url
stringlengths 59
59
| text
stringlengths 0
1.13M
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8470987/ | SUMMARY ORDER
Petitioner Roy Steven, a native and citizen of Indonesia, seeks review of the September 24, 2008 order of the BIA denying his motion to reopen. In re Roy Steven, No. A096 427 057 (B.I.A. Sept. 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the denial of a motion to reopen for abuse of discretion. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). Under 8 C.F.R. § 1003.2(c)(2), an applicant may file only one motion to reopen his proceedings and that motion must be filed within 90 days of the entry of the final decision in the underlying proceeding. However, an applicant may be excused from compliance with the time and numerical limitations on motions to reopen if he submits evidence establishing “changed country conditions arising in the country of nationality....” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(h). Such a motion shall not be granted unless it appears that the evidence offered in support of the motion “is *647material and was not available and could not have been discovered or presented” at the previous hearing. 8 C.F.R. § 1008.2(c)(1).
It is beyond dispute that Steven’s motion was untimely. Moreover, he has waived any challenge to the BIA’s finding that his marriage and the birth of his son reflect a change in his personal circumstances and not a change in circumstances arising in Indonesia. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). In any event, it is well settled that the birth of U.S. citizen children constitutes a change in personal circumstances and not a change in country conditions that would establish an exception to the filing deadline for motions to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).
The agency also did not abuse its discretion in finding that Steven failed to demonstrate changed country conditions sufficient to excuse the untimeliness of his motion, because much of the “new” evidence he submitted pre-dated his November 2005 merits hearing. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104-OS, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (noting that the failure to offer evidence of changed country conditions that was not previously available is a proper ground on which the BIA may deny a motion to reopen). Steven argues that the BIA failed to consider all the background evidence he submitted; however, we presume that the agency has taken into account all of the evidence before it, unless the record compellingly suggests otherwise. See Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). The record in this case does not compellingly suggest otherwise where the evidence Steven submitted did not demonstrate that conditions had changed in Indonesia since his November 2005 hearing. Indeed, Steven’s brief to this Court states that restrictions on religions “continue to exist” and that “dangerous conditions in Indonesia persist.” Accordingly, because Steven failed to demonstrate changed country conditions, the agency did not abuse its discretion in denying his untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
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/8470698/ | SUMMARY ORDER
Petitioners Xiao Ying Liu and Shi Yu Li, natives and citizens of the People’s Repub-*696lie of China, seek review of the August 31, 2007 order of the BIA, denying their motion to reopen. In re Xiao Ying Liu, Shi Yu Li, Nos. A097 160 508, A097 160 509 (B.I.A. Aug. 31, 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 petitioners’ untimely motion to reopen.
Petitioners argue that the BIA erred in concluding that they failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing their 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”). Moreover, contrary to petitioners’ argument, we find nothing in the record that suggests that the BIA ignored the particularized evidence that they submitted in determining that they failed to demonstrate changed country conditions. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006); cf. Jian Hui Shao, 546 F.3d at 172 (finding no error in the BIA’s determination that evidence referencing the family planning policy’s mandatory sterilization requirement does not indicate that sterilization will be performed by force).
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/8470704/ | SUMMARY ORDER
Petitioner Sai Di Zheng, a native and citizen of the People’s Republic of China, seeks review of a January 23, 2008 order of the BIA denying his motion to reopen. In re Sai Di Zheng, No. A076 506 206 (B.I.A. Jan. 23, 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 Zheng’s untimely motion to reopen.
Zheng argues that the BIA erred in concluding that he failed to demonstrate either material changed country conditions sufficient to excuse the time and number limitations applicable to motions 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 mate*702rial 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”). Contrary to Zheng’s argument, nothing in the record compels us to conclude that the BIA ignored any of the evidence he submitted. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (This Court “presume[s] that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.”).
Finally, Zheng’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 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/8470706/ | SUMMARY ORDER
We assume familiarity with the underlying facts and procedural history of this case. On February 10, 2005, a jury convicted Defendant-Appellant Rafil Dhafir of numerous charges relating to his operation of a fraudulent charity, Help the Needy (“HTN”), and improper Medicare billings. The United States District Court for the Northern District of New York (Mordue, J.) principally sentenced Dhafir to 264 months’ imprisonment and ordered restitution in the amount of $865,272.76. Dhafir makes a number of contentions on appeal, most of which lack merit. We address his challenge to the district court’s application of the Sentencing Guidelines in a separate opinion.
Dhafir first claims that the district court violated his Confrontation Clause rights by limiting his counsel’s cross-examination of witnesses about the government’s supposed bias in prosecuting him. Dhafir sought to argue at trial that the government was frustrated by its failure to connect him to terrorist activities and its expenditure of resources on his case. We review the district court’s limitations on cross-examination for abuse of discretion. See United States v. Crowley, 318 F.3d 401, 417 (2d Cir.2003). We have also held that “the right to confront and cross examine witnesses is tempered by a trial judge’s ‘wide latitude’ to impose ‘reasonable limits’ in order to avoid matters that are confusing or of marginal relevance.” United States v. Stewart, 433 F.3d 273, 311 (2d Cir.2006) (quoting Howard v. Walker, 406 F.3d 114, 128-29 (2d Cir.2005)). We find that the court did not abuse its discretion in limiting Dhafir’s crossexamination. Dhafir’s unsupported theories about the government’s bias were of only marginal relevance to the charges against him, and the district court’s restrictions on those questions were well within its latitude in conducting a trial.
We also conclude that the government presented sufficient evidence to convict Dhafir on the mail and wire fraud charges. We review claims regarding the sufficiency of the evidence de novo, but will not vacate a conviction on that basis “if, drawing all inferences in favor of the prosecution and viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Santos, 449 F.3d 93, 102 (2d Cir.2006) (internal quotation marks omitted). Mail *705and wire fraud both require a scheme to defraud with money or property as its object and use of the mails or wires to further the scheme. United States v. Shellef, 507 F.3d 82, 107 (2d Cir.2007); United States v. Ramirez, 420 F.3d 134, 144 (2d Cir.2005). The government put forth ample evidence, largely through the testimony of government agents, that donations to HTN were misused, such that a reasonable jury could conclude that the elements of the charges had been demonstrated. The government also produced sufficient evidence of Dhafir’s misrepresentations to donors through his own statements and through HTN literature.
Dhafir next contends that the government’s questioning of a particular witness, Waleed Smari, as well as its religious references during closing arguments, rendered his trial unfair. The defense did not object at trial on either of these grounds, so we review this claim only for plain error. See, e.g., Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Fed.R.Crim.P. 52(b). Dhafir provides no persuasive authority to support his argument that the government’s questioning of Smari violated Federal Rules of Evidence 701 and 403, or that its closing remarks violated his First Amendment right to freedom of religion. Further, the record shows that at trial, Dhafir’s counsel himself attempted to develop a theory that Dhafir sought religious advice as to the proper uses of donor contributions to HTN and explored this topic during his examination of Smari. We see no error, much less plain error, in the fact that the court allowed the government to ask questions or make arguments touching on religious themes that Dhafir himself introduced.
Dhafir’s arguments regarding join-der of claims also lack merit. He contends that the district court erroneously joined the Medicare fraud counts with the HTN-related counts. We again apply plain error review, as Dhafir raised no objection to the joinder below. Under this standard and given the strength of the government’s case on the HTN-related charges, we determine that, even if the joinder were improper, Dhafir has not shown “prejudice so severe that his conviction constituted a miscarriage of justice.” United States v. Joyner, 201 F.3d 61, 75 (2d Cir.2000) (internal quotation marks omitted). We have already found that the government set forth ample evidence on the mail and wire fraud charges; the government’s proof on the other HTN-related counts was overwhelming as well. Therefore, Dhafir is not entitled to relief on this ground.
