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https://www.courtlistener.com/api/rest/v3/opinions/8470610/ | MEMORANDUM **
Mark A. Orantez appeals from the 68-month sentence imposed upon resentenc-ing for his jury-conviction of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(vii) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Orantez contends that the district court’s imposition of a higher sentence upon resentencing must be considered “vindictive” and therefore violative of his due process rights. The record plainly reveals that on remand, the district court imposed a higher sentence because, among other things, Orantez was subject to a two-level sentencing enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). Because the district court’s reasons for imposing a higher sentence “affirmatively appear” in the record, Oran-tez failed to establish that the greater sentence was vindictive. See Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also United States v. Garcia-Guizar, 234 F.3d 483, 489-90 (9th Cir.2000).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470614/ | BERZON, Circuit Judge,
concurring in part and dissenting in part:
I agree with the government that the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service’s (“NMFS”) “current conditions” methodology was reasonable and is entitled to deference. I therefore concur in the majority disposition with the following exception:
I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.
More specifically, the agency approved an exploitation rate for Nooksack salmon that is not only not “at or below” the benchmark rebuilding exploitation rate (“RER”), but is, in fact, more than twice as high than its derived rate. Further, when discussing the Nooksack River salmon population, the agency noted that, “Trends in escapement of natural-origin Nooksack early chinook salmon populations are increasing.” By the agency’s *340own reasoning, then, Nooksack River salmon production and viability are not primarily constrained by habitat conditions and do benefit from reduced harvesting. Yet, the agency reached the opposite conclusion, stating that “natural-origin recruitment [for Nooksack River salmon] will not increase much beyond [current] level[s] unless constraints limiting marine, freshwater, and estuary survival are alleviated.”
The NMFS attempted to justify its departure from its own methodology by arguing that other factors will “adequately protect chinook salmon populations in the Georgia Straight Region.” Contrary to the majority’s conclusion, the justifications offered are not reasonable.
First, even if contributions from hatchery-origin spawners will “buffer” the adverse effects of the high exploitation rates, this justification cannot be squared with NMFS’s repeated emphasis on maintaining the viability of the natural salmon population in each region. Second, the agency’s argument that increasing natural-origin escapement trends justified a departure from its chosen methodology is at odds with its previous conclusion that the absence of increasing natural-origin escapement among other populations justified higher exploitation rates. The agency cannot rationally argue that both the absence and the presence of increasing natural-origin escapement justify higher harvesting rates. Third, the agency’s suggestion that the Indian “tribes’ expertise regarding the conservation of trust resources” will adequately protect the No-oksack River salmon is vague and could be used to justify a departure from the agency’s chosen methodology across-the-board.
Fourth, and perhaps most importantly, the agency provides no quantitative support for the proposition that these other factors will compensate for the dangers posed by the high exploitation rates. This absence of quantitative analysis is particularly striking in light of the fact that the agency used complex data analysis techniques to derive the RERs and did not rely simply on speculation.
In sum, the reasons provided by NMFS for departing from its chosen methodology when it approved the proposed exploitation rates for the Georgia Strait region are both speculative and inconsistent with other aspects of the agency’s approach to evaluating the harvest management plan. They do not justify the agency’s decision to ignore the results of its own analysis. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (stating that an agency acts arbitrarily and capriciously when it “offer[s] an explanation for its decision that runs counter to the evidence before the agency.”).
The majority suggests that the agency could reasonably approve exploitation rates for the Georgia Strait region that endangered the Nooksack River population so long as the heightened risk to the Nooksack River population did not threaten the viability of the Puget Sound chinook ESU as a whole. But the agency did not rely on this rationale when it approved the proposed Georgia Strait exploitation rates. Rather, under the agency’s guidelines, the viability of the Nooksack River population is integral to an ESU-wide recovery. A reviewing court “must judge the propriety of [an agency] action solely by the grounds invoked by the agency” at the time the action was taken. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).
Finally, the agency’s consideration of federal trust responsibilities to treaty tribes does not support, as the majority maintains, the agency’s decision to depart *341from its chosen methodology and thereby endanger the Nooksack River Salmon population. To the contrary, the agency was required to consider its trust responsibilities when developing the methodology in the first instance. If NMFS’s chosen methodology had failed to account for its trust responsibilities, the methodology itself would have been fatally flawed.
For all of the above reasons, I would hold that the agency acted arbitrarily and capriciously when it approved the Georgia Strait exploitation rate. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470619/ | MEMORANDUM *
Plaintiffs Dream Palace and several of its employees appeal the amount of the district court’s attorney’s fees award to Dream Palace as a prevailing party pursuant to 42 U.S.C. § 1988. We affirm in part, vacate in part, and remand.
We review the district court’s fee award, including its determination regarding Dream Palace’s degree of success in the underlying civil rights litigation, for abuse of discretion. See Harris v. Marhoefer, 24 F.3d 16, 18-19 (9th Cir.1994). Dream Palace prevailed on just four of its original sixteen claims. Given the sheer volume of losses as compared with wins, the district court did not abuse its discretion in concluding that Dream Palace’s success was limited. The district court watched this case “unfold before [it]” and was thus in the best position to determine the significance of these wins “in comparison to the scope of the litigation as a whole.” Harris, 24 F.3d at 18-19; see Romberg v. Nichols, 970 F.2d 512, 523-24 (9th Cir.1992), vacated on other grounds by Nichols v. Romberg, 506 U.S. 1075, 113 S.Ct. 1038, 122 L.Ed.2d 348 (1993).
Dream Palace challenges various aspects of the district court’s lodestar calculation. With respect to the rates component, the district court sufficiently and concisely explained the basis by which it calculated reasonable hourly rates for Dream Palace’s various attorneys, and its calculation is supported by the record. See Moreno v. City of Sacramento, 534 F.3d 1106, 1116 *344(9th Cir.2008); Carson v. Billings Police Dep’t, 470 F.3d 889, 892-93 (9th Cir.2006).
Dream Palace also challenges the hours component of the lodestar on numerous grounds. We largely affirm the district court’s discretionary calibration of compensable hours in accordance with its determination regarding the degree of Dream Palace’s success. See Hensley v. Eckerhart, 461 U.S. 424, 434-40, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1029 (9th Cir.2000). However, the district court’s decision not to award fees for work performed in the district court on issues that Dream Palace lost in district court but won on appeal was improper. See Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-53 (9th Cir.1991). Although Dream Palace’s success was limited, it was at minimum entitled to attorney’s fees for all work reasonably expended on those claims on which it ultimately prevailed, during all phases of the litigation. See id. We recognize that, in denying Dream Palace’s Motion to Alter or Amend Judgment on Attorney Fees, the district court indicated that it did take this work into account, but in this one sense we conclude that the district court has undervalued Dream Palace’s level of success. Accordingly, we conclude that Dream Palace is entitled to an additional $13,905.40 in fees for work performed at the district court level on its challenges to provisions of the ordinance banning “specific sexual activities” and requiring public disclosure of performers’ identities.1
We reject Dream Palace’s remaining challenges to the district court’s calculation of compensable hours, as it was within the district court’s discretion to reduce the reasonable hours component so as to incorporate Dream Palace’s limited success into the lodestar itself. See Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933; Webb v. Ada County, Idaho, 195 F.3d 524, 526 & n. 1 (9th Cir.1999); U.S. v. $12,248 U.S. Currency, 957 F.2d 1513, 1520 (9th Cir.1991). Likewise, it was within the district court’s discretion to reduce the overall fee award to reflect a relative lack of success by excluding reimbursement for Dream Palace’s costs. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1199-1200 (9th Cir.2002); Schwarz v. Secretary of Health & Human Servs., 73 F.3d 895, 906 (9th Cir.1995).
Finally, it was within the district court’s discretion to manage its docket by establishing a firm deadline for any further filings in this protracted litigation and thereafter excluding from consideration Dream Palace’s “First Supplemental Fees Application” as untimely. See S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807-08 (9th Cir.2002); see also United States v. Real Prop. Known as 22249 Dolorosa Street, Woodland Hills, Cal., 190 F.3d 977, 985 (9th Cir.1999).
Accordingly, we vacate the court’s final order awarding Dream Palace $25,473.45 in fees and remand with directions to enter a modified fee award of $39,378.85, in accordance with this disposition. Under the circumstances, no further adjustment appears appropriate to us, nor should any further fees be awarded for time spent pursuing the fee application itself or this appeal. Each side is to bear its own *345costs.2
AFFIRMED in part; VACATED in part and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. This figure encompasses 2.6 hours of work by John H. Weston at a rate of $350/hour, 38.7 hours of work by G. Randall Garrou at a rate of $275/hour, and 21.39 hours of work by assorted other attorneys at a rate of $110/ hour. Since the district court accepted as reasonable the hours Dream Palace alleges its attorneys spent on the various claims in this litigation, we do as well.
. Dream Palace filed a motion with this court for leave to file an oversized brief, and this court granted the motion in part, permitting Dream Palace to file a brief not exceeding 21,000 words. Dream Palace's subsequent motion for reconsideration from this court's order directing the elimination of 7,275 words from its oversized brief was denied. Thereafter, Dream Palace filed a brief containing a certificate of compliance signed by Dream Palace’s attorney indicating the brief contained 20,998 words. At oral argument, Dream Palace acknowledged that this figure does not include approximately twenty additional pages in "addenda” and "exhibits" included in the brief. These pages are essentially additional argumentation that by any measure should have been included in the main body — and confined to the word limitations — of the brief. The court strongly disapproves of this flagrant attempt to circumvent both our court orders and F.R.A.P. 32(a)(7)(B)(I), and admonishes Dream Palace's counsel to desist from engaging in such practices in the future. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470620/ | Smith, M.,
dissenting:
I respectfully dissent.
While I largely agree with my colleagues’ description of the legal framework controlling our analysis, I feel that the majority’s reasoning is flawed in two respects. First, the majority relies heavily on the fact that “Dream Palace prevailed on just four of its original sixteen claims” to conclude that Dream Palace’s success was limited, thereby justifying a reduced fee award. Second, the majority fails to acknowledge that those four successful claims represented the most important elements of Dream Palace’s complaint, and that success on those claims represented a significant achievement in light of the litigation as a whole.
As the majority notes, the district court is granted broad discretion in calibrating compensable hours based upon a successful outcome. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). However, the district court must be guided by the Supreme Court’s instruction that “the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.” Id. at 435, 103 S.Ct. 1933 (internal citation omitted). See also Morales v. City of San Rafael, 96 F.3d 359, 364-65 (9th Cir.1996) (rejecting an analysis of fees based solely on monetary results in favor of analysis that takes into account “the significant nonmonetary results” achieved for the plaintiff and the rest of society).
Reducing the fees sought based on “the sheer volume of losses as compared with wins” is flawed reasoning under Hensley. But in this case, the majority is not even consistent in its numerical approach, granting Dream Palace only 11 % of its requested fees even though Dream Palace prevailed on 25% of its claims.
Based largely on their numerical approach, both the district court and the majority concluded that Dream Palace achieved only limited success, a conclusion not supported by the record. Dream Palace brought this action to challenge an ordinance adopted by Maricopa County that purported to ban “specific sexual activity” including any “simulated” sexual acts; required exotic dancers to wear work identification cards at all times, even when in the process of removing their clothing on stage; required employees to provide their home addresses to the County, in such a way that they could be available to *346the general public on request; and imposed several other operating restrictions, including stage height requirements and restrictions on hours of operation. Dream Palace succeeded in striking the ban on “specific sexual activity” and “simulated” sexual acts, and the requirement that dancers wear their identification cards. Dream Palace also successfully obtained a permanent injunction against the County’s distribution of its employees’ personal information. Dream Palace did not prevail on its challenges against the regulations concerning stage height and hours of operation.1
Viewing the substance of all the claims in the context of the litigation as a whole, it is evident that Dream Palace was substantially more successful than it was unsuccessful, and that it prevailed on the most important aspects of its suit. Had Dream Palace not succeeded in striking the ban on simulated sex acts, for example, it would have been unable to continue its business of exotic dancing. Had Dream Palace’s dancers been required to wear their identification cards at all times, the dancers’s performance would have been rendered ludicrous, not enticing, to customers. Had Dream Palace’s employees been forced to make their personal information available to anyone who might request it from the County, it is unlikely any of them would have continued their employment, given the high risk of molestation from stalkers or protestors. The aggregate success achieved by Dream Palace was not “limited in comparison to the scope of the litigation as a whole,” because victory in its successful claims was vital to the continuance of Dream Palace’s business, while the unsuccessful claims were the equivalent of legal flotsam. See Hensley, 461 U.S. at 440, 103 S.Ct. 1933.
Although Dream Palace’s success in defending its business may not please some, its suit represents a successful defense of First Amendment rights to expression and a protection of its employees’ privacy rights. A personal distaste for Dream Palace’s business is not an appropriate basis for determining the success of Dream Palace’s law suit, and the fees legitimately owed as a result of that success.
I agree with the panel’s ruling insofar as it remands to allow for an additional $13,905.40 in fees for work performed at the district court level on an ultimately successful claim. However, I feel the panel’s ruling does not go far enough. I would therefore conclude that the district court abused its discretion in finding that Dream Palace had “limited” success, which warranted a drastic reduction in the fees to which it was legitimately entitled. I would reverse and remand for a reassessment of attorney’s fees in keeping with the legal analysis outlined in this dissent.
. Dream Palace challenged multiple aspects of the ordinance's licensing requirement on the grounds that forcing its employees to provide their personal information to the County would expose them to danger of molestation at their home addresses. When it ultimately prevailed on the claim for an injunction against the County's release of that information, it conceded that its other claims, which would remove the requirement to provide that information at all, were moot. Therefore, although Dream Palace did not "succeed" on those claims, it did succeed in removing the harmful consequences that motivated the claims. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470623/ | MEMORANDUM **
Jose Juan Barajas Chavez and his wife, Norma Barajas, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we dismiss the petition for review.
Barajas Chavez presented no evidence with the motion other than the arguments made in the motion itself, which, inter alia, concerned the same basic and dispos-itive hardship grounds as their applications for cancellation of removal. This court therefore lacks jurisdiction to review the BIA’s discretionary determination that the evidence would not alter its prior discretionary determination that they failed to establish the requisite hardship. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir.2006) (8 U.S.C. § 1252(a)(2)(B)® bars this court from reviewing the denial of a motion to reopen where “the only question presented is whether [the] new evidence altered the prior, underlying discretionary determination that [the petitioner] had not met the hardship standard.”) (internal quotations and brackets omitted).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470625/ | MEMORANDUM **
Linda Shao and the Law Offices of Linda Shao, APLC (collectively, “Shao”) appeal the Bankruptcy Appellate Panel’s (“BAP’s”) affirmance of the bankruptcy court’s award of sanctions. The underly*351ing dispute is over entitlement to the proceeds of a check jointly payable to Shao and Media Group in settlement of a matter in which Shao represented Media Group, now the debtor in bankruptcy proceedings. In 2005, the bankruptcy court entered an order of sanctions against Shao on the basis of three separate findings of misconduct. In her first appeal, the BAP reversed in part and remanded for redeter-mination of the amount of sanctions after holding that two of the instances of claimed misconduct were not sanctionable.
Shao did not appeal to this court from that decision. On remand the bankruptcy court reduced the amount of the sanctions award in accord with the BAP’s holding that there was only one instance of sanc-tionable misconduct. Shao again appealed, and the BAP affirmed. Shao now appeals from that BAP decision, arguing that the amount of sanctions on remand was too high, and, in addition, that the BAP in the first appeal should not have held that there was any sanctionable conduct.
The first BAP decision was a final decision on the central legal issues relating to the merits of the sanctions, and the BAP decision then merely remanded for reconsideration of the amount. We have held that such an order is final and appeal-able. See Price v. Lehtinen (In re Lehtinen), 564 F.3d 1052, 1057 (9th Cir.2009). Thus, this court would have had jurisdiction to consider an appeal from the original BAP decision. Id. Because Shao did not appeal from that decision, it is now unappealable. We lack jurisdiction to review issues determined in that decision. See Greene v. United States (In re Souza), 795 F.2d 855, 857 (9th Cir.1986).
We have jurisdiction to review the second BAP order, affirming the award of reduced sanctions after remand. The sanctions were imposed pursuant to the inherent power of the bankruptcy court to assess sanctions against a party to compensate for bad-faith litigation misconduct. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178,1196 (9th Cir.2003). As the BAP’s decision before us correctly concluded, the evidence supports the amount of sanctions imposed.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470629/ | *354MEMORANDUM **
Rajiv Govind, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that Govind did not establish that the harms he experienced in school and during the 1987 coup were on account of his Indo-Fijian ethnicity or his religion. See Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (“Random, isolated criminal acts perpetrated by anonymous thieves do not establish persecution”). Substantial evidence also supports the agency’s finding that Govind’s similarly situated Indo-Fijian brother remains in Fiji without incident. See Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir.2001). Accordingly, Govind’s asylum and withholding of removal claims fail.
We lack jurisdiction to review the agency’s discretionary determination that Govind failed to establish exceptional and extremely unusual hardship. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Therefore, his challenge to the agency’s denial of his cancellation of removal application fails.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470764/ | OPINION
PER CURIAM.
Pro se petitioner Cazzie L. Williams seeks a writ of mandamus to compel the United States District Court for the District of New Jersey to rule upon his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Williams filed his § 2255 motion on March 12, 2008. The government filed its answer on July 4, 2008, and Williams filed his rebuttal on July 15, 2008. On May 22, 2009, when fourteen months had gone by without any action in his case, Williams filed the present petition for writ of mandamus seeking to compel the District Court to rule on his § 2255 motion.
By order entered on July 22, 2009, 2009 WL 2191178, the District Court denied Williams’s § 2255 motion. Because Williams has now received the relief he sought in filing his mandamus petition— namely, a ruling on his § 2255 motion — we will deny his mandamus petition as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470771/ | OPINION
PER CURIAM.
Fernando Jose Arias-Losada, a native and citizen of Colombia, was admitted to the United States in December 1997. His wife and two children joined him here in June 1998. The petitioners were charged with removability under Immigration and *823Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ], for overstaying their admission period. They admitted the allegations in the Notice to Appear and conceded the charge of removability.
In January 2003, Arias-Losada applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”).1 He testified that, beginning in 1989, members of the Colombian Revolutionary Armed Forces (“the FARC”) threatened him because he refused to help recruit “needy people.” Although Arias-Losada altered his work schedule to avoid the FARC, he continued to receive threatening phone calls at home. Based on these threats, Arias-Losada changed his work schedule, quit his job, and moved with his family to another city in Colombia. Nevertheless, the FARC discovered his whereabouts and, because he owned his own business, forced him to pay an extortion fee of approximately $400. Despite these incidents, Arias-Losada voluntarily returned to Colombia after traveling to the United States as a tourist in 1993 and 1995. On May 15, 1997, Arias-Losada was assaulted, a gun was put to his head, and he was told that he would be killed if he did not help the FARC recruit new members. After receiving medical treatment for a shoulder injury and broken teeth, Arias-Losada reported the incident to the police, who cautioned that they could not guarantee his safety. He traveled to the United States in December 1997. The FARC then began to call Arias-Losada’s wife, seeking his whereabouts. According to Arias-Losa-da’s brother, who is still in Colombia, the FARC continues to look for him.
The Immigration Judge (“IJ”) denied Arias-Losada’s application for asylum as untimely, and found that he did not establish exceptional or changed circumstances to excuse the filing delay. See INA § 208(a)(2)(B) [8 U.S.C. § 1158(a)(2)(B) ] (requiring filing within one year of arrival). The IJ also denied the application for withholding of removal, finding that Arias-Losada’s experiences did not rise to the level of persecution. With respect to his CAT claim, the IJ found that Arias-Losa-da failed to establish that he more likely than not would be tortured upon his return to Colombia. Arias-Losada appealed.
The Board of Immigration Appeals (“BIA”) dismissed the appeal. The BIA agreed that the asylum application was time-barred and found no clear error in the IJ’s determination that Arias-Losada failed to meet the burdens of proof on his withholding and CAT claims. The BIA also refused to consider additional evidence submitted by Arias-Losada on appeal, and concluded that the evidence did not warrant remanding to the IJ. Arias-Losada filed a timely petition for review of the BIA’s decision.
We exercise jurisdiction to review the BIA’s final order of removal under INA § 242(a) [8 U.S.C. § 1252(a)].2 Because the BIA “invoke[d] specific aspects of the IJ’s analysis and factfinding in support of [its] conclusions,” we review both the decisions of the IJ and the BIA.3 *824See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir.2005). We review the BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). Our review of the factual findings in these decisions is for substantial evidence, considering whether they are supported by reasonable, substantial, and probative evidence on the record considered as a whole.4 See Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). The decisions must be affirmed “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001)).
For withholding of removal to a particular country under the INA, an applicant must prove that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” INA § 241(b)(3). “To meet this test, the alien must demonstrate that there is a greater-than-fifty-pereent chance of persecution upon his or her return.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998). “[I]f an alien fails to establish the well-founded fear of persecution required for a grant of asylum, he or she will, by definition, have failed to establish the clear probability of persecution” standard for withholding of removal. Zubeda, 333 F.3d at 469-70. Significantly, “persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.
We conclude that substantial evidence supports the BIA’s determination that Arias-Losada failed to show that it was more likely than not that he would be persecuted upon returning to Colombia. Arias-Losada testified that he was repeatedly threatened by the FARC, was forced to pay an extortion “fee,” and was assaulted one time, all because he refused to cooperate with the FARC’s efforts to recruit new members. These incidents occurred between 1989 and 1997. During this period, Arias-Losada traveled to the United States on three occasions, each time voluntarily returning to Colombia. This significantly weakens his claim that he fears persecution. See Jean v. Gonzales, 461 F.3d 87, 91 (1st Cir.2006) (“[Jean’s] willingness to return voluntarily to Haiti on multiple occasions undermines the contention that Jean experienced persecution and has a well-founded fear of persecution there.”).
Furthermore, we agree that Arias-Losa-da’s experiences in Colombia do not rise to the level of persecution or demonstrate a likelihood of future persecution. According to Arias-Losada, FARC members repeatedly threatened to kill him and his family. As a result, Arias-Losada quit his job and moved to another city. But, aside from one incident in which Arias-Losada was assaulted on the street, there is no indication in the record that the FARC attempted to carry out the threats. See Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005) (holding that “unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution.”) (internal quotation marks and citations omitted). Furthermore, the assault *825itself, while certainly a criminal act, was a one-time incident that did not result in any particularly serious injury. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (holding that petitioner’s “account of two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution.”). In addition, the record does not demonstrate that the FARC’s extortion of $400 from Arias-Lo-sada imposed a “severe economic disadvantage which threaten[ed][his] life or freedom.” Li, 400 F.3d at 168. Finally, Arias-Losada’s testimony concerning the FARC’s inquiries into his whereabouts does not constitute substantial evidence sufficient to establish an objectively reasonable fear of future persecution.
Arias-Losada argues that the IJ erred by requiring him to establish his withholding of removal claims under the “clear and convincing” standard, rather than the “clear probability” standard. We disagree. There is simply no indication that the IJ applied the “clear and convincing” standard in evaluating Arias-Losada’s withholding of removal claim. Arias-Losada also asserts that the IJ failed to properly consider that the “FARC was able to track people and target them,” as reported in the 2005 State Department’s Report for Human Rights Practices and Country Conditions. We have held that “[i]f the administrative record fails to reveal that [material] evidence has been fairly considered, the proper course is to remand the case ... so that the [IJ] may evaluate such evidence and consider its effect on the application as a whole.” Thu v. Att’y Gen., 510 F.3d 405, 412 (3d Cir.2007) (quoting Sotto v. INS, 748 F.2d 832, 837 (3d Cir.1984)). Here, however, the IJ did discuss the Country Report, noting that it indicated that Colombia “is in a virtual state of civil war with various criminal groups, as well as political groups engaged in murders, abductions, and other forms of human rights violations.” We see no error in the failure to specifically mention the FARC’s ability to “track” and “target” people. See Toussaint v. Att’y Gen., 455 F.3d 409, 416-17 (3d Cir.2006) (concluding that “the BIA did not err in failing to mention specifically” country reports and documentary evidence). Finally, we reject Arias-Losada’s request to remand the case “back to the Immigration Court to permit [his] wife and children to file” new applications for protection.
For the foregoing reasons, we will deny the petition for review.
. Arias-Losada's wife and children were derivative applicants.
. To the extent that Arias-Losada challenges the timeliness determination, we lack jurisdiction. See INA § 208(a)(3) [8 U.S.C. § 1158(a)(3)]. In addition, we will not consider the denial of CAT relief because Arias-Losada failed to raise the issue in his brief. See In re Surrick, 338 F.3d 224, 237 (3d Cir.2003) (recognizing that if a party fails to raise an issue in his opening brief, the issue is waived).
. Arias-Losada argues that the Board essentially issued an affirmance without opinion and urges us to review the IJ's decision rather than the BIA's. We decline to do so.
. Because our review is confined to the administrative record, INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)], we will not consider the new evidence submitted by Arias-Losada in Appendix II. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470624/ | MEMORANDUM **
Jose Juan Barajas Chavez and his wife, Norma Barajas, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we dismiss the petition for review.
Barajas Chavez presented no evidence with the motion other than the arguments made in the motion itself, which, inter alia, concerned the same basic and dispos-itive hardship grounds as their applications for cancellation of removal. This court therefore lacks jurisdiction to review the BIA’s discretionary determination that the evidence would not alter its prior discretionary determination that they failed to establish the requisite hardship. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir.2006) (8 U.S.C. § 1252(a)(2)(B)® bars this court from reviewing the denial of a motion to reopen where “the only question presented is whether [the] new evidence altered the prior, underlying discretionary determination that [the petitioner] had not met the hardship standard.”) (internal quotations and brackets omitted).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470626/ | MEMORANDUM **
Linda Shao and the Law Offices of Linda Shao, APLC (collectively, “Shao”) appeal the Bankruptcy Appellate Panel’s (“BAP’s”) affirmance of the bankruptcy court’s award of sanctions. The underly*351ing dispute is over entitlement to the proceeds of a check jointly payable to Shao and Media Group in settlement of a matter in which Shao represented Media Group, now the debtor in bankruptcy proceedings. In 2005, the bankruptcy court entered an order of sanctions against Shao on the basis of three separate findings of misconduct. In her first appeal, the BAP reversed in part and remanded for redeter-mination of the amount of sanctions after holding that two of the instances of claimed misconduct were not sanctionable.
Shao did not appeal to this court from that decision. On remand the bankruptcy court reduced the amount of the sanctions award in accord with the BAP’s holding that there was only one instance of sanc-tionable misconduct. Shao again appealed, and the BAP affirmed. Shao now appeals from that BAP decision, arguing that the amount of sanctions on remand was too high, and, in addition, that the BAP in the first appeal should not have held that there was any sanctionable conduct.
The first BAP decision was a final decision on the central legal issues relating to the merits of the sanctions, and the BAP decision then merely remanded for reconsideration of the amount. We have held that such an order is final and appeal-able. See Price v. Lehtinen (In re Lehtinen), 564 F.3d 1052, 1057 (9th Cir.2009). Thus, this court would have had jurisdiction to consider an appeal from the original BAP decision. Id. Because Shao did not appeal from that decision, it is now unappealable. We lack jurisdiction to review issues determined in that decision. See Greene v. United States (In re Souza), 795 F.2d 855, 857 (9th Cir.1986).
We have jurisdiction to review the second BAP order, affirming the award of reduced sanctions after remand. The sanctions were imposed pursuant to the inherent power of the bankruptcy court to assess sanctions against a party to compensate for bad-faith litigation misconduct. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178,1196 (9th Cir.2003). As the BAP’s decision before us correctly concluded, the evidence supports the amount of sanctions imposed.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470628/ | MEMORANDUM **
Saovutha Suon, a native and citizen of Cambodia, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for an abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and review de novo claims of constitutional violations in immigration proceedings, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
The BIA acted within its discretion in denying Suon’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s July 22, 2005, order. See 8 C.F.R. § 1003.2(b)(1).
The IJ did not violate Suon’s statutory right to be represented , by counsel of his choice at his own expense or otherwise violate due process when she deemed his applications abandoned. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim); cf. Mendoza-Mazarie-*353gos v. Mukasey, 509 F.3d 1074, 1080-1084 (9th Cir.2007).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470630/ | *354MEMORANDUM **
Rajiv Govind, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that Govind did not establish that the harms he experienced in school and during the 1987 coup were on account of his Indo-Fijian ethnicity or his religion. See Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (“Random, isolated criminal acts perpetrated by anonymous thieves do not establish persecution”). Substantial evidence also supports the agency’s finding that Govind’s similarly situated Indo-Fijian brother remains in Fiji without incident. See Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir.2001). Accordingly, Govind’s asylum and withholding of removal claims fail.
We lack jurisdiction to review the agency’s discretionary determination that Govind failed to establish exceptional and extremely unusual hardship. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Therefore, his challenge to the agency’s denial of his cancellation of removal application fails.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470767/ | *817OPINION
PER CURIAM.
Carl Simon, an inmate of the United States Virgin Islands currently housed in a state correctional facility in Virginia, has filed a pro se letter with this Court which has been construed as a petition for a writ of mandamus under 28 U.S.C. § 1651. In his letter, Simon complains of “delay in the judicial system” because, he contends, the Appellate Division of the District Court for the Virgin Islands has “kept my appeal [docketed at D.V.I. Civ. No. 03-cv-00024] pending in that court from the year 2003 up until the present.” Simon argues that the Appellate Division’s alleged delay in ruling on the appeal, which was taken from an order of the Superior Court of the Virgin Islands denying Simon’s petition for a writ of habeas corpus, has been undue and worked a denial of his constitutional rights. We will deny the mandamus petition.
Simon is serving a life sentence following his 1995 conviction in the Territorial Court of the Virgin Islands (now known as the Superior Court of the Virgin Islands) on charges of murder, robbery, and burglary. In 2001, Simon filed an amended habeas corpus petition in the Superior Court. In 2003, after the Superior Court denied relief, Simon appealed to the Appellate Division of the District Court of the Virgin Islands.1
In January 2004, the Appellate Division appointed counsel to represent Simon. Counsel filed a brief and moved to withdraw. In September 2004, the Appellate Division appointed new counsel, and in March 2005, granted an extension of time to file a brief. After the grant of a second extension, counsel filed a brief and moved to withdraw. The Appellate Division denied the motion to withdraw and calendared Simon’s appeal for a hearing.
On September 10, 2007, the Appellate Division entered an Opinion and Order remanding the matter to the Superior Court for a determination as to whether a certificate of probable cause should issue for Simon’s appeal, in accordance with Virgin Islands Rule of Appellate Procedure 14(b). On October 2, 2008, the Appellate Division docketed the Superior Court’s order granting Simon a certificate of probable cause to appeal. The Appellate Division then calendared Simon’s appeal for a hearing on June 19, 2009. Simon’s mandamus petition complaining of delay on appeal was docketed in this Court less than one month later, on July 16, 2009.
A writ of mandamus is an appropriate remedy in extraordinary circumstances only. Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). A petitioner seeking the writ must show, among other things, that the right to its issuance is “clear and indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). In Madden v. Myers, 102 F.3d 74 (3d Cir.1996), we observed that “an appellate court may issue a writ of mandamus on the ground that undue delay [in ruling on a habeas petition] is tantamount to a failure to exercise jurisdiction ... and, without actually issuing a writ, may order a district court not to defer adjudicating a case.” Id. at 79 (cita*818tions omitted). In Madden, the petitioner sought relief after his habeas petition had been pending for four months. We denied the petition, holding that “[a]lthough this delay is of concern, it does not yet rise to the level of a denial of due process.” Id.; see also Hassine v. Zimmerman, 160 F.3d 941, 954 n. 12 (3d Cir.1998) (stating that “a habeas petitioner seeking mandamus ... must experience extraordinary delay”).
Here, the Appellate Division submitted Simon’s appeal for consideration on the merits less than one month prior to the docketing of Simon’s mandamus petition, a period of time that does not rise to the level of undue delay. It is evident, as Simon contends, that the overall proceedings related to his appeal have been protracted, but we are not presented with any evidence of extraordinary delay, nor do we have reason to believe that there will be delay going forward, particularly in light of the Appellate Division’s recent submission of the appeal. Significantly, a substantial portion of the delay in adjudicating the appeal appears to be attributable to the motions by Simon’s counsel for leave to withdraw, as well as Simon’s failure to obtain a certificate of probable cause to appeal.
In short, because the delay of which Simon complains is not “tantamount to a failure to exercise jurisdiction,” Madden, 102 F.3d at 79, we will deny the petition for a writ of mandamus.2 We are confident that the Appellate Division will not defer its adjudication of Simon’s appeal and will issue a decision promptly.
. After the filing of Simon’s appeal, the Virgin Islands Legislature established a Supreme Court of the Virgin Islands, which has authority to review decisions of the Superior Court. Nevertheless, “pending decisions of the Appellate Division may be reviewed by [the Third Circuit Court of Appeals].” Gov’t of the V.I. v. Davis, 561 F.3d 159, 160 n. 2 (3d Cir.2009). “The appellate division of the District Court will cease existence when the last case pending is decided.” Edwards v. HOVENSA, LLC, 497 F.3d 355, 359 n. 2 (3d Cir.2007).
. Simon raises several additional contentions in his mandamus petition, including complaints about his transfer to a correctional facility in Virginia, the quality of law library materials at the Virginia facility, and the Superior Court’s decision to exercise jurisdiction over Simon’s criminal trial. None of these complaints is properly raised in this mandamus proceeding, and thus we do not address them. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470768/ | OPINION
PER CURIAM.
Appellant Winston Banks, a pro se litigant, appeals from an order of the United States District Court for the Eastern District of Pennsylvania granting Defendant’s motion to dismiss Banks’ complaint for failure to state a claim. For the reasons set forth below, we will affirm.
I.
From January 2000 until October 2006, Banks was employed as a judicial aide by the Honorable Glynnis Hill, Court of Common Pleas of Philadelphia County, First Judicial District. According to Banks’ complaint, on October 20, 2006, he “was in Courtroom 1004 of the Criminal Justice Center (CJC) in Philadelphia, and a person with a motorized wheelchair entered the courtroom.” The doors apparently remained open after the person in the wheelchair entered the courtroom and the “outside conversation entered the courtroom and the Judge voiced his displeasure.” Af*820terward, Banks claimed that Judge Hill “left the bench into the robing room,” and Banks “informed the judge [that his] back was spasing [sic] and needed medical treatment.” Banks alleged that Judge Hill told him that if he left, he would be fired. Banks claimed that he left to seek treatment for his back at the V.A. Hospital. Although he received medical clearance to return to work the next day, his job had already been terminated.
Banks sued the Court of Common Pleas, First Judicial District, arguing that he was entitled to relief under the employment provisions of the American with Disabilities Act (ADA), the self-care provisions of Family Medical Leave Act (FMLA), and the Pennsylvania Human Relations Act (PHRA). Banks sought both monetary damages and to be reinstated “with full time employment.” The Court of Common Pleas, through counsel, filed a motion to dismiss the case and, on December 10, 2008, the District Court held a hearing on the motion. Following the hearing, the District Court granted the Court of Common Pleas’ motion to dismiss Banks’ complaint.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal for failure to state a claim is plenary. Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir.1999). When considering a district court’s grant of a motion to dismiss under Rule 12(b)(6), we “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. —, —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
III.
The Court of Common Pleas, First Judicial District is an entity of the Unified Judicial System of Pennsylvania, and, as such, is an instrumentality of the Commonwealth. The Pennsylvania Constitution, Article V § 1 states: “The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, ... courts of common pleas, ... All courts ... shall be in this unified judicial system.” In addition, 42 Pa. Cons.Stat. § 102 provides that, “the government of the Commonwealth [includes] the courts and other officers or agencies of the unified judicial system ...”
In Benn v. First Judicial District, 426 F.3d 233, 240-41 (3d Cir.2005), we ruled that state courts, as state entities, are entitled to immunity from suit in federal court pursuant to the Eleventh Amendment. Specifically, suits seeking money damages against the state for an alleged failure to comply with Title I of the ADA are barred by the Eleventh Amendment.1 Id.; Bd. of Tr. of Univ. of Ala. v. *821Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (a suit in federal court by a state employee to recover money damages by reason of the state’s failure to comply with the ADA is barred by the Eleventh Amendment absent that state’s consent to suit.)
Likewise, private suits for damages may not be brought against states for alleged violations of the FMLA, which arise under the Act’s self-care provision. See 29 U.S.C. § 2612(a)(1)(D). In Chittister v. Dep’t of Cmty. and Econ. Dev., 226 F.3d 223, 229 (3d Cir.2000), we ruled that Congress did not validly abrogate the states’ Eleventh Amendment immunity when it enacted provisions of the FMLA. Although the “family-care” provisions of the FMLA were upheld by the Supreme Court in Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 737-40, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003), private suits still may not be brought against states where the self-care provisions of the Act are implicated.2
Lastly, the District Court did not abuse its discretion in refusing to exercise supplemental jurisdiction over Banks’ PHRA claim once it had dismissed the claims over which it had original jurisdiction. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir.1999); see also 28 U.S.C. § 1367(c)(3).
For the foregoing reasons, we will affirm the District Court’s order granting the Court of Common Pleas’ motion to dismiss. Banks’ motion to respond to Ap-pellee’s motion to be excused from filing a brief is denied as moot. Banks’ motions for oral argument are also denied.
