necessary to reimburse it for collection expenses, including attorneys’ fees. Shortly thereafter, LSR sued in state court, and Wells Fargo removed. Wells Fargo and the district court read LSR’s complaint as asserting causes of action for wrongful foreclosure and violation of the FDCPA. After discovery and motion practice, the court granted summary judgment to Wells Fargo and awarded it attorneys’ fees, both of which LSR appeals.

II.

Wells Fargo is entitled to summary judgment on the wrongful-foreclosure claim because LSR cannot establish an essential element. Under Texas law, a party alleging wrongful foreclosure must prove a defect in the foreclosure-sale proceedings. Texas requires strict compliance with a deed of trust, including notice conditions, and LSR maintains that Wells Fargo did not notify the Karnas of its intent to accelerate the maturity of the indebtedness before acceleration and foreclosure as required by the deeds of trust.

The district court concluded that the summary judgment evidence refutes the Karnas’ allegations of lack of notice.

[ T]he evidence in the record shows that Defendant served Plaintiff with Notices of Default and Intent to Foreclose for the Cleburne Property via certified mail on August 6, 2009, September 20, 2009, and November 14, 2009. Likewise, the evidence in the record shows that Defendant served Plaintiff with Notices of Default and Intent to Foreclose on the Wichita Property via certified mail on October 18, 2009 and November 15, 2009. Additionally, the record contains prima facie evidence of Defendant’s service via the affidavit of Matthew Cunningham of National Default Exchange, LP on May 4, 2010 for the Wichita Property, and the affidavit of Mikey Wilkinson of Brice, Vander Linder & Wer-nick, P.C. on May 6, 2010 for the Cle-burne Property. As such, the Court finds no genuine issue of material fact as -to whether Defendant served Plaintiff with the required Notices of Default and Intent to Foreclose documents prior to accelerating Plaintiffs indebtedness and proceeding with a foreclosure sale.

LSR Consulting, LLC v. Wells Fargo Bank, N.A. (S.D. Tex. Aug. 20, 2015) (citations omitted).

LSR, however, disputes the admissibility of the evidence that the district court relied on in concluding that Wells Fargo notified the Karnas of its intent to accelerate. The Notices of Default and Intent to Foreclose (the “notices”), LSR maintains, are inadmissible because they are not self-authenticating and were not authenticated by any witness testimony attached to the motions for summary judgment. They are also irrelevant, because what matters is whether the notices were sent, and there is allegedly no summary judgment evidence that they were. LSR regards the declarations authenticating the notices as inadmissible because, contrary to Local Rule 7.7 and the trial court’s Rule 4.K, they were not filed with or attached to the motions for summary judgment. And it urges the inadmissibility of the affidavits by Cunningham and Wilkinson because their statements regarding notice were conelu-sional and based on information and belief rather than personal knowledge.

LSR’s objections are without merit. First, it is not dispositive whether the notices in their current form are admissible in evidence. At the summary judgment stage, materials cited to support or dispute a fact need only be ca/pable of being “presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The various declarations filed by Wells Fargo demonstrate that the notices can be presented in a form admissible in evidence. So the district court properly considered the notices.

Second, the court did not err in relying on the affidavits by Cunningham and Wilkinson. Although LSR objects that the affidavits were not based on personal knowledge, they contain sufficiently specific statements for the district court to infer that the affiants had personal knowledge of the facts attested therein. LSR also objects that the affidavits’ statements about the mailing of the notices “have a conclusory character” and that “bald assertions of ultimate facts are ordinarily insufficient to support summary judgment.” Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir. 1978) (emphasis added). Even if true, LSR’s averments do not suffice to disqualify the affidavits, because the affidavits’ statements do not stand alone. Wells Fargo provided supporting documentation.

Third, we reject LSR’s assertion that the Karnas’ testimony of non-receipt of the notices creates a fact issue requiring trial. Paragraph fifteen of the deeds of trust requires only constructive notice: “Any notice to Borrower in connection with [the deeds of trust] shall be deemed to have been given to Borrower when mailed by first class mail.... ” That paragraph is' thus akin to Section 51.002(e) of the Texas Property Code, which defines service of certain foreclosure-related notices to be “complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor’s last known address.”

In interpreting Section 51.002(e), Texas courts have recognized that the dispositive inquiry “is not receipt of notice, but, rather, service of notice.” For that reason, they have held there to be no genuine dispute as to the sending of notices required under Section 51.002 when the sole contravening evidence is the homeowner’s affidavit asserting non-receipt. Adebo, 2008 WL 2209703, at *4. LSR points out that in Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135, 140 (Tex. App.—Corpus Christi 2008, no pet.), the court held that the homeowner’s testimony of non-receipt created a fact issue as to whether he was served with the statutorily required notice. Unlike here and in Adebo, however, in Sauceda the mortgage servicer provided no supporting documentation showing that it had served notice.

Applying the reasoning in Adebo to the notice and service provisions under the instant deeds of trust, we can only conclude that the Karnas’ self-serving protestations of non-receipt of notice do not create a genuine dispute as to whether Wells Fargo mailed notices of intent to accelerate. We thus affirm summary judgment on the wrongful-foreclosure claims.