Neither are we persuaded that Dhafir’s convictions on Counts One (conspiracy to violate the International Emergency Economic Powers Act) and Fifteen (conspiracy to defraud the United States by impeding the IRS) were multiplicitous because both counts alleged conspiracies in violation of 18 U.S.C. § 371. Dhafir concedes that this issue too may be reviewed only for plain error. We find that this claim has no merit. Counts One and Fifteen clearly charged two separate conspiracies with different underlying objects and non-overlapping elements and overt acts. The two conspiracies also involved different participants. We have held that where “separate counts of a single indictment allege that the defendant participated in more than one conspiracy in violation of the same statutory provision ... and that the defendant, in each alleged conspiracy, had different groups of coconspirators, the question of whether one, or more than one, conspiracy has been proven is a question of fact for a properly instructed jury.” United States v. Jones, 482 F.3d 60, 72 (2d Cir.2006). In this case, the jury found that both conspiracies had been proven *706beyond a reasonable doubt. Dhafir made no argument then or on appeal that the jury was improperly instructed. The district court did not commit plain error in allowing trial to proceed on the indictment as it stood. Further, the district court was permitted to impose overlapping, partially consecutive sentences. See United States v. Reifler, 446 F.3d 65, 113 (2d Cir.2006); United States v. McLeod, 251 F.3d 78, 83-84 (2d Cir.2001).
Finally, we do not agree with Dhafir that the district court illegally directed him to pay restitution to the New York State Medicaid Restitution Fund and the State of New York Law Department, Restitution Account. Dhafir argues that the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, only authorizes restitution to direct victims of an offense, and that the payments to the Medicaid Fund and New York Law Department do not conform with that requirement. Again, Dhafir appears to concede that he did not object to the restitution below, and we agree we should review this claim for plain error rather than deem it waived.
The MVRA defines a “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2). After Dhafir’s trial concluded, the government presented evidence that his fraudulent health care billing scheme caused losses to Medicaid as well as Medicare. Medicaid was therefore a victim of the same criminal scheme and course of conduct that constituted the offense of which Dhafir was convicted. Further, “[a] sentencing court is authorized to provide restitution to ‘any’ victim of the offense, even those not named in the criminal indictment.” United States v. Grundhoefer, 916 F.2d 788, 793-94 (2d Cir.1990). It was not plain error for the district court to consider Medicaid a victim of the same offense conduct that caused losses to Medicare, and to therefore order restitution to Medicaid.
We also decline to overturn the district court’s order of restitution to the New York Law Department Restitution Account, as successor in interest to HTN. No other portion of the restitution order compels compensation by Dhafir to the donor-victims. Therefore, this portion of the order, even if improper, does not rise to the level of plain error because it does not prejudicially affect any of Dhafir’s substantial rights.
For the foregoing reasons, the judgment of conviction and order of restitution are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470708/ | SUMMARY ORDER
Douglas Dobson appeals from an order of the United States District Court for the District of Connecticut (Arterton, J.), denying his motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
*708Dobson was receiving long term disability benefits under a Plan administered by defendant Hartford Life and Accident Insurance Company (“Hartford”), and subject to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq. After paying Dobson benefits for years, Hartford suspended payments in April 1997 “due to lack of proof of continuous disability.” See Dobson v. Hartford Fin. Servs., 196 F.Supp.2d 152, 154 (D.Conn.2002). There followed a year of delay, in which Dobson submitted proofs of his continuing disability. Hartford eventually reinstated his benefits, and made back payments in a lump-sum, but without interest. Id. at 156.
Dobson brought this suit, on behalf of himself and others similarly situated, seeking interest on delayed benefit payments made by Hartford. He alleged two alternative theories: (A) that interest was a benefit implicitly provided by his Plan, and was therefore recoverable in a civil action brought under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), which provides that “[a] civil action may be brought by a participant or beneficiary ... to recover benefits due to him under the terms of his plan”; and (B) that ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3) provides a right to equitable disgorgement of profits Hartford earned by wrongfully delaying his benefit payments.
The district court initially granted Hartford’s motion for summary judgment on Dobson’s § 502(a)(1)(B) claim (and denied class certification on the claim as moot). But the court denied Hartford’s motion for summary judgment on Dobson’s § 502(a)(3) claim, holding that if Hartford’s withholding of Dobson’s benefits was unreasonable, and constitutes a breach of fiduciary duty, Hartford would have to disgorge any profits it had earned on investment of the withheld benefits. The court also denied class certification on the § 502(a)(3) claim because plaintiffs proposed class definition “necessarily recognize[d] that whether Hartford was justified in exceeding the time limits in any particular case will require individualized assessment of the information available to Hartford within the regulation time period, the complexity of the claim of disability, and other claims handling factors.” Dobson, 196 F.Supp.2d at 165. (Following the court’s ruling, Hartford stipulated to judgment in the amount of $3,779.22 in favor of Dobson on his § 502(a)(3) claim.) Dobson appealed.
This Court vacated the dismissal of Dobson’s § 502(a)(1)(B) claim on the ground that interest on unreasonably delayed benefit payments may be an implicit term in Dobson’s Plan. Dobson v. Hartford Fin. Servs. Group, Inc., 389 F.3d 386, 394 (2d Cir.2004). We also vacated the denial of class certification on both claims, and remanded for consideration of the Plan’s explicit requirement that, absent “special circumstances,” benefit determinations be made within certain time periods (equivalent to those set forth in the Department of Labor regulations). Id. at 402.
After our vacatur, Dobson and Hartford entered into a partial settlement agreement pursuant to which Hartford established prospective policies and procedures for the payment of interest on unreasonably delayed benefit eligibility determinations and payments.
On remand, Dobson sought class certification on both claims using a reconfigured class definition that focused on the presumption of entitlement to interest when disability benefits are paid out beyond the relevant time periods. See Dobson v. Hartford Life & Accident Ins. Co., No. 99 cv 2256(JBA), 2006 WL 861021, at * 1 (D.Conn. Mar. 31, 2006). According to the parties, there are potentially 24,000 class *709members, who may, by Dobson’s estimates, be entitled to an average payment of around $77. Dobson acknowledges that delay beyond such time would not, by itself, entitle a class member to interest-Hartford would be liable only if its delay was “unreasonable” in a particular case. See Dobson, 389 F.3d at 394. Dobson therefore proposes relief in the form of a declaratory judgment that class members are entitled to a presumption of entitlement to interest if their benefit payments were delayed beyond the time periods, thereby shifting the burden to Hartford to come forward with evidence of reasonableness in those individual cases where it maintains that its delay was reasonable. Dobson suggests that Hartford’s objections in particular cases could be heard by an independent fiduciary or special master.
The district court denied Dobson’s motion for class certification, finding that the proposed class failed to meet the commonality and typicality requirements of Rule 23(a); and that suit could not be maintained under either Rule 23(b)(1)(B) or Rule 23(b)(2). The court also rejected Dobson’s suggestion to transfer disputed individual cases to a special master. Dobson, 2006 WL 861021, at *4 (“[P]laintiffs suggestion that after determining the legal questions of interpretation of the Plans and Department of Labor regulations, case by case determinations on liability could be ceded to a special master or independent fiduciary appointed by the Court for the purpose, belies plaintiffs attempted transformation of demonstrably individualized claims into class-wide requests for declaratory relief.”).
The district court later granted Dob-son’s motion for summary judgment on his individual § 502(a)(1)(B) claim, but denied his motion for declaratory relief on the ground that it essentially reargued his motion for class certification. Dobson v. Hartford Life & Accident Ins. Co., 518 F.Supp.2d 365 (D.Conn.2007).