. Banks' request for injunctive relief (i.e. job reinstatement) is also barred by the Eleventh Amendment. Although we have held that under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not act as a bar to federal ADA claims for prospective injunctive relief against state officials acting in their official capacities, Banks did not raise any claims against state officials in his complaint. See Koslow v. Pennsylvania, 302 F.3d 161, 165—68, 178 (3d Cir.2002) (“Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its own name regardless of the relief sought. Thus, implementation of state policy or custom may be reached in federal court only because official-*821capacity actions for prospective relief are not treated as actions against the State.”)
. In Hibbs, the Supreme Court found that the FMLA's family-leave provision, 29 U.S.C. § 2612(a)(1)(C), does abrogate sovereign immunity, based on a gender discrimination analysis. Id. However, post -Hibbs, other Circuits have specifically found that the self-care provisions do not abrogate sovereign immunity. The Sixth and the Tenth Circuits have both held that the Supreme Court's holding in Hibbs does not apply to the self-care provision of the FMLA, and that private suits may not be brought against states for alleged violations of the self-care provisions of the Act. See Touvell v. Ohio Dep't of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 400-01 (6th Cir.2005); see also Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1164-65 (10th Cir.2003). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470770/ | OPINION
PER CURIAM.
Fernando Jose Arias-Losada, a native and citizen of Colombia, was admitted to the United States in December 1997. His wife and two children joined him here in June 1998. The petitioners were charged with removability under Immigration and *823Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ], for overstaying their admission period. They admitted the allegations in the Notice to Appear and conceded the charge of removability.
In January 2003, Arias-Losada applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”).1 He testified that, beginning in 1989, members of the Colombian Revolutionary Armed Forces (“the FARC”) threatened him because he refused to help recruit “needy people.” Although Arias-Losada altered his work schedule to avoid the FARC, he continued to receive threatening phone calls at home. Based on these threats, Arias-Losada changed his work schedule, quit his job, and moved with his family to another city in Colombia. Nevertheless, the FARC discovered his whereabouts and, because he owned his own business, forced him to pay an extortion fee of approximately $400. Despite these incidents, Arias-Losada voluntarily returned to Colombia after traveling to the United States as a tourist in 1993 and 1995. On May 15, 1997, Arias-Losada was assaulted, a gun was put to his head, and he was told that he would be killed if he did not help the FARC recruit new members. After receiving medical treatment for a shoulder injury and broken teeth, Arias-Losada reported the incident to the police, who cautioned that they could not guarantee his safety. He traveled to the United States in December 1997. The FARC then began to call Arias-Losada’s wife, seeking his whereabouts. According to Arias-Losa-da’s brother, who is still in Colombia, the FARC continues to look for him.
The Immigration Judge (“IJ”) denied Arias-Losada’s application for asylum as untimely, and found that he did not establish exceptional or changed circumstances to excuse the filing delay. See INA § 208(a)(2)(B) [8 U.S.C. § 1158(a)(2)(B) ] (requiring filing within one year of arrival). The IJ also denied the application for withholding of removal, finding that Arias-Losada’s experiences did not rise to the level of persecution. With respect to his CAT claim, the IJ found that Arias-Losa-da failed to establish that he more likely than not would be tortured upon his return to Colombia. Arias-Losada appealed.
The Board of Immigration Appeals (“BIA”) dismissed the appeal. The BIA agreed that the asylum application was time-barred and found no clear error in the IJ’s determination that Arias-Losada failed to meet the burdens of proof on his withholding and CAT claims. The BIA also refused to consider additional evidence submitted by Arias-Losada on appeal, and concluded that the evidence did not warrant remanding to the IJ. Arias-Losada filed a timely petition for review of the BIA’s decision.
We exercise jurisdiction to review the BIA’s final order of removal under INA § 242(a) [8 U.S.C. § 1252(a)].2 Because the BIA “invoke[d] specific aspects of the IJ’s analysis and factfinding in support of [its] conclusions,” we review both the decisions of the IJ and the BIA.3 *824See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir.2005). We review the BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). Our review of the factual findings in these decisions is for substantial evidence, considering whether they are supported by reasonable, substantial, and probative evidence on the record considered as a whole.4 See Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). The decisions must be affirmed “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001)).
For withholding of removal to a particular country under the INA, an applicant must prove that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” INA § 241(b)(3). “To meet this test, the alien must demonstrate that there is a greater-than-fifty-pereent chance of persecution upon his or her return.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998). “[I]f an alien fails to establish the well-founded fear of persecution required for a grant of asylum, he or she will, by definition, have failed to establish the clear probability of persecution” standard for withholding of removal. Zubeda, 333 F.3d at 469-70. Significantly, “persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.
We conclude that substantial evidence supports the BIA’s determination that Arias-Losada failed to show that it was more likely than not that he would be persecuted upon returning to Colombia. Arias-Losada testified that he was repeatedly threatened by the FARC, was forced to pay an extortion “fee,” and was assaulted one time, all because he refused to cooperate with the FARC’s efforts to recruit new members. These incidents occurred between 1989 and 1997. During this period, Arias-Losada traveled to the United States on three occasions, each time voluntarily returning to Colombia. This significantly weakens his claim that he fears persecution. See Jean v. Gonzales, 461 F.3d 87, 91 (1st Cir.2006) (“[Jean’s] willingness to return voluntarily to Haiti on multiple occasions undermines the contention that Jean experienced persecution and has a well-founded fear of persecution there.”).
Furthermore, we agree that Arias-Losa-da’s experiences in Colombia do not rise to the level of persecution or demonstrate a likelihood of future persecution. According to Arias-Losada, FARC members repeatedly threatened to kill him and his family. As a result, Arias-Losada quit his job and moved to another city. But, aside from one incident in which Arias-Losada was assaulted on the street, there is no indication in the record that the FARC attempted to carry out the threats. See Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005) (holding that “unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution.”) (internal quotation marks and citations omitted). Furthermore, the assault *825itself, while certainly a criminal act, was a one-time incident that did not result in any particularly serious injury. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (holding that petitioner’s “account of two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution.”). In addition, the record does not demonstrate that the FARC’s extortion of $400 from Arias-Lo-sada imposed a “severe economic disadvantage which threaten[ed][his] life or freedom.” Li, 400 F.3d at 168. Finally, Arias-Losada’s testimony concerning the FARC’s inquiries into his whereabouts does not constitute substantial evidence sufficient to establish an objectively reasonable fear of future persecution.
Arias-Losada argues that the IJ erred by requiring him to establish his withholding of removal claims under the “clear and convincing” standard, rather than the “clear probability” standard. We disagree. There is simply no indication that the IJ applied the “clear and convincing” standard in evaluating Arias-Losada’s withholding of removal claim. Arias-Losada also asserts that the IJ failed to properly consider that the “FARC was able to track people and target them,” as reported in the 2005 State Department’s Report for Human Rights Practices and Country Conditions. We have held that “[i]f the administrative record fails to reveal that [material] evidence has been fairly considered, the proper course is to remand the case ... so that the [IJ] may evaluate such evidence and consider its effect on the application as a whole.” Thu v. Att’y Gen., 510 F.3d 405, 412 (3d Cir.2007) (quoting Sotto v. INS, 748 F.2d 832, 837 (3d Cir.1984)). Here, however, the IJ did discuss the Country Report, noting that it indicated that Colombia “is in a virtual state of civil war with various criminal groups, as well as political groups engaged in murders, abductions, and other forms of human rights violations.” We see no error in the failure to specifically mention the FARC’s ability to “track” and “target” people. See Toussaint v. Att’y Gen., 455 F.3d 409, 416-17 (3d Cir.2006) (concluding that “the BIA did not err in failing to mention specifically” country reports and documentary evidence). Finally, we reject Arias-Losada’s request to remand the case “back to the Immigration Court to permit [his] wife and children to file” new applications for protection.
For the foregoing reasons, we will deny the petition for review.
. Arias-Losada's wife and children were derivative applicants.
. To the extent that Arias-Losada challenges the timeliness determination, we lack jurisdiction. See INA § 208(a)(3) [8 U.S.C. § 1158(a)(3)]. In addition, we will not consider the denial of CAT relief because Arias-Losada failed to raise the issue in his brief. See In re Surrick, 338 F.3d 224, 237 (3d Cir.2003) (recognizing that if a party fails to raise an issue in his opening brief, the issue is waived).
. Arias-Losada argues that the Board essentially issued an affirmance without opinion and urges us to review the IJ's decision rather than the BIA's. We decline to do so.
. Because our review is confined to the administrative record, INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)], we will not consider the new evidence submitted by Arias-Losada in Appendix II. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470633/ | MEMORANDUM **
Zhora Grigoryan, and his wife, Rima Grigoryan, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying them motion to reopen removal proceedings conducted in absentia. We dismiss in part and deny in part the petition for review.
We lack jurisdiction over petitioners’ contention regarding the IJ’s denial of them motion to reopen absent a hearing transcript because it was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (due process challenges that are procedural in nature must be exhausted).
Petitioners waived any challenge to the agency’s conclusions regarding their ineffective assistance of counsel claim by failing to raise it in their opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470635/ | MEMORANDUM **
Arben Rexhaj, his wife, Drita Rexhaj, and their minor sons, natives and citizens of Albania, petition for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the IJ’s adverse credibility determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and we deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination because Rexhaj testified about his alleged mistreatment in an internally inconsistent manner. See Goel v. Gonzales, 490 F.3d 735, 739 (9th Cir.2007) (inconsistencies between testimony and documentary evidence support an adverse credibility finding where inconsistencies go to the heart of the claim).
In the absence of credible testimony, Rexhaj failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Finally, because Rexhaj’s CAT claim is based on the same testimony that IJ found not credible, and he points to no other evidence the IJ should have considered, substantial evidence supports the IJ’s denial of CAT relief. See id. at 1157.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470637/ | MEMORANDUM **
Jose Barrera Membreno, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and review de novo claims of constitutional violations in immigration proceedings, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
The BIA acted within its discretion in denying Barrera Membreno’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s July 21, 2006, order. See 8 C.F.R. § 1003.2(b)(1).
It follows that the denial of Barrera Membreno’s motion to reconsider did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470639/ | MEMORANDUM **
Silvestre Jaime Solorio appeals from the 70-month sentence imposed following his guilty-plea conviction for distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(viii). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Solorio contends that there was insufficient evidence to support the district court’s finding that the drug quantity attributable to him exceeded the amount stipulated to in his plea agreement. The district court’s finding regarding the amount of drugs attributable to Solorio was not clearly erroneous. Therefore, we reject Solorio’s argument that there was insufficient evidence to support the district court’s finding that such drug quantity exceeded the amount stipulated to in his plea agreement.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470772/ | OPINION OF THE COURT
McKee, Circuit Judge.
Steven Lane appeals his conviction for conspiracy to interfere with interstate commerce by robbery under 18 U.S.C. § 1951(a). For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this case, we need not recite the factual or procedural history. Lane argues that the district court erred in permitting a government witness to testify about Lane’s involvement in a prior robbery for which he had been neither charged nor convicted. He contends that this testimony was irrelevant and that its probative value was outweighed by its prejudicial effect, and that he is therefore entitled to a new trial under Fed.R.Evid. 404(b). We disagree.
We review the district court’s decision to admit evidence for abuse of discretion. United States v. Butch, 256 F.3d 171, 175 (3d Cir.2001). Rule 404(b) states that while “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith,” such evidence may be used for other purposes. Indeed, such evidence shall be admitted “if relevant for any other purpose than to show a mere propensity or disposition on the part of the defendant to commit the crime.” United States v. Long, 574 F.2d 761, 766 (3d Cir.1978), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978).
In order to be admissible under Rule 404(b), evidence must meet four requirements: (1) it must be offered for a proper purpose; (2) it must be relevant; (3) its probative value must not be substantially outweighed by any unfair prejudicial im*827pact; and (4) the court must properly instruct the jury about the proper use and relevance of the evidence. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). See also United States v. Givan, 320 F.3d 452, 460 (3d Cir.2003).
During argument on the motion to introduce this evidence the government explained that the testimony about the prior robbery was necessary to establish the ongoing relationship of Lane with his co-defendant, the government’s witness. The testimony explained why Lane and the co-defendant trusted each other and were able to accomplish the robbery in question without significant planning. The evidence was therefore relevant to establishing preparation and plan which are appropriate uses of evidence of a defendant’s prior “bad acts” under Rule 404(b). Moreover, this testimony was the only way the government could establish the relationship between Lane and the co-defendant, and that was certainly relevant to the government’s case. Accordingly, the district court correctly found that a “genuine need” for the evidence outweighed any prejudicial effect. (App.61-62).
We have held in numerous cases that evidence of prior criminal activity is admissible under Rule 404(b) to show the relationship between a witness and a defendant. See, e.g., United States v. Butch, 256 F.3d 171 (3d Cir.2001) (allowing witness in pharmaceutical theft case to testify as to defendant’s prior participation in identical theft); see also United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir.1982), cert. denied, 462 U.S. 1134, 103 S.Ct. 3117, 77 L.Ed.2d 1370 (1983) (holding that evidence may be introduced “to provide necessary background information, to show an ongoing relationship between [the defendant and a co-conspirator], and to help the jury understand the co-conspirator’s role in the scheme”).
In addition, the district court gave an appropriate limiting instruction to the jury that minimized the likelihood that the evidence would be considered for an improper purpose. See United States v. Sriyuth, 98 F.3d 739, 748 (3d Cir.1996). Our review is for plain error because Lane did not object to this testimony at trial. United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001), cert. denied, 537 U.S. 821, 123 S.Ct. 100, 154 L.Ed.2d 30 (2002). Given the district court’s limiting instruction, and the relevance of the evidence under Rule 404(b), we find no error at all in admitting this evidence, let alone any “plain error.” The instruction was given both at the time of the testimony, and again before the jury deliberated. There is nothing in the record to suggest that the jury did not understand the instructions or were incapable of following them.
Although Lane cites several cases to support his argument that the instructions were insufficient to overcome the prejudicial effect of the testimony, all of the cases he cites involve situations where there was either no proper purpose for the evidence, or the court simply failed to give any limiting instruction at all. Here, “we believe this is a case where the jury could be expected to compartmentalize the evidence and consider it for its proper purposes.” Sriyuth, 98 F.3d at 748.
II.
For all of the above reasons, we will affirm the judgment of conviction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470774/ | OPINION
PER CURIAM.
Cosme Francisco, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Eastern District of Pennsylvania denying his motion to obtain the docket sheet, plea agreement, plea colloquy, and sentencing transcript from his criminal proceeding without prepayment of fees or costs. We will affirm.
In 2000, Francisco pleaded guilty in District Court to one count of conspiracy to distribute heroin and one count of distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Francisco left the courthouse in 2001 while awaiting sentencing and remained a fugitive until 2008, when he was arrested in New York. In June 2008, the District Court imposed a sentence of 90 months in prison. Francisco did not file a direct appeal. The docu-*829merits related to Francisco’s criminal proceedings were filed under seal.
In January 2009, seven months after he was sentenced, Francisco filed a motion to obtain the docket sheet, plea agreement, plea colloquy, and sentencing transcript in his criminal proceeding without prepayment of fees or costs. He stated that he needed the documents to file a notice of appeal. The District Court denied Francisco’s motion, and this appeal followed.
To the extent Francisco appeals the District Court’s denial of his request for the docket sheet and the plea agreement, the Government has provided these documents to Francisco through the service of its supplemental appendix in this appeal. Thus, any issue with respect to these documents is moot.
The Government states that it does not have the requested transcripts of the plea and sentencing hearings as it never ordered and paid for these documents. The Government argues that the District Court did not err in denying Francisco’s request for these documents at the public’s expense because he had no appeal or collateral petition pending. We agree. While Francisco correctly states that an indigent defendant is entitled to a free trial transcript on appeal, United States v. Brentley, 961 F.2d 425, 426 (3d Cir.1992), Francisco did not file a direct appeal and the time to do so has expired.
The District Court may order that transcripts be provided in proceedings brought pursuant to 28 U.S.C. § 2255 to persons permitted to sue or appeal in forma pau-peris, but the District Court must certify that the motion is not frivolous and that the transcript is needed to decide the issue presented. 28 U.S.C. § 753(f). Francisco did not file a § 2255 motion with his transcript request. Thus, the District Court did not err in denying Francisco’s motion for transcripts. Cf. United States v. MacCollom, 426 U.S. 317, 324-25, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (holding that the statutory conditions of § 753(f) for furnishing a free transcript in § 2255 proceedings are consistent with due process and equal protection).
Accordingly, we will affirm the order of the District Court.1 The Government’s motion to file its supplemental appendix under seal is granted.
. To the extent Francisco seeks to raise an ineffective assistance of counsel claim in his brief, Francisco did not raise such a claim in District Court and the claim is not properly before us. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470632/ | MEMORANDUM **
Xin Yun Sun, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence adverse credibility findings, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based upon Sun’s inconsistent testimony regarding how her second pregnancy was discovered and when she was fired from her job. See id. at 741-43. Although Sun contends that these discrepancies were the result of mental disability, she testified before the IJ that she was healthy and submitted no documentary evidence of mental health problems. Absent credible testimony, Sun’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Sun’s CAT claim is based on the same evidence the agency deemed *356not credible, and Sun points to no additional evidence the agency should have considered regarding the likelihood of torture, we deny the petition as to the CAT claim. See id. at 1157.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470634/ | MEMORANDUM **
Zhora Grigoryan, and his wife, Rima Grigoryan, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying them motion to reopen removal proceedings conducted in absentia. We dismiss in part and deny in part the petition for review.
We lack jurisdiction over petitioners’ contention regarding the IJ’s denial of them motion to reopen absent a hearing transcript because it was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (due process challenges that are procedural in nature must be exhausted).
Petitioners waived any challenge to the agency’s conclusions regarding their ineffective assistance of counsel claim by failing to raise it in their opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470640/ | MEMORANDUM **
Silvestre Jaime Solorio appeals from the 70-month sentence imposed following his guilty-plea conviction for distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(viii). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Solorio contends that there was insufficient evidence to support the district court’s finding that the drug quantity attributable to him exceeded the amount stipulated to in his plea agreement. The district court’s finding regarding the amount of drugs attributable to Solorio was not clearly erroneous. Therefore, we reject Solorio’s argument that there was insufficient evidence to support the district court’s finding that such drug quantity exceeded the amount stipulated to in his plea agreement.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470773/ | OPINION OF THE COURT
McKee, Circuit Judge.
Steven Lane appeals his conviction for conspiracy to interfere with interstate commerce by robbery under 18 U.S.C. § 1951(a). For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this case, we need not recite the factual or procedural history. Lane argues that the district court erred in permitting a government witness to testify about Lane’s involvement in a prior robbery for which he had been neither charged nor convicted. He contends that this testimony was irrelevant and that its probative value was outweighed by its prejudicial effect, and that he is therefore entitled to a new trial under Fed.R.Evid. 404(b). We disagree.
We review the district court’s decision to admit evidence for abuse of discretion. United States v. Butch, 256 F.3d 171, 175 (3d Cir.2001). Rule 404(b) states that while “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith,” such evidence may be used for other purposes. Indeed, such evidence shall be admitted “if relevant for any other purpose than to show a mere propensity or disposition on the part of the defendant to commit the crime.” United States v. Long, 574 F.2d 761, 766 (3d Cir.1978), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978).
In order to be admissible under Rule 404(b), evidence must meet four requirements: (1) it must be offered for a proper purpose; (2) it must be relevant; (3) its probative value must not be substantially outweighed by any unfair prejudicial im*827pact; and (4) the court must properly instruct the jury about the proper use and relevance of the evidence. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). See also United States v. Givan, 320 F.3d 452, 460 (3d Cir.2003).
During argument on the motion to introduce this evidence the government explained that the testimony about the prior robbery was necessary to establish the ongoing relationship of Lane with his co-defendant, the government’s witness. The testimony explained why Lane and the co-defendant trusted each other and were able to accomplish the robbery in question without significant planning. The evidence was therefore relevant to establishing preparation and plan which are appropriate uses of evidence of a defendant’s prior “bad acts” under Rule 404(b). Moreover, this testimony was the only way the government could establish the relationship between Lane and the co-defendant, and that was certainly relevant to the government’s case. Accordingly, the district court correctly found that a “genuine need” for the evidence outweighed any prejudicial effect. (App.61-62).
We have held in numerous cases that evidence of prior criminal activity is admissible under Rule 404(b) to show the relationship between a witness and a defendant. See, e.g., United States v. Butch, 256 F.3d 171 (3d Cir.2001) (allowing witness in pharmaceutical theft case to testify as to defendant’s prior participation in identical theft); see also United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir.1982), cert. denied, 462 U.S. 1134, 103 S.Ct. 3117, 77 L.Ed.2d 1370 (1983) (holding that evidence may be introduced “to provide necessary background information, to show an ongoing relationship between [the defendant and a co-conspirator], and to help the jury understand the co-conspirator’s role in the scheme”).
In addition, the district court gave an appropriate limiting instruction to the jury that minimized the likelihood that the evidence would be considered for an improper purpose. See United States v. Sriyuth, 98 F.3d 739, 748 (3d Cir.1996). Our review is for plain error because Lane did not object to this testimony at trial. United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001), cert. denied, 537 U.S. 821, 123 S.Ct. 100, 154 L.Ed.2d 30 (2002). Given the district court’s limiting instruction, and the relevance of the evidence under Rule 404(b), we find no error at all in admitting this evidence, let alone any “plain error.” The instruction was given both at the time of the testimony, and again before the jury deliberated. There is nothing in the record to suggest that the jury did not understand the instructions or were incapable of following them.
Although Lane cites several cases to support his argument that the instructions were insufficient to overcome the prejudicial effect of the testimony, all of the cases he cites involve situations where there was either no proper purpose for the evidence, or the court simply failed to give any limiting instruction at all. Here, “we believe this is a case where the jury could be expected to compartmentalize the evidence and consider it for its proper purposes.” Sriyuth, 98 F.3d at 748.
II.
For all of the above reasons, we will affirm the judgment of conviction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470775/ | OPINION
PER CURIAM.
Cosme Francisco, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Eastern District of Pennsylvania denying his motion to obtain the docket sheet, plea agreement, plea colloquy, and sentencing transcript from his criminal proceeding without prepayment of fees or costs. We will affirm.
In 2000, Francisco pleaded guilty in District Court to one count of conspiracy to distribute heroin and one count of distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Francisco left the courthouse in 2001 while awaiting sentencing and remained a fugitive until 2008, when he was arrested in New York. In June 2008, the District Court imposed a sentence of 90 months in prison. Francisco did not file a direct appeal. The docu-*829merits related to Francisco’s criminal proceedings were filed under seal.
In January 2009, seven months after he was sentenced, Francisco filed a motion to obtain the docket sheet, plea agreement, plea colloquy, and sentencing transcript in his criminal proceeding without prepayment of fees or costs. He stated that he needed the documents to file a notice of appeal. The District Court denied Francisco’s motion, and this appeal followed.
To the extent Francisco appeals the District Court’s denial of his request for the docket sheet and the plea agreement, the Government has provided these documents to Francisco through the service of its supplemental appendix in this appeal. Thus, any issue with respect to these documents is moot.
The Government states that it does not have the requested transcripts of the plea and sentencing hearings as it never ordered and paid for these documents. The Government argues that the District Court did not err in denying Francisco’s request for these documents at the public’s expense because he had no appeal or collateral petition pending. We agree. While Francisco correctly states that an indigent defendant is entitled to a free trial transcript on appeal, United States v. Brentley, 961 F.2d 425, 426 (3d Cir.1992), Francisco did not file a direct appeal and the time to do so has expired.
The District Court may order that transcripts be provided in proceedings brought pursuant to 28 U.S.C. § 2255 to persons permitted to sue or appeal in forma pau-peris, but the District Court must certify that the motion is not frivolous and that the transcript is needed to decide the issue presented. 28 U.S.C. § 753(f). Francisco did not file a § 2255 motion with his transcript request. Thus, the District Court did not err in denying Francisco’s motion for transcripts. Cf. United States v. MacCollom, 426 U.S. 317, 324-25, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (holding that the statutory conditions of § 753(f) for furnishing a free transcript in § 2255 proceedings are consistent with due process and equal protection).
Accordingly, we will affirm the order of the District Court.1 The Government’s motion to file its supplemental appendix under seal is granted.
. To the extent Francisco seeks to raise an ineffective assistance of counsel claim in his brief, Francisco did not raise such a claim in District Court and the claim is not properly before us. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470641/ | MEMORANDUM **
Filiberto Vega Enriquez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004), and we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying Vega Enriquez’s motion to reopen *362because he did not demonstrate prima fa-cie eligibility for relief under the Convention Against Torture. See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.2003) (“prima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen”).
Because Vega Enriquez’s evidence regarding educational hardship pertained to the same hardship grounds previously considered by the agency in connection with the denial of cancellation of removal, we lack jurisdiction to review this aspect of the denial of the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 600-03 (9th Cir.2006). To the extent Vega Enriquez’s motion to reopen rests upon hardship grounds distinct from those previously considered by the agency, we have jurisdiction. See id. at 601-03. We conclude the BIA acted within its broad discretion in determining both the hardship evidence and the alleged due process violations were insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470643/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
PER CURIAM:
This appeal arises from a Chapter 11 bankruptcy proceeding in which James Lehner and Suzanne Lehner, the putative owners of the debtor corporation, United Refuse, LLC (“United Refuse”), were directed to convey legal title of United Refuse to its creditor, United Leasing Corporation (“ULC”). Dissatisfied with that result, the Lehners sought to appeal. However, counsel for the Lehners filed a notice of appeal solely in the name of United Refuse before the bankruptcy court and filed the appeal against ULC in the Eastern District of Virginia. Following a stipulation between United Refuse and ULC to dismiss the bankruptcy appeal, the district court denied the Leh-ners’ motion to substitute themselves for United Refuse and dismissed the matter for lack of jurisdiction. We now affirm the district court’s disposition of the bankruptcy appeal.
*428I.
The underlying factual dispute in this bankruptcy appeal pertains to the Leh-ners’ ownership interests in United Refuse.1 On April 30, 2004, United Refuse filed a complaint against ULC in bankruptcy court to determine the validity, priority, and extent of certain liens. ULC subsequently asserted a counterclaim against United Refuse regarding the true ownership of United Refuse, and joined the Lehners as counterclaim defendants. On October 7, 2004, the parties stipulated that the Lehners would be dismissed without prejudice and agreed that the Lehners “will be personally bound by the Court’s determination of this matter and will respond to and participate in discovery in the same manner and to the same extent as they would be required to do if they were parties named to this suit.” J.A. 104. This stipulation was executed by counsel for United Refuse and counsel for ULC, and individually by James Lehner, Suzanne Lehner, and Edward Shield, the controlling shareholder of ULC.
Following a trial, the bankruptcy court held a hearing on March 14, 2005, and announced that the Lehners only held legal title to United Refuse for the benefit of ULC and directed the Lehners to “execute such documents as necessary to convey legal title to [ULC] which is the sole beneficial owner.... ” J.A. 45; J.A. 5. The bankruptcy court then advised the Leh-ners, who were present, that “you have heard the judgment of the Court and you have heard your counsel. You have the right of appeal.” J.A. 74. That same day, the bankruptcy court issued an order memorializing the above-made findings and stating that, in accordance with the executed stipulation, the Lehners “are fully bound by this order the same as if they were parties to this action.” J.A. 6.
On March 24, 2005, counsel for the Leh-ners, Steven S. Biss, filed a notice of appeal in the name of United Refuse against ULC in the bankruptcy court. The notice bore two captions: “In re: United Refuse LLC, Debtor” and “United Refuse LLC, Plaintiff, v. United Leasing Corporation, Defendant.” J.A. 82. In addition, the only parties named within the notice of appeal were United Refuse and ULC.
On May 9, 2005, Biss, apparently at the direction of the Lehners, filed an appellate brief solely in the name of United Refuse before the district court, seeking to reverse the ownership determination rendered by the bankruptcy court. The brief set out a host of issues related to the true ownership of United Refuse. Specifically, the brief challenged the bankruptcy court’s determination that the Lehners only held bare legal title for the benefit of ULC.
That same day, counsel for United Refuse and ULC executed a joint stipulation dismissing the bankruptcy appeal. The stipulation represented that Biss was not “counsel for United Refuse and has no right, authority, or even color of authority *429to prosecute an action on behalf of United Refuse.” J.A. 95. According to the stipulation, counsel for United Refuse attested that in conducting his fiduciary duties, he reviewed the issues presented by Biss, but concluded that there was neither any basis for the appeal nor any conceivable benefit to the estate by the prosecution of the appeal. On June 3, 2005, Biss, acting on behalf of the Lehners, filed an opposition to the stipulation of dismissal and sought to substitute the Lehners for United Refuse in the bankruptcy appeal.2
On July 6, 2005, the district court denied the Lehner’s motion to strike the dismissal of appeal and motion to substitute the parties on appeal. In addition, the district court dismissed the appeal for lack of subject matter jurisdiction because the Lehners had not identified themselves as appellants in the notice of appeal. The Lehners now appeal both the dismissal of the appeal and the denial of their motion to substitute themselves for United Refuse as parties on appeal.
II.
A.
The Lehners first challenge the district court’s dismissal of the bankruptcy appeal based on lack of subject matter jurisdiction. Specifically, the Lehners assert that the notice of appeal sufficiently identified them as appellants for the purposes of Federal Rule of Bankruptcy Procedure 8001(a). In dismissing the appeal, the district court reasoned that the notice of appeal failed to name the Lehners as appellants, to express the Lehners’ intent to appeal, or to establish privity between the Lehners and United Refuse, thereby rendering their appeal unperfected. For these reasons, the district court confined the notice of appeal to United Refuse, the only party explicitly asserted as the appellant, and determined that it lacked jurisdiction to adjudicate the Lehners’ appeal. We agree with the reasoning of the district court.
1.
We apply de novo review to the district court’s dismissal of the bankruptcy appeal for lack of subject matter jurisdiction. See Welch v. United States, 409 F.3d 646, 650 (4th Cir.2005).
2.
This appeal causes us to consider two distinct procedural rules governing the sufficiency of notices of appeal: Federal Rule of Bankruptcy Procedure 8001(a), which specifically governs notices of appeal related to bankruptcy appeals to the district courts, and Federal Rule of Appellate Procedure 3(c), which generally governs notices of appeal. Rule 8001(a) provides, in relevant part:
The notice of appeal shall (1) conform substantially to the appropriate Official Form, (2) contain the names of all parties to the judgment, order, or decree appealed from and the names, addresses, and telephone numbers of their respective attorneys, and (3) be accompanied by the prescribed fee.
Bankr.R. 8001(a). The accompanying advisory committee notes further explain that Rule 8001 “require[s] that a notice of appeal be filed whenever a litigant seeks to secure appellate review.” Bankr.R. 8001 advisory committee notes.
Rule 3(c) provides that a notice of appeal must “specify the party or parties taking *430the appeal by naming each one in the caption or the body of the notice, but an attorney representing more than one party may describe those parties with such terms as ‘all parties,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.’ or ‘all defendants except X.’ ” Fed. R.App. P. 3(c)(1)(A). As detailed in the advisory committee notes, the rule reflects a liberalized pleading standard in response to Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988),3 which held that a party’s failure to comply strictly with the specificity requirement of Rule 3(c) forfeits its right to appeal. In particular, the advisory committee notes explain:
The amendment states a general rule that specifying the parties should be done by naming them. Naming an appellant in an otherwise timely and proper notice of appeal ensures that the appellant has perfected an appeal. However, in order to prevent the loss of a right to appeal through inadvertent omission of a party’s name or continued use of such terms as “et al.,” which are sufficient in all district court filings after the complaint, the amendment allows an attorney representing more than one party the flexibility to indicate which parties are appealing without naming them individually. The test established by the rule for determining whether such designations are suffi-dent is whether it is objectively clear that a party intended to appeal. A notice of appeal filed by a party proceeding pro se is filed on behalf of the party signing the notice and the signer’s spouse and minor children, if they are parties, unless the notice clearly indicates a contrary intent.... Finally, the rule makes it clear that dismissal of an appeal should not occur when it is otherwise clear from the notice that the party intended to appeal. If a court determines it is objectively clear that a party intended to appeal, there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward.
Fed. R.App. P. 3(c) advisory committee notes (emphases added).
The considerable overlap between the two rules raises significant issues regarding the degree of specificity and formal compliance required in identifying appellants in notices of appeal. Yet the rules themselves provide little insight into that relationship, particularly since Rule 8001 directs appellants to “name[ ]” themselves and is otherwise silent as to the formality of pleading, whereas Rule 3(c) directs appellants to “specify” themselves in the notice of appeal and permits liberal pleading. See Fadayiro v. Ameriquest Mortgage Co., 371 F.3d 920, 921 (7th Cir.2004) (“The two *431rules governing notices of appeal differ mysteriously.”). Not surprisingly, the courts of appeals have not fully converged as to whether Rule 3(c) is coextensive with Rule 8001(a) or altogether inapplicable in the bankruptcy context. See id. (holding that Rule 8001(a), rather than Rule 3(c), applies to notices of appeal from bankruptcy court decisions); In re Cascade Roads, Inc., 34 F.3d 756, 761 (9th Cir.1994) (holding that Rule 8001(a), not Rule 3(c), applies to notices of appeal from bankruptcy court decisions); Case, 937 F.2d at 1021 (exclusively applying Rule 8001(a)); cf. In re Continental Airlines, 125 F.3d 120, 128-29 (3d Cir.1997) (applying Rule 3(c) to notice of appeal from bankruptcy decision); Storage Technology Corp. v. United States District Court, 934 F.2d 244, 247-48 (10th Cir.1991) (applying the pre-1993 Amendments version of Rule 3(c) in interpreting Rule 8001(a) and concluding that “the failure to specifically designate a party somewhere in the notice of appeal is a jurisdictional bar to that party’s appeal”), superseded by rule on other grounds, Fed. R.App. 3(c), as recognized in Dodger’s Bar & Grill, Inc. v. Johnson County Bd. of County Comm’rs, 32 F.3d 1436, 1440 (10th Cir.1994).4
We need not determine the applicability of Rule 3(c) or its rationale because, as the district court concluded, the Lehners have failed to satisfy the requirements of either Rule 8001(a) or Rule 3(c). Under Rule 8001(a), the Lehners concede that they failed to name themselves as parties in the appeal, but contend that the rule only applies to the parties extant at the time the bankruptcy court rendered its decision. However, this argument flies in the face of the uncontested facts that (1) the Lehners had been originally named as counterclaim defendants in the underlying bankruptcy proceeding; and (2) they executed a stipulation, which bound them to the bankruptcy’s ultimate determination of the ownership of United Refuse — the very issue they now seek to raise on appeal. Significantly, the Lehners were dismissed without prejudice from the action solely pursuant to the stipulation, which provided that the Leh-ners “will be personally bound by the Court’s determination of this matter and will respond to and participate in discovery in the same manner and to the same extent as they would be required to do if they were parties named to this suit.” J.A. 104 (emphasis added). As a result, the Lehners’ forbearance in exercising their right to litigate the ownership dispute does not undermine the bankruptcy court’s determination of that issue in light of their explicit agreement to be bound.5 *432Moreover, the bankruptcy court specifically apprised the Lehners of their right to appeal the ownership determination. For these reasons, we conclude that the Leh-ners, as litigants in the underlying action and parties bound to the challenged ownership decision, failed to comply with the pleading requirements of Rule 8001(a) in asserting their appeal.
Nor can the Lehners seek refuge in Rule 3(c) and its liberalized pleading standard. The notice of appeal bore two captions — “In re: United Refuse LLC, Debt- or” and “United Refuse LLC, Plaintiff, v. United Leasing Corporation, Defendant”— and exclusively designated United Refuse and ULC as the parties on appeal. Nowhere did the Lehners name themselves in any capacity. Indeed, the Lehners’ counsel, Biss, solely identified himself as counsel for “Appellant, United Refuse LLC” in filing the notice of appeal and the appellate brief. Furthermore, the notice of appeal failed to contain any signifiers such as “all the parties, et ah,” or “the plaintiffs” that would indicate that parties other than United Refuse and ULC were implicated in the appeal. Cf Dodger’s Bar & Grill, 32 F.3d at 1440 (holding that designation of additional plaintiffs as “et al.” and “other individually-named plaintiffs” was sufficient to satisfy Rule 3(c)); see also Fadayiro, 371 F.3d at 922 (finding compliance where the appellant solely identified one defendant in the notice of appeal, but appended the names of the remaining defendants to the notice of appeal). From the face of the notice of appeal itself, we are hard pressed to conclude, by any stretch of the imagination, that the Lehners specified themselves as appellants, or that it was “objectively clear” that the Lehners intended to appeal.
The Lehners nevertheless contend that the totality of the circumstances demonstrates that they intended to appeal. In effect, the Lehners request this Court to infer that they were the real parties in interest for the purposes of the appeal. We decline to make that assumption because in the bankruptcy context, as the Seventh Circuit has observed, not all parties to a bankruptcy decision will necessarily be involved in the appeal:
A bankruptcy will often spawn multiple subproceedings. Whereas in normal civil litigation it can be safely assumed that everyone who is not an appellant must be an appellee, that is not a safe assumption in bankruptcy. Many parties will be bystanders to a particular adversary proceeding, or other subpro-ceedings, that has given rise to the appeal. It is therefore important that the notice of appeal name the appellees.