III.

Under the FDCPA, a court may award the defendant attorneys’ fees upon “a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment.” 15 U.S.C. § 1692k(a)(3). The district court made the requisite factual finding. But LSR contends that, as a matter of law, the evidence is insufficient to support that finding.

The court did not abuse its discretion in finding that LSR brought its FDCPA claim in bad faith and for the purpose of harassment. The provision that LSR alleges Wells Fargo violated applies only to debt collectors. But the plain language of tire FDCPA makes clear that a debt collector does not include entities such as Wells Fargo, which do not have as their principal purpose “the collection of any debts” and which do not “regularly collect[] or attempt] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). “The legislative history ... indicates conclusively that a debt collector does not include ... a mortgage servicing company....” LSR sued Wells Fargo just days before the four-year statute of limitations was set to expire with respect to the properties and has also sued numerous other lenders in connection with four other properties under the same theory, likewise just days before the running of limitations. LSR, moreover, is merely the assignee of claims with regard to the properties. The original holders of the claims are LSR’s principals, the Karnas, who, it could be inferred, assigned their claim solely to limit their personal liability, should Wells Fargo refuse to settle. Under these circumstances, there is no abuse of discretion in imposing attorneys’ fees.

In its reply brief, LSR says that Wells Fargo is not entitled to attorneys’ fees under § 1692k because it never asserted a claim against Wells Fargo under the FDCPA. Because LSR failed to raise that argument in its initial brief on appeal, it has been waived. See Flex Frac Logistics, L.L.C. v. N.L.R.B., 746 F.3d 205, 208 (5th Cir. 2014).

AFFIRMED.

      . As noted below, LSR contends, for the first time in its reply brief, that it never claimed violation of § 1692g, even though it alleged a violation of that section in its original complaint: “Although the Karnas specifically requested debt verification pursuant to 15 U.S.C. § 1692g, Wells Fargo failed to provide it.”

      . LSR does not appeal the summary judgment on the FDCPA claims.

      . Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.—Houston [14th Dist.] 1989, writ denied).

      . Univ. Sav. Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706 (Tex. 1982) (“Texas courts have consistently held that the terms set out in a deed of trust must be strictly followed.”).

      . Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 768 (Tex. 1983) ("Compliance with the notice condition contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee to make the sale.”).

      . Deeds of Trust ¶ 22:
      Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice will result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Borrower to acceleration and sale.

      .Wells Fargo apparently intended, but failed, to attach declarations authenticating the notices to its motions for summary judgment, which were filed on March 10 and 18, 2015, respectively. On March 26, 2015, Wells Fargo filed declarations by Michael Burns and Becky Howell. Burns's declaration purported to authenticate the notices for the Cleburne Property; Howell's declaration purported to authenticate- certain documents related to the Wichita Properly but not the notices. On April 16, 2015, Wells Fargo filed declarations by Andrea Kruse authenticating the notices for both properties. LSR urged that all of those declarations were inadmissible. In deciding the motions for summary judgment, the district court relied on the declarations by Burns ánd Howell but not the late-filed declarations by Kruse.

      . S.D. Tex. Civ. R. 7.7 (“If a motion or response requires consideration of facts not appearing of record, proof by affidavit or other documentary evidence must be filed with the motion or response.”); Rule 4.K ("All exhibits (contract, leases, affidavits, etc.) referred to in briefs must be attached to the brief.”).

      . Adebo v. Litton Loan Servicing, L.P., 2008 WL 2209703, at *4 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (mem. op.); see also WMC Mortg. Corp. v. Moss, 2011 WL 2089777, at *7 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“The purpose of notice under Section 51.002 is to provide a minimum level of protection to the debtor, and actual receipt of the notice is not necessary.”); Onwuteaka v. Cohen, 846 S.W.2d 889, 892 (Tex. App.—Houston [1st Dist.] 1993, writ denied) ("The general purpose of [Section 51.002] is to provide a minimum level of protection for the debtor, and it provides for only constructive notice of the foreclosure.” (emphasis added)).

      . In addition, LSR cites Coleman v. Wells Fargo Bank, No. 09-03-598 CV, 2004 WL 2750240 (Tex. App.—Beaumont 2004, no pet.) (per curiam) (mem. op.), holding that by filing two affidavits averring non-receipt of the notice required by Section 51.002(d), the homeowner had raised a question of material fact defeating summary judgment. The Coleman court, however, ignored Section 51.002(e). So it is not directly relevant.

      . The record in Sauceda contained two notices sent by the mortgage servicer and received by the homeowner, but those notices failed to comply with all the statutory requirements or the notice requirements in the deed of trust.

        . See Perry v. Stewart Title Co., 756 F.2d 1197, 1211 (5th Cir.), modified on other grounds, 761 F.2d 237 (5th Cir. 1985) (reviewing § 1692k(a)(3) attorneys’ fee determination for an abuse of discretion).

        .Id. at 1208.