Dobson now appeals the denial of his motion for class certification. We review rulings on class certification for abuse of discretion. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir.2001)(“District courts are afforded substantial leeway in deciding issues of class certification.”). The abuse-of-discretion standard applies to the overall determination, as well the “individual requirements of Rule 23.” In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 32 (2d Cir.2006).
On this record, it was no abuse of discretion for the district court to deny class certification. The claims of each of the 24,000 putative class members will invariably turn on whether Hartford’s delay was “reasonable” in each set of particular circumstances. As we previously noted in this case, “[t]he duration of a ‘reasonable time’ to review a claim might vary with such factors as the complexity of the facts, the need for follow-up to verify the proofs, and the difficulty of the determination.” Dobson, 389 F.3d at 393. In the context of disability benefits, the “complexity of the facts” may be as particularized as each individual’s medical history. Such an inquiry is ill-suited for disposition via a class action because there is insufficient commonality. See Fed.R.Civ.P. 23(a). A district court, or special master, could be forced to conduct as many as 24,000 mini-trials, no matter which party bears the burden of proof. See also Fotta v. Trs. of United Mine Workers of Am., 319 F.3d 612, 618-19 (3d Cir.2003) (affirming the denial of class certification in the same context, and noting that “[b]ecause both liability and the appropriate remedy must be determined for each plaintiff, no common issues of law or fact exist.”).
*710Finding no merit in Dobson’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470710/ | SUMMARY ORDER
Defendant-Appellant Marco Fidel Cas-tellar appeals from an order of the United States District Court for the Southern District of New York (Rakoff, J.) denying his motion to quash the government’s request for financial disclosure pertaining to the restitution component of his sentence.
28 U.S.C. § 1291 provides that “[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” Generally, a district court’s decision to compel compliance with a subpoena is not a final decision and therefore is not immediately appealable; to obtain review, the subpoenaed party “must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order, which is regarded as final under § 1291.” In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 490 F.3d 99, 104 (2d Cir.2007) (internal quotation marks omit*711ted). Castellar’s appeal is premature because he sought relief in the district court before a subpoena had even been issued, much less enforced.
For the foregoing reasons, this appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470712/ | SUMMARY ORDER
Respondent-Appellant Floyd Bennett appeals from a judgment of the United States District Court for the Eastern District of New York (Trager, J.). The district court granted Petitioner-Appellee Ramon Espinal’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
The district court determined that trial counsel rendered constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 *712L.Ed.2d 674 (1984), in failing to investigate a police report that corroborated Espinal’s assertion that he was not at the scene of the crime. See Espinal v. Bennett, 588 F.Supp.2d 388, 399-401 (E.D.N.Y.2008). That failure, according to the district court, was prejudicial to Espi-nal because it prevented him from discovering a potential alibi witness, and “the probability that this evidence would have changed the outcome of petitioner’s trial is sufficient to undermine confidence in the trial verdict.” Id. at 407; see also Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Finally, the district court determined that the state court decisions to the contrary reflect an unreasonable application of clearly established federal law and an unreasonable determination of the facts in light of the evidence presented, so are not entitled to AEDPA deference. Id. at 414-18; see also 28 U.S.C. § 2254(d).
We agree. For substantially the reasons stated by the district court in its thorough opinion, the judgment is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470716/ | SUMMARY ORDER
Petitioner Jin Yu Lin, a native and citizen of the People’s Republic of China, seeks review of an April 2, 2008 order of the BIA affirming the September 14, 2006 decision of Immigration Judge (“U”) Javier Balasquide, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Yu Lin, No. A95 716 568 (B.I.A. Apr. 2, 2008), aff'g No. A95 716 568 (Immig. Ct. N.Y. City Sept. 14, 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, including adverse credibility determinations, 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). For asylum applications that, like this one, are governed 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); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A.2007).
The agency’s adverse credibility determination is supported by substantial evidence. The IJ properly noted that there were several inconsistencies within Lin’s testimony and statements she made during her airport interview. Such inconsistencies concerned: the date of her alleged abortion; whether she would be harmed if returned to China; whether she had been “harmed, persecuted or threat*716ened by the Chinese government;” why she sought asylum in the United States; and who assisted her in traveling to the United States. Contrary to Lin’s argument, the agency did not err in relying on the record of the airport interview in reaching its adverse credibility determination where: (1) Lin had confirmed the background information contained in the interview notes; (2) Lin signed a sworn statement indicating that the interview was conducted in her native language of Mandarin; (3) there was a verbatim account of the interview, including seven pages of the questions that the officer asked and Lin’s responses to those questions; and (4) the questions were “designed to elicit the details of an asylum claim.” Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004) (identifying factors that determine whether an airport interview provides a sufficiently accurate record). Accordingly, the agency properly relied on the substantial and material inconsistencies between Lin’s testimony and her airport interview in reaching its adverse credibility determination. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (holding that even collateral inconsistencies could support an adverse credibility determination in a REAL ID Act case).
While the IJ’s decision was not without error, remand is not required here as we can “confidently predict” that the IJ would reach the same decision absent the errors that were made. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006). Because the only evidence of a threat to Lin’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for asylum and withholding of removal where both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Finally, because Lin failed to challenge the agency’s denial of her CAT claim, we deem any such argument 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, Lin’s 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/8470718/ | SUMMARY ORDER
Petitioner Zeng Guang Huang, a citizen of the People’s Republic of China, seeks review of an April 18, 2008 order of the BIA affirming the July 31, 2006 decision of Immigration Judge (“IJ”) Philip L. Morace denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zeng Guang Huang, No. A98 723 225 (B.I.A. Apr. 18, 2008), aff'g No. A98 723 225 (Immig. Ct. N.Y. City, July 31, 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, we may consider both the IJ’s and the BIA’s opinions for the sake of completeness. Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006). We review the agency’s factual findings, including adverse credibility determinations, 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). For applications governed 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); see also Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A.2007).
We find that the agency’s adverse credibility determination was supported by substantial evidence. For example, the agency properly noted that Huang’s demeanor during portions of his testimony suggested that he was trying to recall a script, not his actual experiences. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that “a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant”). Moreover, the *718agency properly found inconsistencies in the record concerning (1) the reason for Huang’s arrest in April 2004, and (2) whether, and when, his wife had an intrauterine device inserted by family planning officials. Under the REAL ID Act, these findings were sufficient to support the conclusion that Huang was not credible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam). Accordingly, the agency’s denial of asylum was not improper.
Because Huang’s withholding of removal and CAT claims were premised on the same factual predicate as his asylum claim, the adverse credibility determination was fatal to those claims as well. 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470720/ | SUMMARY ORDER
Petitioner Jian Xing Huang, a native and citizen of the People’s Republic of China, seeks review of a May 29, 2008 order of the BIA denying his motion to reopen. In re Jian Xing Huang, No. A070 903 598 (B.I.A. May 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Huang’s motion to reopen was untimely and number-barred where it was his third motion and was filed more than five years after the agency issued a final order of removal in his proceedings. See 8 C.F.R. § 1003.2(c)(2).
There are no time and numerical limitations for filing a motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). Huang argues that the BIA abused its discretion in finding that he failed to demonstrate such conditions where mistranslations of the 2001 Fujian Province Population and Family Planning Law (“2001 Law”) relied on in the the U.S. Department of State 2007 report, China: Profile of Asylum Claims and Country Conditions were the functional equivalent of changed country conditions. However, a review of the alleged translation errors demonstrates that the purportedly corrected translations do not materially alter the meaning of the country conditions evidence by demonstrating a risk of forced sterilization. Therefore, the BIA did not abuse its discretion in concluding that the purported translation errors did not demonstrate material changed country conditions excusing the time and numerical limitations applicable to Huang’s motion. See 8 C.F.R. § 1003.2(c)(3)(h); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
We also reject Huang’s due process challenge. Huang has no due process right in seeking a discretionary grant of a motion to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Huang has remained in this country illegally for at least nine years. In that time he has filed, and had adjudicated, an asylum application, three motions to reopen, and, now, three petitions for review. He has received ample process. See Yuen *720Jin, 538 F.3d at 157; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (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/8470722/ | SUMMARY ORDER
Zi Ang Zheng, a native and citizen of China, seeks review of a June 17, 2008 order of the BIA dismissing an appeal from the June 19, 2006 decision of Immigration Judge (“IJ”) Steven R. Abrams, in which the IJ denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zi Ang Zheng, No. A78 867 754 (B.I.A. June 17, 2008); In re Zi Ang Zheng, No. A78 867 754 (Immig. Ct. N.Y. City June 19, 2006).