Fadayiro, 371 F.3d at 922. Thus, even if Rule 3(c) applied in this context, the Leh-ners have failed to meet its pleading standard.6
*433In sum, the Lehners, as parties bound by the bankruptcy court’s challenged decision, were required to name themselves as appellants in accordance with Rule 8001(a). We further conclude that the Lehners’ failure to do so was not the result of clerical mistake or inartful pleading under either Rule 8001(a) or Rule 3(c). Accordingly, we affirm the district court’s dismissal of the bankruptcy appeal.
B.
The Lehners alternatively assert that the district court abused its discretion in denying their motion to substitute themselves for United Refuse as parties to the appeal. The district court denied the motion without comment. We perceive no error in the district court’s decision.
1.
We review the district court’s denial of the Lehners’ motion to substitute themselves for United Refuse in prosecuting the bankruptcy appeal for abuse of discretion. See Esposito v. United States, 368 F.3d 1271, 1273 (10th Cir.2004) (internal citations omitted).
2.
Rule 17(a) of the Federal Rules of Civil Procedure provides, in relevant part:
No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
Fed.R.Civ.P. 17(a). On appeal, the Leh-ners simply assert that denial was inappropriate because they are the real parties in interest and that justice can only be served if the appeal is permitted to proceed. However, because the Lehners failed to raise these arguments before the district court, we deem them waived on appeal. In re Wallace and Gale Co., 385 F.3d 820, 835 (4th Cir.2004) (failure to raise argument before the district court results in a waiver of that argument on appeal “absent exceptional circumstances”). Accordingly, we affirm the district court’s disposition of the motion.
III.
The district court’s dismissal of the bankruptcy appeal and denial of the motion to substitute parties is affirmed in its entirety.
AFFIRMED
. ULC is a business that provides equipment financing through leases to commercial customers. According to ULC, one of its clients, Garcia's, Inc. ("Garcia's”), a trash removal service, defaulted on its loan payments. ULC subsequently seized Garcia's assets, voted out Garcia’s then-owners, and established United Refuse to operate Garcia's assets.
The articles of incorporation filed for United Refuse originally did not name an owner. However, by July 2002, the articles of incorporation were amended to identify the Leh-ners as the 100% owners of United Refuse. According to ULC, United Refuse was solely intended "to act as a workout vehicle for the assets leased to Garcia's and the collateral security given by Garcia’s for those leases.” J.A. 157. Moreover, ULC asserts that the Lehners only held legal title of United Refuse for the benefit of ULC, and that ultimately, the Lehners intended to steal United Refuse from ULC.
. Meanwhile, the Lehners quitclaimed their ownership interests in United Refuse and conveyed legal title to ULC on May 19, 2005.
. Unlike Rule 8001(a), which has enjoyed a relatively sparse legislative history, Rule 3(c)(1)(A) was recently amended in 1993 to its present form following Torres. Torres held that Rule 3(c)'s specificity requirement — i.e., that a notice of appeal "shall specify the party or parties taking the appeal” — is a strict jurisdictional threshold, notwithstanding Rule 3(c)'s additional language indicating that "an appeal shall not be dismissed for informality of form or title of the notice of appeal.” Torres, 487 U.S. at 314, 108 S.Ct. 2405. In so holding, the Supreme Court reasoned that "[t]he failure to name a party in a notice of appeal is more than excusable 'informality'; it constitutes a failure of that party to appeal.” Id. at 314, 108 S.Ct. 2405; see also In re Case, 937 F.2d 1014, 1021 (5th Cir.1991) ("Rule 3(c) is jurisdictional in nature and the failure to comply with its specificity requirement invokes a strict rule of forfeiture which denies an individual party's right to appeal.”). However, due to the heavy onset of "satellite litigation” spawned from Torres’s admittedly harsh result, the 1993 Amendments permit an "attorney representing more than one party the flexibility to indicate which parties are appealing without naming them individually.” Fed. R.App. P. 3(c) advisory committee notes.
. Indeed, according to the Seventh Circuit, the fact that Rule 8001(c) does not contain the specificity requirement casts doubt over whether a failure of absolute compliance with the rule even constitutes a jurisdictional defect as defined by Torres. See Fadayiro, 371 F.3d at 922 (rejecting rule that failure to comply with Rule 8001(a) is a jurisdictional defect and remarking that ''[n]othing in the history of the rule, the case law, the treatises, the discussion by the district judge, or the appellees' brief suggests that such dire, irrevocable consequences should flow from the difference in wording between Fed. R.App. P. 3(c) and Bank. R. 8001(a), significant as that difference is”); Case, 937 F.2d at 1021 (stating that the wording of Rule 8001 and Rule 3(c) is "materially different”).
. We further note that the other cases cited by the parties stand for the limited proposition that counsel for appellants need not name itself as a party because of the close privity between counsel and client in conducting litigation. Miltier v. Downes, 935 F.2d 660, 663 n. 1 (4th Cir.1991) (reviewing sanctions award against appellant's counsel even though the notice of appeal did not name counsel because counsel was the "only party adversely affected by the court's ruling,” to the extent that there was no "risk of ambiguity or confusion”); Case, 937 F.2d at 1021 (holding that the district court properly re*432viewed attorney's fees awarded against appellant’s counsel even though the notice did not specifically list counsel as an "appellant” because an attorney is not a "litigant” who must be listed under Rule 8001); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Associated Contractors, Inc., 877 F.2d 938, 939 n. 1 (11th Cir.1989) (entertaining jurisdiction over counsel's appeal from fee award imposing joint and several liability on the appellant and its counsel based on the "close privity between a lawyer and his client with respect to the conduct of litigation”). Here, there is no indication of any relationship between the Lehners and United Refuse beyond their claims of putative ownership over United Refuse. See G.E. Smith & Assocs., Inc. v. Otis Elevator Co., 608 F.2d 126, 127 (5th Cir.1979) (dismissing appeal asserted only by one co-plaintiff because the co-plaintiffs were "not one and the same but are different entities in contract with another, one as owner and the other as party to do construction work”).
. The Lehners’ assertion that a cover letter attached to the notice of appeal identified *433them as appellants was never presented to the district court. Nor was the letter included in the appellate record. Therefore, we decline to consider this argument on appeal.
In addition, because we find that the Leh-ners have failed to satisfy the liberalized pleading standard of Rule 3(c), we cannot waive its jurisdictional requirements even in the face of “good cause.’’ Torres, 487 U.S. at 317, 108 S.Ct. 2405. Thus, we cannot notice the Lehners' equitable concerns — i.e., that they are now precluded from raising an appeal — in waiving the requirements of Rule 3(c). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470644/ | MEMORANDUM *
The appellants, former members of the California Public Utilities Commission *582(“Commission”), appeal the district court’s dismissal of their appeal of the bankruptcy-court’s order confirming a settlement agreement (“Settlement Agreement”) between the Commission and Pacific Gas and Electric Company (“PG & E”) in PG & E’s bankruptcy case. We do not reach the merits of the appeal.
While the appeal was pending, the appellants’ terms on the Commission expired. In light of this circumstance and the representations made by the appellees to this court, the Settlement Agreement results in no current adverse effects upon the appellants. Because none of the appellants’ claims presently give rise to a “live case or controversy,” the appeal must be dismissed for lack of jurisdiction. See Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 989 (9th Cir.1999).
As the appellants are no longer commissioners, they are not entitled to seek relief on the claims that the Settlement Agreement impairs their ability to perform their official duties. See Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999). Furthermore, because the Commission has represented to this court that it will not seek any money damages or sanctions, or bring or entertain any administrative charges, against the appellants as a result of any matter involving, arising out of, or relating to the bankruptcy proceedings involving PG & E, or seek an award of attorneys’ fees against the appellants or their counsel in connection with these proceedings for any act or omission that occurred before March 2, 2006, the appellants do not face any “continuing, present adverse effects” as a result of the Settlement Agreement. See Jacobus v. Alaska, 338 F.3d 1095, 1102 (9th Cir.2003) (internal quotation marks omitted). Therefore, with respect to the personal liability issue, they no longer have a legally cognizable interest in the outcome of the appeal. See id. Finally, the appellants’ potential claims for damages against their former colleagues and lawyers do not create a live case or controversy because they do not clearly arise out of the Settlement Agreement. See Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“[T]he mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III.” (emphasis added)).
When a civil case becomes moot during the course of an appeal, “ ‘the established practice ... in the federal system ... is to reverse or vacate the judgment below and remand with a direction to dismiss.’ ” Arizonans for Official English v. Ariz., 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (alteration in original) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). Vacatur is particularly appropriate when, as here, “mootness occurs through happenstance — circumstances not attributable to the parties.” Id. Accordingly, we vacate the judgment below and remand to the district court with instructions to dismiss the action as moot.
VACATED AND REMANDED WITH INSTRUCTIONS.
This disposition is not appropriate for publication and may not be cited to or by the courts *582of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470647/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief, supplement thereto, and appendix filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 12, 2009, be affirmed. It was appropriate for the district court to dismiss for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1), to the extent appellant alleged a due process right to an investigation conducted by a federal inspector general. See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief.”); cf. SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984) (due process rights are “not implicated ... because an administrative investigation adjudicates no legal rights”) And while appellant also alleged negligence by prison officials for failing to protect him from inmate attack, even assuming that might constitute a Bivens action, but see Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (negligent acts of officials that result in unintended injury to property do not amount to due process violations), dismissal was nonetheless appropriate because appellant did not exhaust his administrative remedies. See Munsell v. Department of Agriculture, 509 F.3d 572, 591 (D.C.Cir.2007), citing Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (under PLRA, “federal prisoners suing under [Bivens] must first exhaust inmate grievance procedures”).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470648/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 12, 2009, 2009 WL 350648, be affirmed. The district court properly dismissed the complaint without prejudice as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), because its “factual contentions are clearly baseless.” See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470652/ | SUMMARY ORDER
Plaintiff-Appellant Russell D. Palmer appeals from a judgment of the district court granting Defendants-Appellees’ motion to dismiss based on the so-called “three strikes” provision of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues on appeal.
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [the in forma pauperis statute] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g); see also Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir.2002).
“The district court’s decision that a certain type of dismissal constitutes a ‘strike’ for purposes of § 1915(g) is an interpretation of a federal statute ... which [this Court] review[s] de novo.” Tafari v. Hues, 473 F.3d 440, 442 (2d Cir.2007) (quotation marks omitted) (alteration in original). The parties agree that the dismissal in Palmer v. Alvarez, No. 05 Civ. 3258, for failure to state a claim, constitutes a strike under Section 1915(g). The parties dispute whether Palmer’s filing of three cases on or about July 24, 2001, that were later consolidated by the district court and dismissed for failure to state a claim, qualify as one strike or three strikes. The district court here ruled that the dismissal of three separately filed cases, though consolidated, qualified as three strikes.
For purposes of determining whether a strike has occurred, Section 1915(g) focuses the inquiry on the prisoner’s act of bringing an action or appeal “that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim.” 28 U.S.C. § 1915(g). The focus on the prisoner’s litigation activity is consistent with the objectives of the PLRA. See Tafari, 473 F.3d at 443 (“ ‘Congress adopted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner lawsuits and appeals.’ ”) (quoting Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997)). The relevant acts in this case are Palmer’s three separate filings *656that were each dismissed for failure to state a claim. These cases constitute three “prior occasions” where Palmer has “brought” actions dismissed for failure to state claim. 28 U.S.C. § 1915(g). Accordingly, the dismissals count as three strikes. The court’s act of consolidating the three cases did not convert the dismissals into a single strike. Cf. Cole v. Schenley Industries, Inc., 563 F.2d 35, 38 (2d Cir.1977) (“Consolidation under Rule 42(a) is a procedural device designed to promote judicial economy, and consolidation cannot effect a merger of the actions or the defenses of the separate parties.” (citation omitted)). Because we conclude Palmer has at least four strikes under Section 1915(g), we need not address whether other cases he filed in the past constitute strikes.
Palmer also argues that his Section 1983 complaint here satisfies the “imminent danger” exception. See 28 U.S.C. § 1915(g). Palmer’s allegations relate to injuries resulting from his drinking contaminated water and receiving inadequate care for those injuries during his incarceration at the Green Haven Correctional Facility. By the time he filed the complaint, Palmer had been transferred to the Otis-ville Correctional Facility, and was thus removed from the alleged danger of drinking contaminated water. Moreover, the complaint acknowledges that Palmer has received care at Otisville. See Malik, 293 F.3d at 562-63 (holding that an imminent danger must exist at the time the complaint is filed for the exception to apply). We find that Palmer fails to adequately allege an “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470654/ | SUMMARY ORDER
Defendant Jose Mena appeals from a judgment of conviction entered on January 30, 2008, following his plea of guilty to unlawfully dealing in firearms, in violation of 18 U.S.C. § 922(a)(1)(A), and conspiring to engage in the business of unlawfully dealing in firearms, in violation of 18 U.S.C. §§ 371 and 922(a)(1)(A) (together, the “Firearms Counts”), and his separate plea of guilty to failing to appear for his Court-ordered sentencing, in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(ii) (the “Bail Jumping Count”). Mena was sentenced principally to concurrent terms of twenty-four months’ imprisonment on the *658Firearms Counts, and nine months’ imprisonment on the Bail Jumping Count, to be served consecutively to the twenty-four month terms. We assume the parties’ familiarity with the facts and procedural history of the case.
We review defendant’s sentence for reasonableness, “a deferential standard limited to identifying abuse of discretion.” United States v. Jones, 531 F.3d 163, 170 (2d Cir.2008). This “review proceeds in two steps: first, we must ensure that the district court committed no significant procedural error, and second, if we find the sentence to be procedurally sound, we must take into account the totality of the circumstances and consider the substantive reasonableness of the sentence.” Id. (internal quotation marks omitted).
Mena challenges the district court’s guidelines calculation in two ways. First, he argues that the district court erred by imposing an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). Specifically, Mena contends (a) that the enhancement is unconstitutionally vague, (b) that the evidence did not support the application of the enhancement, and (c) that the court applied the enhancement without holding a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978), or otherwise engaging in meaningful fact-finding. These arguments are without merit. The enhancement of § 2K2.1(b)(5) applies if the defendant “knew or had reason to believe that [his] conduct [of transporting, transferring, or otherwise disposing of two or more firearms to another individual] would result in the transport, transfer, or disposal of a firearm to an individual ... [w]ho intended to use or dispose of the firearm unlawfully.” U.S.S.G. § 2K2.1, application note 13, subsection (A)(ii). Assuming that the Sentencing Guidelines are subject to an attack on unconstitutional vagueness grounds, something we have never decided, see United States v. Savin, 349 F.3d 27, 38 (2d Cir.2003), the enhancement at issue here is not unconstitutionally vague. As applied in this case, the language of § 2K2.1(b)(5) and its application note provides a person of ordinary intelligence a reasonable opportunity to know what is prohibited. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); United States v. Jae Gab Kim, 449 F.3d 933, 943 (9th Cir.2006) (observing that “reasonable cause to believe” is a scienter requirement that mitigates the risk that a law is vague). In this case, we find no clear error in the court’s finding that “the circumstances [of the offense conduct] indicate by a preponderance of the evidence that [Mena] knew or had reason to believe that his delivery of the firearms was to someone or people who intended to use or dispose of the firearms unlawfully,” where Mena twice delivered guns in a plastic bag in exchange for cash on a street in Manhattan. See United States v. Mitchell, 328 F.3d 77, 83 (2d Cir.2003); United States v. Martin, 78 F.3d 808, 812-13 (2d Cir.1996). That the court acknowledged uncertainty regarding whether Mena actually had such knowledge or reason to believe does not preclude the conclusion that a preponderance of the evidence supported the fact. As the district court aptly observed, the preponderance of the evidence standard does not require “proof that is free from uncertainty.” Finally, because Mena was afforded an opportunity to rebut the government’s allegations, including a specific invitation for Mena to present testimony on the issue, the district court appropriately applied the enhancement without conducting a Fatico hearing. See United States v. Guang, 511 F.3d 110, 122 (2d Cir.2007) (“The district court is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-*659blown evidentiary hearing in resolving sentencing disputes. All that is required is that the court afford the defendant some opportunity to rebut the Government’s allegations.” (internal quotation marks omitted)).
Mena’s second argument is that the district court erred by failing to give him a minor role adjustment, where he merely delivered the guns and collected payments as instructed by his brother-in-law, but showed no initiative. But while Mena’s role as a courier may have been minor relative to the role of his co-conspirators, it nonetheless may have been “importan[t] ... to the success of the venture” and may not be minor “as compared to the average participant in such a crime.” United States v. Carpenter, 252 F.3d 230, 234-35 (2d Cir.2001) (internal quotation marks omitted); see United States v. Garcia, 920 F.2d 153, 154-55 (2d Cir.1990) (per curiam) (observing that couriers “are indispensable to the smuggling and delivery of drugs and their proceeds” and upholding denial of a minor role adjustment to courier). Thus, we find no clear error in the court’s finding that Mena was not entitled to a minor role adjustment.
Finally, we conclude that Mena’s sentence is substantively reasonable.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470656/ | SUMMARY ORDER
Plaintiff-Appellant Jacob Ancheril appeals from a judgment of the United States District Court for the District of Connecticut (Janet C. Hall, Judge) granting summary judgment against him in his suit against the Connecticut Department of Mental Retardation, alleging violations of his rights pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Ancheril v. State of Ct., No. 3:06-cv-1019, 2008 WL 2324130, 2008 U.S. Dist. LEXIS 43207 (D.Conn. May 30, 2008). We affirm.
We assume the parties’ and counsel’s familiarity with the facts and procedural history of this case, and the issues presented on this appeal.
We agree with the district court that-Ancheril has not properly presented any disputed issue of material fact that would foreclose summary judgment as to his claims that he was discriminated against, see Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir.2008), or otherwise subjected to a hostile work environment, see Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007).
As to Ancherü’s claims of retaliation, Ancheril claims that he engaged in protected activity by (1) filing a written complaint with the Department of Mental Retardation’s Affirmative Action Office on March 23, 2004, (2) filing a complaint with the Connecticut Commission on Human Rights & Opportunities (“CCHRO”) on May 27, 2004, and (3) complaining to the Farmington Police Department more than once in 2004. We assume that the police complaints, like the other complaints, can constitute protected activity, see, e.g., Worth v. Tyer, 276 F.3d 249, 265 (7th Cir.2001) (“A plaintiff that reports ... conduct [prohibited by Title VII] to the police clearly ‘opposes’ it within the meaning of 42 U.S.C. § 2000e-3(a).”), and that being placed on administrative leave and required to undergo a psychiatric examination would “ ‘dissuade a reasonable worker from making or supporting a charge of discrimination,’ ” Patane, 508 F.3d at 116 *661(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Nonetheless, under the circumstances presented by this case, no reasonable factfinder could conclude that Ancheril “had a good faith, reasonable belief that [by filing the police complaints] he was opposing an employment practice made unlawful by Title VII.” McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir.2001) (emphasis added). With regard to the administrative and CCHRO complaints, we conclude that An-cheril failed to establish a causal connection between those protected activities and the adverse employment actions of which he complains. See Clark County School District v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).
For the foregoing reasons, the judgment is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470658/ | SUMMARY ORDER
Plaintiff-appellant John Valentin appeals from a judgment of the district court, entered following a jury verdict in favor of defendants-appellees, that found police officers did not use excessive force in their arrest of Valentin. We assume the parties’ familiarity with the facts of the case, its procedural history, and the issues on appeal.
Valentin challenges the district court’s denial of his motion to preclude the defense expert’s testimony based on Federal Rule of Civil Procedure 37(c). A district court’s decision whether to sanction a party pursuant to Rule 37 is reviewed for abuse of discretion. See Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir.2006). Rule 37(c) provides that a party who “fails to ... identify a witness as required by Rule 26(a) or (e) ... is not allowed to use that ... witness to supply evidence ... at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). However, Rule 37(c)(1) allows a district court, “instead of this sanction,” to “impose other appropriate sanctions.” Id; see also Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir.2006). The district court recognized that defendants’ late disclosure of their expert violated its expert discovery deadline. But rather than preclude the testimony, the court opted to impose the lesser sanction of requiring defendants to produce their expert for a deposition at Valentin’s request. The court’s decision to impose a less drastic sanction than preclusion was within its discretion. It was Valentin’s choice to decline the opportunity to take the deposition prior to the expert’s offering his testimony at trial.
*663Valentin next argues that the district court’s admission of the defense expert’s testimony on the cause of his ankle fracture was an abuse of discretion because the testimony of the expert, an orthopedist, was unreliable. The district court is “assigned] ... the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merill Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). However, Valentin did not raise any objection to admission of the defense expert’s testimony before the district court as required by Fed.R.Evid. 103(a)(1). We therefore consider this argument waived. See, e.g., Baker v. Dorfman, 239 F.3d 415, 423 (2d Cir.2000) (holding that an argument not raised below is ordinarily waived); cf. Nimely v. City of New York, 414 F.3d 381, 397 n. 12 (2d Cir.2005) (concluding that the plaintiff did not waive his Datibert challenges because he brought a “motion in limine [that] clearly raised the issues both of [the expert’s] qualification ... and of the scientific reliability of the testimony itself’). While we are permitted, even in the absence of objection, to “tak[e] notice of plain errors affecting substantial rights,” Fed.R.Evid. 103(d), Valentin’s objections, which go to the credibility rather than the admissibility of the defense expert’s testimony, do not persuade us that it was plain error, or indeed error at all, for the district court to allow the testimony.
At oral argument, Valentin withdrew his appeal of the denial of his Rule 50 motion. Valentin argues that the district court erred in denying his Rule 59 motion. We review an order denying or granting a Rule 59 motion for a new trial for abuse of discretion. Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 82 (2d Cir.2006). We have stated that an attorney’s arguments during summation will warrant a new trial “only if counsel’s conduct created undue prejudice or passion which played upon the sympathy of the jury.” Matthews v. CTI Container Transp. Int’l Inc., 871 F.2d 270, 278 (2d Cir.1989). There is no basis for concluding that defense counsel’s references to Valentin’s prior convictions, which Valentin readily discussed in his own testimony and to which Valentin offered no objection at the time, created undue prejudice or passion that inflamed the jury. We have considered Valentin’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470664/ | SUMMARY ORDER
Petitioner Quan Guan Gao, a native and citizen of the People’s Republic of China, seeks review of the October 30, 2007 order of the BIA, affirming the October 17, 2006 *667decision of Immigration Judge (“IJ”) Sandy K. Horn denying his motion to reopen. In re Quan Guan Gao, No. A072 473 623 (B.I.A. Oct. 30, 2007), aff'g No. A072 473 623 (Immig. Ct. N.Y. City Oct. 17, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Gao’s untimely and number-barred motion to reopen.
Gao argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time and numerical limitation for filing his motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely and number-barred motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Gao’s argument that the BIA engaged in improper fact-finding in relying on its prior evaluation of the Guo documents is similarly without merit. See Jian Hui Shao, 546 F.3d at 169. The BIA reviewed the record on appeal, and relying on its prior evaluation of similar documents in Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), acted well within its authority to conclude that Gao had not established changed country conditions. See 8 C.F.R. § 1003.1(d)(3)(ii); see also Jian Hui Shao, 546 F.3d at 169.
Finally, we find no merit to Gao’s argument that the time and numerical limitations applicable to motions to reopen do not apply to his motion because the underlying removal order was issued in absentia. See Alrefae v. Chertoff, 471 F.3d 353, 357-58 (2d Cir.2006) (discussing the difference between motions to rescind an in absentia order and motions to reopen based on changed country conditions). To the extent that the BIA failed to consider this argument, we find that remand would be futile because we can confidently predict that it would again deny Gao’s motion to reopen on the same grounds. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470776/ | OPINION
PER CURIAM.
Stephen Beightler, proceeding pro se, appeals from the order of the United States District Court of New Jersey granting the defendants’ motion to dismiss his complaint. For the reasons that follow, we will affirm.
I.
As we write solely for the benefit of the parties, we set forth briefly only those facts necessary to our analysis. On February 22, 2007, Beightler was arrested at the Newark Liberty International Airport just before he was to board a flight to *831Amsterdam. Port Authority police Miran-dized and questioned him regarding a firearm which was found disassembled, unloaded, and placed in multiple bags that he had checked with the airline. Beightler fully cooperated with the Port Authority and admitted that the firearm belonged to him. He claimed that he packed it for safety purposes while traveling abroad, that he was unaware that airline procedure required passengers to declare firearms, and that he thought the proper procedure for carrying a firearm was to disassemble and stow it in a locked container in the airplane’s cargo.
Federal agents questioned Beightler while he was in custody and decided not to pursue the matter further. The arresting Port Authority officers contacted the Essex County Prosecutor’s office, and Beightler was charged with unlawful possession of a firearm. Beightler applied for admission to the state’s Pre-Trial Intervention (“PTI”) program, which would have allowed him to complete a period of probation and avoid indictment. The parties agree that the Essex County Prosecutor’s Office (“ECPO”) denied Beightler’s application, despite the probation department’s recommendation that he be admitted, characterizing Beightler’s actions as national security breaches and likening them to acts of terrorism. Beightler appealed his PTI admissions denial, but pleaded guilty when his appeal was denied. Beightler then filed this civil rights suit pursuant to 42 U.S.C. § 1983, alleging that the State of New Jersey, Essex County, and ECPO: (1) violated his equal protection rights under the Fourteenth Amendment; (2) violated his Fifth Amendment due process rights; (3) defamed him pursuant to N.J. Stat. Ann. § 2a:14-3; and (4) negligently prosecuted him in violation of state common law. Upon defendants’ motion to dismiss, the District Court concluded that Beightler failed to state a claim upon which relief could be granted because the defendants were protected by the Eleventh Amendment. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and conduct de novo review of the District Court’s dismissal pursuant to Rule 12(b)(6). Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). We accept as true all of the allegations contained in the complaint and draw reasonable inferences in favor of a pro se plaintiff. Id. at 229; see also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
III.
Beightler’s appeal presents two arguments. First, he argues that ECPO is not an arm of the state and therefore should not enjoy Eleventh Amendment immunity. Next, he claims that even if ECPO were eligible for immunity under the Eleventh Amendment, that protection was waived by voluntarily placing itself within federal jurisdiction, or alternatively, by acting maliciously and with wilful misconduct.1
*832Eleventh Amendment immunity protects not only states but also state agencies, “as long as the state is the real party in interest.” Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655, 658 (3d Cir.1989) (en banc), cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989). To determine whether Eleventh Amendment immunity applies, we consider three factors: (1) the source of the agency’s funding—i.e., whether payment of any judgment would come from the state’s treasury; (2) the status of the agency under state law; and (3) the degree of autonomy from state regulation. Id. at 659. In the context of an agency analysis, we discussed all of these concerns, see Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir.1996), culminating in the conclusion that “when [New Jersey county] prosecutors engage in classic law enforcement and investigative functions, they act as officers of the state.”
We recognized in Coleman that county prosecutorial offices conducted two distinct sets of functions: (1) the administrative functions of operating their offices, and (2) the classic law enforcement and investigative functions for which they are chiefly responsible. After essentially analyzing the same factors presented in Fitchik, we concluded that county prosecutors acted as arms of the state when they performed the latter. Id. at 1499-1505, Here, ECPO was undeniably engaged in a classic law enforcement function when it charged Beightler with unlawful possession of a firearm. Accordingly, in doing so, ECPO was acting as an arm of the state and entitled to immunity under the Eleventh Amendment, unless it waived its protection.
Beightler theorizes that ECPO waived its immunity by voluntarily placing itself within federal jurisdiction. According to Beightler, ECPO placed itself within federal jurisdiction “when [it] voluntarily invoked the jurisdiction of federal courts.” Appellant’s Brief at 8. In support of this claim, he cites Lapides, 535 U.S. at 624, 122 S.Ct. 1640, in which the Supreme Court held that a state waived its Eleventh Amendment immunity when it removed a case from state court to federal court. Lapides, however, is distinguishable. Here, Beightler chose the forum, and the defendants claimed sovereign immunity from the outset. ECPO’s presence in federal court was thus involuntary and did not waive its sovereign immunity.
Alternatively, Beightler theorizes that ECPO waived its immunity by acting maliciously and with willful misconduct. In support of his claim Beightler cites Wright v. State, 169 N.J. 422, 456, 778 A.2d 443 (2001), in which the New Jersey Supreme Court held that county prosecutors were not entitled to indemnification and defense by the State of New Jersey for alleged “tortious conduct committed during the investigation, arrest, and prosecution” when their acts or omissions involve fraud, actual malice, or willful misconduct.
According to Beightler, Wright demonstrates that evidence that a county prosecutor’s office acted with malice or willful misconduct is relevant in determining whether the state treasury would be responsible for paying a judgment. Despite its relevancy to the Fitchik analysis, we already determined, after considering all *833of the Fitehik factors as a whole, that New Jersey county prosecutors are arms of the state when carrying out prosecutorial functions. Furthermore, Wright was not an Eleventh Amendment immunity case, and we have found no authority that has deemed garden variety overzealousness of the type alleged here to be a waiver sufficient to establish a waiver of Eleventh Amendment immunity.
IV.
In light of the foregoing, we conclude that Beightler has failed to state a claim upon which relief could be granted. Accordingly, the District Court’s order is affirmed.
. By only raising the issues outlined above on appeal, Beightler has waived his claims against the State of New Jersey and Essex County. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005) (holding "an appellant's failure to identify or argue an issue in *832his opening brief constitutes waiver of that issue on appeal.”). We note, however, that even had Beightler preserved his claims against the State of New Jersey, that claim would have failed because the Supreme Court has held, “a State is not a 'person' against whom a § 1983 claim for money damages might be asserted." Lapides v. Board of Regents, 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470778/ | OPINION
PER CURIAM.
Michael Jackson, a federal prisoner proceeding pro se, appeals from the District Court’s order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, we will affirm.
I.
Jackson is currently incarcerated in the Federal Correctional Institution at Schuylkill (“FCI-Sehuylkill”) in Minersville, Pennsylvania. On April 12, 2005, Jackson was confined in the Special Housing Unit (SHU) at FCI-Schuylkill. At approximately 7:25 p.m. that day, Senior Officer J. O’Boyle approached Jackson in his cell, and ordered him to provide a urine sample. Jackson, however, refused. As a result, Officer O’Boyle gave him a glass of water, instructed him to drink it, and told him that he would return in two hours to collect the urine sample. When the officer returned, however, Jackson still refused to cooperate.
The next day, Jackson received notice that he was being charged with “refusing to provide a urine sample or take part in other drug abuse testing” in violation of Section 110 of the Bureau of Prisons’ (“BOP”) disciplinary code. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment C.) Jackson’s Unit Disciplinary Committee then conducted an investigation into the charges. The Committee determined that Jackson had been properly charged, and referred the matter to the Disciplinary Hearing Officer (“DHO”). (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment C.)
Jackson appeared for a hearing before the DHO on May 2, 2005. At the hearing, Jackson testified that, due to an incident in 1974 in which someone “clocked him from behind” while he was “taking a piss,” he was unable to urinate in front of other people. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment E.) The prison’s chief psychologist, Dr. G. Londis, also testified at the hearing, but he indicated that nothing in Jackson’s record suggested that he had ever been diagnosed with, or treated for, a “shy bladder.” (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment E.)
Following the hearing, the DHO found that Jackson had violated BOP Code Section 110 by refusing to provide a urine sample. In reaching this conclusion, the DHO noted that Jackson had a history of refusing to provide urine samples, that his medical records did not include any documentation of the alleged condition, and that the staff members who had investigated the charge were credible. The DHO sanctioned Jackson with: (1) disciplinary segregation; (2) disallowance of 54 days of good conduct time; (3) forfeiture of 352 days of non-vested good conduct time; and (4) loss of phone and visiting privileges for a period of one year. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment E.)
Jackson sought review of the DHO’s decision in the Northeast Regional Office. In support of his appeal, Jackson submit*835ted a report by Dr. Glenn D. Walters, a clinical psychologist, who opined that Jackson’s medical records contained “some support” for his story. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.) Based on this new evidence, the Northeast Regional Office remanded the matter back to the DHO for rehearing.
Upon rehearing, the DHO considered Dr. Walters’s report, which stated that, in his view, “Jackson does have genuine concerns about urinating in front of others that can be traced back to a specific traumatic incident.” (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.) Thus, Dr. Walters recommended that “some degree of flexibility be exercised when attempting to get a urine [sample] from this inmate.” (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.) Dr. Walters cautioned, however, that his recommendation was not intended to excuse Jackson from participating in the urine surveillance program. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.)
After considering the evidence presented at both the initial hearing and the rehearing, the DHO again concluded that Jackson had committed a Code 110 violation. In so concluding, the DHO again relied on Officer O’Boyle’s testimony and Jackson’s history of refusing to provide urine samples. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment K.) The DHO also considered Dr. Walters’s opinion and found that Officer O’Boyle had in fact demonstrated “flexibility” with Jackson by offering him additional fluids during the procedures. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment K.) Accordingly, the DHO re-imposed the previously issued sanctions. Jackson’s administrative appeals from the DHO’s decision were unsuccessful.
II.
On January 7, 2008, Jackson filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging that his due process rights had been violated during the disciplinary process. Specifically, Jackson claimed that: (1) the DHO’s decision was not supported by the evidence; (2) the prison’s investigation into the charge was insufficient; and (3) the DHO’s sanctions were too harsh. By order entered August 28, 2008, 2008 WL 4148243, the District Court denied the petition.1 Williams now appeals from the District Court’s order.
III.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We review a District Court’s legal conclusions de novo and its factual findings for clear error. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002) (“In reviewing a federal habeas judgment, ‘we exercise plenary review over the district court’s legal conclusions and apply a clearly erroneous standard to its findings of fact.’”) (quoting Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000)).
It is well established that “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Supreme Court has, however, recognized a set of minimum procedural protections that must apply to prison *836disciplinary proceedings when, as in this case, a prisoner’s good-time credit is at stake.2 Id. at 557, 94 S.Ct. 2963. Specifically, when good-time credit is at stake, a prisoner is entitled to: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67, 94 S.Ct. 2963. “[Revocation of good time does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary board are supported by some evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (internal quotation and citation omitted).
Upon review, we agree with the District Court that Jackson received all the process that he was due during the disciplinary proceedings. The record reveals that Jackson was given prior written notice of the charges against him in accordance with 28 C.F.R. § 541.17(a); that he was provided the opportunity to call witnesses and present documentary evidence in his defense; and that he was issued a written decision setting forth the evidence relied on, and the reasons for, the disciplinary action. See Wolff, 418 U.S. at 563-67, 94 S.Ct. 2963.
Furthermore, the DHO’s findings were clearly supported by “some” evidence in the record. In his report, DHO Kevin Bittenbender noted that his decision was based upon the following inculpatory evidence: Officer O’Boyle’s account of the incident in the incident report; a memorandum from Officer O’Boyle in which he noted that, since the time of the incident, he has obtained urine samples from Jackson without difficulty; Jackson’s past history of refusing to provide urine samples; and the absence of any medical documentation reflecting Jackson’s condition. We agree with the District Court that this evidence is sufficient to support the outcome of the hearing and meets the requirements imposed by the Due Process Clause. See Hill, 472 U.S. at 454, 105 S.Ct. 2768.3
Finally, insofar as Jackson argues that the loss of 406 days of good time credit was excessive in violation of the Eighth Amendment, we agree with the District Court that this sanction does not constitute an Eighth Amendment violation because it is within the limits prescribed for Jackson’s offense, see 28 C.F.R. § 541.13, and it is not disproportionate to the severity of the offense, Rummel v. Estelle, 445 U.S. 263, 271-74, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
IV.
Accordingly, we will affirm the District Court’s order denying Jackson’s petition for writ of habeas corpus. Jackson’s motion for appointment of counsel is denied.
. The District Court declined to address the government's argument that Jackson had failed to properly exhaust his administrative remedies, and instead based its denial on the merits of Jackson’s claims.
. While the Due Process Clause protects against the revocation of good-time credit, it does not provide the same level of protection against the other forms of discipline that Jackson received. See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir.2002) (citing Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
. We need not reach Jackson’s remaining challenges to the disciplinary proceedings because, as discussed above, any error in these proceedings will not result in a due process violation as long as Jackson was provided with the process that he is due under Wolff. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470780/ | *838OPINION OF THE COURT
RENDELL, Circuit Judge.
The plaintiff in this case, Sergeant Wilbur F. Justice, was a corrections officer with the Delaware Department of Correction (“DOC”). He alleges that the defendants (the DOC; Carl C. Danberg, Jr., in his official capacity as the Commissioner of Correction; and Alan Machtinger, individually and in his official capacity as the Director of Human Resources at the DOC) retaliated against him for his union activity by denying him a promotion. The District Court denied the defendants’ motion for summary judgment and granted the plaintiffs partial motion for summary judgment as to whether Justice’s conduct was protected by the First Amendment. We do not have jurisdiction over the District Court’s order, and we will dismiss the appeal.1
I. Background
Justice worked for the DOC for twenty-two years before retiring in 2007. He was also active in the correctional officer union, the Correctional Officers Association of Delaware (“COAD” or “Union”). During the time of the alleged retaliation, COAD was engaged in bitter contract negotiations with the DOC. The Union was also engaged in a negative advertising campaign against the incumbent governor and the State of Delaware which alleged “chronic under staffing ... the need for salary increases ... and security lapses within the prison system.” (App.73.) As a COAD vice-president, Justice participated in the contract negotiations and COAD’s activities. He alleges that Machtinger intentionally misplaced his application for promotion and that this was done in retaliation for his union affiliation. Because his application was misplaced, Justice says, he was not on the initial interview list and had little time to prepare for the interview. Justice came in second after the interviews and lost the promotion to a colleague he claims was less qualified. Machtinger, who was head of Human Resources at the DOC, contends that he was on vacation at the relevant time and had nothing to do with Justice’s application.
Justice filed suit under 42 U.S.C. § 1983 in August of 2006. The case was initially assigned to Judge Jordan, but upon his appointment to this court the matter was reassigned. On February 4, 2008, at the close of discovery, the District Court issued an order directing the parties to submit short and concise statements of facts and legal issues rather than full summary judgment briefs. Justice submitted such a statement in support of his motion for partial summary judgment. The defendants submitted a concise statement but also filed full briefing and an appendix in support of their motion for summary judgment. Justice moved to strike the defense filings for non-compliance with the court’s order, but the court denied the motion to strike and ordered that Justice should not file a brief in opposition or submit an appendix unless the court so ordered.
On July 29, 2008, the District Court issued an opinion and order granting Jus*839tice’s motion for partial summary judgment, finding that he had engaged in constitutionally protected activity and suffered an adverse employment action, and denying the defendants’ motion for summary judgment. It found that a “genuine issue of material fact remains as to whether plaintiffs activity was a substantial or motivating factor in the adverse action.” (App.4.) The court did not rule on qualified immunity, despite the defendants’ argument that, even if a constitutional violation and retaliation were proved, Machtinger was entitled to immunity from suit. The court disagreed, noting that qualified immunity required a two-step analysis: first, whether there was a constitutional violation, and second, whether the constitutional right that was violated was clearly established at the time of the violation. See Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir.2007). It then stated its disposition: “[t]he court reserves judgment on the issue of qualified immunity until such time as an actual constitutional violation has been identified.” (App.22.)
II. Jurisdiction
A denial of a motion for summary judgment is not usually a final order, but a denial of summary judgment on the basis of qualified immunity can be an appealable order under the collateral order doctrine. See Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Rivas v. City of Passaic, 365 F.3d 181, 192 (3d Cir.2004). However, such an order is ap-pealable only if it presents an issue of law.2 As the Supreme Court explained in Johnson, the collateral order doctrine does not permit an appeal from an order denying a motion for summary judgment “insofar as that order determines whether or not the pretrial record sets forth a ‘genuine issue’ of fact for trial.” 515 U.S. at 320, 115 S.Ct. 2151. “With respect to facts, ‘we may review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right, but we may not consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove.’” Reilly v. City of Atl. City, 532 F.3d 216, 224 (3d Cir.2008) (quoting Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.2002)).
Justice argues that we lack jurisdiction over the issue of qualified immunity because the District Court determined that a genuine issue of material fact remained as to whether his activity was a substantial or motivating factor in his failure to get a promotion. The defendants argue that we do have jurisdiction; they contend they are challenging only the pure legal issue of whether Justice’s union activity was protected by “clearly established law.” (Appellant’s Supp. Br. at 2.)
We conclude that we lack jurisdiction over the appeal from the District Court’s order denying summary judgment.3 The court did not deny summary judgment based on its analysis of qualified immunity; rather, it stated it was denying summary judgment because it could not yet deter*840mine whether there had been a constitutional violation and thus could not decide the first prong of the qualified immunity analysis.4 Indeed, the court said specifically that it “reserve[d] judgment on the issue of qualified immunity until such time as an actual constitutional violation has been identified.” (App.22.)
We cannot determine from the District Court’s opinion or order whether it believed there were factual issues related to the causation of the adverse employment action (in which case we do not have jurisdiction because only issues of law are ap-pealable from orders denying qualified immunity at the summary judgment stage), or whether it was deferring its qualified immunity decision because the record before it — with full briefing from the defendants but only the concise statement of facts and no appendix from Justice — was insufficient (in which case we do not have jurisdiction because it was not prepared to decide the qualified immunity issue). Either way, the District Court’s order is unreviewable.
We note that the purpose of qualified immunity is to protect officials from suit, not just from trial. See, e.g., Johnson, 515 U.S. at 312, 115 S.Ct. 2151 (noting that “qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct”); Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (“[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”). A district court is charged with deciding “ ‘whether a constitutional right would have been violated on the facts alleged....’” Doe v. Groody, 361 F.3d 232, 237 (3d Cir.2004) (quoting Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In this case, the unorthodox briefing, with only the concise statement of facts and no record evidence from the plaintiff, may have made it impossible for the District Court to rule based on what was before it. If the District Court did believe that the record was insufficient (rather than that there were fact issues to be decided at trial), we encourage the District Court to proceed to full briefing so as to be able to decide the qualified immunity issue prior to trial.
For the reasons set forth above, we will DISMISS the appeal for lack of jurisdiction.
. Justice retired from the DOC after filing this suit. The Eleventh Amendment bars suits against states and state officials, sued in their official capacities, when the relief sought is retroactive. Edelman v. Jordan, 415 U.S. 651, 668-69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Justice concedes that his retirement moots his claims for prospective relief against the DOC and against Danberg and Machtinger in their official capacities, and that the remaining relief he seeks is retroactive. Appellee's Br. at 28. Therefore, the only remaining defendant is Machtinger, who was sued in his individual capacity as well as his official capacity. When the case returns to the District Court, it should dismiss the other defendants.
. We exercise plenary review over questions of law appealed pursuant to the collateral order doctrine. Schieber v. City of Phila., 320 F.3d 409, 415 (3d Cir.2003). In reviewing a denial of summary judgment, we view the facts in the light most favorable to the non-moving party, the appellee. See, e.g., Barton v. Curtis, 497 F.3d 331, 334 (3d Cir.2007).
. Because we hold that we do not have jurisdiction over the denial of summary judgment, we will not address the grant of partial summary judgment.
. The Supreme Court, in Pearson v. Callahan, - U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), held that the two-step Saucier analysis is no longer mandatory and that courts need not first determine whether the facts alleged by the plaintiff make out a violation of a constitutional right. Rather, lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818. If a court first determines that the right at issue was not clearly established at the time of the offense, it need not explore the factual support for the plaintiff’s allegations of a constitutional violation, and may grant qualified immunity. We do not know whether Pearson will have an impact on this case, but it is worth noting the new post-Saucier flexibility in qualified imniynity analysis. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470787/ | OPINION OF THE COURT
McKEE, Circuit Judge,
Denise Proctor appeals the district court’s grant of summary judgment in favor of the defendant, ARMDS, Inc., in this employment discrimination claim based on racial discrimination that Proctor brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this case, we need not recite the factual or procedural history. Our review of the grant of summary judgment is plenary. Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). To raise a “genuine” issue of fact, the record must contain evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Proctor alleges that there is a genuine issue of material fact regarding whether she received the same quality and amount of training as similarly situated employees outside of her protected class. However, there is no evidence that any similarly situated employee received better training. In her deposition, Proctor men*850tioned two employees who may have attended a meeting that Proctor believed that she should also have attended. (App. 126-27). However, Proctor was unsure of the job positions of these employees, and she could not say whether they actually attended the meeting in question. “The central focus ... in a case such as this is always whether the employer is treating ‘some people less favorably than others because of then’ race, color, religion, sex, or national origin.’ ” Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (quoting Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). “If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). Here, Proctor’s coneluso-ry allegations, unsupported by any evidence that she received less rigorous training than those who were similarly situated, fail to raise a genuine issue of material fact.
Although we note that Proctor mentions a racially charged incident involving another employee and reference to a “chimpanzee,” she does not attempt to establish the existence of a hostile work environment, and that theory of recovery is not included under the “Statement of The Issue Presented for Review” in her brief. Accordingly, Proctor’s failure to show that a white employee received more favorable treatment or training, or that such an employee received training that she was denied, is fatal to her claim of racial discrimination under Title VII.
Proctor also argues that summary judgment was improper because there are genuine issues of material fact as to whether, during her initial job interview, she told the interviewer that she had experience with Medicaid, Medicare, Social Security and Charity Care programs. According to Proctor, she merely said that she was “knowledgeable” with regard to the programs, meaning that she knew of their existence, and the interviewer took this to mean that she had experience she did not actually have working with such programs. This argument misses the point, however. In order to make out a prima facie case of disparate treatment, the plaintiff must show, among other things, “that [s]he applied and was qualified for a job for which the employer was seeking applicants.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We have held that “[o]bjective job qualifications should be considered in evaluating a plaintiffs prima facie case.” Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 320 (3d Cir.2000).
Here, Proctor admits that she did not have the requisite job experience actually working with Medicaid, Medicare, Social Security and Charity Care programs. Therefore, Proctor did not meet the objective qualifications for the job in question, and she failed to make out a prima facie case. Summary judgment was therefore appropriate. See, Narin v. Lower Merion School Dist., 206 F.3d 323, 332 (3d Cir.2000) (affirming summary judgment where plaintiff did not possess required teaching certificates and thus could not establish prima facie claim). We will therefore affirm the district court’s grant of summary judgment.
II.
For all of the above reasons, we will affirm the order of the district court granting summary judgment to the plaintiff. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470642/ | MEMORANDUM **
Filiberto Vega Enriquez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004), and we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion by denying Vega Enriquez’s motion to reopen *362because he did not demonstrate prima fa-cie eligibility for relief under the Convention Against Torture. See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir.2003) (“prima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen”).
Because Vega Enriquez’s evidence regarding educational hardship pertained to the same hardship grounds previously considered by the agency in connection with the denial of cancellation of removal, we lack jurisdiction to review this aspect of the denial of the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 600-03 (9th Cir.2006). To the extent Vega Enriquez’s motion to reopen rests upon hardship grounds distinct from those previously considered by the agency, we have jurisdiction. See id. at 601-03. We conclude the BIA acted within its broad discretion in determining both the hardship evidence and the alleged due process violations were insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470645/ | MEMORANDUM *
The appellants, former members of the California Public Utilities Commission *582(“Commission”), appeal the district court’s dismissal of their appeal of the bankruptcy-court’s order confirming a settlement agreement (“Settlement Agreement”) between the Commission and Pacific Gas and Electric Company (“PG & E”) in PG & E’s bankruptcy case. We do not reach the merits of the appeal.
While the appeal was pending, the appellants’ terms on the Commission expired. In light of this circumstance and the representations made by the appellees to this court, the Settlement Agreement results in no current adverse effects upon the appellants. Because none of the appellants’ claims presently give rise to a “live case or controversy,” the appeal must be dismissed for lack of jurisdiction. See Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 989 (9th Cir.1999).
As the appellants are no longer commissioners, they are not entitled to seek relief on the claims that the Settlement Agreement impairs their ability to perform their official duties. See Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999). Furthermore, because the Commission has represented to this court that it will not seek any money damages or sanctions, or bring or entertain any administrative charges, against the appellants as a result of any matter involving, arising out of, or relating to the bankruptcy proceedings involving PG & E, or seek an award of attorneys’ fees against the appellants or their counsel in connection with these proceedings for any act or omission that occurred before March 2, 2006, the appellants do not face any “continuing, present adverse effects” as a result of the Settlement Agreement. See Jacobus v. Alaska, 338 F.3d 1095, 1102 (9th Cir.2003) (internal quotation marks omitted). Therefore, with respect to the personal liability issue, they no longer have a legally cognizable interest in the outcome of the appeal. See id. Finally, the appellants’ potential claims for damages against their former colleagues and lawyers do not create a live case or controversy because they do not clearly arise out of the Settlement Agreement. See Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“[T]he mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III.” (emphasis added)).
When a civil case becomes moot during the course of an appeal, “ ‘the established practice ... in the federal system ... is to reverse or vacate the judgment below and remand with a direction to dismiss.’ ” Arizonans for Official English v. Ariz., 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (alteration in original) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). Vacatur is particularly appropriate when, as here, “mootness occurs through happenstance — circumstances not attributable to the parties.” Id. Accordingly, we vacate the judgment below and remand to the district court with instructions to dismiss the action as moot.
VACATED AND REMANDED WITH INSTRUCTIONS.
This disposition is not appropriate for publication and may not be cited to or by the courts *582of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470646/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief, supplement thereto, and appendix filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 12, 2009, be affirmed. It was appropriate for the district court to dismiss for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1), to the extent appellant alleged a due process right to an investigation conducted by a federal inspector general. See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief.”); cf. SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984) (due process rights are “not implicated ... because an administrative investigation adjudicates no legal rights”) And while appellant also alleged negligence by prison officials for failing to protect him from inmate attack, even assuming that might constitute a Bivens action, but see Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (negligent acts of officials that result in unintended injury to property do not amount to due process violations), dismissal was nonetheless appropriate because appellant did not exhaust his administrative remedies. See Munsell v. Department of Agriculture, 509 F.3d 572, 591 (D.C.Cir.2007), citing Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (under PLRA, “federal prisoners suing under [Bivens] must first exhaust inmate grievance procedures”).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470649/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 12, 2009, 2009 WL 350648, be affirmed. The district court properly dismissed the complaint without prejudice as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), because its “factual contentions are clearly baseless.” See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470651/ | SUMMARY ORDER
Appellants Justin Holmes and Richard Partington, III, proceeding pro se, appeal the district court’s judgment dismissing their complaint brought pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (quotation marks omitted). The complaint includes any statements or documents incorporated in it by reference, and even “where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.” Id. at 152-53 (quotation marks omitted). We also review de novo a district court’s decision adjudicating a motion to dismiss based on qualified immunity, and “ ‘the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense.’ ” See Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir.2008) (quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004)). “We are free to affirm an appealed decision on any ground which finds support in the record, regardless of the ground upon which the trial court relied.” Reid v. Senkowski, 961 F.2d 374, 378 (2d Cir.1992) (quotation marks omitted).
Due Process Claims
As a preliminary matter, the Plaintiffs do not challenge the district court’s finding that the Defendants are entitled to qualified immunity on their due process claims concerning the right to have their counsel present and to cross-examine witnesses, and, as such, they have waived those *653claims. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (claims not raised on appeal are deemed waived).
A fundamental requirement of due process in the school disciplinary context is that a hearing be held before an impartial decision maker. See Winnick v. Manning, 460 F.2d 545, 548 (2d Cir.1972). Here, the Plaintiffs have not alleged any facts to support actual bias, conflict of interest, or prior involvement by any of the Defendants who participated in the disciplinary hearing process, and thus, their bald assertion that Appellees Paul Zuckerman and Jonathan Raskin were not impartial is insufficient to state a claim. See Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))).
To the extent the Plaintiffs assert that the disciplinary committee deviated from the proper regulations, their conclusory allegations fail to support a plausible inference that the proceedings were unfair. Winnick, 460 F.2d at 550 (holding that university’s deviations from procedural guidelines “did not rise to constitutional proportions,” particularly where they were minor deviations and did not affect the fundamental fairness of the hearing). Accordingly, the district court properly dismissed the Plaintiffs’ due process claims.
First Amendment Claims
To state a claim for First Amendment retaliation under § 1983, a plaintiff must allege: “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (quotation marks omitted). Regardless of any retaliatory motive, the plaintiff cannot prevail if a defendant can show he or she would have taken the same action even in the absence of the allegedly improper reason. See Lowrance v. Achtyl, 20 F.3d 529, 534-35 (2d Cir.1994).
Here, the district court properly dismissed the Plaintiffs’ First Amendment claims. The Plaintiffs did not allege that any of the named defendants personally interfered with the student elections, claiming that only Corinna Caracci and the director of athletics, non-parties, intervened and thus, there was no personal involvement of any of the defendants to interfere with the elections. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (state officials may only be held liable if a plaintiff can show that the defendant was personally involved in the purported unlawful conduct or alleged constitutional deprivation).
With respect to the claim that the disciplinary charges were brought in retaliation for protected speech, the Plaintiffs allege only that Caracci filed the disciplinary charges. Moreover, taking judicial notice of the criminal proceedings against the Plaintiffs, Holmes was convicted of harassment for the conduct at issue, and, although Partington was found not guilty, the court specifically found that his conduct would “no doubt subject him to disciplinary action by the school.” Thus, the Plaintiffs cannot show that retaliation was the but-for cause of the discharge. See Lowrance, 20 F.3d at 534-35.
To the extent the Plaintiffs argue that they should have been allowed to amend their complaint, this argument is unavailing. The Plaintiffs were represented by *654counsel below and never moved to amend their complaint, and, as such, cannot raise the argument for the first time on appeal. See Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir.2005) (“It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” (quotation marks omitted)).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470653/ | SUMMARY ORDER
Plaintiff-Appellant Russell D. Palmer appeals from a judgment of the district court granting Defendants-Appellees’ motion to dismiss based on the so-called “three strikes” provision of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues on appeal.
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [the in forma pauperis statute] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g); see also Malik v. McGinnis, 293 F.3d 559, 560 (2d Cir.2002).
“The district court’s decision that a certain type of dismissal constitutes a ‘strike’ for purposes of § 1915(g) is an interpretation of a federal statute ... which [this Court] review[s] de novo.” Tafari v. Hues, 473 F.3d 440, 442 (2d Cir.2007) (quotation marks omitted) (alteration in original). The parties agree that the dismissal in Palmer v. Alvarez, No. 05 Civ. 3258, for failure to state a claim, constitutes a strike under Section 1915(g). The parties dispute whether Palmer’s filing of three cases on or about July 24, 2001, that were later consolidated by the district court and dismissed for failure to state a claim, qualify as one strike or three strikes. The district court here ruled that the dismissal of three separately filed cases, though consolidated, qualified as three strikes.
For purposes of determining whether a strike has occurred, Section 1915(g) focuses the inquiry on the prisoner’s act of bringing an action or appeal “that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim.” 28 U.S.C. § 1915(g). The focus on the prisoner’s litigation activity is consistent with the objectives of the PLRA. See Tafari, 473 F.3d at 443 (“ ‘Congress adopted the Prison Litigation Reform Act with the principal purpose of deterring frivolous prisoner lawsuits and appeals.’ ”) (quoting Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997)). The relevant acts in this case are Palmer’s three separate filings *656that were each dismissed for failure to state a claim. These cases constitute three “prior occasions” where Palmer has “brought” actions dismissed for failure to state claim. 28 U.S.C. § 1915(g). Accordingly, the dismissals count as three strikes. The court’s act of consolidating the three cases did not convert the dismissals into a single strike. Cf. Cole v. Schenley Industries, Inc., 563 F.2d 35, 38 (2d Cir.1977) (“Consolidation under Rule 42(a) is a procedural device designed to promote judicial economy, and consolidation cannot effect a merger of the actions or the defenses of the separate parties.” (citation omitted)). Because we conclude Palmer has at least four strikes under Section 1915(g), we need not address whether other cases he filed in the past constitute strikes.
Palmer also argues that his Section 1983 complaint here satisfies the “imminent danger” exception. See 28 U.S.C. § 1915(g). Palmer’s allegations relate to injuries resulting from his drinking contaminated water and receiving inadequate care for those injuries during his incarceration at the Green Haven Correctional Facility. By the time he filed the complaint, Palmer had been transferred to the Otis-ville Correctional Facility, and was thus removed from the alleged danger of drinking contaminated water. Moreover, the complaint acknowledges that Palmer has received care at Otisville. See Malik, 293 F.3d at 562-63 (holding that an imminent danger must exist at the time the complaint is filed for the exception to apply). We find that Palmer fails to adequately allege an “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470655/ | SUMMARY ORDER
Defendant Jose Mena appeals from a judgment of conviction entered on January 30, 2008, following his plea of guilty to unlawfully dealing in firearms, in violation of 18 U.S.C. § 922(a)(1)(A), and conspiring to engage in the business of unlawfully dealing in firearms, in violation of 18 U.S.C. §§ 371 and 922(a)(1)(A) (together, the “Firearms Counts”), and his separate plea of guilty to failing to appear for his Court-ordered sentencing, in violation of 18 U.S.C. § 3146(a)(1) and (b)(1)(A)(ii) (the “Bail Jumping Count”). Mena was sentenced principally to concurrent terms of twenty-four months’ imprisonment on the *658Firearms Counts, and nine months’ imprisonment on the Bail Jumping Count, to be served consecutively to the twenty-four month terms. We assume the parties’ familiarity with the facts and procedural history of the case.
We review defendant’s sentence for reasonableness, “a deferential standard limited to identifying abuse of discretion.” United States v. Jones, 531 F.3d 163, 170 (2d Cir.2008). This “review proceeds in two steps: first, we must ensure that the district court committed no significant procedural error, and second, if we find the sentence to be procedurally sound, we must take into account the totality of the circumstances and consider the substantive reasonableness of the sentence.” Id. (internal quotation marks omitted).
Mena challenges the district court’s guidelines calculation in two ways. First, he argues that the district court erred by imposing an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). Specifically, Mena contends (a) that the enhancement is unconstitutionally vague, (b) that the evidence did not support the application of the enhancement, and (c) that the court applied the enhancement without holding a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978), or otherwise engaging in meaningful fact-finding. These arguments are without merit. The enhancement of § 2K2.1(b)(5) applies if the defendant “knew or had reason to believe that [his] conduct [of transporting, transferring, or otherwise disposing of two or more firearms to another individual] would result in the transport, transfer, or disposal of a firearm to an individual ... [w]ho intended to use or dispose of the firearm unlawfully.” U.S.S.G. § 2K2.1, application note 13, subsection (A)(ii). Assuming that the Sentencing Guidelines are subject to an attack on unconstitutional vagueness grounds, something we have never decided, see United States v. Savin, 349 F.3d 27, 38 (2d Cir.2003), the enhancement at issue here is not unconstitutionally vague. As applied in this case, the language of § 2K2.1(b)(5) and its application note provides a person of ordinary intelligence a reasonable opportunity to know what is prohibited. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); United States v. Jae Gab Kim, 449 F.3d 933, 943 (9th Cir.2006) (observing that “reasonable cause to believe” is a scienter requirement that mitigates the risk that a law is vague). In this case, we find no clear error in the court’s finding that “the circumstances [of the offense conduct] indicate by a preponderance of the evidence that [Mena] knew or had reason to believe that his delivery of the firearms was to someone or people who intended to use or dispose of the firearms unlawfully,” where Mena twice delivered guns in a plastic bag in exchange for cash on a street in Manhattan. See United States v. Mitchell, 328 F.3d 77, 83 (2d Cir.2003); United States v. Martin, 78 F.3d 808, 812-13 (2d Cir.1996). That the court acknowledged uncertainty regarding whether Mena actually had such knowledge or reason to believe does not preclude the conclusion that a preponderance of the evidence supported the fact. As the district court aptly observed, the preponderance of the evidence standard does not require “proof that is free from uncertainty.” Finally, because Mena was afforded an opportunity to rebut the government’s allegations, including a specific invitation for Mena to present testimony on the issue, the district court appropriately applied the enhancement without conducting a Fatico hearing. See United States v. Guang, 511 F.3d 110, 122 (2d Cir.2007) (“The district court is not required, by either the Due Process Clause or the federal Sentencing Guidelines, to hold a full-*659blown evidentiary hearing in resolving sentencing disputes. All that is required is that the court afford the defendant some opportunity to rebut the Government’s allegations.” (internal quotation marks omitted)).
Mena’s second argument is that the district court erred by failing to give him a minor role adjustment, where he merely delivered the guns and collected payments as instructed by his brother-in-law, but showed no initiative. But while Mena’s role as a courier may have been minor relative to the role of his co-conspirators, it nonetheless may have been “importan[t] ... to the success of the venture” and may not be minor “as compared to the average participant in such a crime.” United States v. Carpenter, 252 F.3d 230, 234-35 (2d Cir.2001) (internal quotation marks omitted); see United States v. Garcia, 920 F.2d 153, 154-55 (2d Cir.1990) (per curiam) (observing that couriers “are indispensable to the smuggling and delivery of drugs and their proceeds” and upholding denial of a minor role adjustment to courier). Thus, we find no clear error in the court’s finding that Mena was not entitled to a minor role adjustment.
Finally, we conclude that Mena’s sentence is substantively reasonable.
Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470661/ | SUMMARY ORDER
Petitioner Qi Qiang Wen, a native and citizen of the People’s Republic of China, seeks review of an October 19, 2007 order of the BIA denying his motion to reopen. In re Qi Qiang Wen, No. A076 506 130 (B.I.A. Oct. 19, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Wen’s untimely motion to reopen.
Wen argues that the BIA erred in concluding that he failed to demonstrate either material changed country conditions sufficient to excuse the time limitation for filing his motion to reopen or his prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Wen’s argument that he was eligible to file a successive asylum application based on changed personal circumstances is foreclosed by our decision in Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is *665DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470663/ | SUMMARY ORDER
Petitioner Qiu Fang Chen, a native and citizen of the People’s Republic of China, seeks review of the October 11, 2007 order of the BIA, denying her motion to reopen. In re Qiu Fang Chen, No. A077 293 141 (B.I.A. Oct. 11, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Chen’s untimely and number-barred motion to reopen.
Chen argues that the BIA erred in concluding that she failed to demonstrate material changed country conditions sufficient to excuse the time and numerical limitation for filing her motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely and number-barred motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d *666270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
To the extent Chen argues that the BIA ignored the evidence she submitted, nothing in the record compels us to agree. See Jian Hui Shao, 546 F.3d at 169 (recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”). Furthermore, contrary to Chen’s assertion, remand is not warranted in her case under this Court’s decision in Xiao Kui Lin v. Mukasey, 553 F.3d 217, 223-24 (2d Cir.2009), because she failed to point either to errors in the BIA’s decision or to particularized evidence that she would face a reasonable possibility of forced sterilization.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470777/ | OPINION
PER CURIAM.
Stephen Beightler, proceeding pro se, appeals from the order of the United States District Court of New Jersey granting the defendants’ motion to dismiss his complaint. For the reasons that follow, we will affirm.
I.
As we write solely for the benefit of the parties, we set forth briefly only those facts necessary to our analysis. On February 22, 2007, Beightler was arrested at the Newark Liberty International Airport just before he was to board a flight to *831Amsterdam. Port Authority police Miran-dized and questioned him regarding a firearm which was found disassembled, unloaded, and placed in multiple bags that he had checked with the airline. Beightler fully cooperated with the Port Authority and admitted that the firearm belonged to him. He claimed that he packed it for safety purposes while traveling abroad, that he was unaware that airline procedure required passengers to declare firearms, and that he thought the proper procedure for carrying a firearm was to disassemble and stow it in a locked container in the airplane’s cargo.
Federal agents questioned Beightler while he was in custody and decided not to pursue the matter further. The arresting Port Authority officers contacted the Essex County Prosecutor’s office, and Beightler was charged with unlawful possession of a firearm. Beightler applied for admission to the state’s Pre-Trial Intervention (“PTI”) program, which would have allowed him to complete a period of probation and avoid indictment. The parties agree that the Essex County Prosecutor’s Office (“ECPO”) denied Beightler’s application, despite the probation department’s recommendation that he be admitted, characterizing Beightler’s actions as national security breaches and likening them to acts of terrorism. Beightler appealed his PTI admissions denial, but pleaded guilty when his appeal was denied. Beightler then filed this civil rights suit pursuant to 42 U.S.C. § 1983, alleging that the State of New Jersey, Essex County, and ECPO: (1) violated his equal protection rights under the Fourteenth Amendment; (2) violated his Fifth Amendment due process rights; (3) defamed him pursuant to N.J. Stat. Ann. § 2a:14-3; and (4) negligently prosecuted him in violation of state common law. Upon defendants’ motion to dismiss, the District Court concluded that Beightler failed to state a claim upon which relief could be granted because the defendants were protected by the Eleventh Amendment. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and conduct de novo review of the District Court’s dismissal pursuant to Rule 12(b)(6). Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). We accept as true all of the allegations contained in the complaint and draw reasonable inferences in favor of a pro se plaintiff. Id. at 229; see also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
III.
Beightler’s appeal presents two arguments. First, he argues that ECPO is not an arm of the state and therefore should not enjoy Eleventh Amendment immunity. Next, he claims that even if ECPO were eligible for immunity under the Eleventh Amendment, that protection was waived by voluntarily placing itself within federal jurisdiction, or alternatively, by acting maliciously and with wilful misconduct.1
*832Eleventh Amendment immunity protects not only states but also state agencies, “as long as the state is the real party in interest.” Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655, 658 (3d Cir.1989) (en banc), cert. denied, 493 U.S. 850, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989). To determine whether Eleventh Amendment immunity applies, we consider three factors: (1) the source of the agency’s funding—i.e., whether payment of any judgment would come from the state’s treasury; (2) the status of the agency under state law; and (3) the degree of autonomy from state regulation. Id. at 659. In the context of an agency analysis, we discussed all of these concerns, see Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir.1996), culminating in the conclusion that “when [New Jersey county] prosecutors engage in classic law enforcement and investigative functions, they act as officers of the state.”
We recognized in Coleman that county prosecutorial offices conducted two distinct sets of functions: (1) the administrative functions of operating their offices, and (2) the classic law enforcement and investigative functions for which they are chiefly responsible. After essentially analyzing the same factors presented in Fitchik, we concluded that county prosecutors acted as arms of the state when they performed the latter. Id. at 1499-1505, Here, ECPO was undeniably engaged in a classic law enforcement function when it charged Beightler with unlawful possession of a firearm. Accordingly, in doing so, ECPO was acting as an arm of the state and entitled to immunity under the Eleventh Amendment, unless it waived its protection.
Beightler theorizes that ECPO waived its immunity by voluntarily placing itself within federal jurisdiction. According to Beightler, ECPO placed itself within federal jurisdiction “when [it] voluntarily invoked the jurisdiction of federal courts.” Appellant’s Brief at 8. In support of this claim, he cites Lapides, 535 U.S. at 624, 122 S.Ct. 1640, in which the Supreme Court held that a state waived its Eleventh Amendment immunity when it removed a case from state court to federal court. Lapides, however, is distinguishable. Here, Beightler chose the forum, and the defendants claimed sovereign immunity from the outset. ECPO’s presence in federal court was thus involuntary and did not waive its sovereign immunity.
Alternatively, Beightler theorizes that ECPO waived its immunity by acting maliciously and with willful misconduct. In support of his claim Beightler cites Wright v. State, 169 N.J. 422, 456, 778 A.2d 443 (2001), in which the New Jersey Supreme Court held that county prosecutors were not entitled to indemnification and defense by the State of New Jersey for alleged “tortious conduct committed during the investigation, arrest, and prosecution” when their acts or omissions involve fraud, actual malice, or willful misconduct.
According to Beightler, Wright demonstrates that evidence that a county prosecutor’s office acted with malice or willful misconduct is relevant in determining whether the state treasury would be responsible for paying a judgment. Despite its relevancy to the Fitchik analysis, we already determined, after considering all *833of the Fitehik factors as a whole, that New Jersey county prosecutors are arms of the state when carrying out prosecutorial functions. Furthermore, Wright was not an Eleventh Amendment immunity case, and we have found no authority that has deemed garden variety overzealousness of the type alleged here to be a waiver sufficient to establish a waiver of Eleventh Amendment immunity.
IV.
In light of the foregoing, we conclude that Beightler has failed to state a claim upon which relief could be granted. Accordingly, the District Court’s order is affirmed.
. By only raising the issues outlined above on appeal, Beightler has waived his claims against the State of New Jersey and Essex County. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005) (holding "an appellant's failure to identify or argue an issue in *832his opening brief constitutes waiver of that issue on appeal.”). We note, however, that even had Beightler preserved his claims against the State of New Jersey, that claim would have failed because the Supreme Court has held, “a State is not a 'person' against whom a § 1983 claim for money damages might be asserted." Lapides v. Board of Regents, 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470779/ | OPINION
PER CURIAM.
Michael Jackson, a federal prisoner proceeding pro se, appeals from the District Court’s order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the following reasons, we will affirm.
I.
Jackson is currently incarcerated in the Federal Correctional Institution at Schuylkill (“FCI-Sehuylkill”) in Minersville, Pennsylvania. On April 12, 2005, Jackson was confined in the Special Housing Unit (SHU) at FCI-Schuylkill. At approximately 7:25 p.m. that day, Senior Officer J. O’Boyle approached Jackson in his cell, and ordered him to provide a urine sample. Jackson, however, refused. As a result, Officer O’Boyle gave him a glass of water, instructed him to drink it, and told him that he would return in two hours to collect the urine sample. When the officer returned, however, Jackson still refused to cooperate.
The next day, Jackson received notice that he was being charged with “refusing to provide a urine sample or take part in other drug abuse testing” in violation of Section 110 of the Bureau of Prisons’ (“BOP”) disciplinary code. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment C.) Jackson’s Unit Disciplinary Committee then conducted an investigation into the charges. The Committee determined that Jackson had been properly charged, and referred the matter to the Disciplinary Hearing Officer (“DHO”). (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment C.)
Jackson appeared for a hearing before the DHO on May 2, 2005. At the hearing, Jackson testified that, due to an incident in 1974 in which someone “clocked him from behind” while he was “taking a piss,” he was unable to urinate in front of other people. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment E.) The prison’s chief psychologist, Dr. G. Londis, also testified at the hearing, but he indicated that nothing in Jackson’s record suggested that he had ever been diagnosed with, or treated for, a “shy bladder.” (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment E.)
Following the hearing, the DHO found that Jackson had violated BOP Code Section 110 by refusing to provide a urine sample. In reaching this conclusion, the DHO noted that Jackson had a history of refusing to provide urine samples, that his medical records did not include any documentation of the alleged condition, and that the staff members who had investigated the charge were credible. The DHO sanctioned Jackson with: (1) disciplinary segregation; (2) disallowance of 54 days of good conduct time; (3) forfeiture of 352 days of non-vested good conduct time; and (4) loss of phone and visiting privileges for a period of one year. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment E.)
Jackson sought review of the DHO’s decision in the Northeast Regional Office. In support of his appeal, Jackson submit*835ted a report by Dr. Glenn D. Walters, a clinical psychologist, who opined that Jackson’s medical records contained “some support” for his story. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.) Based on this new evidence, the Northeast Regional Office remanded the matter back to the DHO for rehearing.
Upon rehearing, the DHO considered Dr. Walters’s report, which stated that, in his view, “Jackson does have genuine concerns about urinating in front of others that can be traced back to a specific traumatic incident.” (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.) Thus, Dr. Walters recommended that “some degree of flexibility be exercised when attempting to get a urine [sample] from this inmate.” (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.) Dr. Walters cautioned, however, that his recommendation was not intended to excuse Jackson from participating in the urine surveillance program. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment L.)
After considering the evidence presented at both the initial hearing and the rehearing, the DHO again concluded that Jackson had committed a Code 110 violation. In so concluding, the DHO again relied on Officer O’Boyle’s testimony and Jackson’s history of refusing to provide urine samples. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment K.) The DHO also considered Dr. Walters’s opinion and found that Officer O’Boyle had in fact demonstrated “flexibility” with Jackson by offering him additional fluids during the procedures. (Response to Petition for Writ of Habeas Corpus, Dkt. # 6, Attachment K.) Accordingly, the DHO re-imposed the previously issued sanctions. Jackson’s administrative appeals from the DHO’s decision were unsuccessful.
II.
On January 7, 2008, Jackson filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging that his due process rights had been violated during the disciplinary process. Specifically, Jackson claimed that: (1) the DHO’s decision was not supported by the evidence; (2) the prison’s investigation into the charge was insufficient; and (3) the DHO’s sanctions were too harsh. By order entered August 28, 2008, 2008 WL 4148243, the District Court denied the petition.1 Williams now appeals from the District Court’s order.
III.
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We review a District Court’s legal conclusions de novo and its factual findings for clear error. See, e.g., Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002) (“In reviewing a federal habeas judgment, ‘we exercise plenary review over the district court’s legal conclusions and apply a clearly erroneous standard to its findings of fact.’”) (quoting Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000)).
It is well established that “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Supreme Court has, however, recognized a set of minimum procedural protections that must apply to prison *836disciplinary proceedings when, as in this case, a prisoner’s good-time credit is at stake.2 Id. at 557, 94 S.Ct. 2963. Specifically, when good-time credit is at stake, a prisoner is entitled to: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67, 94 S.Ct. 2963. “[Revocation of good time does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary board are supported by some evidence in the record.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (internal quotation and citation omitted).
Upon review, we agree with the District Court that Jackson received all the process that he was due during the disciplinary proceedings. The record reveals that Jackson was given prior written notice of the charges against him in accordance with 28 C.F.R. § 541.17(a); that he was provided the opportunity to call witnesses and present documentary evidence in his defense; and that he was issued a written decision setting forth the evidence relied on, and the reasons for, the disciplinary action. See Wolff, 418 U.S. at 563-67, 94 S.Ct. 2963.