Where, as here, the BIA issues an opinion that does not expressly affirm, adopt, or otherwise merely supplement that of the IJ, our review focuses on the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s findings of fact, including adverse credibility determinations, 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), and 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). In conducting our review, we assume the parties’ familiarity with the underlying facts and procedural history in this case.
Zheng contends that the agency’s adverse credibility determination underlying its rejection of his religion-based asylum claim is not supported by substantial evidence. We disagree. In holding that the IJ’s adverse credibility determination was not clearly erroneous, the BIA specifically noted the IJ’s observation of various discrepancies in petitioner’s accounts: (1) while Zheng testified during his airport interview that he was never arrested by Chinese officials and did not mention that he had been beaten, he subsequently testified before the IJ that he was arrested and beaten by Chinese authorities; and (2) while Zheng testified during his airport interview that he smuggled six Bibles into China and had ordered 150 more, he subsequently testified before the IJ that he smuggled more than ten bibles into that country and did not mention that he ordered any more. Such record-based discrepancies are sufficient to support the agency’s adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107 (2d Cir.2006) (holding that IJ may rely on discrepancies and omissions that, when taken together, lead a “ ‘reasonable adjudicator’ ” to disbelieve account); Biao Yang v. Gonzales, 496 F.3d 268, 272 (2d Cir.2007) (upholding adverse credibility determination where, inter alia, alien failed to state at airport interview that he was previously arrested or beaten).
Zheng also contends that, by being deprived of work bonuses and benefits, he suffered past persecution on account of his alleged resistance to China’s family-planning policy. Zheng, however, failed to de*722tail how the economic consequences he suffered were sufficiently severe to amount to persecution. See Guan Shan Liao v. U.S. Dep't of Justice, 293 F.3d 61, 70 (2d Cir.2002); In re J-H-S-, 24 I. & N. Dec. 196, 200-01 (B.I.A.2007); In re T-Z-, 24 I. & N. Dec. 163, 173 (B.I.A.2007).
Because Zheng’s withholding-of-removal and asylum claims depended on the same factual predicates, the agency’s rejection of the latter necessarily foreclosed the former. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
Finally, because Zheng failed to challenge the IJ’s denial of his CAT claim before the BIA, we lack jurisdiction to consider, and therefore dismiss, this portion of his petition. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470724/ | SUMMARY ORDER
Yerli Alejandro Garzón-Zapata, a native and citizen of Colombia, seeks review of a November 18, 2008 order of the BIA, affirming the March 15, 2006 decision of Immigration Judge (“IJ”) Alan A. Vomacka, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yerli Alejandro Garzon-Zapata, No. A97 519 759 (B.I.A. Nov. 18, 2008), aff'g No. A97 519 759 (Immig. Ct. N.Y. City Mar. 15, 2006). 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 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 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). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency reasonably concluded that Garzon-Zapata failed to demonstrate that he had suffered past persecution or that he had a well-founded fear of persecution in Colombia on account of a protected ground. The BIA has defined persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A.1985). In order to constitute persecution, the alleged harm must be sufficiently severe, rising above “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006). “[A]n asylum applicant cannot claim past persecution based solely on the harm that was inflicted on a family member on account of that family member’s political opinion or other protected characteristic.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.2007) (citing Melgar de Torres v. Reno, 191 F.3d 307, 313 n. 2 (2d Cir.1999)); see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir.2007). We have recognized, however, that there may exist circumstances where harm to an applicant’s family member in conjunction with other factors may be sufficiently severe to amount to past persecution. See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.2006) (recognizing that harm to a family member may constitute persecution to a child because children are dependent on their family and *724community); see also Tao Jiang, 500 F.3d at 141-42. In such eases, the “harm suffered by family members in combination with other factors ... would presumably only be [persecution] where ... the applicant not only shares (or is perceived to share) the characteristic that motivated persecutors to harm the family members, but was also within the zone of risk when the family member was harmed, and suffered some continuing hardship after the incident.” Tao Jiang, 500 F.3d at 141-42 (citing Jorge-Tzoc, 435 F.3d at 150).
In Jorge-Tzoc, we concluded that a Mayan Guatemalan asylum applicant who was not present at or directly victimized by a massacre of his family members and neighbors during a pervasive campaign against Mayans by the Guatemalan army may have nonetheless experienced persecution based on the combination of: (1) his having witnessed his cousin’s bullet-ridden body; (2) his young age at the time (approximately seven years old) and thus his dependency on family and community; (3) his mother’s fear of going out of their home to get food; (4) his forced relocation with other family members to a single room in another village, where they struggled to survive; and (5) the loss of his father’s land and animals. 435 F.3d at 150. Although Garzon-Zapata was presumably in the “zone of risk” when members of the Revolutionary Armed Forces of Colombia (“FARC”) shot his father in front of him when he was four years old, Tao Jiang, 500 F.3d at 141-42, unlike the applicant in Jorge-Tzoc, Garzon-Zapata did not suffer any continuing hardship after his father’s death, and he did not share the characteristic that motivated his father’s persecutors, 435 F.3d at 150.
Indeed, neither Garzon-Zapata nor his mother had any problems in Colombia for eight years after the death of his father. Moreover, contrary to Garzon-Zapata’s claims that after his father’s death, he lost his property and was unable to attend public school while in hiding, his mother testified that they had sold, not lost, their property and that Garzon-Zapata had attended school for at least one year. Furthermore, there is no indication that he and his mother lived in hiding in Colombia after his father’s death. Thus, unlike in Jorge-Tzoc, Garzon-Zapata failed to identify any continuing hardship that he and his family suffered after the death of his father that would rise to the level of persecution. See Jorge-Tzoc, 435 F.3d at 150; see also Tao Jiang, 500 F.3d at 141-42.
In addition, unlike in Jorge-Tzoc, where the Mayan applicant shared the ethnicity that motivated his family’s persecutors, see 435 F.3d at 150, Garzon-Zapata asserted that he was threatened because of his relationship to his father and did not claim to share his father’s characteristic of business and land owner that purportedly motivated his father’s persecutors, see Tao Jiang, 500 F.3d at 141-42. Accordingly, the agency reasonably found that Garzon-Zapata did not demonstrate that he suffered past persecution on account of a protected ground. Id.
Absent past persecution, an applicant may establish eligibility for asylum by showing that he subjectively fears persecution on account of an enumerated ground and that his fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). In this case, the agency reasonably found that Garzon-Zapata failed to establish a well-founded fear of future persecution, relying, in part, on the fact that he and his mother remained unharmed in Colombia for eight years after the FARC purportedly killed his father and threatened him. See Melgar de Torres, 191 F.3d at 313 (finding that where asylum applicant’s mother and daughters continued to live in petitioner’s native *725country, claim of well-founded fear was weakened); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (stating that fear of persecution is diminished when “family members remain in petitioner’s native country without meeting harm”). The agency also reasonably found that Garzon-Zapata’s claim of a well-founded fear of persecution on account of his family membership was undercut by the fact that the FARC, who purportedly killed his father for refusing to pay them extortion money, had not contacted, threatened, or harmed his mother and other family members during the time that they sold his father’s property. See Melgar de Torres, 191 F.3d at 313.