Furthermore, the DHO’s findings were clearly supported by “some” evidence in the record. In his report, DHO Kevin Bittenbender noted that his decision was based upon the following inculpatory evidence: Officer O’Boyle’s account of the incident in the incident report; a memorandum from Officer O’Boyle in which he noted that, since the time of the incident, he has obtained urine samples from Jackson without difficulty; Jackson’s past history of refusing to provide urine samples; and the absence of any medical documentation reflecting Jackson’s condition. We agree with the District Court that this evidence is sufficient to support the outcome of the hearing and meets the requirements imposed by the Due Process Clause. See Hill, 472 U.S. at 454, 105 S.Ct. 2768.3
Finally, insofar as Jackson argues that the loss of 406 days of good time credit was excessive in violation of the Eighth Amendment, we agree with the District Court that this sanction does not constitute an Eighth Amendment violation because it is within the limits prescribed for Jackson’s offense, see 28 C.F.R. § 541.13, and it is not disproportionate to the severity of the offense, Rummel v. Estelle, 445 U.S. 263, 271-74, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
IV.
Accordingly, we will affirm the District Court’s order denying Jackson’s petition for writ of habeas corpus. Jackson’s motion for appointment of counsel is denied.
. The District Court declined to address the government's argument that Jackson had failed to properly exhaust his administrative remedies, and instead based its denial on the merits of Jackson’s claims.
. While the Due Process Clause protects against the revocation of good-time credit, it does not provide the same level of protection against the other forms of discipline that Jackson received. See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir.2002) (citing Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
. We need not reach Jackson’s remaining challenges to the disciplinary proceedings because, as discussed above, any error in these proceedings will not result in a due process violation as long as Jackson was provided with the process that he is due under Wolff. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470781/ | *838OPINION OF THE COURT
RENDELL, Circuit Judge.
The plaintiff in this case, Sergeant Wilbur F. Justice, was a corrections officer with the Delaware Department of Correction (“DOC”). He alleges that the defendants (the DOC; Carl C. Danberg, Jr., in his official capacity as the Commissioner of Correction; and Alan Machtinger, individually and in his official capacity as the Director of Human Resources at the DOC) retaliated against him for his union activity by denying him a promotion. The District Court denied the defendants’ motion for summary judgment and granted the plaintiffs partial motion for summary judgment as to whether Justice’s conduct was protected by the First Amendment. We do not have jurisdiction over the District Court’s order, and we will dismiss the appeal.1
I. Background
Justice worked for the DOC for twenty-two years before retiring in 2007. He was also active in the correctional officer union, the Correctional Officers Association of Delaware (“COAD” or “Union”). During the time of the alleged retaliation, COAD was engaged in bitter contract negotiations with the DOC. The Union was also engaged in a negative advertising campaign against the incumbent governor and the State of Delaware which alleged “chronic under staffing ... the need for salary increases ... and security lapses within the prison system.” (App.73.) As a COAD vice-president, Justice participated in the contract negotiations and COAD’s activities. He alleges that Machtinger intentionally misplaced his application for promotion and that this was done in retaliation for his union affiliation. Because his application was misplaced, Justice says, he was not on the initial interview list and had little time to prepare for the interview. Justice came in second after the interviews and lost the promotion to a colleague he claims was less qualified. Machtinger, who was head of Human Resources at the DOC, contends that he was on vacation at the relevant time and had nothing to do with Justice’s application.
Justice filed suit under 42 U.S.C. § 1983 in August of 2006. The case was initially assigned to Judge Jordan, but upon his appointment to this court the matter was reassigned. On February 4, 2008, at the close of discovery, the District Court issued an order directing the parties to submit short and concise statements of facts and legal issues rather than full summary judgment briefs. Justice submitted such a statement in support of his motion for partial summary judgment. The defendants submitted a concise statement but also filed full briefing and an appendix in support of their motion for summary judgment. Justice moved to strike the defense filings for non-compliance with the court’s order, but the court denied the motion to strike and ordered that Justice should not file a brief in opposition or submit an appendix unless the court so ordered.
On July 29, 2008, the District Court issued an opinion and order granting Jus*839tice’s motion for partial summary judgment, finding that he had engaged in constitutionally protected activity and suffered an adverse employment action, and denying the defendants’ motion for summary judgment. It found that a “genuine issue of material fact remains as to whether plaintiffs activity was a substantial or motivating factor in the adverse action.” (App.4.) The court did not rule on qualified immunity, despite the defendants’ argument that, even if a constitutional violation and retaliation were proved, Machtinger was entitled to immunity from suit. The court disagreed, noting that qualified immunity required a two-step analysis: first, whether there was a constitutional violation, and second, whether the constitutional right that was violated was clearly established at the time of the violation. See Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir.2007). It then stated its disposition: “[t]he court reserves judgment on the issue of qualified immunity until such time as an actual constitutional violation has been identified.” (App.22.)
II. Jurisdiction
A denial of a motion for summary judgment is not usually a final order, but a denial of summary judgment on the basis of qualified immunity can be an appealable order under the collateral order doctrine. See Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Rivas v. City of Passaic, 365 F.3d 181, 192 (3d Cir.2004). However, such an order is ap-pealable only if it presents an issue of law.2 As the Supreme Court explained in Johnson, the collateral order doctrine does not permit an appeal from an order denying a motion for summary judgment “insofar as that order determines whether or not the pretrial record sets forth a ‘genuine issue’ of fact for trial.” 515 U.S. at 320, 115 S.Ct. 2151. “With respect to facts, ‘we may review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right, but we may not consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove.’” Reilly v. City of Atl. City, 532 F.3d 216, 224 (3d Cir.2008) (quoting Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.2002)).
Justice argues that we lack jurisdiction over the issue of qualified immunity because the District Court determined that a genuine issue of material fact remained as to whether his activity was a substantial or motivating factor in his failure to get a promotion. The defendants argue that we do have jurisdiction; they contend they are challenging only the pure legal issue of whether Justice’s union activity was protected by “clearly established law.” (Appellant’s Supp. Br. at 2.)
We conclude that we lack jurisdiction over the appeal from the District Court’s order denying summary judgment.3 The court did not deny summary judgment based on its analysis of qualified immunity; rather, it stated it was denying summary judgment because it could not yet deter*840mine whether there had been a constitutional violation and thus could not decide the first prong of the qualified immunity analysis.4 Indeed, the court said specifically that it “reserve[d] judgment on the issue of qualified immunity until such time as an actual constitutional violation has been identified.” (App.22.)
We cannot determine from the District Court’s opinion or order whether it believed there were factual issues related to the causation of the adverse employment action (in which case we do not have jurisdiction because only issues of law are ap-pealable from orders denying qualified immunity at the summary judgment stage), or whether it was deferring its qualified immunity decision because the record before it — with full briefing from the defendants but only the concise statement of facts and no appendix from Justice — was insufficient (in which case we do not have jurisdiction because it was not prepared to decide the qualified immunity issue). Either way, the District Court’s order is unreviewable.
We note that the purpose of qualified immunity is to protect officials from suit, not just from trial. See, e.g., Johnson, 515 U.S. at 312, 115 S.Ct. 2151 (noting that “qualified immunity is in part an entitlement not to be forced to litigate the consequences of official conduct”); Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (“[W]e repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”). A district court is charged with deciding “ ‘whether a constitutional right would have been violated on the facts alleged....’” Doe v. Groody, 361 F.3d 232, 237 (3d Cir.2004) (quoting Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In this case, the unorthodox briefing, with only the concise statement of facts and no record evidence from the plaintiff, may have made it impossible for the District Court to rule based on what was before it. If the District Court did believe that the record was insufficient (rather than that there were fact issues to be decided at trial), we encourage the District Court to proceed to full briefing so as to be able to decide the qualified immunity issue prior to trial.
For the reasons set forth above, we will DISMISS the appeal for lack of jurisdiction.
. Justice retired from the DOC after filing this suit. The Eleventh Amendment bars suits against states and state officials, sued in their official capacities, when the relief sought is retroactive. Edelman v. Jordan, 415 U.S. 651, 668-69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Justice concedes that his retirement moots his claims for prospective relief against the DOC and against Danberg and Machtinger in their official capacities, and that the remaining relief he seeks is retroactive. Appellee's Br. at 28. Therefore, the only remaining defendant is Machtinger, who was sued in his individual capacity as well as his official capacity. When the case returns to the District Court, it should dismiss the other defendants.
. We exercise plenary review over questions of law appealed pursuant to the collateral order doctrine. Schieber v. City of Phila., 320 F.3d 409, 415 (3d Cir.2003). In reviewing a denial of summary judgment, we view the facts in the light most favorable to the non-moving party, the appellee. See, e.g., Barton v. Curtis, 497 F.3d 331, 334 (3d Cir.2007).
. Because we hold that we do not have jurisdiction over the denial of summary judgment, we will not address the grant of partial summary judgment.
. The Supreme Court, in Pearson v. Callahan, - U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), held that the two-step Saucier analysis is no longer mandatory and that courts need not first determine whether the facts alleged by the plaintiff make out a violation of a constitutional right. Rather, lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818. If a court first determines that the right at issue was not clearly established at the time of the offense, it need not explore the factual support for the plaintiff’s allegations of a constitutional violation, and may grant qualified immunity. We do not know whether Pearson will have an impact on this case, but it is worth noting the new post-Saucier flexibility in qualified imniynity analysis. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470782/ | OPINION
PER CURIAM.
Steven Smith filed suit against the North American Specialty Insurance Company (“North American”) and the Internal Revenue Service (“IRS”) in state court. He alleged that he had an agreement with Safeguard Lighting Systems, Inc. (“Safeguard”) to provide his services as an insurance adjuster relating to a claim of water damage that Safeguard was presenting to its insurer, North American. Smith was to be paid 8% of the amount that Safeguard recovered from North American. As security for his fee, Safeguard assigned him the insurance claim and proceeds. After suing North American for breach of contract, Safeguard agreed to a settlement award of $500,000. However, Safeguard never directly received any proceeds of the settlement. North American instead paid the money to the IRS in satisfaction of an IRS levy against Safeguard for back taxes.1 Smith filed suit to recover his fee of $40,000 from the defendants.
North American and the IRS removed the suit to the District Court. The IRS filed a motion to dismiss the complaint as to it for failure to state a claim upon which relief can be granted. The District Court, in granting the motion, construed the suit against the IRS as a suit against the United States and held that it was time-barred.2
After the IRS/United States was dismissed from the action, Smith moved to x’emand the matter to state court. He argued that the state court should hear the remaining claim, which he characterized as a “traditional contract claim” against North American for less than $75,000. While the motion to remand was pending, North American filed a motion to dismiss the suit. North American argued that the District Court lacked subject-matter jurisdiction because (1) North American was not a proper defendant, and (2) the suit was barred by a jurisdictional time-bar. North American also contended that Smith had failed to state a claim upon which relief can be granted.
The District Court denied the motion to remand, noting that even if the remaining claim against North Amez-ican was not a federal claim, it would exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Subsequently, the District Com’t dismissed the suit for failure to state a claim. The District Court held that al*843though Smith described the claim as a contract claim under state law, it was a claim of interest in property on which a levy had been made by the IRS. Accordingly, the District Court concluded that Smith’s only remedy was against the United States under 26 U.S.C. § 7426(a)(1). The District Court further explained that North American could claim the protection of 26 U.S.C. § 6332(e) against Smith’s claim because it had paid $500,000 to the IRS in compliance with the levy against Safeguard.
Smith appeals from the District Court’s orders denying his motion to remand and granting North American’s motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over questions of jurisdiction, see Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000), although we review a district court’s exercise of supplemental jurisdiction for abuse of discretion, see De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir.2003). We also exercise plenary review over a district court’s dismissal of a complaint for failure to state a claim upon which relief can be granted. See Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.2004).
We will affirm in part, and vacate in part, the District Court’s judgment. To the extent that Smith’s claim against North American can be viewed as a claim under state law for breach of contract, the District Court did not abuse its discretion in exercising supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Whether a case should be remanded requires a case-specific analysis. See Asencio, 342 F.3d at 312. In this ease, the District Court had already adjudicated the lawsuit between Safeguard and North American. Even on a preliminary review of the allegations, the District Court could see that the claim against North American related to the earlier suit as well as the attempted federal action against the IRS that was the basis for removal. Moreover, North American was asserting a defense under federal law. For these reasons, the District Court did not err in declining to remand the claim, even if it could be considered a claim under state law.
However, the claim is not merely a misdirected claim for wrongful levy. If Smith were simply bringing a wrongful levy claim, as North American argues, the Internal Revenue Code would leave him with one remedy against the United States. See 26 U.S.C. § 7426; see, e.g., Texas Commerce Bank-Ft. Worth, N.A. v. United States, 896 F.2d 152, 155 (5th Cir.1990); United Sand & Gravel Contractors, Inc. v. United States, 624 F.2d 733, 739 (5th Cir.1980) (noting that a wrongful levy action is the exclusive remedy against the United States for a third party whose property is confiscated by the IRS to satisfy another person’s tax liability). However, Smith did not merely sue for wrongful levy, and he did not sue only the United States.
Moreover, it is not clear that his claim against North American was barred by federal law, as the District Court concluded in subsequently dismissing the suit. A provision in the Internal Revenue Code provides:
Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary (or who pays a liability under subsection (d)(1)) shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.
*84426 U.S.C. § 6382(e). The parties do not dispute that the IRS served North American with the levy for Safeguard’s back taxes and that North American paid the $500,000 settlement to the IRS to satisfy the levy in accordance with 26 U.S.C. § 6332(a). However, the parties do not agree about whether North American, when it turned over the $500,000 to the IRS, had “property or rights to property subject to levy” in relation to the 8%, or $40,000, allegedly due Smith under the assignment agreement. Smith alleges that his portion of the settlement had been assigned to him before the levy and could not be considered subject to the levy against Safeguard.
Whether the levy related to “property or rights in property subject to levy” is a threshold issue that must be considered before immunity is awarded. See Farr v. United States, 990 F.2d 451, 457 (9th Cir.1993) (stating that although the immunity provision has been interpreted generously, “the plain words of the statute indicate that third persons are protected only when they turn over property which is ‘subject to levy’ ”). See also Kane v. Capital Guardian Trust Co., 145 F.3d 1218, 1224 (10th Cir.1998) (finding § 6332(a) a shield to liability only after noting, among other things, that the right at issue was a right to property subject to levy); Moore v. General Motors Pension Plans, 91 F.3d 848, 851 (7th Cir.1996) (applying § 6332(e) only after ruling, among other things, that the property at issue was property subject to levy).
At this stage of the proceedings, it is not clear whether North American may claim the protection of 26 U.S.C. § 6332(e) because it is not clear whether Smith’s fee, allegedly assigned in him in 2001 as 8% of any insurance recovery, was property subject to levy in 2005. State law applies in determining the legal interest the parties had in the property. Cf. United States v. Nat’l Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 86 L.Ed.2d 565 (1985). On the current scant record, the answer is not apparent.
For these reasons, although we will affirm the District Court’s order denying the motion to remand, we will vacate the District Court’s order granting North American’s motion to dismiss the complaint. This matter is remanded to the District Court for further proceedings consistent with this opinion.
. Although Safeguard moved to vacate the order dismissing its breach-of-contract suit, arguing that it and North American did not come to a meeting of the minds about the settlement, we affirmed it. See Safeguard Lighting Systems, Inc. v. North American Specialty Ins. Co., 214 Fed.Appx. 215 (3d Cir.2007).
. This decision is not contested on appeal. Appellant's Brief 4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470784/ | OPINION OF THE COURT
ALARCÓN, Circuit Judge:
Appellant Terrance Manuel appeals from the District Court’s sentencing decision on two grounds: (1) the District Court erred by denying his motion to suppress evidence obtained from a warrantless search of an apartment that was not Man*846uel’s approved, registered residence; and (2) the District Court abused its discretion by admitting evidence of Manuel’s status as a probationer. Because we conclude that the District Court did not err on either ground, we will affirm the judgment of sentence.
I
In September 2004, Manuel was released on parole following a Pennsylvania state prison term for a narcotics offense. Manuel was under the supervision of the Montgomery County Adult Probation and Parole Department. Upon his release on parole, Manuel signed a September 8, 2004 form entitled “Rules and Conditions Governing Probation/Parole and Intermediate Punishment (IP).” The form stated in relevant part:
2. I must comply with all local, state, and federal criminal laws .... I will abide by the rules and conditions imposed by the Montgomery County Adult Probation and Parole Department.
3. My officer will make supervision visits to my home. Prior to changing my residence, I must have the permission of my probation/parole officer.
10. I understand the Adult Probation and Parole Department has the authority to search my person, place of residence or vehicle without a warrant, if he or she has reasonable suspicion.
(Supp.App. of Appellee 20.)
Manuel informed the Adult Probation and Parole Department that he would reside at his mother’s home at 730 George Street, Norristown, Pennsylvania (the “George Street Address”). Montgomery County Adult Probation and Parole Department Officer Samuel Dowling supervised Manuel after he was released on probation.
On January 20, 2006, Officer Dowling received a tip from an anonymous informant that Manuel was living at 916 W. Washington Street, Apartment B, Norris-town, Pennsylvania (the “Washington Street Address”) where there were guns and drugs. That same day, Officer Dowl-ing and another probation officer went to the Washington Street Address. There, Officer Dowling observed the name “T. Manuel” on the mailbox outside of the apartment. Dowling made a notation of the tip and his observation of the name “T. Manuel” on the mailbox in his file, but took no further action at that time.
Some time later, Dowling received another tip on his office voicemail from the same informant, again stating that Manuel was living at the Washington Street Address where there were guns and drugs. Dowling did not make a notation of this tip in Manuel’s file.
On February 24, 2006, Dowling arranged to meet Manuel at a Norristown laundromat later that day. Confrontation at the laundromat was selected by Officer Dowling because he and his fellow officers are not permitted to carry firearms. An arrest at his residence was not considered because Manuel might have guns there. Manuel was handcuffed, and Dowling retrieved a set of keys from his pocket. Officer Dowling told Manuel that they were going to his residence. Manuel replied “730,” presumably referring to the George Street address. When Dowling told Manuel that they were going to the Washington Street Address, “his eyes got big and he kind of froze there.” (App. II 39.)
*847Upon arriving at the Washington Street Address, Dowling used the keys taken from Manuel to enter the apartment. Once inside, Dowling testified that he smelled marijuana. Dowling then searched the apartment where he discovered a gun, “packages with white residue or powder” believed to be packaging for cocaine, a cardboard box containing pink vials, “a box with affixed of [sic] [Manuel’s] name,” a Comcast bill, and a lease. Thereafter, Dowling called the Norristown Police Department, who obtained a search warrant and searched the apartment.
II
On April 3, 2007, Manuel was charged in a four-count indictment with: possession with intent to distribute 5 grams or more of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) (Count 1); possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count 2); using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 3); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count 4).
Manuel moved to suppress the gun and narcotics evidence as fruits of an unconstitutional search. After holding a suppression hearing, the District Court denied the motion. Manuel also moved in limine to exclude evidence referring to Officer Dowl-ing as Manuel’s probation officer. The District Court denied this motion as well.
On January 4, 2008, a jury convicted Manuel of the first three counts and, after Manuel waived his right to a jury trial as to Count 4, the District Court issued findings of fact and conclusions of law finding Manuel guilty of possession of a firearm by a convicted felon. The District Court sentenced Manuel to 271 months of incarceration and eight years of supervised release, and entered judgment on July 10, 2008. Manuel has timely appealed.
Ill
Manuel argues on appeal that the District Court erred by denying his motion to suppress the evidence obtained from the warrantless search of the Washington Street Address. We disagree. We conclude that the totality of the circumstances — including the two telephone calls from an anonymous informant reporting that Manuel was living at the Washington Street Address, and the fact that Officer Dowling corroborated this information by observing the name “T. Manuel” written on the mailbox outside of the residence, together with Manuel’s having the keys in his possession — gave the officers probable cause to believe that Manuel resided at the Washington Street Address. See Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir.2005) (en banc) (“before conducting a warrantless search pursuant to a parolee’s parole condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched”). Manuel’s reliance on Commonwealth v. Edwards, 874 A.2d 1192 (Pa.Super.Ct.2005), is misplaced. There, the Superior Court of Pennsylvania held that parole officers lacked probable cause to enter and search, without a warrant, the alleged unapproved residence of a parolee. Id. at 1198. In contrast to the present matter, in Edwards, the evidence presented to the parole officers indicated that the parolee did not reside at the location that was searched. Among other things, the parolee and a third party offered a plausible explanation for the parolee’s presence at the residence. See id. at 1196-97.
Also, the record shows that the officers had “reasonable suspicion” to search the Washington Street Address to deter*848mine whether Manuel had violated the terms and conditions of his probation by failing to obtain approval before changing his residence. See Griffin v. Wisconsin, 483 U.S. 868, 875-76, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (holding that state statute could permit search of probationer’s residence if “reasonable grounds” exist); see also 61 Pa. Stat. § 331.27b(d)(2) (“A property search may be conducted by any officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.”) (emphasis added). The conditions of Manuel’s release expressly provided that he could not change his residence without the permission of his probation/parole officer.
This Court’s decision in Shea v. Smith, 966 F.2d 127 (3d Cir.1992), is also distinguishable. In She a, this Court held that a probation officer had reasonable grounds to search the residence without a warrant for evidence of a probation violation because it was listed with the probation office as the probationer’s address. Id. at 131-34. Griffin is distinguishable on similar grounds. See Griffin, 483 U.S. at 871, 107 S.Ct. 3164. These cases suggest that probable cause is required to believe that a probationer resides at a location, see Edwards, 874 A.2d at 1198, but that only reasonable suspicion is needed to investigate a possible probation violation, see Shea, 966 F.2d at 131-34.
IV
Manuel also argues on appeal that the District Court abused its discretion by admitting evidence that Officer Dowling was Manuel’s probation officer. The Government’s case was based on the theory that Manuel intended to hide his true residence, the Washington Street Address, from Officer Dowling because Manuel was engaging in unlawful activity there. Evidence that Officer Dowling was Manuel’s probation officer was admissible to demonstrate why Dowling met with Manuel at the laundromat and drove Manuel to the Washington Street Address. This evidence was intertwined with the events underlying the charges. The District Court did not abuse its discretion in admitting this evidence. See United States v. Gibbs, 190 F.3d 188, 218 (3d Cir.1999) (Rule 404(b) of the Federal Rules of Evidence “does not apply to evidence of uncharged offenses committed by a defendant when those acts are intrinsic to the proof of the charged offense.”).
Because the District Court did not err in denying Manuel’s suppression motion or in denying his motion in limine, the Judgment and Commitment Order of the District Court will be AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470786/ | OPINION OF THE COURT
McKEE, Circuit Judge,
Denise Proctor appeals the district court’s grant of summary judgment in favor of the defendant, ARMDS, Inc., in this employment discrimination claim based on racial discrimination that Proctor brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this case, we need not recite the factual or procedural history. Our review of the grant of summary judgment is plenary. Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). To raise a “genuine” issue of fact, the record must contain evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Proctor alleges that there is a genuine issue of material fact regarding whether she received the same quality and amount of training as similarly situated employees outside of her protected class. However, there is no evidence that any similarly situated employee received better training. In her deposition, Proctor men*850tioned two employees who may have attended a meeting that Proctor believed that she should also have attended. (App. 126-27). However, Proctor was unsure of the job positions of these employees, and she could not say whether they actually attended the meeting in question. “The central focus ... in a case such as this is always whether the employer is treating ‘some people less favorably than others because of then’ race, color, religion, sex, or national origin.’ ” Furnco Const. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (quoting Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). “If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). Here, Proctor’s coneluso-ry allegations, unsupported by any evidence that she received less rigorous training than those who were similarly situated, fail to raise a genuine issue of material fact.
Although we note that Proctor mentions a racially charged incident involving another employee and reference to a “chimpanzee,” she does not attempt to establish the existence of a hostile work environment, and that theory of recovery is not included under the “Statement of The Issue Presented for Review” in her brief. Accordingly, Proctor’s failure to show that a white employee received more favorable treatment or training, or that such an employee received training that she was denied, is fatal to her claim of racial discrimination under Title VII.
Proctor also argues that summary judgment was improper because there are genuine issues of material fact as to whether, during her initial job interview, she told the interviewer that she had experience with Medicaid, Medicare, Social Security and Charity Care programs. According to Proctor, she merely said that she was “knowledgeable” with regard to the programs, meaning that she knew of their existence, and the interviewer took this to mean that she had experience she did not actually have working with such programs. This argument misses the point, however. In order to make out a prima facie case of disparate treatment, the plaintiff must show, among other things, “that [s]he applied and was qualified for a job for which the employer was seeking applicants.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We have held that “[o]bjective job qualifications should be considered in evaluating a plaintiffs prima facie case.” Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 320 (3d Cir.2000).
Here, Proctor admits that she did not have the requisite job experience actually working with Medicaid, Medicare, Social Security and Charity Care programs. Therefore, Proctor did not meet the objective qualifications for the job in question, and she failed to make out a prima facie case. Summary judgment was therefore appropriate. See, Narin v. Lower Merion School Dist., 206 F.3d 323, 332 (3d Cir.2000) (affirming summary judgment where plaintiff did not possess required teaching certificates and thus could not establish prima facie claim). We will therefore affirm the district court’s grant of summary judgment.
II.
For all of the above reasons, we will affirm the order of the district court granting summary judgment to the plaintiff. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470788/ | OPINION
PER CURIAM.
Dexter Scotland, a citizen of Antigua, petitions for review of a final expedited removal order issued by the Department of Homeland Security (“DHS”). For the following reasons, we will deny the petition.
Scotland entered the United States as a non-immigrant on November 18, 1976, when he was less than a year old. In April 2000, Scotland pleaded guilty to attempted criminal sale of a controlled substance in violation of New York Penal Law § 220.39 in the Supreme Court of New York, Bronx County. The court sentenced Scotland to 6 months’ imprisonment and 5 years of probation. (Administrative Record at 22.) In March 2003, the same court convicted Scotland of the same charge and sentenced him to one year of imprisonment. (Id.)
Scotland came to the attention of the Bureau of Immigration and Customs Enforcement (BICE) in May 2008 when he was arrested in Monroe County, Pennsylvania. David Cuffee, a BICE Immigration Enforcement Agent, interviewed Scotland, who, according to Cuffee, confirmed that he was born in Antigua and was not a United States citizen. Scotland’s father, with whom Cuffee spoke over the telephone, confirmed that he unsuccessfully tried to obtain citizenship for his son. Finally, Cuffee noted that Scotland had no fear of returning to Antigua and that he never served in the United States military. (Id. at 8.) The administrative record also contains a sworn statement, which Scotland signed, affirming that he was born in Antigua and that he is not a United States citizen. (Id. at 9.)
On May 14, 2008, David Clark, a Supervisory Detention and Deportation Officer with BICE, sent Scotland a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice informed Scotland that DHS determined that he was amenable to administrative removal proceedings based on his non-citizenship and his 2003 conviction for criminal sale of a controlled substance. Scotland signed the certificate of service and marked boxes on the form indicating that he wished to contest his removal, that he is both a citizen of the United States and a lawful permanent resident, and that he intended to request withholding of removal to Antigua because he feared persecution based on a protected ground. (Id. at 3-4.)
A memorandum dated June 3, 2008, initialed by Clark, forwarded Scotland’s case to Scott Blake, the Assistant Field Office Director in the Allenwood, Pennsylvania BICE office. Clark informed Blake that Scotland submitted letters written on his behalf stating that he wished to remain in the country to support his United States citizen wife and her four children and that he feared returning to Antigua since most of his family resides in the United States. (Id. at 11.) On June 10, 2008, Blake issued a final administrative order of removal finding that the record established by clear and convincing evidence that Scotland is not a United States citizen and that he is deportable as an alien convicted of an aggravated felony. (Id. at 2.) Blake also found that Scotland is not eligible for any discretionary relief from removal. (Id.) Scotland filed a timely petition for review *853from that order.1
We have jurisdiction to review the expedited removal order under 8 U.S.C. § 1252(a). “Because the basis for removal is [Scotland’s] conviction for an aggravated felony, our jurisdiction is limited under the REAL ID Act to ‘constitutional claims or questions of law.’ ” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.2008) (en banc).
DHS entered Scotland’s order of removal pursuant to an expedited removal proceeding. Such proceedings are permitted for the removal of an alien who has committed an aggravated felony and who is not a legal permanent resident. See 8 U.S.C. § 1228(b)(1). In contrast to the standard removal proceedings, the alien has no right to appear before an immigration judge and no right to any discretionary relief. See 8 U.S.C. § 1228(b)(5); Gonzalez v. Chertoff, 454 F.3d 813, 815 (8th Cir.2006). Scotland argues that he obtained derivative citizenship through his father in 1992 and therefore DHS lacked “jurisdiction” over his ease. (Petitioner’s Br. at 11.) Scotland, however, had thirteen days to rebut the DHS’s citizenship determination, a finding based, in part, on his sworn statement to Cuffee. Scotland did not provide any evidence that he obtained United States citizenship and, therefore, DHS properly proceeded under 8 U.S.C. § 1228(b).
Scotland also contends that DHS violated his due process rights during his expedited hearing by failing to provide him with adequate notice and an opportunity to respond to the DHS’s findings. Under the regulations governing expedited removal of aggravated felons, DHS is required to provide a Notice of Intent which sets forth the agency’s preliminary determinations and give the alien time to respond. 8 C.F.R. § 1238.1(b)(2). Here, DHS served the Notice of Intent on May 14, 2008, and Scotland had thirteen calendar days to submit a response to the agency’s allegations of facts and conclusions of law.2 Scotland took advantage of the response period to submit letters from himself, his father, and from his wife asking that he be allowed to remain in the United States. Clark summarized these letters in a memorandum to Blake, the Deciding Service Officer, who issued a final administrative order of removal 27 days after Scotland received the Notice of Intent.
Scotland’s counsel now alleges that she attempted to contact Clark by telephone before the expiration of the response period. (Petitioner’s Br. at 9.) Even if counsel could prove that she called Clark within the thirteen day response period, such contact would have been improper as the regulations, and the Notice of Intent itself, call for written responses and submissions.3 8 C.F.R. § 1238.1(c)(1). The only *854evidence of written contact between counsel and BICE is counsel’s July 1, 2008 letter which was sent after the expiration of the response period and after DHS issued the final order of removal. Therefore, because DHS complied with the applicable regulations and provided Scotland with a full and fair hearing and a reasonable opportunity to present evidence, we find no due process violation. See Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.2006) (citations omitted).
Finally, Scotland asserts that DHS erroneously determined that he was convicted of an aggravated felony. A state drug conviction, such as Scotland’s New York conviction, constitutes an aggravated felony if the offense of conviction is analogous to a felony under the federal Controlled Substances Act (“CSA”). See Evanson v. Att’y Gen., 550 F.3d 284, 289 (3d Cir.2008) (describing hypothetical federal felony rule). Under N.Y. Penal Law § 220.39, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells a narcotic drug.” In comparison, the CSA makes it unlawful to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance. 21 U.S.C. § 841(a)(1). While it is unclear which controlled substance Scotland sold, all of the substances criminalized by the New York statute are included in the CSA. Compare N.Y. Penal Law § 220.39 with 21 U.S.C. §§ 802(6) and 812(c).
Scotland points to our decision in Steele v. Blackman, 236 F.3d 130 (3d Cir.2001), for the proposition that use of the word “sale” in the New York Penal code does not establish that the offense involved trading and dealing. (Petitioner’s Br. at 12.) Steele is inapposite. In that case, we held that a New York state misdemeanor conviction for the sale of 30 grams or less of marijuana would not constitute a hypothetical federal felony under the CSA. Scotland, however, was not convicted for the sale of marijuana, which is punishable in New York under a separate statute. See N.Y. Penal Law § 221.40. Therefore, because we find that a conviction under § 220.39 is analogous to an offense under the CSA, we reject his argument that his conviction does not constitute an aggravated felony.
For these reasons we will deny Scotland’s petition for review.
. While Blake issued the order on June 10, 2008, DHS did not notify Scotland of the order until June 28, 2008. Therefore, his July 14, 2008 petition was timely.
. The regulations allow for ten calendar days if service of process is effectuated in person; however, if service is by mail, Scotland would have had thirteen calendar days to respond to the Notice of Intent. 8 C.F.R. § 1238.1 (b)(2)(i). Inasmuch as the Notice of Intent does not indicate whether it was served by mail, we will give Scotland the benefit of the thirteen day rule.
. Counsel asserts that she attempted to contact Clark because an alleged source at BICE informed her that Scotland's removal was no longer being processed through expedited removal proceedings. (Petitioner's Br. at 9.) According to counsel, the agency’s failure to clarify the accuracy of this information violates due process. (Id., at 10.) We do not think that alleged reliance on misleading information from an agency source who was seemingly not involved in Scotland's removal proceedings can give rise to a due process right. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470790/ | OPINION
PER CURIAM.
Merrari Valle-Montes petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed her appeal of an Immigration Judge’s (IJ’s) final removal order. We will deny the petition for review.
I.
Valle-Montes is a native and citizen of El Salvador. She was apprehended when she entered the United States without inspection and was placed in removal proceedings. She conceded that she was removable for being present without lawful admission or parole, but applied for asylum and withholding of removal. Valle-Montes’ asylum application is based on an incident that occurred on April 22, 2004 in El Salvador. Valle-Montes testified that on that day, she was riding in her father’s car when four tattooed men stopped the car by force. She and her father were ordered out of the car and she was forced to walk up the road about ten meters with two men from the group while two men remained behind with her father. The men told her they planned to rape her. They stayed with her for about 30 minutes, but suddenly fled when a car approached. The gang members robbed her father. Valle-Montes also submitted to the IJ a sworn written statement that her father made to the police. The father’s account differs somewhat. He said that he stopped the car to help a motorist. He told police that his daughter was driven away in a car for about 2 kilometers, and that the gang members threw her out of the car into a field and immediately fled. His report does not mention gang members remaining with him.
The IJ noted that the State Department’s country report and other written documentation submitted discussed violent criminal gangs operating in El Salvador. The IJ found that Valle-Montes was partially credible, and believed that Valle-Montes suffered a traumatic experience on April 22, 2004, but did not find her credible regarding the details. However, the IJ found that even if she assumed Valle-*856Montes were credible, the applications failed, as Valle-Montes had not shown that she was persecuted on account of a protected ground. The IJ noted that both Valle-Montes and her father suffered similar treatment; they were both victims of crime, and it did not appear that she was singled out because of her gender or any other protected ground. The IJ found that Valle-Montes had further not shown that the police were unable or unwilling to help her. The IJ held that Valle-Montes had not established a well-founded fear of persecution in the future, and found that there was no evidence that the incident was anything but random.
The BIA upheld the IJ’s finding that Valle-Montes had failed to support her application with sufficiently credible evidence. Alternatively, the BIA agreed that even if Valle-Montes were found to be credible, no evidence showed she or her father were mistreated on account of a protected ground. Valle-Montes filed a timely petition for review.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where, as here, the BIA adopted some of the findings of the IJ and made additional findings, we review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 339 (3d Cir.2008). To be granted asylum as a refugee, an applicant must establish that she is unable or unwilling to return to her homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To be entitled to withholding of removal, an applicant must prove that her “life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). It is well-recognized that an alien who is unable to establish refugee status for the purpose of asylum will be unable to establish the right to withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003).
As noted, the BIA agreed with the IJ’s determination that Valle-Montes had not supported her application with sufficiently credible evidence. Valle-Montes argues that the IJ should have taken her testimony when her older brother was not in the room, and should have taken her age into consideration.1 It is possible that Valle-Montes may have been more forthcoming regarding what took place on April 22, 2004 if her brother had not been present, and if the IJ had taken into account that she was only 19 at the time of the hearing. However, we do not find it necessary to remand for a new hearing, as we agree with the BIA’s alternative holding that Valle-Montes did not produce evidence showing she or her father were mistreated on account of a protected ground
Valle-Montes is raising a claim of persecution based on membership in a particular social group. The BIA opined that the group was perhaps “woman” [sic] or “woman [sic] who have been victims of rape.”2 A.R. 2. “Women who have been *857victims of rape” would not be a cognizable particular social group, as the “group” must exist independently of the persecution. Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir.2003). Valle-Montes vaguely defines the group as “based on her gender and the way that her government in El Salvador fails to protect her on account of her gender and claim.” Petitioner’s Brief at 12. Valle-Montes states that proposed regulations would recognize gender as a per se social group, but recognizes that those regulations have not been finalized. Petitioner’s Brief at 13. Even if gender, standing alone, would be a cognizable particular social group, criminal activity, such as rape, does not constitute persecution when it is not motivated by a protected ground. As both Valle-Montes and her father were victimized in the attack, it is not clear that the attackers were motivated by Valle-Montes’s gender. See Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10th Cir.2005) (focus should not be on whether gender can constitute social group, but on whether “members of that group are sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of their membership”); see also Gomez-Zuluaga, 527 F.3d at 345 n. 10 (It is not necessary for us to determine whether this is a cognizable “particular social group” under the statute, because there is substantial evidence in the record to conclude that [the perpetrator] was not motivated by Petitioner’s membership in a particular social group[.]).
Further, even if the proposed regulations mentioned by Valle-Montes were in effect, those regulations do not eliminate the requirement that to constitute persecution, the harm “must be inflicted by the government of the country of persecution or by a person or group that government is unwilling or unable to control.” Asylum and Withholding Definitions, 65 Fed.Reg. 76588, 76597 (Dec. 7, 2000) (to be codified at 8 C.F.R. § 208.15). Valle-Montes provided background evidence that female crime victims are not well-protected in El Salvador, but in her case, the police took her (and her father’s) statements. She testified that although she knew the name of one of the gang members, she declined to give it to the police. The IJ also noted that given the differing accounts of Valle-Montes and her father, police may have had difficulty in investigating the crime. Thus, it is not clear that Valle-Montes gave the police an opportunity to control her attackers, and she produced no evidence that the police were unwilling to try to do so in her case.
Because substantial evidence supports the BIA’s conclusion that Valle-Montes did not meet her burden of showing that she suffered persecution on account of a protected ground, we will deny the petition for review.
. Valle-Montes did not argue these points in her brief to the BIA; however, she did raise them in her notice of appeal to the BIA. We therefore have jurisdiction to consider the arguments. Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir.2009).
. Valle-Montes did not mention being raped in her asylum application or in her testimony. However, she attached to her brief to the BIA a document, dated November 2, 2006, that appears to be the report of an interview at the New Jersey Center for the Rehabilitation of *857Torture Victims, during which she apparently reported that she had been raped by at least two of the men during the attack in El Salvador on April 22, 2004. A.R. 14-15. The BIA is an appellate body that does not engage in fact-finding on appeal. 8 C.F.R. §§ 1003.1(d)(1) & (d)(3)(iv). However, even if the BIA had considered the new evidence as a motion to remand for further fact-finding, see 8 C.F.R. § 1003.1 (d)(3)(iv); it would have been justified in denying such a motion, as Valle-Montes did not show a nexus between her treatment and her membership in a particular social group. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470666/ | SUMMARY ORDER
Petitioner Li Hua Tang, a native and citizen of the People’s Republic of China, seeks review of an October 19, 2007 order of the BIA denying her motion to reopen. In re Li Hua Tang, No. A073 674 735 (B.I.A. Oct. 19, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Tang’s untimely motion to reopen.
Tang argues that the BIA erred in concluding that she failed to demonstrate either material changed country conditions sufficient to excuse her untimely motion to reopen or her prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Similarly, Tang’s argument that she was eligible to file a successive asylum application based on changed personal circumstances is foreclosed by our decision in Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending mo*669tion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470672/ | SUMMARY ORDER
Petitioner, Jin Ming Zhang, a native and citizen of the People’s Republic of China, *674seeks review of a March 24, 2008 order of the BIA affirming the February 14, 2007 decision of immigration judge (“IJ”) Noel A. Ferris denying his motion to reopen his deportation proceedings. In re Jin Ming Zhang, No. A 074 320 860 (B.I.A. Mar. 24, 2008), aff'g A 074 320 860 (Immig. Ct. N.Y. City Feb. 14, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
The BIA did not err in denying Zhang’s untimely motion to reopen. An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Additionally, the deadline may be equitably tolled to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised “due diligence” in vindicating his or her rights. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir.2006).
I. Ineffective Assistance of Counsel
We see no error in the BIA’s conclusion that Zhang failed to exercise due diligence in pursuing his ineffective assistance of counsel claim. See id. asserted that his attorney advised him not to attend his deportation hearing, which resulted in him being ordered deported in absentia. However, he did not state when he discovered the alleged ineffective assistance of his counsel. Zhang’s brief to the BIA asserted that he first discovered the ineffective assistance of his counsel when he consulted with the attorney who filed his motion to reopen. The BIA declined to accord those assertions significant weight because they were i-aised for the first time on appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency); see also Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 506 (B.I.A.1980) (“Counsel’s arguments are not evidence....”). But even if Zhang discovered his prior counsel’s ineffective assistance shortly before he filed his motion to reopen, he did not show what steps he took to pursue his case in the nine years that elapsed after he was ordered deported in absentia. Therefore, as the BIA found, Zhang failed to demonstrate that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008) (finding no exercise of due diligence where fourteen months elapsed from the time the petitioner knew or should have known of the alleged ineffective assistance).
II. Changed Country Conditions
Additionally, we see no error in the BIA’s conclusion that Zhang failed to demonstrate that his untimely filing was excused by changed country conditions. See 8 U.S.C. 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169. We have previously reviewed the BIA’s consideration of evidence similar to that which Zhang submitted and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. *675See Jian Hui Shao, 546 F.3d at 171 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Nothing in the record compels the conclusion that the BIA ignored the evidence Zhang submitted or the arguments he made, evidence and arguments that the BIA is asked to consider time and again. See Xiao Ji Chen, 471 F.3d at 338 n.17.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470674/ | SUMMARY ORDER
Petitioner Qiu Yue Huang, a native and citizen of the People’s Republic of China, seeks review of the April 3, 2008 order of the BIA affirming the August 23, 2006 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qiu Yue Huang, No. A96 335 526 (B.I.A. Apr. 3, 2008), aff'g No. A96 335 526 (Immig. Ct. N.Y. City Aug. 23, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Petitioner challenges the findings that formed the basis for the IJ’s adverse credibility finding. An adverse credibility determination must be “based on specific, cogent reasons bearing a legitimate nexus to the determination.” Belortaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.2007). Material inconsistencies that go “to the heart of [the] petitioner’s claim for relief’ may serve as the basis for an adverse credibility determination. Hongsheng Leng v. Mukasey, 528 F.3d 135, 141-42 (2d Cir.2008) (per curiam) (quotation marks omitted).
The IJ’s adverse credibility determination was based on several specific findings that went to the heart of the Petitioner’s claim — the alleged raid by Chinese authorities on the Petitioner’s underground church in China and the subsequent search for her. See Hongsheng Leng, 528 F.3d at 141. The IJ observed that the Petitioner initially testified that she did not know the names of any church member who was arrested, but later testified that her mother was detained. The Petitioner also initially testified that her mother was detained for ten days, but then testified that her mother was detained for more than twenty days. The IJ asked the Petitioner to explain how her mother could be detained for twenty days and call the Petitioner from home ten days after the alleged raid to notify the Petitioner that police were searching for her.
Although the IJ gave the Petitioner a chance to reconcile this discrepant testimony, see Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006), her explanations only revealed more inconsistencies. The Petitioner stated that her father, not her mother as previously indicated, told her that police were searching for her. In her brief to this Court, the Petitioner does not challenge that she testified inconsistently as to who actually told her the police were searching for her. Accordingly, any challenge to that finding has been waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005).
The IJ reasonably considered the inconsistencies in the Petitioner’s testimony to *677be material and to support an adverse credibility determination. Having called the Petitioner’s testimony into question, the IJ legitimately noted that the absence of corroborating evidence relating to her alleged practice of Christianity in the United States further supported the adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107 (2d Cir.2006).
Ultimately, the record supports the agency’s conclusion that the Petitioner was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hongsheng Leng, 528 F.3d at 141. Because the Petitioner’s asylum and withholding of removal claims were based on the same factual predicate, the adverse credibility determination was fatal to both claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Because the Petitioner failed to exhaust before the BIA her argument that the IJ did not make a separate determination regarding her eligibility for CAT relief, we are without jurisdiction to consider any such claim. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470676/ | SUMMARY ORDER
Petitioner Zu Xian Zheng, a native and citizen of the People’s Republic of China, seeks review of the July 31, 2008 order of the BIA: (1) affirming the December 8, 2006 decision of Immigration Judge (“IJ”) George T. Chew denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”); and (2) denying his motion to remand. In re Zu Xian Zheng, No. A78 845 636 (B.I.A. July 31, 2008), aff'g No. A78 845 636 (Immig. Ct. N.Y. City Dec. 8, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements that decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007).
Substantial evidence supports the agency’s denial of Zheng’s applications for relief based on his alleged “resistance” to China’s coercive population control program. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 312-13 (2d Cir.2007) (en banc) (discussing “resistance” claims). Even assuming Zheng’s actions constituted “resistance,” the BIA reasonably concluded that his fear of persecution was not well-founded.2 See Jin Shut Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003) (discussing the substantial evidence standard). The BIA found that, where there was no evidence that his wife’s second intrauterine device (“IUD”) had been removed, the family planning cadres’ threat of sterilization if that IUD were removed was insufficient to give rise to a well-founded fear of persecution. We disagree with Zheng’s argument that Rui Ying Lin v. Gonzales provides guidance, because in that case the petitioner “offered evidence that she already had two children, that she planned to have more, ... and that she had removed her IUD.” 445 F.3d 127, 136 (2d Cir.2006). By contrast, Zheng had only one child, did not clearly express an intent *679to have more children, and the IUD remained in place. Accordingly, we are unconvinced that the BIA erred in finding that he failed to establish a discernible chance of persecution. Moussa Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000); see also Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005).
For similar reasons, we find that the BIA did not abuse its discretion by denying Zheng’s motion to remand. See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). Zheng based his motion primarily on evidence that a man in his village, who had fathered only one child, was sterilized when cadres discovered that his wife’s IUD had been removed. However, as the BIA found, Zheng failed to establish prima facie eligibility for asylum on this basis where there is no evidence that he would face similar treatment. Jian Xing Huang, 421 F.3d at 129. We find no error here, particularly since his wife had not removed the IUD.
As all of Zheng’s claims for relief were predicated on the same factual basis, and because the BIA’s denial of asylum rested on his failure to establish a sufficient likelihood that he would face harm if returned to China, it follows that he failed to meet the higher burdens of proof with respect to withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Because Zheng failed to raise any argument in his appeal to the BIA pertaining to past persecution on economic grounds, and because the government has raised this failure to exhaust in its brief to this Court, we decline to consider this issue. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470678/ | SUMMARY ORDER
Petitioner Yun Ni, a native and citizen of the People’s Republic of China, seeks review of the August 20, 2008 order of the BIA, denying her motion to reopen. In re *680Yun Lin a.k.a. Yun Ni, No. A072 461 594 (B.I.A. Aug. 20, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Ni’s untimely motion to reopen.
Ni argues that the BIA erred in concluding that she failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing her motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Finally, we find that Ni’s arguments with regard to her eligibility to file a successive asylum application are unexhausted, see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007), and we therefore decline to address her argument that our decision in Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008), conflicts with the Supreme Court’s decision in Dada v. Mukasey, - U.S. -, 128 S.Ct. 2307, 2317, 171 L.Ed.2d 178 (2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470682/ | SUMMARY ORDER
Petitioner Miao Sheng Bao, a native and citizen of the People’s Republic of China, seeks review of a November 29, 2007 order of the BIA, denying his motion to reopen. In re Miao Sheng Bao, No. A074 857 414 (B.I.A. Nov. 29, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Bao’s untimely motion to reopen.
Bao argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing his motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Further, we need not remand pursuant to INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), as Bao requests, where the BIA adequately considered the changed country conditions evidence in the record.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470789/ | OPINION
PER CURIAM.
Dexter Scotland, a citizen of Antigua, petitions for review of a final expedited removal order issued by the Department of Homeland Security (“DHS”). For the following reasons, we will deny the petition.
Scotland entered the United States as a non-immigrant on November 18, 1976, when he was less than a year old. In April 2000, Scotland pleaded guilty to attempted criminal sale of a controlled substance in violation of New York Penal Law § 220.39 in the Supreme Court of New York, Bronx County. The court sentenced Scotland to 6 months’ imprisonment and 5 years of probation. (Administrative Record at 22.) In March 2003, the same court convicted Scotland of the same charge and sentenced him to one year of imprisonment. (Id.)
Scotland came to the attention of the Bureau of Immigration and Customs Enforcement (BICE) in May 2008 when he was arrested in Monroe County, Pennsylvania. David Cuffee, a BICE Immigration Enforcement Agent, interviewed Scotland, who, according to Cuffee, confirmed that he was born in Antigua and was not a United States citizen. Scotland’s father, with whom Cuffee spoke over the telephone, confirmed that he unsuccessfully tried to obtain citizenship for his son. Finally, Cuffee noted that Scotland had no fear of returning to Antigua and that he never served in the United States military. (Id. at 8.) The administrative record also contains a sworn statement, which Scotland signed, affirming that he was born in Antigua and that he is not a United States citizen. (Id. at 9.)
On May 14, 2008, David Clark, a Supervisory Detention and Deportation Officer with BICE, sent Scotland a “Notice of Intent to Issue a Final Administrative Removal Order.” The notice informed Scotland that DHS determined that he was amenable to administrative removal proceedings based on his non-citizenship and his 2003 conviction for criminal sale of a controlled substance. Scotland signed the certificate of service and marked boxes on the form indicating that he wished to contest his removal, that he is both a citizen of the United States and a lawful permanent resident, and that he intended to request withholding of removal to Antigua because he feared persecution based on a protected ground. (Id. at 3-4.)
A memorandum dated June 3, 2008, initialed by Clark, forwarded Scotland’s case to Scott Blake, the Assistant Field Office Director in the Allenwood, Pennsylvania BICE office. Clark informed Blake that Scotland submitted letters written on his behalf stating that he wished to remain in the country to support his United States citizen wife and her four children and that he feared returning to Antigua since most of his family resides in the United States. (Id. at 11.) On June 10, 2008, Blake issued a final administrative order of removal finding that the record established by clear and convincing evidence that Scotland is not a United States citizen and that he is deportable as an alien convicted of an aggravated felony. (Id. at 2.) Blake also found that Scotland is not eligible for any discretionary relief from removal. (Id.) Scotland filed a timely petition for review *853from that order.1
We have jurisdiction to review the expedited removal order under 8 U.S.C. § 1252(a). “Because the basis for removal is [Scotland’s] conviction for an aggravated felony, our jurisdiction is limited under the REAL ID Act to ‘constitutional claims or questions of law.’ ” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.2008) (en banc).
DHS entered Scotland’s order of removal pursuant to an expedited removal proceeding. Such proceedings are permitted for the removal of an alien who has committed an aggravated felony and who is not a legal permanent resident. See 8 U.S.C. § 1228(b)(1). In contrast to the standard removal proceedings, the alien has no right to appear before an immigration judge and no right to any discretionary relief. See 8 U.S.C. § 1228(b)(5); Gonzalez v. Chertoff, 454 F.3d 813, 815 (8th Cir.2006). Scotland argues that he obtained derivative citizenship through his father in 1992 and therefore DHS lacked “jurisdiction” over his ease. (Petitioner’s Br. at 11.) Scotland, however, had thirteen days to rebut the DHS’s citizenship determination, a finding based, in part, on his sworn statement to Cuffee. Scotland did not provide any evidence that he obtained United States citizenship and, therefore, DHS properly proceeded under 8 U.S.C. § 1228(b).
Scotland also contends that DHS violated his due process rights during his expedited hearing by failing to provide him with adequate notice and an opportunity to respond to the DHS’s findings. Under the regulations governing expedited removal of aggravated felons, DHS is required to provide a Notice of Intent which sets forth the agency’s preliminary determinations and give the alien time to respond. 8 C.F.R. § 1238.1(b)(2). Here, DHS served the Notice of Intent on May 14, 2008, and Scotland had thirteen calendar days to submit a response to the agency’s allegations of facts and conclusions of law.2 Scotland took advantage of the response period to submit letters from himself, his father, and from his wife asking that he be allowed to remain in the United States. Clark summarized these letters in a memorandum to Blake, the Deciding Service Officer, who issued a final administrative order of removal 27 days after Scotland received the Notice of Intent.
Scotland’s counsel now alleges that she attempted to contact Clark by telephone before the expiration of the response period. (Petitioner’s Br. at 9.) Even if counsel could prove that she called Clark within the thirteen day response period, such contact would have been improper as the regulations, and the Notice of Intent itself, call for written responses and submissions.3 8 C.F.R. § 1238.1(c)(1). The only *854evidence of written contact between counsel and BICE is counsel’s July 1, 2008 letter which was sent after the expiration of the response period and after DHS issued the final order of removal. Therefore, because DHS complied with the applicable regulations and provided Scotland with a full and fair hearing and a reasonable opportunity to present evidence, we find no due process violation. See Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.2006) (citations omitted).
Finally, Scotland asserts that DHS erroneously determined that he was convicted of an aggravated felony. A state drug conviction, such as Scotland’s New York conviction, constitutes an aggravated felony if the offense of conviction is analogous to a felony under the federal Controlled Substances Act (“CSA”). See Evanson v. Att’y Gen., 550 F.3d 284, 289 (3d Cir.2008) (describing hypothetical federal felony rule). Under N.Y. Penal Law § 220.39, “[a] person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells a narcotic drug.” In comparison, the CSA makes it unlawful to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance. 21 U.S.C. § 841(a)(1). While it is unclear which controlled substance Scotland sold, all of the substances criminalized by the New York statute are included in the CSA. Compare N.Y. Penal Law § 220.39 with 21 U.S.C. §§ 802(6) and 812(c).
Scotland points to our decision in Steele v. Blackman, 236 F.3d 130 (3d Cir.2001), for the proposition that use of the word “sale” in the New York Penal code does not establish that the offense involved trading and dealing. (Petitioner’s Br. at 12.) Steele is inapposite. In that case, we held that a New York state misdemeanor conviction for the sale of 30 grams or less of marijuana would not constitute a hypothetical federal felony under the CSA. Scotland, however, was not convicted for the sale of marijuana, which is punishable in New York under a separate statute. See N.Y. Penal Law § 221.40. Therefore, because we find that a conviction under § 220.39 is analogous to an offense under the CSA, we reject his argument that his conviction does not constitute an aggravated felony.
For these reasons we will deny Scotland’s petition for review.
. While Blake issued the order on June 10, 2008, DHS did not notify Scotland of the order until June 28, 2008. Therefore, his July 14, 2008 petition was timely.
. The regulations allow for ten calendar days if service of process is effectuated in person; however, if service is by mail, Scotland would have had thirteen calendar days to respond to the Notice of Intent. 8 C.F.R. § 1238.1 (b)(2)(i). Inasmuch as the Notice of Intent does not indicate whether it was served by mail, we will give Scotland the benefit of the thirteen day rule.
. Counsel asserts that she attempted to contact Clark because an alleged source at BICE informed her that Scotland's removal was no longer being processed through expedited removal proceedings. (Petitioner's Br. at 9.) According to counsel, the agency’s failure to clarify the accuracy of this information violates due process. (Id., at 10.) We do not think that alleged reliance on misleading information from an agency source who was seemingly not involved in Scotland's removal proceedings can give rise to a due process right. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470791/ | OPINION
PER CURIAM.
Merrari Valle-Montes petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed her appeal of an Immigration Judge’s (IJ’s) final removal order. We will deny the petition for review.
I.
Valle-Montes is a native and citizen of El Salvador. She was apprehended when she entered the United States without inspection and was placed in removal proceedings. She conceded that she was removable for being present without lawful admission or parole, but applied for asylum and withholding of removal. Valle-Montes’ asylum application is based on an incident that occurred on April 22, 2004 in El Salvador. Valle-Montes testified that on that day, she was riding in her father’s car when four tattooed men stopped the car by force. She and her father were ordered out of the car and she was forced to walk up the road about ten meters with two men from the group while two men remained behind with her father. The men told her they planned to rape her. They stayed with her for about 30 minutes, but suddenly fled when a car approached. The gang members robbed her father. Valle-Montes also submitted to the IJ a sworn written statement that her father made to the police. The father’s account differs somewhat. He said that he stopped the car to help a motorist. He told police that his daughter was driven away in a car for about 2 kilometers, and that the gang members threw her out of the car into a field and immediately fled. His report does not mention gang members remaining with him.
The IJ noted that the State Department’s country report and other written documentation submitted discussed violent criminal gangs operating in El Salvador. The IJ found that Valle-Montes was partially credible, and believed that Valle-Montes suffered a traumatic experience on April 22, 2004, but did not find her credible regarding the details. However, the IJ found that even if she assumed Valle-*856Montes were credible, the applications failed, as Valle-Montes had not shown that she was persecuted on account of a protected ground. The IJ noted that both Valle-Montes and her father suffered similar treatment; they were both victims of crime, and it did not appear that she was singled out because of her gender or any other protected ground. The IJ found that Valle-Montes had further not shown that the police were unable or unwilling to help her. The IJ held that Valle-Montes had not established a well-founded fear of persecution in the future, and found that there was no evidence that the incident was anything but random.
The BIA upheld the IJ’s finding that Valle-Montes had failed to support her application with sufficiently credible evidence. Alternatively, the BIA agreed that even if Valle-Montes were found to be credible, no evidence showed she or her father were mistreated on account of a protected ground. Valle-Montes filed a timely petition for review.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. Where, as here, the BIA adopted some of the findings of the IJ and made additional findings, we review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 339 (3d Cir.2008). To be granted asylum as a refugee, an applicant must establish that she is unable or unwilling to return to her homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To be entitled to withholding of removal, an applicant must prove that her “life or freedom would be threatened in that country because of [her] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). It is well-recognized that an alien who is unable to establish refugee status for the purpose of asylum will be unable to establish the right to withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003).
As noted, the BIA agreed with the IJ’s determination that Valle-Montes had not supported her application with sufficiently credible evidence. Valle-Montes argues that the IJ should have taken her testimony when her older brother was not in the room, and should have taken her age into consideration.1 It is possible that Valle-Montes may have been more forthcoming regarding what took place on April 22, 2004 if her brother had not been present, and if the IJ had taken into account that she was only 19 at the time of the hearing. However, we do not find it necessary to remand for a new hearing, as we agree with the BIA’s alternative holding that Valle-Montes did not produce evidence showing she or her father were mistreated on account of a protected ground
Valle-Montes is raising a claim of persecution based on membership in a particular social group. The BIA opined that the group was perhaps “woman” [sic] or “woman [sic] who have been victims of rape.”2 A.R. 2. “Women who have been *857victims of rape” would not be a cognizable particular social group, as the “group” must exist independently of the persecution. Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir.2003). Valle-Montes vaguely defines the group as “based on her gender and the way that her government in El Salvador fails to protect her on account of her gender and claim.” Petitioner’s Brief at 12. Valle-Montes states that proposed regulations would recognize gender as a per se social group, but recognizes that those regulations have not been finalized. Petitioner’s Brief at 13. Even if gender, standing alone, would be a cognizable particular social group, criminal activity, such as rape, does not constitute persecution when it is not motivated by a protected ground. As both Valle-Montes and her father were victimized in the attack, it is not clear that the attackers were motivated by Valle-Montes’s gender. See Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10th Cir.2005) (focus should not be on whether gender can constitute social group, but on whether “members of that group are sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of their membership”); see also Gomez-Zuluaga, 527 F.3d at 345 n. 10 (It is not necessary for us to determine whether this is a cognizable “particular social group” under the statute, because there is substantial evidence in the record to conclude that [the perpetrator] was not motivated by Petitioner’s membership in a particular social group[.]).
Further, even if the proposed regulations mentioned by Valle-Montes were in effect, those regulations do not eliminate the requirement that to constitute persecution, the harm “must be inflicted by the government of the country of persecution or by a person or group that government is unwilling or unable to control.” Asylum and Withholding Definitions, 65 Fed.Reg. 76588, 76597 (Dec. 7, 2000) (to be codified at 8 C.F.R. § 208.15). Valle-Montes provided background evidence that female crime victims are not well-protected in El Salvador, but in her case, the police took her (and her father’s) statements. She testified that although she knew the name of one of the gang members, she declined to give it to the police. The IJ also noted that given the differing accounts of Valle-Montes and her father, police may have had difficulty in investigating the crime. Thus, it is not clear that Valle-Montes gave the police an opportunity to control her attackers, and she produced no evidence that the police were unwilling to try to do so in her case.
Because substantial evidence supports the BIA’s conclusion that Valle-Montes did not meet her burden of showing that she suffered persecution on account of a protected ground, we will deny the petition for review.
. Valle-Montes did not argue these points in her brief to the BIA; however, she did raise them in her notice of appeal to the BIA. We therefore have jurisdiction to consider the arguments. Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir.2009).
. Valle-Montes did not mention being raped in her asylum application or in her testimony. However, she attached to her brief to the BIA a document, dated November 2, 2006, that appears to be the report of an interview at the New Jersey Center for the Rehabilitation of *857Torture Victims, during which she apparently reported that she had been raped by at least two of the men during the attack in El Salvador on April 22, 2004. A.R. 14-15. The BIA is an appellate body that does not engage in fact-finding on appeal. 8 C.F.R. §§ 1003.1(d)(1) & (d)(3)(iv). However, even if the BIA had considered the new evidence as a motion to remand for further fact-finding, see 8 C.F.R. § 1003.1 (d)(3)(iv); it would have been justified in denying such a motion, as Valle-Montes did not show a nexus between her treatment and her membership in a particular social group. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470793/ | OPINION
PER CURIAM.
Marvin John Cobb sued the warden of F.C.I. Loretto, seeking injunctive and declaratory relief based on claims of inadequate medical treatment and deliberate indifference to serious medical needs.1 Specifically, he requested a declaratory judgment that his rights under the Fifth and Eighth Amendments, as well as various federal statutes, were violated, and an injunction that he be prescribed Percocet and Clonazepem while in prison. He also sought a temporary release for medical treatment.
*859While his case was pending (and before his complaint was served on the defendant), Cobb was released from custody. The defendant filed a suggestion of mootness, to which Cobb objected (with his objections, he also brought to the District Court’s attention a dispute about the payment of a medical bill). The Magistrate Judge recommended dismissing Cobb’s complaint as moot. Cobb responded, arguing that his case was not moot because he might return to prison. The District Court adopted the Magistrate Judge’s opinion and construed the suggestion of mootness as a motion to dismiss the complaint and granted it. Cobb appeals.
We will summarily affirm because no substantial question is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s order. See Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000).
As the District Court concluded, Cobb’s case was mooted by his release from prison. A federal court does not have the power to decide moot questions. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Article III requires a live case or controversy throughout the entire litigation; if no live controversy exists, the court must dismiss the case for lack of jurisdiction. See Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir.1992). In general, an inmate’s claim for injunctive and declaratory relief becomes moot on his release from prison. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir.2003); Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir.1993) (holding that once a prisoner was released, he could have no continuing interest in the prison policies he was challenging).
As the District Court concluded, with Cobb out of prison, it takes little analysis to conclude that Cobb’s request for injunctive relief (for a medical release and for medications in prison) is moot. Whether his request for declaratory relief is moot takes a little more analysis. The answer depends on whether his case presents a question “capable of repetition yet evading review.” Abdul-Akbar, 4 F.3d at 206. We conclude that his case does not fall within the narrow limits of the exception to the mootness doctrine. Speculation that Cobb could return to prison does not overcome the mootness doctrine.2 See id. at 207; see also L.A. v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (assuming that persons “ ‘conduct their activities within the law and so avoid prosecution and conviction’ ”) (quoting O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).
For these reasons, the District Court did not have before it a question that could affect Cobb’s rights. Accordingly, the District Court properly concluded that Cobb’s complaint should be dismissed as moot.
. Although Cobb styled his complaint as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, the District Court properly characterized it as a civil suit about prison conditions.
. Cobb’s unrelated complaint of something that happened post-filing in another jurisdiction by another defendant does not change the outcome, as the District Court also concluded. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470795/ | *861OPINION
PER CURIAM.
Dom Wadhwa, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey dismissing his complaint for lack of jurisdiction and an order denying his motions for reconsideration. We will vacate the District Court’s orders and remand for further proceedings.
Wadhwa filed a complaint in District Court alleging that on August 5, 2006, through counsel, he requested documents from the Department of Veterans Affairs (the “VA”) pursuant to the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. (“FOIA”) and the Privacy Act, 5 U.S.C. §§ 552a et seq. Wadhwa, who appears to woi’k at the Philadelphia Veterans Affairs Medical Center, alleged that he did not receive a response to his request, and that the statutory time period in which the VA was required to respond had passed. Wadhwa sought an order directing the VA to release the documents he had requested.
The VA filed a motion to dismiss the complaint or, in the alternative, for summary judgment. In support of its motion, the VA submitted the declaration of Brendan Minihan, a FOIA/Privacy Officer for the Philadelphia Veterans Affairs Medical Center. Minihan attested that on August 7, 2006, Timothy Graham, the former FOIA/Privacy Officer, replied to Wadhwa’s counsel’s letter. Minihan attached a copy of Graham’s letter to his declaration.
Graham wrote that the estimated fee for processing counsel’s request was $354.30, and that the fee had to be paid before the documents would be produced. Graham denied counsel’s request to waive the fee and denied his request to review the records before they were duplicated. Graham also wrote that the agency would conclude that counsel did not wish to proceed with the request if the agency did not receive a response within 14 days. Graham stated that the denial of the fee waiver and estimated fees could be appealed to VA General Counsel.1
Minihan further attested that the VA did not receive a response to Graham’s letter or payment of the cost of producing the requested documents, and that the VA Office of the General Counsel has no record of receiving an appeal. Finally, Mini-han stated that on February 27, 2008, the VA responded to Wadhwa’s request under the Privacy Act. The VA informed Wadh-wa that the documents he sought were not maintained in a “system of records” as defined by the Privacy Act and were therefore not available under the Act. Wadhwa was advised that he could appeal the denial of his request.
Based on these facts, the VA argued that the District Court lacked jurisdiction over Wadhwa’s FOIA and Privacy Act claims because Wadhwa failed to exhaust his administrative remedies. The VA alternatively moved for summary judgment on Wadhwa’s Privacy Act claim based on the fact that it has no documents in its system of records. In response to the VA’s motion, Wadhwa asserted that neither he nor his attorney received Graham’s letter. Wadhwa also stated that he had filed other FOIA/Privacy Act requests and that the VA had refused to provide him the requested documents.
The District Court dismissed Wadhwa’s FOIA claim for lack of standing and dismissed his Privacy Act claim based on Wadhwa’s failure to exhaust his administrative remedies. The District Court also *862denied Wadhwa’s motions for reconsideration. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal of the complaint for lack of standing is de novo. See Common Cause v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009).
The District Court concluded that Wadhwa lacked standing to sue the VA under FOIA because the VA did not deny Wadhwa’s request for documents, but offered to process his request for the requisite fee. The District Court relied on McDonnell v. United States, 4 F.3d 1227, 1238 (3d Cir.1993), in which we stated that “a ‘case or controversy' conferring standing arises only when a person makes a request for information under the FOIA and the petitioned agency denies that request.” McDonnell, however, is distinguishable because, unlike in this case, the plaintiff had not made a FOIA request. Here, Wadhwa made a FOIA request and alleged in his complaint that the VA failed to respond within the time provided by statute. Wadhwa had standing to file a complaint to enforce his request.
We disagree with the VA that Wadhwa’s failure to exhaust his administrative remedies is an alternative ground on which we may affirm the District Court’s order. Wadhwa’s complaint only claimed that the VA failed to respond to his August 5, 2006, FOIA request. Under FOIA’s constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C), Wadhwa was not required to exhaust his administrative remedies if he did not receive a response to his FOIA request before filing suit. See McDonnell, 4 F.3d at 1240; Oglesby v. United States Dep’t of Army, 920 F.2d 57, 63-4 (D.C.Cir.1990). Although the VA established that it had in fact responded to Wadhwa’s FOIA request, Wadhwa did not receive the response. Wadhwa did not amend his complaint and challenge the VA’s response to his request. Under the circumstances of this case, Wadhwa’s failure to appeal the VA’s response to his request for documents is not a proper basis for dismissal of Wadhwa’s complaint.
The VA did not move for summary judgment based on the fact that it responded to Wadhwa’s FOIA request. If the VA seeks summary judgment on remand and asserts that it timely responded to Wadh-wa’s request, Wadhwa will have an opportunity to challenge this assertion in a response to the motion. See Fed.R.Civ.P. 56(e). Athough Wadhwa asserts in his brief that Minihan’s declaration is false and inaccurate, we may not entertain such an argument in this appeal.2
We also disagree with the District Court’s conclusion that it lacks jurisdiction to entertain Wadhwa’s claim under the Privacy Act because Wadhwa failed to exhaust his administrative remedies. There is no statutory requirement of exhaustion related to a request for access to records. See 5 U.S.C. § 552a(d). To the extent exhaustion of administrative remedies is required, it is not a jurisdictional prerequisite. See Taylor v. United States Treasury Dep’t, 127 F.3d 470, 475-76 (5th Cir.*8631997). The District Court need not determine whether exhaustion is required in this case because the VA alternatively moved for summary judgment on the merits of Wadhwa’s Privacy Act claim, submitting evidence that the VA informed Wadh-wa that the documents he requested are not contained in a “system of records” as defined by the Privacy Act, and are thus not available. In light of our remand with respect to Wadhwa’s FOIA claim, the VA may wish to renew its summary judgment motion on Wadhwa’s Privacy Act claim.
Accordingly, because we conclude that the District Court erred in deciding that it lacked jurisdiction, we will vacate the District Court’s orders and remand this case for further proceedings. Wadhwa’s motion to exclude the VA’s answer from its supplemental appendix is denied.
. Minihan also stated that Graham responded to a duplicative FOIA/Privacy Act request made by Wadhwa shortly before counsel wrote a letter on his behalf.
. Wadhwa also argues in his brief that he submitted other FOIA requests that were either denied or that certain documents were withheld. As noted by the District Court, the subject of Wadhwa's complaint is his August 5, 2006, request for documents. Wadhwa asserted in District Court that he sought to amend his complaint to include his other FOIA requests, but the District Court found in denying his motion for reconsideration that he had not in fact made such a request, and that the VA would be prejudiced if he were permitted at that time to amend his complaint. Wadhwa has not shown that the District Court abused its discretion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470797/ | OPINION OF THE COURT
McKEE, Circuit Judge.
Elliott Richo appeals the sentence that was imposed pursuant to his guilty plea to six counts of bank robbery and one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a). For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this case, we need not recite the factual or procedural history. Richo argues that the sentence was unreasonable because the sentencing court failed to analyze all relevant § 3553(a) factors. Specifically, he contends the court should have considered a lesser sentence in light of his history of drug addiction and his age which makes it unlikely that he will commit another offense when released.
We review a district court’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). In doing so, we must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, *864or failing to adequately explain the chosen sentence.” Id. at 597. We will uphold the sentence if the record discloses “meaningful consideration of the relevant statutory factors and the exercise of independent judgment, based on a weighing of the relevant factors.” United States v. Grier, 475 F.3d 556, 571-72 (3d Cir.2007) (en banc). The record must show that the sentencing judge “set forth enough to satisfy [us] that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). However, the sentencing court need not make specific findings on the record as to each factor if it is clear that all pertinent factors have been considered. United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007).
Richo’s challenge to the reasonableness of the sentence is meritless. The district court listened to arguments about the significance of his longstanding drug addiction during Richo’s request for a lesser sentence. (App.5-8). Moreover, the district court adopted the findings of the pre-sentence report, which also addressed Ri-cho’s history of drug addiction. The court clearly considered that factor. We will not conclude that the resulting sentence was unreasonable merely because the sentencing judge did not attach the same importance to Richo’s history of substance abuse as Richo does.
Similarly, there is nothing to suggest that the district court failed to consider Richo’s age. Although he was 42 years old when sentenced, Richo is a career offender with a long history of serious crimes. Richo cites United States v. Nellum, an unpublished district court decision where a sentence was imposed below the defendant’s guideline range based partly on the defendant’s advanced age. 2005 WL 300073 (N.D.Ind.2005). We need not respond to an unpublished district court opinion. That is particularly true where, as in Nellum, the case involved a defendant whose criminal history involved only two misdemeanor drug possession convictions, and the defendant suffered from multiple health problems which were likely to worsen before his release.
The district court found that Richo committed a “barrage of robberies” in a short period of time, inflicting fear in the bank tellers who were the victims of his robbery spree. Given all of the circumstances here, including the personal characteristics and background of the defendant and the seriousness of his conduct, we believe that the court’s sentence was imposed after meaningful consideration of all of the factors in § 3553(a). Moreover, the record suggests that the sentencing court did consider Richo’s age and substance abuse problems because his sentence is at the absolute bottom of the applicable advisory guideline range. Therefore there was no abuse of discretion and the sentence that was imposed is reasonable.
II.
For all of the above reasons, we affirm the district court’s sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470970/ | SUMMARY ORDER
Plaintiff-Appellants, citizens of Turkey, commenced this action in the Southern District of New York asserting claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and New York common law and statutory causes of action. The district court (Marrero, J.) granted the motion of Defendant-Appellees Coca-Cola Company (“Coca Cola”), Coca-Cola Export Corporation (“CCEC”), and Coca-Cola Icecek, A.S. (“CCI”) to dismiss the complaint on forum non conveniens grounds. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal. See Turedi v. Coca Cola Co., 460 F.Supp.2d 507, 509-511 (S.D.N.Y.2006).
Under the common-law doctrine of forum non conveniens, a court has the power to dismiss a case where that case would be more appropriately brought in a foreign court. See Sinochem Int’l Co., Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429-30, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). The doctrine “finds its roots in the inherent power of the courts ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” Monégasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311 F.3d 488, 497 (2d Cir.2002) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).) “ ‘The principle of forum non convenience is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.’ ” Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).
Our review of a district court’s dismissal on forum non conveniens grounds is very limited. See Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.2001) (en banc). We have previously recognized that “[t]he decision to dismiss a case on forum non conveniens grounds lies wholly within the broad discretion of the district court and may be overturned only when we believe that discretion has been clearly abused.” Id. (internal quotation marks omitted). This limited review “encompasses the right to determine whether the dis*625trict court reached an erroneous conclusion on either the facts or the law, or relied on an incorrect rule of law in reaching its determination.” Id. (internal citations and quotation marks omitted). “A district court abuses its discretion in granting a forum non conveniens dismissal when its decision (1) rests either on an error of law or on a clearly erroneous finding of fact, or (2) cannot be located within the range of permissible decisions, or (3) fails to consider all the relevant factors or unreasonably balances those factors.” Norex Petroleum, Ltd. v. Access Indus., 416 F.3d 146, 153 (2d Cir.2005) (internal quotation marks omitted). In addressing a motion to dismiss for forum non conveniens, courts must consider: (1) the degree of deference afforded to the plaintiffs choice of forum; (2) whether the alternative forum is adequate; and (3) the balance of the public and private interests implicated in the choice of forum. See id.