Ultimately, the agency did not err in finding that Garzon-Zapata failed to establish past persecution or a well-founded fear of persecution. Accordingly, the agency reasonably denied his applications for asylum, withholding of removal, and CAT relief.2 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (recognizing that withholding of removal and CAT claims necessarily fail if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim and the factual predicate for the claims is the same); cf. Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006) (providing that “torture requires proof of something more severe than the kind of treatment that would suffice to prove persecution”).
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).
. Contrary to the government's argument, we do not find that Garzon-Zapata abandons his challenge to the agency's denial of his application for CAT relief. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470726/ | SUMMARY ORDER
Hua Weng, a native and citizen of the People’s Republic of China, seeks review of a December 26, 2007 order of the BIA, affirming the November 7, 2003 decision of Immigration Judge (“IJ”) Miriam K. Mills, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hua Weng, No. A73 562 321 (B.I.A. Dec. 26, 2007), aff'g No. A73 562 321 (Immig. Ct. N.Y. City Nov. 7, 2003). 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 factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see 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.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Weng has filed two applications for asylum. The first application was based on her fear of persecution on account of her parents’ alleged participation in the democracy movement.2 In her second application, Weng again stated that she feared persecution on account of her parents’ participation in China’s democracy movement, adding that she also feared persecution for violating the family planning policy. However, on cross-examination Weng admitted that her previous claim was false — i.e., that her parents were not actually involved in the democracy movement. The IJ reasonably relied on this admission in finding Weng not credible.
*727Weng argues that the IJ s credibility determination should reach only as far as her claim based on her parents’ purported involvement in the democracy movement, and should not taint her family planning claim. Yet our precedent does not cabin the reach of an IJ’s credibility determination in that manner. Discussing the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything), we have stated that “a finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007); see also In re O-D-, 21 I. & N. Dec. 1079 (B.I.A.1998). Here, in light of Weng’s admittedly false first asylum application, the IJ was entitled to view with skepticism Weng’s claim based on the birth of her two children. Cf. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006)(finding that an IJ’s adverse credibility determination as to past persecution did not undermine petitioner’s prospective claim where the IJ explicitly credited the basis of that claim— the petitioner’s Christianity).
Having called Weng’s overall credibility into question, the IJ reasonably questioned the subjective nature of Weng’s claim, noting that she had produced no evidence that her children were in the United States, as she had claimed. See Siewe, 480 F.3d at 170. The IJ additionally relied on Weng’s conflicting testimony surrounding the notice she allegedly received from Chinese family planning officials. While Weng testified that she received a written notice, she changed her testimony on cross-examination, stating that the notice was oral. This inconsistency further undermined Weng’s credibility.
Ultimately, the IJ’s adverse credibility determination was supported by substantial evidence. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir.2007). Thus, the IJ properly denied Weng’s application for asylum, withholding of removal, and CAT relief where all three claims were based on the same factual predicate. See Paul, 444 F.3d at 156; Xue Hong Yang v. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Because the agency’s adverse credibility determination was not in error, we need not reach its alternative burden finding. Nonetheless, we note that, as the agency found, Weng failed to meet her burden in demonstrating a well-founded fear of persecution based on her violation of the Chinese family planning policy. See Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.2008); Wei Guang Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir.2006); Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005).
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.
. After a hearing on Weng's first application, a different IJ found her credible, but denied her application based on her failure to meet her burden of proof. Weng filed her second asylum application after the agency reopened her proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470728/ | OPINION
PER CURIAM.
Louis Hyman, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the District of New Jersey dismissing his petition *731for a writ of audita querela. We will affirm the District Court’s order.
In 2003, Hyman pleaded guilty to conspiracy to obstruct articles in interstate commerce, conspiracy to obstruct, delay, and affect commerce and the movement of articles and commodities in commerce by robbery, and carrying a firearm in relation to a crime of violence. Hyman was sentenced to an aggregate term of 176 months in prison. He did not file a direct appeal. In 2007, the District Court denied Hy-man’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255 because it was untimely filed. We denied Hyman’s request for a certificate of appealability.
Hyman then challenged his sentence under the All Writs Act, 28 U.S.C. § 1651, by filing a petition for a writ of audita querela in District Court. Hyman argued that the statute of limitations applicable to his § 2255 motion should have been equitably tolled because his attorney failed to file a direct appeal on his behalf, and that he is entitled to re-sentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The District Court denied Hyman’s petition, and this appeal followed.1
“The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute.” Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985). “Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. While the writ of audita querela has been abolished in civil cases, see Fed.R.Civ.P. 60(e), the writ is available in criminal cases to the extent that it fills in gaps in the current system of post-conviction relief. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.2005); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir.2001). See also United States v. Richter, 510 F.3d 103, 104 (2d Cir.2007) (stating that the writ is probably available where there is a legal objection to a conviction that has arisen after the conviction and that is not redressable pursuant to another post-conviction remedy).
A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the means to collaterally challenge a federal conviction or sentence. The District Court correctly held that Hyman may not relitigate the denial of his § 2255 motion via a petition for a writ of audita querela. In addition, Hyman may not seek relief under Booker through a petition for a writ of audita querela because such a claim is cognizable in a § 2255 motion. There is no gap to fill in the post-conviction remedies.2 Hyman may not seek relief through a petition for a writ of audita querela on the basis of his inability to satisfy the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) for filing a second or successive § 2255 motion to vacate sentence. See Valdez-Pacheco, 237 F.3d at 1080 (noting that a “prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the post-conviction remedies that must be filled by the common law writs.”). See also United *732States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (stating that a prisoner may not resort to a writ of coram nobis merely because he cannot meet AEDPA’s gatekeeping requirements).
Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order. Hyman’s “Motion for the Appeal Courts Merits Panel” is denied.
. Hyman's motion to proceed in forma pau-peris on appeal is granted. His motion to waive the filing fee is denied.
. In the rare case that § 2255 is "inadequate or ineffective” because some limitation of scope or procedure would prevent a § 2255 proceeding from affording a full hearing and adjudication of a claim, a federal prisoner may seek relief via 28 U.S.C. § 2241. Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002) (per curiam). See also In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). This is not the case here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470732/ | OPINION
DuBois, District Judge.
Defendant-Appellant Aan Grecco was convicted by jury of violating, inter alia, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. Based in part on a jury finding that Grecco was guilty of conspiracy to commit murder (the third of six enumerated racketeering acts), the District Court sentenced Grecco to sixty-five years incarceration. On direct appeal, we affirmed Grecco’s conviction and sentence. United States v. Gatto, 995 F.2d 449 (3d Cir.1993).
*740On February 22, 2008, Grecco filed a motion for sentencing relief pursuant to 18 U.S.C. § 3582(c)(2). In the motion, Grecco argued that Amendment 591 to the United States Sentencing Guidelines, listed in USSG § 1B1.10(c) as a retroactive1 amendment, invalidated the process by which the District Court calculated his sentence and that he should be resen-tenced under a properly calculated guideline range. The District Court denied Grecco’s motion by Order dated September 26, 2008, 2008 WL 4512530. Grecco appeals that denial.
I.
On July 20, 1989, Grecco and co-defendant Louis Gatto were charged in a seven-count Indictment with operating illegal sports and numbers gambling businesses in violation of RICO, 18 U.S.C. § 1962, the Travel Act, 18 U.S.C. § 1952, and the Organized Crime Control Act of 1970, 18 U.S.C. § 1955. The first two Counts of the Indictment, the only Counts at issue in this appeal, alleged a conspiracy to violate RICO and substantive violations of RICO. Those Counts enumerated six predicate acts as the basis for a pattern of racketeering activity that began in 1973 and continued through the filing date of the Indictment on July 20, 1989. The only relevant predicate act for the purposes of this appeal — Racketeering Act 3 — charged defendants with conspiring to murder Vincent Mistretta (“Mistretta”).2 On June 19, 1991, an anonymous jury found defendants guilty of all predicate acts, including Racketeering Act 3, and convicted defendants on all Counts of the Indictment.
Grecco was sentenced on November 11, 1991. The District Court adopted the factual findings and guidelines calculations in the Presentence Report (“PSR”) which, for Grecco’s RICO violations, began with USSG § 2E1.1, the offense guideline for “Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations.” (App. 49; PSR ¶ 72.) USSG § 2E1.1 mandates that the base offense level for RICO offenses shall be the greater of either 19 or the “offense level applicable to the underlying racketeering activity.” In determining the offense level applicable to the underlying racketeering activity, the PSR applied Application Note 1 to USSG § 2E1.1 which directs the court to “treat each underlying offense as if contained in a separate count of conviction.” For Racketeering Act 3, the underlying offense was deemed to be conspiracy to commit murder. (PSR ¶ 85.)
At the sentencing hearing, the parties disagreed over the edition of the United States Sentencing Guidelines (“Guidelines”) which should be used — October 15, 1988 or November 1, 1991.3 At stake was *741Amendment 311 (effective November 1, 1990) which, inter alia, added USSG § 2A1.5 (“Conspiracy or Solicitation to Commit Murder”) to the Homicide subpart of Chapter 2. In earlier editions of the Guidelines, conspiracy to commit murder was included in USSG § 2A2.1 (“Assault With Intent to Commit Murder; Conspiracy or Solicitation to Commit Murder; Attempted Murder”).4 The earlier version of the guideline for conspiracy to commit murder set a base offense level of 20, subject to a number of specific offense characteristics; the later version set a base offense level of 28 and included a cross reference to the first degree murder guideline, USSG § 2A1.1 (base offense level 43), in cases where “the offense resulted in the death of a victim.” Compare USSG § 2A1.5 (1991), with USSG § 2A2.1 (1988).
At sentencing, Grecco objected to the use of the 1991 Guidelines on ex post facto grounds, arguing that the higher base offense level in USSG § 2A1.5 and the USSG § 2A1.5(e)(1) cross reference to first degree murder made the 1991 Guidelines more severe than the 1988 Guidelines. The District Court ruled that Amendment 311 did not change the outcome of the District Court’s Guidelines calculations, (App.46), and ultimately determined that the base offense level for Racketeering Act 3 was 43, based on USSG § 2A1.1.5 The District Court then added 4 levels under USSG § 3B1.1(a) for Grecco’s role in the offense. Although the resulting total offense level of 47 would have led to a life sentence under the Guidelines, the District Court imposed a twenty-year statutory maximum sentence for each of Grecco’s RICO convictions (Counts 1 and 2). See USSG § 5A; 18 U.S.C. § 1963. The District Court also sentenced Grecco to the statutory maximum on the remaining counts of conviction and ordered the sentences to run consecutively, leading to a total sentence of 65 years imprisonment. On direct appeal, we affirmed the District Court’s guidelines calculations and sentence. United States v. Gatto, 995 F.2d 449, 450 n. 1 (3d Cir.1993).
*742On February 22, 2008, Grecco filed a motion for sentencing relief pursuant to 18 U.S.C. § 3582(c)(2). In his motion and on appeal, Grecco argues that the sentencing court “assigned USSG § 2A1.1, first degree murder, as the guideline for [the] underlying racketeering activity, Racketeering Act 3, [the] conspiracy to murder Vincent Mistretta,” but “should have assigned [USSG] § 2A1.5.”6 (Appellant’s Br. 4-5.) According to Grecco, the court’s application of USSG § 2A1.1 instead of USSG § 2A1.5 contravenes retroactive Amendment 591 to the Guidelines.
By Opinion and Order dated September 26, 2008, the District Court denied Grecco’s motion. The District Court essentially assumed that it should have applied USSG § 2A1.5, but then ruled that the application of USSG § 2A1.5 would not have changed Grecco’s sentencing range because the death of Mistretta, the object of the conspiracy to commit murder, made the USSG § 2A1.5(c)(1) cross reference to USSG § 2A1.1 applicable. (App.3.) The District Court reasoned that under such circumstances, the approach advocated by Grecco as Amendment 591-compliant would not result in a lower sentencing range, eliminating the possibility of § 3582(c)(2) sentencing relief. In reaching this conclusion, the District Court relied on a non-precedential opinion of this Court, United States v. Davis, 205 Fed.Appx. 28 (3d Cir.2006) (non-precedential).
The government argues, primarily, that the District Court’s ruling should be affirmed on different grounds. In the government’s view, Amendment 591 does not have any impact on the calculation of the defendant’s sentence because the sentencing court prospectively complied with the method prescribed by Amendment 591. In such circumstances, defendant’s motion for sentencing relief pursuant to § 3582(c)(2) was properly denied because Amendment 591 did not lower the applicable sentencing range on which defendant’s sentence was based. The government’s position is aligned with another non-precedential opinion of this Court, United States v. Sparacio, 312 Fed.Appx. 478 (3d Cir.2009) (non-precedential).
We will affirm on the ground proposed by the government.
II.
We review a district court’s interpretation of the United States Sentencing Guidelines, including amendments, de novo. United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009) (citing United States v. Wood, 526 F.3d 82, 85 (3d Cir.2008)). A court’s ultimate decision of whether to grant or deny a defendant’s motion to *743reduce his sentence under § 3582(c)(2) is reviewed for abuse of discretion. Id. at 154 & n. 2. We may affirm a district court ruling on any ground supported by the record. Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir.2001).
Our analysis begins with 18 U.S.C. § 3582(c)(2), the statutory basis for Grec-co’s motion. Subsection (c)(2) creates an exception to the general rule that a district court “may not modify a term of imprisonment once it has been imposed,” 18 U.S.C. § 3582(c), as follows:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Id. § 3582(c)(2). As we have recently held, defendants seeking sentencing relief pursuant to § 3582(c)(2) must satisfy the section’s two eligibility requirements. “First, the defendant must have been ‘sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission;’ and second, the sentence reduction must be ‘consistent with applicable policy statements issued by the Sentencing Commission.’ ” Doe, 564 F.3d at 309. Where these requirements are not satisfied, the district court does not have jurisdiction to consider any discretionary reduction in sentence under § 3582(c)(2). Id.
With regard to the first requirement, we have held that the phrase “based on a sentencing range that has subsequently been lowered” must be read as a unit and that the term “ ‘sentencing range’ clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus.” Mateo, 560 F.3d at 155 (quoting United States v. Caraballo, 552 F.3d 6, 10 (1st Cir.2008)). In cases where an amendment to the Guidelines does not impact the sentencing range “actually used” by the sentencing court in deciding on a defendant’s sentence, § 3582(e)(2) sentencing relief is not available. Id.
For the second requirement, the “applicable policy statements issued by the Sentencing Commission” may be found in USSG § 1B1.10. In subsection (a)(2) of that provision, the Sentencing Commission specifies the conditions under which “[a] reduction in the defendant’s term of imprisonment is not consistent with [the Sentencing Commission’s] policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2).” USSG § 1B1.10(a)(2). Specifically, a reduction is not authorized where “(A) [n]one of the amendments listed in subsection (c) is applicable to the defendant; or (B) [a]n amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range.” Id. These limitations on the availability of § 3582(c)(2) relief are binding. Doe, 564 F.3d at 310; see also Wise, 515 F.3d at 221 & n. 11 (noting that Amendment 706 would not become an appropriate basis for a § 3582(c)(2) motion until the effective date of its inclusion in the USSG § 1B1.10(c) list of retroactive amendments); United States v. Thompson, 70 F.3d 279, 281 (3d Cir.1995). For purposes of USSG § 1B1.10(a)(2)(B), the “applicable guideline range” is the sentencing range actually used by the sentencing court after follow*744ing the series of steps laid out in USSG § 1B1.1. Doe, 564 F.3d at 311-12.