It is well settled in this Circuit that a foreign plaintiffs choice of forum deserves less deference than the same choice by a domestic plaintiff. See Iragorri, 274 F.3d at 71-72 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). As a general matter, a district court should consider the degree to which the plaintiff or the lawsuit has a bona fide connection to the United States and to the forum of choice, and the degree to which considerations of convenience favor the conduct of the lawsuit in the United States. Id. at 72. The more specific factors arguing against dismissal on forum non conveniens grounds include convenience of the plaintiffs residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant’s amenability to suit in the forum district, and the availability of appropriate legal assistance. Id. Factors favoring forum non conveniens dismissal include the degree to which
it appears that the plaintiffs choice of a U.S. forum was motivated by forum-shopping reasons — such as attempts to win a tactical advantage resulting from local laws that favor the plaintiffs case, the habitual generosity of juries in the United States or in the forum district, the plaintiffs popularity or the defendant’s unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum.
Id.
Here, as the district court correctly recognized, none of the plaintiffs are U.S. citizens, and defendant CCI is a Turkish company with its principal place of business in Istanbul and has no alleged contact to the United States. The district court further noted that “[t]he underlying injuries Plaintiffs assert stem from their alleged assaults and arrests by the Turkish police arising from their labor dispute with Trakya and CCI in Istanbul.” Turedi, 460 F.Supp.2d at 522. We agree that such “facts give rise to a strong inference that forum-shopping considerations served as a substantial motivation in plaintiffs’ venue choice in [the Southern] District.” Id. Accordingly, the district court was not required to grant special deference to plaintiffs’ choice of a New York forum.
We next address whether an alternative and adequate forum exists. “An alternative forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute.” Norex Petroleum Ltd., 416 F.3d at 157 (quoting Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir.2003)); Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir.2001). A forum may be deemed inadequate if it is “characterized *626by a complete absence of due process or an inability of the forum to provide substantial justice.” Monegasque de Reassurances S.A.M., 311 F.3d at 499.
We conclude that the record amply supports the district court’s decision concerning the availability and adequacy of a Turkish forum in this case and that it properly rejected Plaintiffs’ eonclusory and unsupported allegations that the Turkish justice system is corrupt. See generally Monegasque de Reassurances S.A.M., 311 F.3d at 499 (“We have been reluctant to find foreign courts ‘corrupt’ or ‘biased.’ ”). It is beyond dispute that Turkey is an available forum in this case. Each defendant has agreed that, if plaintiffs “commence litigation in Turkey arising out of the circumstances and general claims asserted” in this case, it will (a) accept service of process and the Turkish court’s exercise of personal jurisdiction; (b) not assert statute of limitations defenses in Turkey that would be unavailable here; and (c) satisfy any final judgment issued by a Turkish court. The district court also acted within its discretion in concluding that Turkey was an adequate forum. The court appropriately relied on the uncontradicted declarations of three Turkish law experts who explained that “Turkish law contains various substantive provisions and procedures under which Plaintiffs can pursue claims and obtain remedies for the forms of misconduct Plaintiffs allege against Defendants, and can be awarded both monetary and injunctive relief.” Turedi, 460 F.Supp.2d at 524; see also Mercier v. Sheraton Int’L, Inc., 981 F.2d 1345, 1350-54 (1st Cir.1992) (rejecting alleged inadequacies of Turkish courts in context of forum non conveniens dismissal).
The last step of the forum non conveniens inquiry requires a district court to analyze both the private and public interest factors discussed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The private interest factors, which concern the convenience of the parties, include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Iragorti, 274 F.3d at 73-74 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839) (internal quotation marks omitted). “In considering these factors, the court is necessarily engaged in a comparison between the hardships defendant would suffer through the retention of jurisdiction and the hardships the plaintiff would suffer as the result of dismissal and the obligation to bring suit in another country.” Id. at 74. The public interest factors include congestion in the courts, having local controversies decided locally, not imposing jury duty on people in a community that has no interest in the litigation, and avoiding the difficulty of applying foreign law. See id. (citing Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839). We conclude that the district court properly exercised its broad discretion in carefully reviewing and balancing the Gilbert private and public interest factors. Moreover, we agree with the conclusion reached by the district court — that the Gilbert factors strongly counsel in favor of adjudicating the present dispute in Turkey.
We have reviewed plaintiffs’ remaining contentions and find them to be without merit. Accordingly, for the reasons set forth above, the judgment of the district court is hereby
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470972/ | *628
SUMMARY ORDER
Plaintiff-Appellant Sue Ellen Moncrief, pro se, appeals a judgment of the district court granting Defendant’s motion for summary judgment, dismissing her claims of employment discrimination under Title VII, 42 U.S.C. § 2000e. Moncrief argues that the district court erred by dismissing as untimely her failure to promote claim, and determining that her wrongful termination and retaliation claims failed as a matter of law. She also argues that the district court failed to acknowledge or rule upon her discovery requests. Finally, Moncrief has moved for Fed.R.Civ.P. 11(b) sanctions against Defendant based on Defendant’s alleged witness tampering in the district court, in violation of 18 U.S.C. § 1512. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As a preliminary matter, because Mon-crief does not challenge the district court’s dismissal of her claim that Defendant stole her personal property, that claim is abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (when a litigant, even if proceeding pro se, raises an issue before the district court but does not raise it on appeal, it is abandoned). Moreover, “an appellate court ordinarily will not disturb a district court’s ruling on a discovery request absent an abuse of discretion.” Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir.1990). Because the record confirms that the district court not only considered Moncriefs discovery request, but even ordered Defendant to produce documents she had requested, the court did not abuse its discretion in managing discovery and Moncriefs claim of error is unavailing.
We review de novo orders granting summary judgment and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Tenry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotations omitted).
Moncriefs argument concerning the timeliness of her failure to promote claim is unavailing. To state a timely Title VII claim, a plaintiff must file a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the allegedly discriminatory employment practice. 42 U.S.C. § 2000e-5(e)(l). The most recent date upon which Moncrief was denied a promotion was April 2002, and she filed her EEOC charge in May 2004, more than two years later. Therefore, this claim was time-barred, and the district court correctly dismissed it. See Alleyne v. American Airlines, Inc., 548 F.3d 219, 220 (2d Cir.2008)(per curiam) (recognizing that, under 42 U.S.C. § 2000e-5(e)(l), a Title VII claim is timely where the EEOC charge was filed within 300 days of the alleged unlawful employment practice).
As to Moncriefs wrongful termination claim, we have held that to establish a prima facie case of Title VII discrimination, a plaintiff must show: (l)that she belonged to a protected class; (2)that she was qualified for the position she held; (3)that she suffered an adverse employment action; and (4)that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004). If a plaintiff succeeds in present*629ing a prima fade case, the burden then shifts to the employer to offer a legitimate, non-discriminatory basis for its actions. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the employer satisfies this burden, “the plaintiff must then come forward with evidence that the defendant’s proffered, non-discriminatory reason is a mere pretext for actual discrimination.” Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir.2000).
Here, assuming, as the district court did, that Moncrief presented sufficient evidence to make out a -prima fade case, Defendant satisfied its burden by demonstrating that Moneriefs security breach in October 2003, a legitimate, nondiscriminatory rationale, justified her termination. Therefore, the burden shifted back to Moncrief to show that this reason was pretextual, and because she failed to produce any evidence in support of this argument, the district court’s dismissal of this claim was appropriate.
Finally, because Moneriefs 2002 email — the basis of her retaliation claim-made no mention of racial discrimination, the district court correctly determined that she never participated in a protected activity, and therefore, her retaliation claim failed as a matter of law. See Feingold, 366 F.3d at 156 (to state a claim for retaliation under Title VII, a plaintiff must have participated in a protected activity). We have considered all of Moneriefs remaining claims of error and determined that they are without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
As a final matter, because Moncrief did not move for Rule 11 sanctions in the district court, and because, regardless, the record shows that Wright’s settlement agreement placed no restrictions on his ability to testify, it is ORDERED that her motion be DENIED. See Barr Laboratories, Inc. v. Abbott Laboratories, 867 F.2d 743, 748 (2d Cir.1989), overruled on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), (application for Rule 11 sanctions must be made in the court where the abusive conduct occurred). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470667/ | SUMMARY ORDER
Petitioner Li Hua Tang, a native and citizen of the People’s Republic of China, seeks review of an October 19, 2007 order of the BIA denying her motion to reopen. In re Li Hua Tang, No. A073 674 735 (B.I.A. Oct. 19, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Tang’s untimely motion to reopen.
Tang argues that the BIA erred in concluding that she failed to demonstrate either material changed country conditions sufficient to excuse her untimely motion to reopen or her prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Similarly, Tang’s argument that she was eligible to file a successive asylum application based on changed personal circumstances is foreclosed by our decision in Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending mo*669tion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470669/ | *670
SUMMARY ORDER
Petitioner Jun Wei Zhang, a native and citizen of the People’s Republic of China, seeks review of an October 12, 2007 order of the BIA denying his motion to reopen. In re Jun Wei Zhang, No. A029 792 113 (B.I.A. Oct. 12, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Zhang’s untimely motion to reopen.
The BIA correctly observed that Zhang failed to demonstrate either material changed country conditions sufficient to excuse the untimely filing of his motion to reopen or his prima facie eligibility for relief. See 8 U.S.C. § 1229a (c)(7); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). While Zhang argues that the BIA abused its discretion in its consideration of record evidence, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Ail’d affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Zhang further argues that the BIA abused its discretion when it found that his failure to authenticate the purported Village Committee notice diminished the weight of that document. While Zhang correctly asserts that the agency errs when it rejects a document solely based on an individual’s failure to authenticate pursuant to 8 C.F.R. § 287.6; see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 403 (2d Cir.2005), we find no abuse of discretion here, where the BIA gave the notice limited weight because it was a photocopy that bore no signature, seal, or other authenticating information. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency).
Finally, we are without jurisdiction to consider Zhang’s argument that the BIA erred as a matter of law in declining to reopen his proceedings sua sponte. Ali, 448 F.3d at 518. We dismiss the petition for review to that extent.
For the foregoing reasons, the petition for review is DENIED in part, and DISMISSED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470673/ | SUMMARY ORDER
Petitioner, Jin Ming Zhang, a native and citizen of the People’s Republic of China, *674seeks review of a March 24, 2008 order of the BIA affirming the February 14, 2007 decision of immigration judge (“IJ”) Noel A. Ferris denying his motion to reopen his deportation proceedings. In re Jin Ming Zhang, No. A 074 320 860 (B.I.A. Mar. 24, 2008), aff'g A 074 320 860 (Immig. Ct. N.Y. City Feb. 14, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
The BIA did not err in denying Zhang’s untimely motion to reopen. An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Additionally, the deadline may be equitably tolled to accommodate claims of ineffective assistance of counsel, so long as the movant has exercised “due diligence” in vindicating his or her rights. See Cekic v. INS, 435 F.3d 167, 171 (2d Cir.2006).
I. Ineffective Assistance of Counsel
We see no error in the BIA’s conclusion that Zhang failed to exercise due diligence in pursuing his ineffective assistance of counsel claim. See id. asserted that his attorney advised him not to attend his deportation hearing, which resulted in him being ordered deported in absentia. However, he did not state when he discovered the alleged ineffective assistance of his counsel. Zhang’s brief to the BIA asserted that he first discovered the ineffective assistance of his counsel when he consulted with the attorney who filed his motion to reopen. The BIA declined to accord those assertions significant weight because they were i-aised for the first time on appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency); see also Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 506 (B.I.A.1980) (“Counsel’s arguments are not evidence....”). But even if Zhang discovered his prior counsel’s ineffective assistance shortly before he filed his motion to reopen, he did not show what steps he took to pursue his case in the nine years that elapsed after he was ordered deported in absentia. Therefore, as the BIA found, Zhang failed to demonstrate that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008) (finding no exercise of due diligence where fourteen months elapsed from the time the petitioner knew or should have known of the alleged ineffective assistance).
II. Changed Country Conditions
Additionally, we see no error in the BIA’s conclusion that Zhang failed to demonstrate that his untimely filing was excused by changed country conditions. See 8 U.S.C. 1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169. We have previously reviewed the BIA’s consideration of evidence similar to that which Zhang submitted and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. *675See Jian Hui Shao, 546 F.3d at 171 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Nothing in the record compels the conclusion that the BIA ignored the evidence Zhang submitted or the arguments he made, evidence and arguments that the BIA is asked to consider time and again. See Xiao Ji Chen, 471 F.3d at 338 n.17.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470675/ | SUMMARY ORDER
Petitioner Qiu Yue Huang, a native and citizen of the People’s Republic of China, seeks review of the April 3, 2008 order of the BIA affirming the August 23, 2006 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qiu Yue Huang, No. A96 335 526 (B.I.A. Apr. 3, 2008), aff'g No. A96 335 526 (Immig. Ct. N.Y. City Aug. 23, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), this Court reviews the IJ’s decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Petitioner challenges the findings that formed the basis for the IJ’s adverse credibility finding. An adverse credibility determination must be “based on specific, cogent reasons bearing a legitimate nexus to the determination.” Belortaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.2007). Material inconsistencies that go “to the heart of [the] petitioner’s claim for relief’ may serve as the basis for an adverse credibility determination. Hongsheng Leng v. Mukasey, 528 F.3d 135, 141-42 (2d Cir.2008) (per curiam) (quotation marks omitted).
The IJ’s adverse credibility determination was based on several specific findings that went to the heart of the Petitioner’s claim — the alleged raid by Chinese authorities on the Petitioner’s underground church in China and the subsequent search for her. See Hongsheng Leng, 528 F.3d at 141. The IJ observed that the Petitioner initially testified that she did not know the names of any church member who was arrested, but later testified that her mother was detained. The Petitioner also initially testified that her mother was detained for ten days, but then testified that her mother was detained for more than twenty days. The IJ asked the Petitioner to explain how her mother could be detained for twenty days and call the Petitioner from home ten days after the alleged raid to notify the Petitioner that police were searching for her.
Although the IJ gave the Petitioner a chance to reconcile this discrepant testimony, see Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006), her explanations only revealed more inconsistencies. The Petitioner stated that her father, not her mother as previously indicated, told her that police were searching for her. In her brief to this Court, the Petitioner does not challenge that she testified inconsistently as to who actually told her the police were searching for her. Accordingly, any challenge to that finding has been waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005).
The IJ reasonably considered the inconsistencies in the Petitioner’s testimony to *677be material and to support an adverse credibility determination. Having called the Petitioner’s testimony into question, the IJ legitimately noted that the absence of corroborating evidence relating to her alleged practice of Christianity in the United States further supported the adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107 (2d Cir.2006).
Ultimately, the record supports the agency’s conclusion that the Petitioner was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hongsheng Leng, 528 F.3d at 141. Because the Petitioner’s asylum and withholding of removal claims were based on the same factual predicate, the adverse credibility determination was fatal to both claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Because the Petitioner failed to exhaust before the BIA her argument that the IJ did not make a separate determination regarding her eligibility for CAT relief, we are without jurisdiction to consider any such claim. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470677/ | SUMMARY ORDER
Petitioner Zu Xian Zheng, a native and citizen of the People’s Republic of China, seeks review of the July 31, 2008 order of the BIA: (1) affirming the December 8, 2006 decision of Immigration Judge (“IJ”) George T. Chew denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”); and (2) denying his motion to remand. In re Zu Xian Zheng, No. A78 845 636 (B.I.A. July 31, 2008), aff'g No. A78 845 636 (Immig. Ct. N.Y. City Dec. 8, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements that decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007).
Substantial evidence supports the agency’s denial of Zheng’s applications for relief based on his alleged “resistance” to China’s coercive population control program. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 312-13 (2d Cir.2007) (en banc) (discussing “resistance” claims). Even assuming Zheng’s actions constituted “resistance,” the BIA reasonably concluded that his fear of persecution was not well-founded.2 See Jin Shut Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003) (discussing the substantial evidence standard). The BIA found that, where there was no evidence that his wife’s second intrauterine device (“IUD”) had been removed, the family planning cadres’ threat of sterilization if that IUD were removed was insufficient to give rise to a well-founded fear of persecution. We disagree with Zheng’s argument that Rui Ying Lin v. Gonzales provides guidance, because in that case the petitioner “offered evidence that she already had two children, that she planned to have more, ... and that she had removed her IUD.” 445 F.3d 127, 136 (2d Cir.2006). By contrast, Zheng had only one child, did not clearly express an intent *679to have more children, and the IUD remained in place. Accordingly, we are unconvinced that the BIA erred in finding that he failed to establish a discernible chance of persecution. Moussa Diallo v. INS, 232 F.3d 279, 284 (2d Cir.2000); see also Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005).
For similar reasons, we find that the BIA did not abuse its discretion by denying Zheng’s motion to remand. See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). Zheng based his motion primarily on evidence that a man in his village, who had fathered only one child, was sterilized when cadres discovered that his wife’s IUD had been removed. However, as the BIA found, Zheng failed to establish prima facie eligibility for asylum on this basis where there is no evidence that he would face similar treatment. Jian Xing Huang, 421 F.3d at 129. We find no error here, particularly since his wife had not removed the IUD.
As all of Zheng’s claims for relief were predicated on the same factual basis, and because the BIA’s denial of asylum rested on his failure to establish a sufficient likelihood that he would face harm if returned to China, it follows that he failed to meet the higher burdens of proof with respect to withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Because Zheng failed to raise any argument in his appeal to the BIA pertaining to past persecution on economic grounds, and because the government has raised this failure to exhaust in its brief to this Court, we decline to consider this issue. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470679/ | SUMMARY ORDER
Petitioner Yun Ni, a native and citizen of the People’s Republic of China, seeks review of the August 20, 2008 order of the BIA, denying her motion to reopen. In re *680Yun Lin a.k.a. Yun Ni, No. A072 461 594 (B.I.A. Aug. 20, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Ni’s untimely motion to reopen.
Ni argues that the BIA erred in concluding that she failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing her motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Finally, we find that Ni’s arguments with regard to her eligibility to file a successive asylum application are unexhausted, see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007), and we therefore decline to address her argument that our decision in Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008), conflicts with the Supreme Court’s decision in Dada v. Mukasey, - U.S. -, 128 S.Ct. 2307, 2317, 171 L.Ed.2d 178 (2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470794/ | *861OPINION
PER CURIAM.
Dom Wadhwa, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey dismissing his complaint for lack of jurisdiction and an order denying his motions for reconsideration. We will vacate the District Court’s orders and remand for further proceedings.
Wadhwa filed a complaint in District Court alleging that on August 5, 2006, through counsel, he requested documents from the Department of Veterans Affairs (the “VA”) pursuant to the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. (“FOIA”) and the Privacy Act, 5 U.S.C. §§ 552a et seq. Wadhwa, who appears to woi’k at the Philadelphia Veterans Affairs Medical Center, alleged that he did not receive a response to his request, and that the statutory time period in which the VA was required to respond had passed. Wadhwa sought an order directing the VA to release the documents he had requested.
The VA filed a motion to dismiss the complaint or, in the alternative, for summary judgment. In support of its motion, the VA submitted the declaration of Brendan Minihan, a FOIA/Privacy Officer for the Philadelphia Veterans Affairs Medical Center. Minihan attested that on August 7, 2006, Timothy Graham, the former FOIA/Privacy Officer, replied to Wadhwa’s counsel’s letter. Minihan attached a copy of Graham’s letter to his declaration.
Graham wrote that the estimated fee for processing counsel’s request was $354.30, and that the fee had to be paid before the documents would be produced. Graham denied counsel’s request to waive the fee and denied his request to review the records before they were duplicated. Graham also wrote that the agency would conclude that counsel did not wish to proceed with the request if the agency did not receive a response within 14 days. Graham stated that the denial of the fee waiver and estimated fees could be appealed to VA General Counsel.1
Minihan further attested that the VA did not receive a response to Graham’s letter or payment of the cost of producing the requested documents, and that the VA Office of the General Counsel has no record of receiving an appeal. Finally, Mini-han stated that on February 27, 2008, the VA responded to Wadhwa’s request under the Privacy Act. The VA informed Wadh-wa that the documents he sought were not maintained in a “system of records” as defined by the Privacy Act and were therefore not available under the Act. Wadhwa was advised that he could appeal the denial of his request.
Based on these facts, the VA argued that the District Court lacked jurisdiction over Wadhwa’s FOIA and Privacy Act claims because Wadhwa failed to exhaust his administrative remedies. The VA alternatively moved for summary judgment on Wadhwa’s Privacy Act claim based on the fact that it has no documents in its system of records. In response to the VA’s motion, Wadhwa asserted that neither he nor his attorney received Graham’s letter. Wadhwa also stated that he had filed other FOIA/Privacy Act requests and that the VA had refused to provide him the requested documents.
The District Court dismissed Wadhwa’s FOIA claim for lack of standing and dismissed his Privacy Act claim based on Wadhwa’s failure to exhaust his administrative remedies. The District Court also *862denied Wadhwa’s motions for reconsideration. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal of the complaint for lack of standing is de novo. See Common Cause v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009).
The District Court concluded that Wadhwa lacked standing to sue the VA under FOIA because the VA did not deny Wadhwa’s request for documents, but offered to process his request for the requisite fee. The District Court relied on McDonnell v. United States, 4 F.3d 1227, 1238 (3d Cir.1993), in which we stated that “a ‘case or controversy' conferring standing arises only when a person makes a request for information under the FOIA and the petitioned agency denies that request.” McDonnell, however, is distinguishable because, unlike in this case, the plaintiff had not made a FOIA request. Here, Wadhwa made a FOIA request and alleged in his complaint that the VA failed to respond within the time provided by statute. Wadhwa had standing to file a complaint to enforce his request.
We disagree with the VA that Wadhwa’s failure to exhaust his administrative remedies is an alternative ground on which we may affirm the District Court’s order. Wadhwa’s complaint only claimed that the VA failed to respond to his August 5, 2006, FOIA request. Under FOIA’s constructive exhaustion provision, 5 U.S.C. § 552(a)(6)(C), Wadhwa was not required to exhaust his administrative remedies if he did not receive a response to his FOIA request before filing suit. See McDonnell, 4 F.3d at 1240; Oglesby v. United States Dep’t of Army, 920 F.2d 57, 63-4 (D.C.Cir.1990). Although the VA established that it had in fact responded to Wadhwa’s FOIA request, Wadhwa did not receive the response. Wadhwa did not amend his complaint and challenge the VA’s response to his request. Under the circumstances of this case, Wadhwa’s failure to appeal the VA’s response to his request for documents is not a proper basis for dismissal of Wadhwa’s complaint.
The VA did not move for summary judgment based on the fact that it responded to Wadhwa’s FOIA request. If the VA seeks summary judgment on remand and asserts that it timely responded to Wadh-wa’s request, Wadhwa will have an opportunity to challenge this assertion in a response to the motion. See Fed.R.Civ.P. 56(e). Athough Wadhwa asserts in his brief that Minihan’s declaration is false and inaccurate, we may not entertain such an argument in this appeal.2
We also disagree with the District Court’s conclusion that it lacks jurisdiction to entertain Wadhwa’s claim under the Privacy Act because Wadhwa failed to exhaust his administrative remedies. There is no statutory requirement of exhaustion related to a request for access to records. See 5 U.S.C. § 552a(d). To the extent exhaustion of administrative remedies is required, it is not a jurisdictional prerequisite. See Taylor v. United States Treasury Dep’t, 127 F.3d 470, 475-76 (5th Cir.*8631997). The District Court need not determine whether exhaustion is required in this case because the VA alternatively moved for summary judgment on the merits of Wadhwa’s Privacy Act claim, submitting evidence that the VA informed Wadh-wa that the documents he requested are not contained in a “system of records” as defined by the Privacy Act, and are thus not available. In light of our remand with respect to Wadhwa’s FOIA claim, the VA may wish to renew its summary judgment motion on Wadhwa’s Privacy Act claim.
Accordingly, because we conclude that the District Court erred in deciding that it lacked jurisdiction, we will vacate the District Court’s orders and remand this case for further proceedings. Wadhwa’s motion to exclude the VA’s answer from its supplemental appendix is denied.
. Minihan also stated that Graham responded to a duplicative FOIA/Privacy Act request made by Wadhwa shortly before counsel wrote a letter on his behalf.
. Wadhwa also argues in his brief that he submitted other FOIA requests that were either denied or that certain documents were withheld. As noted by the District Court, the subject of Wadhwa's complaint is his August 5, 2006, request for documents. Wadhwa asserted in District Court that he sought to amend his complaint to include his other FOIA requests, but the District Court found in denying his motion for reconsideration that he had not in fact made such a request, and that the VA would be prejudiced if he were permitted at that time to amend his complaint. Wadhwa has not shown that the District Court abused its discretion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470796/ | OPINION OF THE COURT
McKEE, Circuit Judge.
Elliott Richo appeals the sentence that was imposed pursuant to his guilty plea to six counts of bank robbery and one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a). For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this case, we need not recite the factual or procedural history. Richo argues that the sentence was unreasonable because the sentencing court failed to analyze all relevant § 3553(a) factors. Specifically, he contends the court should have considered a lesser sentence in light of his history of drug addiction and his age which makes it unlikely that he will commit another offense when released.
We review a district court’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). In doing so, we must “first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, *864or failing to adequately explain the chosen sentence.” Id. at 597. We will uphold the sentence if the record discloses “meaningful consideration of the relevant statutory factors and the exercise of independent judgment, based on a weighing of the relevant factors.” United States v. Grier, 475 F.3d 556, 571-72 (3d Cir.2007) (en banc). The record must show that the sentencing judge “set forth enough to satisfy [us] that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). However, the sentencing court need not make specific findings on the record as to each factor if it is clear that all pertinent factors have been considered. United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007).
Richo’s challenge to the reasonableness of the sentence is meritless. The district court listened to arguments about the significance of his longstanding drug addiction during Richo’s request for a lesser sentence. (App.5-8). Moreover, the district court adopted the findings of the pre-sentence report, which also addressed Ri-cho’s history of drug addiction. The court clearly considered that factor. We will not conclude that the resulting sentence was unreasonable merely because the sentencing judge did not attach the same importance to Richo’s history of substance abuse as Richo does.
Similarly, there is nothing to suggest that the district court failed to consider Richo’s age. Although he was 42 years old when sentenced, Richo is a career offender with a long history of serious crimes. Richo cites United States v. Nellum, an unpublished district court decision where a sentence was imposed below the defendant’s guideline range based partly on the defendant’s advanced age. 2005 WL 300073 (N.D.Ind.2005). We need not respond to an unpublished district court opinion. That is particularly true where, as in Nellum, the case involved a defendant whose criminal history involved only two misdemeanor drug possession convictions, and the defendant suffered from multiple health problems which were likely to worsen before his release.
The district court found that Richo committed a “barrage of robberies” in a short period of time, inflicting fear in the bank tellers who were the victims of his robbery spree. Given all of the circumstances here, including the personal characteristics and background of the defendant and the seriousness of his conduct, we believe that the court’s sentence was imposed after meaningful consideration of all of the factors in § 3553(a). Moreover, the record suggests that the sentencing court did consider Richo’s age and substance abuse problems because his sentence is at the absolute bottom of the applicable advisory guideline range. Therefore there was no abuse of discretion and the sentence that was imposed is reasonable.
II.
For all of the above reasons, we affirm the district court’s sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470971/ | SUMMARY ORDER
Plaintiff-Appellants, citizens of Turkey, commenced this action in the Southern District of New York asserting claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., and New York common law and statutory causes of action. The district court (Marrero, J.) granted the motion of Defendant-Appellees Coca-Cola Company (“Coca Cola”), Coca-Cola Export Corporation (“CCEC”), and Coca-Cola Icecek, A.S. (“CCI”) to dismiss the complaint on forum non conveniens grounds. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal. See Turedi v. Coca Cola Co., 460 F.Supp.2d 507, 509-511 (S.D.N.Y.2006).
Under the common-law doctrine of forum non conveniens, a court has the power to dismiss a case where that case would be more appropriately brought in a foreign court. See Sinochem Int’l Co., Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 429-30, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). The doctrine “finds its roots in the inherent power of the courts ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” Monégasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311 F.3d 488, 497 (2d Cir.2002) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).) “ ‘The principle of forum non convenience is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.’ ” Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).
Our review of a district court’s dismissal on forum non conveniens grounds is very limited. See Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir.2001) (en banc). We have previously recognized that “[t]he decision to dismiss a case on forum non conveniens grounds lies wholly within the broad discretion of the district court and may be overturned only when we believe that discretion has been clearly abused.” Id. (internal quotation marks omitted). This limited review “encompasses the right to determine whether the dis*625trict court reached an erroneous conclusion on either the facts or the law, or relied on an incorrect rule of law in reaching its determination.” Id. (internal citations and quotation marks omitted). “A district court abuses its discretion in granting a forum non conveniens dismissal when its decision (1) rests either on an error of law or on a clearly erroneous finding of fact, or (2) cannot be located within the range of permissible decisions, or (3) fails to consider all the relevant factors or unreasonably balances those factors.” Norex Petroleum, Ltd. v. Access Indus., 416 F.3d 146, 153 (2d Cir.2005) (internal quotation marks omitted). In addressing a motion to dismiss for forum non conveniens, courts must consider: (1) the degree of deference afforded to the plaintiffs choice of forum; (2) whether the alternative forum is adequate; and (3) the balance of the public and private interests implicated in the choice of forum. See id.
It is well settled in this Circuit that a foreign plaintiffs choice of forum deserves less deference than the same choice by a domestic plaintiff. See Iragorri, 274 F.3d at 71-72 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). As a general matter, a district court should consider the degree to which the plaintiff or the lawsuit has a bona fide connection to the United States and to the forum of choice, and the degree to which considerations of convenience favor the conduct of the lawsuit in the United States. Id. at 72. The more specific factors arguing against dismissal on forum non conveniens grounds include convenience of the plaintiffs residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant’s amenability to suit in the forum district, and the availability of appropriate legal assistance. Id. Factors favoring forum non conveniens dismissal include the degree to which
it appears that the plaintiffs choice of a U.S. forum was motivated by forum-shopping reasons — such as attempts to win a tactical advantage resulting from local laws that favor the plaintiffs case, the habitual generosity of juries in the United States or in the forum district, the plaintiffs popularity or the defendant’s unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum.
Id.
Here, as the district court correctly recognized, none of the plaintiffs are U.S. citizens, and defendant CCI is a Turkish company with its principal place of business in Istanbul and has no alleged contact to the United States. The district court further noted that “[t]he underlying injuries Plaintiffs assert stem from their alleged assaults and arrests by the Turkish police arising from their labor dispute with Trakya and CCI in Istanbul.” Turedi, 460 F.Supp.2d at 522. We agree that such “facts give rise to a strong inference that forum-shopping considerations served as a substantial motivation in plaintiffs’ venue choice in [the Southern] District.” Id. Accordingly, the district court was not required to grant special deference to plaintiffs’ choice of a New York forum.
We next address whether an alternative and adequate forum exists. “An alternative forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute.” Norex Petroleum Ltd., 416 F.3d at 157 (quoting Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir.2003)); Bank of Credit & Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir.2001). A forum may be deemed inadequate if it is “characterized *626by a complete absence of due process or an inability of the forum to provide substantial justice.” Monegasque de Reassurances S.A.M., 311 F.3d at 499.
We conclude that the record amply supports the district court’s decision concerning the availability and adequacy of a Turkish forum in this case and that it properly rejected Plaintiffs’ eonclusory and unsupported allegations that the Turkish justice system is corrupt. See generally Monegasque de Reassurances S.A.M., 311 F.3d at 499 (“We have been reluctant to find foreign courts ‘corrupt’ or ‘biased.’ ”). It is beyond dispute that Turkey is an available forum in this case. Each defendant has agreed that, if plaintiffs “commence litigation in Turkey arising out of the circumstances and general claims asserted” in this case, it will (a) accept service of process and the Turkish court’s exercise of personal jurisdiction; (b) not assert statute of limitations defenses in Turkey that would be unavailable here; and (c) satisfy any final judgment issued by a Turkish court. The district court also acted within its discretion in concluding that Turkey was an adequate forum. The court appropriately relied on the uncontradicted declarations of three Turkish law experts who explained that “Turkish law contains various substantive provisions and procedures under which Plaintiffs can pursue claims and obtain remedies for the forms of misconduct Plaintiffs allege against Defendants, and can be awarded both monetary and injunctive relief.” Turedi, 460 F.Supp.2d at 524; see also Mercier v. Sheraton Int’L, Inc., 981 F.2d 1345, 1350-54 (1st Cir.1992) (rejecting alleged inadequacies of Turkish courts in context of forum non conveniens dismissal).
The last step of the forum non conveniens inquiry requires a district court to analyze both the private and public interest factors discussed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The private interest factors, which concern the convenience of the parties, include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Iragorti, 274 F.3d at 73-74 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839) (internal quotation marks omitted). “In considering these factors, the court is necessarily engaged in a comparison between the hardships defendant would suffer through the retention of jurisdiction and the hardships the plaintiff would suffer as the result of dismissal and the obligation to bring suit in another country.” Id. at 74. The public interest factors include congestion in the courts, having local controversies decided locally, not imposing jury duty on people in a community that has no interest in the litigation, and avoiding the difficulty of applying foreign law. See id. (citing Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839). We conclude that the district court properly exercised its broad discretion in carefully reviewing and balancing the Gilbert private and public interest factors. Moreover, we agree with the conclusion reached by the district court — that the Gilbert factors strongly counsel in favor of adjudicating the present dispute in Turkey.
We have reviewed plaintiffs’ remaining contentions and find them to be without merit. Accordingly, for the reasons set forth above, the judgment of the district court is hereby
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470974/ | SUMMARY ORDER
Appellants (collectively, the “WTC Insureds”) appeal from a June 10, 2008, 2008 WL 2358882, opinion and order of the district court granting summary judgment to appellee Allianz Global Risks U.S. Insurance Company (“Allianz”), and the subsequent June 23, 2008 judgments in two actions pertaining to insurance coverage disputes over property and other damage resulting from the September 11, 2001 attacks on the World Trade Center. This dispute is over whether, under excess insurance policies issued by Allianz to the WTC Insureds, the insured or the insurer has a priority claim to any recoveries that might be won from airlines and other third-party defendants in ongoing tort litigation over the September 11 attacks. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
“We review a district court’s decision of whether to exercise jurisdiction over a declaratory judgment action deferentially, for abuse of discretion.” Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384, 388 (2d Cir.2005). We review the district court’s decision on the merits of the parties’ insurance dispute, a pure question of law, de novo. Id. at 388-89.
The WTC Insureds argue that this dispute is not ripe for judicial determination. “The standard for ripeness in a declaratory judgment action is that ‘there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384, 388 (2d Cir.2005) (quoting Maryland Cas. Co. v. Pac. Coal & *632Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)). We examine “(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty.” Id.
The WTC Insureds argue that this dispute is not yet ripe because, for example, it is possible that neither party will succeed in proving liability or damages in the tort litigation. As we have explained, however, “[tjhat the liability may be contingent does not necessarily defeat jurisdiction of a declaratory judgment action.... Indeed, litigation over insurance coverage has become the paradigm for asserting jurisdiction despite future contingencies that will determine whether a controversy ever actually becomes real.” Associated Indem. Corp. v. Fairchild Indus., Inc., 961 F.2d 32, 35 (2d Cir.1992) (citations and quotation marks omitted); Maryland Cas. Co., 312 U.S. at 273, 61 S.Ct. 510 (“the difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree.”). The WTC Insureds do not call into doubt the “practical likelihood” of some type of settlements or judgments in the WTC Tort Litigation. See Certain Underwriters at Lloyd’s, London v. St. Joe Minerals Corp., 90 F.3d 671, 675 (2d Cir. 1996). As the district court determined, this case is a pure question of contract interpretation requiring no further factual development. The district court did not abuse its discretion in determining that a judgment in this action would “offer relief from uncertainty” and serve a “useful purpose in clarifying” the rights of the parties to the proceeds of the WTC Tort Litigation, avoiding additional litigation and assisting the parties in formulating settlement positions and developing settlement strategy. See Duane Reade, Inc., 411 F.3d at 388.
The WTC Insureds also argue that the district court erred in its interpretation of the insurance contract. In the
interpretation of insurance contracts ... words should be given the meanings ordinarily ascribed to them and absurd results should be avoided .... the meaning of particular language found in insurance policies should be examined ‘in light of the business purposes sought to be achieved by the parties and the plain meaning of the words chosen by them to effect those purposes.’
World Trade Center Props., LLC v. Hartford Fire Ins. Co., 345 F.3d 154, 184 (2d Cir.2003) (quotation marks omitted).
Allianz’s excess insurance policies follow the Travelers Indemnity Company form, except as “otherwise provided.” The Travelers form includes a subrogation clause which provides that the insured’s right to seek recovery from a third party for the amounts paid under the policy are transferred to the insurer, and the insurer “will be entitled to priority of recovery” against those third parties.