The policy statements in USSG § 1B1.10(a)(2) complement the § 3582(c)(2) requirement that a defendant have been sentenced based on a sentencing range that has subsequently been lowered. Doe, 564 F.3d at 310-11. The overarching rule to be derived from the § 3582(c)(2) requirement and the USSG § 1B1.10(a)(2) limitations is that § 3582(c)(2) relief is only available where a guidelines amendment listed in USSG § lB1.10(c) has some impact on the end result of the guidelines calculation process, lowering the guideline range or guideline sentence actually used by the trial court in sentencing the defendant.7 Moreover, this is an eligibility rule which precedes the sentencing court’s discretionary consideration of whether a reduction in sentence is warranted in a particular defendant’s case. Doe, 564 F.3d at 309; see Wise, 515 F.3d at 220 n. 10 (referring to § 3582(c)(2) relief in the context of “qualifying defendants]”); see also United States v. Vautier, 144 F.3d 756, 760 (11th Cir.1998); United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir.1997).
In this case, Grecco bases his § 3582(c)(2) motion on Amendment 591 to the Guidelines, which became effective on November 1, 2000.8 We considered Amendment 591 at length in United States v. Diaz, 245 F.3d 294 (3d Cir.2001) to determine whether it should apply retroactively on appeal. We concluded that the Amendment effected a substantive change in the Guidelines and, therefore, could not be applied retroactively on appeal. Id. at 303, 304. Although this case concerns the retroactive application of Amendment 591 in a different context, the analysis of the Amendment in Diaz remains instructive.
Prior to Amendment 591, the Guidelines directed sentencing courts to determine the offense guideline “most” applicable to the offense of conviction and to use the Statutory Index (Appendix A) for “assistance]” in that determination. See USSG §§ 1B1.1(a), 1B1.2(a) (1991); Diaz, 245 F.3d at 302. The Introduction to the Statutory Index reinforced and clarified this directive, stating that “in an atypical case,” where “the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted.” USSG App. A, intro. (1991); Diaz, 245 F.3d at 302.
Amendment 591 deleted the permissive language quoted above and substituted mandatory language directing the sentencing court to “[r]efer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction.” USSG § 1B1.2(a) (2000); Diaz, 245 F.3d at 302; see also USSG App. C, amend. 591 (Nov.2000) (deleting permissive language in USSG § 1B1.1(a), USSG § 1B1.2(a), and the Introduction to the Statutory Index). As this Court noted in *745Diaz, the Sentencing Commission promulgated Amendment 591 to “emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction.”9 Diaz, 245 F.3d at 302 (quoting USSG App. C, amend. 591, Reason for Amendment (Nov.2000)) (emphasis in Diaz).
Grecco argues that the District Court’s use of USSG § 2A1.1 (first degree murder) instead of USSG § 2A1.5 (conspiracy to commit murder) violates Amendment 591 because the Racketeering Act found by the jury was the conspiracy to murder Mistretta and not the substantive offense. In essence, Grecco objects to the District Court’s use of USSG § 2A1.1 based on any relevant conduct finding that Grecco committed first degree murder or, indeed, any relevant conduct finding that the conspiracy to murder Mistretta resulted in Mis-tretta’s death such that the USSG § 2A1.5(e)(l) cross reference would apply. According to Grecco, the use of relevant conduct findings to select any “applicable offense guideline” runs afoul of Amendment 591 regardless of how the selection fits within the guidelines calculation process.
In his brief, however, Grecco gives Amendment 591 short shrift, relying instead on provisions of the Guidelines which were not affected by Amendment 591. Grecco does not account for the fact that the initial offense guideline used by the sentencing court for his RICO convictions — USSG § 2E1.1 — was the one listed in the Statutory Index for violations of RICO, 18 U.S.C. § 1962. (PSR ¶¶ 76, 85); USSG App. A. More importantly, Grecco does not endeavor to explain why Amendment 591 should have any impact on the sentencing court’s application of the USSG § 2E1.1(a)(2) cross reference for “underlying racketeering activity,” such as the conspiracy to murder Mistretta. Grecco’s argument fails to appreciate that while the conspiracy to murder Mistretta was a predicate offense for his RICO conviction and was an “underlying offense” treated by the District Court “as if contained in a separate count of conviction” for purposes of the USSG § 2E1.1(a)(2) cross reference, it was not an offense of conviction for Amendment 591 purposes. Grecco’s “underlying criminal activity” was only relevant for cross-referencing, a function not covered by Amendment 591.
Although Diaz did not specifically address the scope of Amendment 591, the Amendment is clearly limited to the sentencing court’s initial selection of an offense guideline. Both the structure and purpose of the Amendment support this conclusion, and it is the same conclusion that has been reached by other courts. See United States v. Hurley, 374 F.3d 38, 40 (1st Cir.2004); United States v. Rivera, 293 F.3d 584, 586-87 (2d Cir.2002).
Instructions for applying the Guidelines appear in USSG § 1B1.1 which prescribes a “sequence of steps” to be taken by the sentencing court in calculating a defendant’s guideline range or guideline sentence. United States v. Johnson, 155 F.3d 682, 684 (3d Cir.1998); accord United States v. McDowell, 888 F.2d 285, 293 (3d Cir.1989). Only the first two steps are relevant to this appeal. At the first step in the process, a comb determines the applicable offense guideline section in Chapter Two (Offense Conduct) for the defendant’s statute of conviction by consulting the Statutory Index (Appendix A). USSG §§ 1B1.1(a), 1B1.2(a). At the second step, described in USSG § lBl.l(b), the court “[d]etermine[s] the base offense *746level and applies] any appropriate section specific offense characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in the order listed.” USSG § 1B1.1(b) (emphasis added). For step two, a court may consider relevant conduct, as defined by USSG § 1B1.3,10 unless otherwise specified by the Guidelines. USSG §§ 1B1.2(b), 1B1.3(a); United States v. Aquino, 555 F.3d 124, 127-28 (3d Cir.2009); Watterson v. United States, 219 F.3d 232, 235-36 (3d Cir.2000).
Amendment 591 revised USSG § 1B1.1(a), USSG § 1B1.2(a), Application Note 1 to USSG § 1B1.2, and the Introduction to the Statutory Index. USSG App. C, amend. 591 (Nov.2000); Diaz, 245 F.3d at 301-02. All of these changes concern the first step in the guidelines application process. Amendment 591 did not modify USSG § 1B1.1(b) (describing step two), USSG § lB1.2(b) (authorizing the use of relevant conduct after step one), or USSG § 1B1.3 (defining relevant conduct). USSG App. C, amend. 591 (Nov. 2000). Thus, although Amendment 591 removed the permissive language that gave sentencing courts some flexibility in selecting offense guidelines based on relevant conduct at step one, it did not invalidate the use of relevant conduct for other steps in the guidelines calculation process.
The Sentencing Commission’s statement of reasons with regard to Amendment 591 confirms this interpretation. In that statement, the Commission described a particular problem that it intended to remedy in promulgating Amendment 591, specifically that various courts had relied on pre-Amenclment language to deviate from the offense guidelines listed in the Statutory Index (Appendix A) for statutes of conviction. USSG App. C, amend. 591, Reason for Amendment (Nov.2000) (citing, inter alia, United States v. Smith, 186 F.3d 290 (3d Cir.1999)); see Diaz, 245 F.3d at 302-03; Hurley, 374 F.3d at 40-41. The Commission specifically noted that relevant conduct findings, while inappropriate when referring to the Statutory Index at step one, nevertheless remain relevant at other steps under USSG § 1B1.3(a). USSG App. C, amend. 591, Reason for Amendment (Nov.2000). At no point does the Commission suggest that Amendment 591 affects, much less invalidates, the application of cross references based on a court’s relevant conduct findings.