The WTC Insureds argue that this sub-rogation clause does not apply because Allianz’s excess policies include provisions for calculation of the “ultimate net loss” and “application of recoveries.” The Al-lianz policies obligate Allianz to indemnify the WTC Insureds for their “ultimate net loss,” defined as:
the actual loss sustained by the Insured as a direct result of the action of perils insured against ... after making deductions for: deduetible(s) and/or other self-insured retention(s) to be borne by the Insured, all recoveries, salvages and other insurances (other than recoveries under the policies of the Underlying Insurers) whether recoverable or not.
*633The “application of recoveries” clause provides:
All salvages, recoveries or payments recovered or received subsequent to a loss settlement under this policy shall be applied as if recovered or received prior to such settlement and all necessary adjustments shall then be made between the Insured and the Insurers provided always that nothing in this Clause shall be construed to mean that losses under this policy are not recoverable until the Insured’s Ultimate Net Loss has been finally ascertained.
The WTC Insureds argue that the term “recoveries,” as used in these clauses, is a broad one encompassing recoveries received by insurers in subrogation, and that the operation of these provisions is to require that the insurers turn over the proceeds of any subrogation actions to the insured.
A plain reading of the insurance contract does not support the WTC Insureds’ interpretation. No term of the Allianz excess policy provides that a recovery by Allianz in subrogation must be given over to the insured. We agree with the district court that “the Application of Recoveries clause is dedicated to determining the calculation of ultimate net loss when payments are received after the loss settlement has occurred; it has no effect on the contractual subrogation or the contracted priority of subrogation.” Nothing in the Allianz excess policies provides that the “actual loss” is calculated by subtracting post-settlement recoveries, let alone that the WTC Insureds have a priority claim to those post-settlement recoveries. The words “all necessary adjustments shall then be made between the Insured and the Insurers,” will not bear the weight of the WTC Insureds argument that they must be “made whole” before Allianz can recover any money in subrogation.
Moreover, reading the term “recoveries” in the Allianz policy to include subrogation recoveries by an insurer would lead to an absurd result. The insured’s “ultimate net loss” — i.e., the amount that the insurer owes the insured — would be reduced by money paid to the insurer because, by definition, a subrogation recovery is money paid to the insurer. We decline to adopt this tortured interpretation.
Accordingly, the judgment of the district court hereby is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470977/ | SUMMARY ORDER
Plaintiffs Susan Hallock and Ferncliff Associates, Inc. sued defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of their Fifth Amendment right to due process. They now assert that this occurred by defendants intentionally depriving them of, and destroying, computer equipment seized pursuant to a warrant. Plaintiffs appeal an award of summary judgment in favor of defendants, arguing that the district court erred in disregarding their deprivation claim and in concluding that no material issues of fact had been presented in their destruction claim.
*635We review an award of summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Oilman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Deprivation Claim
Plaintiffs argue that the district court failed to address the deprivation prong of their due process claim as it pertained to two periods: (1) from September to December 2000, when defendants purportedly delayed the return of seized hard drives that they had determined had no evidentiary value because plaintiff Hallock’s husband, Richard Hal-lock, not a party to this action, refused to sign a hold-harmless agreement; and (2) after December 2000, when defendants refused to provide plaintiffs with a copy of their hard drives. This argument is without merit.
Neither the Amended Complaint nor plaintiffs’ memorandum of law in opposition to the motion for summary judgment articulated a due process violation based on these factual allegations. We identify no error in the district court’s failure to address due process theories that were never litigated before it. These two theories of deprivation are thus properly deemed waived. See In re Int'l Bus. Machines Corp. Sec. Litig., 163 F.3d 102, 110 (2d Cir.1998) (“Plaintiffs never pled this new theory of liability and therefore have waived any claims relating to it.”); see also Fed.R.Civ.P. 10(b) (“[Ejach claim founded on a separate transaction or occurrence ... must be stated in a separate count.”).
2. Destruction of Property Claim
Plaintiffs argue that the district court erred in concluding that they failed to raise a material issue of fact regarding the personal involvement of any defendant in the alleged intentional destruction of their property. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir.2006) (“[I]n Bivens actions, a plaintiff must allege that the individual defendant was personally involved in the constitutional violation.”). It is also a prerequisite for a due process violation, and hence for a Bivens action of this kind, that the defendants damage plaintiffs’ property with intentional conduct. See Shannon v. Jacobowitz, 394 F.3d 90, 93-94, 97 (2d Cir.2005).
Although plaintiffs cite to testimony by two “expert” witnesses that the hard drives were intentionally damaged, the evidence of these witnesses, even if admissible, at most permits a jury to find negligence, not intentional conduct. This is insufficient for a Bivens action. See Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir.2004) (“It is well established that mere negligence is insufficient as a matter of law to state a due process violation.”).
We therefore conclude that the district court correctly entered judgment in favor of defendants on plaintiffs’ Bivens claim. We have considered plaintiffs’ other arguments on appeal and conclude that they *636are without merit. Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470686/ | SUMMARY ORDER
Petitioner Dian Fei Jiang, a native and citizen of the People’s Republic of China, seeks review of a January 30, 2008, order of the BIA, affirming the April 28, 2006, decision of Immigration Judge (“IJ”) Helen Sichel, in which the IJ denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dian Fei Jiang, No. A98 715 486 (B.I.A. Jan. 30, 2008), aff'g No. A98 715 486 (Immig. Ct. N.Y. City Apr. 28, 2006).
Where, as here, the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination, see Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); Yu Sheng Zhang v. U.S. Dep’t of Justice, 362 F.3d 155, 159 (2d Cir.2004), deferring to findings of fact, including adverse credibility determinations, that are supported by substantial evidence, see 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). In conducting our review, we assume the parties’ familiarity with the underlying facts and procedural history in this case.
Jiang principally contends that the IJ’s adverse credibility finding is not supported by substantial evidence because the record reflects that he provided credible, detailed, and consistent testimony.
We are not persuaded. The IJ’s adverse credibility determination was supported by her findings that Jiang (1) testified in a “stilted and hesitant” manner suggestive of a scripted account, In re Dian Fei Jiang, No. A98 715 486 (Immig. Ct. N.Y. City Apr. 28, 2006), at 9; (2) testified implausibly regarding the circumstances of his release from prison; (3) failed to recall how long a friend and fellow Falun Gong practitioner stayed with his family, even though that friend’s stay put the family at great risk; and (4) failed to corroborate his otherwise incredible account because the purportedly corroborative letters he supplied suspiciously duplicated each other. While Jiang attempts to offer plausible explanations for the identified inadequacies, it is not our task to “ ‘hypothesiz[e] excuses’ ” or “ ‘justify[ ] contradictions.’ ” Majidi v. Gonzales, 430 F.3d 77, 80, 81 (2d Cir.2005). Nor is there reason for us to question the IJ’s observance of the “commonsensical notion that striking similarities between affidavits are an indication that the statements are ‘canned.’ ” Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir.2007). Rather, because the IJ provided “‘specific’ ” and “ ‘cogent’ ” reasons for her record-supported credibility findings, there is no basis for us to disturb them. Majidi v. *687Gonzales, 430 F.3d at 80 (explaining that “exceedingly narrow” scope of our review “ensure[s] merely that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice” (internal quotation marks omitted)).
Because Jiang’s asylum, withholding-of-removal, and CAT claims depended on the same factual predicates, the IJ’s adverse credibility determination extended to and foreclosed the availability of each. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470688/ | SUMMARY ORDER
Petitioner Hua Guang Lin, a native and citizen of China, seeks review of a March 12, 2008 order of the BIA affirming the March 29, 2006 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hua Guang Lin, No. A 200 026 233 (B.I.A. Mar. 12, 2008), aff'g No. A 200 026 233 (Immig. Ct. N.Y. City Mar. 29, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). For asylum applications governed by the amendments to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer therefore to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam).
As an initial matter, Lin does not address certain of the IJ’s credibility findings. Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal in the absence of manifest injustice. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Accordingly, those unchallenged findings stand as valid bases for the IJ’s adverse credibility determination.1 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008).
In concluding that Lin was not credible, the IJ properly found inconsistent Lin’s testimony regarding his and his wife’s reasoning for going into hiding during his wife’s fourth pregnancy. The IJ found that while Lin testified initially that they went into hiding because his wife’s fourth pregnancy was reported to family planning officials, he later testified that the reason the couple fled was because a relative warned them that family planning officials discovered the birth of their second child. While Lin attacks this finding as immaterial, under the REAL ID Act, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167. Moreover, because no reasonable factfinder would have been compelled to credit Lin’s explanation that dur*689ing his merits hearing he had difficulty communicating about this topic with the IJ, the IJ properly relied on these inconsistencies to support his adverse credibility determination. See Majidi v. Gonzales, 480 F.3d 77, 81 (2d Cir.2005).
While we question the IJ’s reliance on the record of Lin’s interview with U.S. immigration officials at the border, we need not decide whether that record met the standard we discussed in Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir.2004). Ultimately, substantial evidence supported the IJ’s adverse credibility determination, and, thus, his denial of asylum, withholding of removal and CAT relief. See 8 U.S.C. § 1252(b)(4)(B); Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. First, the IJ found that while Lin testified that he went into hiding in March 2004, his asylum application indicates that he went into hiding in March 2005. Second, while Lin testified that one of the reasons that he went into hiding was because he received a telephone call from his relative, a letter from his wife omits this detail. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470690/ | *690
SUMMARY ORDER
Petitioner Chao Yan Chen, a native and citizen of the People’s Republic of China, seeks review of a July 10, 2007 order of the BIA, denying his motion to reopen. In re Chao Yan Chen, No. A072 485 290 (B.I.A. Jul. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shoo v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Chen’s untimely and number-barred motion to reopen.
Chen argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time and number limitation for filing his motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Further, we reject Chen’s argument that the BIA abuses its discretion when it declines to consider evidence that is not in the record merely because it was in the record of a different case. Indeed, it was Chen’s burden to present evidence to support his motion. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Nor will this Court remand for the agency to consider extra-record evidence. Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir.2007); see also id. at 262 (noting that the “regulations set forth procedures to reopen a case before the BIA for the taking of additional evidence”). Chen filed his motion to reopen in April 2007, after this Court decided Shou Yung Guo, but he did not submit the so-called Guo documents with his motion to reopen. Accordingly, we cannot conclude that the BIA abused its discretion in declining to consider the Guo documents. See id. at 262.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470692/ | SUMMARY ORDER
Petitioner Xiu Feng Lin, a native and citizen of the People’s Republic of China, seeks review of a July 30, 2008 order of the BIA denying her motion to reopen. In re Xiu Feng Lin, No. A077 354 401 (B.I.A. July 30, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d *692Cir.2008). We find that the agency did not err in denying Lin’s untimely motion to reopen.
In her brief to this Court, Lin argues that the BIA erred in requiring her to demonstrate changed circumstances in China, “which amounts to an insurmountable task for [her] to achieve.” However, we have repeatedly found that the birth of children in the United States are changed personal circumstances insufficient to establish an exception to the time-bar for motions to reopen required by 8 C.F.R. § 1003.2(c)(3)(2). See Wei Guang Wang v. B.I.A., 437 F.3d 270, 273 (2d Cir.2006); Jian Huan Guan v. B.I.A., 345 F.3d 47, 49 (2d Cir.2003).
While Lin’s failure to establish changed country conditions is dispositive of her petition for review, we also note that we find no abuse of discretion in the BIA’s evaluation of Lin’s evidence and in its requirement of authentication, as the BIA questioned the reliability of Lin’s evidence in light of the underlying adverse credibility determination rendered against her. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148-49 (2d Cir.2007) (finding that the BIA’s refusal to credit an unauthenticated document was not error because the rejection of the document was based substantially on legitimate credibility concerns and contrary evidence as opposed to being based solely on lack of authentication); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency). Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which Lin has submitted in support of her motion and found no error in the agency’s conclusion that such evidence is insufficient to establish either materially changed country conditions warranting exemption from the time limit for a motion to reopen or a prima facie claim of a well-founded fear of future persecution. See Jian Hui Shao, 546 F.3d at 169-72.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470694/ | SUMMARY ORDER
Petitioner Shao Hui Zhang, a native and citizen of the People’s Republic of China, seeks review of a September 28, 2007 order of the BIA, denying his motion to reopen. In re Shao Hui Zhang, No. A095 479 310 (B.I.A. Sep. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Zhang’s untimely motion to reopen.
Zhang argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing his motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
To the extent Zhang argues that the BIA ignored the evidence he submitted, nothing in the record compels us to agree. See Jian Hui Shao, 546 F.3d at 169 (recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470800/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Preston Gattis, Jr., appeals the district court’s order denying his motion for new trial under Fed.R.Crim.P. 33, based upon newly discovered evidence. The district court concluded that the motion was untimely. We agree. Under Rule 33, Gattis had “3 years after the verdict or finding of guilty” to file his motion. Fed.R.Crim.P. 33(b)(1). The jury found Gattis guilty on October 16, 2003. Because Gattis did not file his Rule 33 motion until October 9, *8802008, at the earliest, we conclude that he did not timely file the motion. Accordingly, we affirm the district court’s denial of relief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470978/ | SUMMARY ORDER
Petitioner Basiru Dibaga, a native and citizen of Sierra Leone, seeks review of the December 12, 2007 order of the BIA affirming the January 17, 2006 decision of Immigration Judge (“IJ”) Sarah M. Burr pretermitting his application for asylum, and denying his application for withholding of removal and relief under the Convention *637Against Torture (“CAT”). In re Basiru Dibaga, No. A79 281 595 (B.I.A. Dec. 12, 2007), aff'g No. A79 281 595 (Immig. Ct. N.Y. City Jan. 17, 2006). We assume the parties’ familiarity with the underlying-facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007).
As a preliminary matter, because Diba-ga failed to raise any challenge to the IJ’s denial of CAT relief in either his brief to the BIA or his brief to this Court, we deem that claim abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007).
Moreover, because Dibaga’s challenge to the IJ’s pretermission of his asylum application as untimely does not raise a “question of law,” but merely disputes the correctness of her factual findings or justification for her discretionary choices under 8 U.S.C. § 1158(a)(2)(B), (D), we are without jurisdiction to review that challenge. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Thus, we dismiss the petition for review to that extent.
Regarding withholding of removal, we find that substantial evidence supports the IJ’s finding that — even assuming Dibaga experienced past persecution on account of a protected ground — conditions in Sierra Leone have changed so fundamentally that he cannot establish a likelihood that his life or freedom would be threatened there. See 8 C.F.R. § 1208.16(b)(l)(i)(A); see also Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir.2007). The IJ correctly noted that the civil war in Sierra Leone, during which Dibaga had been harmed by a rebel militia group, ended in 2002. In addition, the IJ took note of various country reports in the record that discussed the much improved human rights situation in that country. In light of this evidence, there is no basis to conclude that the IJ’s denial of withholding of removal was in error.
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470980/ | SUMMARY ORDER
Petitioner Shang Jing Chen, a native and citizen of the People’s Republic of China, seeks review of an August 29, 2008 order of the BIA affirming the December 7, 2006 decision of Immigration Judge (“IJ”) Helen Sichel denying his applications for asylum and withholding of removal. In re Shang Jing Chen, No. A097 331 533 (B.I.A. Aug. 29, 2008), aff'g No. A097 331 533 (Immig. Ct. N.Y. City Dec. 7, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence *639standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir.2008). For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). Thus, we “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
Substantial evidence supports the IJ’s determination that Chen was not credible. Chen admitted that he provided false statements to immigration officers at his airport and credible fear interviews, and in a statement he wrote supporting a parole request. Indeed, as the IJ found, Chen provided two “completely different” bases for his asylum claim. He initially told immigration officers that he had fled from debts he owed and because he feared the repercussions of threatening to sue a government official who was a shareholder in a company in which Chen also held an ownership interest. Yet in his asylum application and in his testimony before the IJ, Chen claimed that he had suffered past persecution and feared future persecution on account of his Christian faith. The IJ was entitled to conclude that these obvious inconsistencies undermined his credibility. See Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.2004) (“Where the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution, however, the inconsistencies may render the alien’s testimony incredible.”).
While Chen argues that, at the time that he made the false statements, he was “mentally under [the] control” of a “snake-head” and an attorney hired by the snake-head, this was not an explanation that the IJ was required to credit. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396, 397 n. 6, 399 n. 8 (2d Cir. 2005). Moreover, even if Chen told the truth in claiming that he was compelled to make his initial, false claim, it does not follow that his later claim was credible. To the contrary, this Court has held that even “a single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007).
The IJ also relied upon additional discrepancies in finding Chen not credible, including that: (1) Chen’s asylum application did not mention that his planned baptism was interrupted by the police; (2) although the letters from his father and Darning Chen suggested that the police detained seven people based on their religious activities, Chen testified that only two people were detained; and (3) while Chen testified that he had accompanied his father to Anhui Province, the letter from his father suggested that he had not, and Chen’s asylum application did not list An-hui Province as a place he had lived. Chen failed to provide a compelling explanation for these discrepancies. See Ma-jidi, 430 F.3d at 80-81. Thus, in view of the numerous discrepancies in the record, substantial evidence supports the IJ’s adverse credibility determination. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
*640To the extent that Chen based his asylum and withholding of removal claims upon his assertion that he endured past persecution, the adverse credibility determination in this case necessarily precludes success on those claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). However, the agency appears to have credited Chen’s claim that he has attended a Christian church in this country, and thus evaluated whether Chen had shown a well-founded fear of future persecution on that basis. We find no error in the agency’s conclusion that Chen failed to make such a showing. As the IJ found, Chen failed to testify, or provide other evidence, that he would practice Christianity in China or that, even if he did, the Chinese government is likely to become aware of that practice or his religious practices in this country. While Chen asserts that “[njothing in the record suggests that [he] would not practice Christian[ity] if [he is] returned to China,” the burden was on Chen to demonstrate the objective reasonableness of his fear of persecution. See 8 C.F.R. § 1208.13(a). As the IJ found, Chen did not meet that burden. See Jian Xing Huang v. U.S. I.N.S., 421 F.3d 125, 129 (2d Cir.2005) (“In the absence of solid support in the record,” a claim that an alien has a well-founded fear of future persecution “is speculative at best.”); Hongsheng Leng v. Mukasey, 528 F.3d 135,137 (2d Cir.2008) (“[I]n order to establish eligibility for relief based exclusively on activities undertaken after his arrival in the United States, an alien must make some showing that authorities in his country of nationality are (1) aware of his activities or (2) likely to become aware of his activities.”).
Finally, Chen has waived any challenge to the BIA’s denial of CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). In any event, we note that the BIA apparently erred in pronouncing on Chen’s eligibility for CAT relief where, before the IJ, Chen had affirmatively declined to seek that form of relief. See generally 8 C.F.R. § 1003.1.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470982/ | SUMMARY ORDER
Juan Aguilar-Guerra, a native and citizen of El Salvador, seeks review of an August 27, 2008 order of the BIA affirming the May 15, 2007 decision of Immigration Judge (“IJ”) Robert Weisel denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Juan Aguilar-Guerra, No. A097 341 181 (B.I.A. Aug. 27, 2008), aff'g No. A097 341 181 (Immig. Ct. N.Y. City May 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
I. Asylum and Withholding of Removal
When the BIA adopts and supplements the decision of the IJ, we review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Passi v. Mukasey, 535 F.3d 98,101 (2d Cir.2008).
A. Particular Social Group
We conclude that the agency did not err in finding that Aguilar-Guerra failed to establish that he was persecuted, and has a well-founded fear of persecution, on account of a protected ground. See 8 U.S.C. § 1101(a)(42). Aguilar-Guerra argues that this finding was erroneous, because he is a member of the particular social group of “young Salvadoran men actively pressured to join gangs and who refused to do so.” However, he fails to establish that this is a “particular social group” within the meaning of the Immigration and Nationality Act. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)®.
In Ucelo-Gomez v. Mukasey, we agreed with the BIA’s holding that in order to constitute a particular social group, a pro*642posed group must: (1) exhibit a shared characteristic that is socially visible to others in the community; and (2) be defined with sufficient particularity. 509 F.3d 70, 73 (2d Cir.2007) (per curiam) (citing Matter of A-M-E & J-G-U- 24 I. & N. Dec. 69, 74-76 (B.I.A.2007)). Applying that framework in Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A.2008), the BIA considered the cases of applicants from El Salvador who, like Aguilar-Guerra, claimed eligibility for asylum based on their membership in the particular social group of Salvadoran youths who resisted recruitment by gangs. The BIA concluded that the proposed group did not satisfy the “particularity” and “social visibility” test set forth in Matter of A-M-E & J-G-U-, in part because “victims of gang violence come from all segments of society, and it is difficult to conclude that any ‘group,’ as actually perceived by the criminal gangs, is much narrower than the general population of El Salvador.” Id. at 586-88; see also Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (B.I.A.2008).
Precedential BIA decisions such as these “ ‘are eligible for Chevron deference insofar as they represent the agency’s authoritative interpretations of statutes.’ ” See Yuen Jin v. Mukasey, 538 F.3d 143, 150 (2d Cir.2008) (quoting Manvand v. Gonzales, 501 F.3d 101, 104 (2d Cir.2007)). Here, we defer to the agency’s interpretation of the statute as announced in Matter of S-E-G- and Matter of E-A-G-. Because those decisions consider proposed social groups that are virtually indistinguishable from the group proposed here, we conclude that Aguilar-Guerra’s social group claim based on his resistance to gang recruitment fails.
Moreover, we find Aguilar-Guerra’s claim of persecution based on his membership in the particular social group of his family, who were civil patrollers, unavailing. Aguilar-Guerra failed to identify any record evidence indicating that his uncles were harmed because of their family relationship. See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(a). Without such a showing, we cannot find any error in the BIA’s conclusion that he failed to establish that any harm to his relatives was on account of a protected ground.
B. Political Opinion
For similar reasons, Aguilar-Guerra’s argument that the guerrillas “imputed a political opinion on him suspecting him of being affiliated with or supporting the Armed Forces” because he had relatives in the civil patrol, is unavailing. Aguilar-Guerra has identified nothing in the record that supports his claim that his uncles’ deaths were related to his family’s involvement with the civil patrol. See Manzur, 494 F.3d at 295 (requiring an asylum applicant proceeding under a theory of imputed political opinion to “establish persecution ‘on account of a protected ground by showing that the persecutors perceived the applicant to have a political opinion and acted because of it”).
II. CAT Relief
Aguilar-Guerra has failed to raise any challenge to the agency’s denial of his CAT claim in his brief to this Court. Accordingly, we deem his CAT claim waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule *643of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470685/ | SUMMARY ORDER
Petitioner Ying Chen, a native and citizen of the People’s Republic of China, seeks review of a November 6, 2007 order of the BIA denying her motion to reopen. In re Ying Chen, No. A073 148 583 (B.I.A. Nov. 6, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Chen’s untimely motion to reopen.
Chen argues that the BIA erred in concluding that she failed to demonstrate either material changed country conditions sufficient to excuse the untimely filing of her motion to reopen or her prim a facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves *685attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Finally, to the extent that Chen argues that she was eligible to file a successive asylum application based on “changed circumstances” alone, not only changed country conditions, that argument is unavailing under our decision in Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470689/ | SUMMARY ORDER
Petitioner Hua Guang Lin, a native and citizen of China, seeks review of a March 12, 2008 order of the BIA affirming the March 29, 2006 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hua Guang Lin, No. A 200 026 233 (B.I.A. Mar. 12, 2008), aff'g No. A 200 026 233 (Immig. Ct. N.Y. City Mar. 29, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). For asylum applications governed by the amendments to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We “defer therefore to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam).
As an initial matter, Lin does not address certain of the IJ’s credibility findings. Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal in the absence of manifest injustice. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Accordingly, those unchallenged findings stand as valid bases for the IJ’s adverse credibility determination.1 See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008).
In concluding that Lin was not credible, the IJ properly found inconsistent Lin’s testimony regarding his and his wife’s reasoning for going into hiding during his wife’s fourth pregnancy. The IJ found that while Lin testified initially that they went into hiding because his wife’s fourth pregnancy was reported to family planning officials, he later testified that the reason the couple fled was because a relative warned them that family planning officials discovered the birth of their second child. While Lin attacks this finding as immaterial, under the REAL ID Act, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167. Moreover, because no reasonable factfinder would have been compelled to credit Lin’s explanation that dur*689ing his merits hearing he had difficulty communicating about this topic with the IJ, the IJ properly relied on these inconsistencies to support his adverse credibility determination. See Majidi v. Gonzales, 480 F.3d 77, 81 (2d Cir.2005).
While we question the IJ’s reliance on the record of Lin’s interview with U.S. immigration officials at the border, we need not decide whether that record met the standard we discussed in Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir.2004). Ultimately, substantial evidence supported the IJ’s adverse credibility determination, and, thus, his denial of asylum, withholding of removal and CAT relief. See 8 U.S.C. § 1252(b)(4)(B); Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. First, the IJ found that while Lin testified that he went into hiding in March 2004, his asylum application indicates that he went into hiding in March 2005. Second, while Lin testified that one of the reasons that he went into hiding was because he received a telephone call from his relative, a letter from his wife omits this detail. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470691/ | *690
SUMMARY ORDER
Petitioner Chao Yan Chen, a native and citizen of the People’s Republic of China, seeks review of a July 10, 2007 order of the BIA, denying his motion to reopen. In re Chao Yan Chen, No. A072 485 290 (B.I.A. Jul. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shoo v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Chen’s untimely and number-barred motion to reopen.
Chen argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time and number limitation for filing his motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Further, we reject Chen’s argument that the BIA abuses its discretion when it declines to consider evidence that is not in the record merely because it was in the record of a different case. Indeed, it was Chen’s burden to present evidence to support his motion. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Nor will this Court remand for the agency to consider extra-record evidence. Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir.2007); see also id. at 262 (noting that the “regulations set forth procedures to reopen a case before the BIA for the taking of additional evidence”). Chen filed his motion to reopen in April 2007, after this Court decided Shou Yung Guo, but he did not submit the so-called Guo documents with his motion to reopen. Accordingly, we cannot conclude that the BIA abused its discretion in declining to consider the Guo documents. See id. at 262.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470695/ | SUMMARY ORDER
Petitioner Shao Hui Zhang, a native and citizen of the People’s Republic of China, seeks review of a September 28, 2007 order of the BIA, denying his motion to reopen. In re Shao Hui Zhang, No. A095 479 310 (B.I.A. Sep. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Zhang’s untimely motion to reopen.
Zhang argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing his motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
To the extent Zhang argues that the BIA ignored the evidence he submitted, nothing in the record compels us to agree. See Jian Hui Shao, 546 F.3d at 169 (recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470697/ | SUMMARY ORDER
Petitioner Tian Ming Lin, a native and citizen of the People’s Republic of China, seeks review of a September 19, 2007 order of the BIA, denying his motion to reopen. In re Tian Ming Lin, No. A079 084 460 (B.I.A. Sept. 19, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not err in denying Lin’s untimely motion to reopen.
Lin argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing his motion to reopen. However, this argument fails where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
To the extent Lin argues that the BIA ignored the evidence he submitted, nothing in the record compels us to agree. See Jian Hui Shao, 546 F.3d at 169 (recognizing that the Court has rejected the notion *695that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner”); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470801/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Preston Gattis, Jr., appeals the district court’s order denying his motion for new trial under Fed.R.Crim.P. 33, based upon newly discovered evidence. The district court concluded that the motion was untimely. We agree. Under Rule 33, Gattis had “3 years after the verdict or finding of guilty” to file his motion. Fed.R.Crim.P. 33(b)(1). The jury found Gattis guilty on October 16, 2003. Because Gattis did not file his Rule 33 motion until October 9, *8802008, at the earliest, we conclude that he did not timely file the motion. Accordingly, we affirm the district court’s denial of relief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470979/ | SUMMARY ORDER
Petitioner Basiru Dibaga, a native and citizen of Sierra Leone, seeks review of the December 12, 2007 order of the BIA affirming the January 17, 2006 decision of Immigration Judge (“IJ”) Sarah M. Burr pretermitting his application for asylum, and denying his application for withholding of removal and relief under the Convention *637Against Torture (“CAT”). In re Basiru Dibaga, No. A79 281 595 (B.I.A. Dec. 12, 2007), aff'g No. A79 281 595 (Immig. Ct. N.Y. City Jan. 17, 2006). We assume the parties’ familiarity with the underlying-facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007).
As a preliminary matter, because Diba-ga failed to raise any challenge to the IJ’s denial of CAT relief in either his brief to the BIA or his brief to this Court, we deem that claim abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007).
Moreover, because Dibaga’s challenge to the IJ’s pretermission of his asylum application as untimely does not raise a “question of law,” but merely disputes the correctness of her factual findings or justification for her discretionary choices under 8 U.S.C. § 1158(a)(2)(B), (D), we are without jurisdiction to review that challenge. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Thus, we dismiss the petition for review to that extent.
Regarding withholding of removal, we find that substantial evidence supports the IJ’s finding that — even assuming Dibaga experienced past persecution on account of a protected ground — conditions in Sierra Leone have changed so fundamentally that he cannot establish a likelihood that his life or freedom would be threatened there. See 8 C.F.R. § 1208.16(b)(l)(i)(A); see also Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir.2007). The IJ correctly noted that the civil war in Sierra Leone, during which Dibaga had been harmed by a rebel militia group, ended in 2002. In addition, the IJ took note of various country reports in the record that discussed the much improved human rights situation in that country. In light of this evidence, there is no basis to conclude that the IJ’s denial of withholding of removal was in error.
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470981/ | SUMMARY ORDER
Petitioner Shang Jing Chen, a native and citizen of the People’s Republic of China, seeks review of an August 29, 2008 order of the BIA affirming the December 7, 2006 decision of Immigration Judge (“IJ”) Helen Sichel denying his applications for asylum and withholding of removal. In re Shang Jing Chen, No. A097 331 533 (B.I.A. Aug. 29, 2008), aff'g No. A097 331 533 (Immig. Ct. N.Y. City Dec. 7, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence *639standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir.2008). For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). Thus, we “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
Substantial evidence supports the IJ’s determination that Chen was not credible. Chen admitted that he provided false statements to immigration officers at his airport and credible fear interviews, and in a statement he wrote supporting a parole request. Indeed, as the IJ found, Chen provided two “completely different” bases for his asylum claim. He initially told immigration officers that he had fled from debts he owed and because he feared the repercussions of threatening to sue a government official who was a shareholder in a company in which Chen also held an ownership interest. Yet in his asylum application and in his testimony before the IJ, Chen claimed that he had suffered past persecution and feared future persecution on account of his Christian faith. The IJ was entitled to conclude that these obvious inconsistencies undermined his credibility. See Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.2004) (“Where the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution, however, the inconsistencies may render the alien’s testimony incredible.”).
While Chen argues that, at the time that he made the false statements, he was “mentally under [the] control” of a “snake-head” and an attorney hired by the snake-head, this was not an explanation that the IJ was required to credit. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396, 397 n. 6, 399 n. 8 (2d Cir. 2005). Moreover, even if Chen told the truth in claiming that he was compelled to make his initial, false claim, it does not follow that his later claim was credible. To the contrary, this Court has held that even “a single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007).
The IJ also relied upon additional discrepancies in finding Chen not credible, including that: (1) Chen’s asylum application did not mention that his planned baptism was interrupted by the police; (2) although the letters from his father and Darning Chen suggested that the police detained seven people based on their religious activities, Chen testified that only two people were detained; and (3) while Chen testified that he had accompanied his father to Anhui Province, the letter from his father suggested that he had not, and Chen’s asylum application did not list An-hui Province as a place he had lived. Chen failed to provide a compelling explanation for these discrepancies. See Ma-jidi, 430 F.3d at 80-81. Thus, in view of the numerous discrepancies in the record, substantial evidence supports the IJ’s adverse credibility determination. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
*640To the extent that Chen based his asylum and withholding of removal claims upon his assertion that he endured past persecution, the adverse credibility determination in this case necessarily precludes success on those claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). However, the agency appears to have credited Chen’s claim that he has attended a Christian church in this country, and thus evaluated whether Chen had shown a well-founded fear of future persecution on that basis. We find no error in the agency’s conclusion that Chen failed to make such a showing. As the IJ found, Chen failed to testify, or provide other evidence, that he would practice Christianity in China or that, even if he did, the Chinese government is likely to become aware of that practice or his religious practices in this country. While Chen asserts that “[njothing in the record suggests that [he] would not practice Christian[ity] if [he is] returned to China,” the burden was on Chen to demonstrate the objective reasonableness of his fear of persecution. See 8 C.F.R. § 1208.13(a). As the IJ found, Chen did not meet that burden. See Jian Xing Huang v. U.S. I.N.S., 421 F.3d 125, 129 (2d Cir.2005) (“In the absence of solid support in the record,” a claim that an alien has a well-founded fear of future persecution “is speculative at best.”); Hongsheng Leng v. Mukasey, 528 F.3d 135,137 (2d Cir.2008) (“[I]n order to establish eligibility for relief based exclusively on activities undertaken after his arrival in the United States, an alien must make some showing that authorities in his country of nationality are (1) aware of his activities or (2) likely to become aware of his activities.”).
Finally, Chen has waived any challenge to the BIA’s denial of CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). In any event, we note that the BIA apparently erred in pronouncing on Chen’s eligibility for CAT relief where, before the IJ, Chen had affirmatively declined to seek that form of relief. See generally 8 C.F.R. § 1003.1.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470985/ | *644
SUMMARY ORDER
Leonel Armando Lemus-Lemus, a native and citizen of Guatemala, seeks review of a September 22, 2008 order of the BIA affirming the November 29, 2007 decision of Immigration Judge (“IJ”) Michael W. Straus, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Leonel Armando Lemus-Lemus, No. A200 050 013 (B.I.A. Sept. 22, 2008), aff'g No. A200 050 013 (Immig. Ct. Hartford, Conn. Nov. 29, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (per curiam) (internal quotation marks omitted). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum & Withholding of Removal
A. Religion — Adverse Credibility Finding
In denying Lemus-Lemus’s application for asylum and withholding of removal, we find that the agency did not err in finding that he failed to show a nexus to a protected ground. See 8 U.S.C. § 1158(b)(l)(B)(i). Substantial evidence supports the agency’s conclusion that Le-mus-Lemus was not credible in his statements that he was mistreated by the Marasalvatrucha on account of his religion. The agency reasonably relied on the omission from Lemus-Lemus’s credible fear interview of his alleged activities evangelizing and converting Marasalvatrucha members. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam) (This Court “defer[s] ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.”). Indeed, while Lemus-Lemus testified that when he was attacked by gang members he was told to stop evangelizing, he failed to mention any evangelizing activities in his credible fear interview. Lemus-Lemus does not challenge the accuracy or reliability of the credible fear interview, and the interview represents a “sufficiently accurate record” of his responses. Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004). Therefore, the agency did not err in relying on Lemus-Lemus’s failure to mention his evangelizing activities in his credible fear interview as a basis for its adverse credibility determination. See id. at 180-81 (“Where the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution, ... the inconsistencies may render the alien’s testimony incredible.”).
B. Membership in a Particular Social Group
In addition, the agency did not err in concluding that Lemus-Lemus was not eligible for relief based on his membership in the group of “young men who reject a gang lifestyle,” as he failed to establish that this is a “particular social group” within the meaning of the Immigration and Nationality Act. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(l)(B)(i).
In Ucelo-Gomez v. Mukasey, we agreed with the BIA’s holding that in order to *645constitute a particular social group, a proposed group must: (1) exhibit a shared characteristic that is socially visible to others in the community; and (2) be defined with sufficient particularity. 509 F.3d 70, 73 (2d Cir.2007) (per curiam) (citing Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (B.I.A.2007)). Applying that framework in Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A.2008), the BIA considered the cases of applicants from El Salvador who, like Lemus-Lemus, claimed eligibility for asylum based on their membership in the particular social group of young men who resisted recruitment by gangs. The BIA concluded that the proposed group did not satisfy the “particularity” and “social visibility” test set forth in Matter of A-M-E & J-G-U, in part because “victims of gang violence come fi’om all segments of society, and it is difficult to conclude that any ‘group,’ as actually perceived by the criminal gangs, is much narrower than the general population of El Salvador.” Id. at 586-88; see also Matter of E-A-G- 24 I. & N. Dec. 591, 594 (B.I.A.2007).
Precedential BIA decisions such as these are entitled to Chevron deference, unless “plainly erroneous or inconsistent with the regulation.” See Yuen Jin v. Mukasey, 538 F.3d 143, 150 (2d Cir.2008) (internal quotation marks omitted). Here, we defer to the agency’s interpretation of the statute as announced in Matter of SE-G- and Matter of E-A-G-. Because those decisions consider proposed social groups that are virtually indistinguishable from the group proposed here, we conclude that Lemus-Lemus’s social group claim based on his resistance to gang recruitment fails.
II. CAT Relief
Lemus-Lemus fails to challenge the agency’s finding that no record evidence indicated that the government was willfully blind to or would acquiesce in his torture by the Marasalvatrucha. See Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.2004) (“[T]orture requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it.”). Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal in the absence of manifest injustice. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Because Le-mus-Lemus failed to address this finding, we deem any challenge to this finding waived. See id.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
Subsets and Splits