In this case, the District Court correctly selected the appropriate offense guideline for the statute of conviction using the Statutory Index. Before Amendment 591, the Statutory Index “provid[ed] a listing to assist” the District Court in selecting USSG § 2E1.1 as the appropriate offense guideline for violations of RICO, 18 U.S.C. § 1962; After Amendment 591, the Statutory Index “conclusively point[ed]” to USSG § 2E1.1 as the offense guideline for Grecco’s RICO conviction. The result, however, is the same, and the Amendment 591 analysis stops there. Because Amendment 591 does not impact the District Court’s subsequent application of the USSG § 2E1.1(a)(2) cross reference for *747“underlying racketeering activity,” it has no bearing on the sentencing errors alleged in Grecco’s motion and, therefore, provides no basis for a reduction in Grecco’s sentence pursuant to 18 U.S.C. § 3582(c)(2).
III.
For all of the foregoing reasons, we conclude that Grecco was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), and that, as a result, the District Court lacked jurisdiction to grant the relief requested in his motion. Thus, we will affirm the order of the District Court denying Grecco’s § 3582(c)(2) motion.
. In United States v. Wise, 515 F.3d 207 (3d Cir.2008), we questioned die accuracy of referring to USSG § 1B1.10(c) amendments as "retroactive" amendments. Id. at 220 n. 10. Nevertheless, the term is commonly used to identify those amendments which may be considered by the district court for purposes of reducing a defendant's sentence under 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Doe, 564 F.3d 305, 308 (3d Cir.2009); United States v. Ahrendt, 560 F.3d 69, 78 n. 7 (1st Cir.2009); United States v. Dunphy, 551 F.3d 247, 249 & n. 2 (4th Cir.2009); United States v. Regalado, 518 F.3d 143, 150 (2d Cir.2008).
. On April 26, 1979, Mistretta was attacked by two men and stabbed repeatedly with an ice pick. Mistretta died as a result of his injuries.
. Sentencing courts use the edition of the Guidelines in effect on the date of sentencing unless it is determined that the use of that edition would violate the Ex Post Facto Clause of the United States Constitution. 18 U.S.C. § 3553(a)(4); USSG § 1B1.11; United States v. Menon, 24 F.3d 550, 566 (3d Cir.1994); United States v. Cianscewski, 894 F.2d 74, 77 n. 6 (3d Cir.1990). Where the use of the current edition would violate the Ex Post *741Facto Clause, the sentencing court uses the edition of the Guidelines in effect on the date the offense was committed. USSG § 1B1.11. The November 1, 1991 Guidelines were in effect at the date of Grecco’s sentencing; the October 15, 1988 Guidelines were in effect at the termination of the RICO conspiracy on July 20, 1989.
. In its opinion below, the District Court incorrectly states that USSG § 2A1.1 included conspiracy to commit murder at the time of Grecco’s 1991 sentencing. In fact, USSG § 2A1.5 was in effect on the date of Grecco's sentencing and covered conspiracy to commit murder. Further, USSG § 2A1.1 never included conspiracy to commit murder. Prior to Amendment 311, as stated in the text above, conspiracy to commit murder was included in the guideline for attempted murder, USSG § 2A2.1. Although Grecco argues in favor of the District Court’s view of Guidelines history, it is not relevant to the instant appeal and is only mentioned for purposes of clarity.
. The parties and the District Court in its opinion below have created a certain amount of confusion with regard to the guidelines treatment of Racketeering Act 3 at sentencing. Grecco asserts that the District Court used USSG § 2A1.1 as the offense guideline for conspiracy to commit murder. The government disagrees and points to a portion of the sentencing transcript which, in its view, suggests that the District Court used USSG § 2A1.1 based on a relevant conduct finding that Grecco murdered Mistretta in furtherance of the conspiracy to murder Mistretta. We note that the record provides scant support for either of these positions. Nevertheless, the dispute is not relevant for the instant appeal because the parties agree (1) that Racketeering Act 3 was conspiracy to commit murder, not first degree murder, and (2) that the District Court selected the base offense level in USSG § 2A1.1 by applying the USSG § 2E 1.1 (a)(2) cross reference for "underlying racketeering activity.”
. We note that Grecco’s instant position — that the sentencing court should have applied USSG § 2A1.5 (1991) (base offense level 28) — directly conflicts with the position Grec-co took at the original sentencing — that the sentencing court should not apply USSG § 2A1.5 (1991). Understanding the shift in defendant's argument requires closer examination of two factors. First, at the 1991 sentencing, defendant was arguing in favor of his proposed alternative, USSG § 2A2.1 (1988) (base offense level 20), on ex post facto grounds. Defendant's ex post facto argument was, however, rejected by both the District Court and this Court. He now argues for the application of USSG § 2A1.5 (1991) in an effort to avoid the provision ultimately used by the sentencing court, USSG § 2A1.1 (base offense level 43). Second, defendant now presents a subsidiary argument, not presented at the original sentencing, that the USSG § 2A1.5(c)(1) cross reference to USSG § 2A1.1 is inapplicable in this case. Any such argument is completely without merit in light of the fact, stated in the PSR and adopted by the District Court at the original sentencing, that Grecco’s conspiracy to murder Mistretta resulted in Mistretta's death. (PSR ¶ 48, 52; App. 49.) At sentencing, defense counsel was given an opportunity to object to the factual findings in the PSR and did not do so. (App.6.)
. Although this Court has distinguished between the 18 U.S.C. § 3582(c)(2) requirement that the defendant’s sentence be "based on a sentencing range” that was subsequently lowered by the Sentencing Commission and the USSG § 1B1.10(a)(2)(B) requirement that an amendment have the effect of lowering the defendant's "applicable guideline range," Doe, 564 F.3d at 310, this Court's analysis of those two provisions reaches the same result. Doe, 564 F.3d at 311-12; Mateo, 560 F.3d at 155.
. For the versions of guideline provisions that predated Amendment 591, we will refer to the 1991 Guidelines which were in effect on the date of Grecco’s sentencing. For the amended versions of these provisions we will refer to the 2000 Guidelines.
. The Sentencing Commission identified one narrow exception to this general rule which is not relevant in the instant case. See USSG § 1B1.2(a).
. "Relevant conduct" is broadly defined to include: "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and ... in the case of jointly undertaken criminal activity ..., all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; ... all harm that resulted from [those] acts and omissions ..., and all harm that was the object of such acts and omissions; and ... any other information specified in the applicable guideline.” USSG § 1B1.3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470734/ | OPINION OF THE COURT
MCKEE, Circuit Judge.
Jonathan Saint Preux appeals the sentence of 57 months imprisonment followed by two years of supervised release that was entered following his guilty plea. For the reasons that follow, we will affirm.
I.
Because we write primarily for the parties, it is not necessary to recite the facts *748or history of this case except as may be helpful to our brief discussion. Saint Preux pled guilty pursuant to a plea agreement to submitting false immigration documents in violation of 18 U.S.C. § 1546(a), and the government agreed to dismiss the remaining seven counts of the indictment in return. The plea agreement between the parties set forth that Saint Preux’s base offense level was 11, pursuant to U.S.S.G. § 2L2.1. The parties stipulated that his base offense level should be increased: (1) nine levels pursuant to U.S.S.G. § 2L2.1(b)(2)(c) because the offense involved more than 100 documents; (2) two levels because Saint Preux was the organizer, leader, manager and supervisor in a criminal activity pursuant to U.S.S.G. § 3Bl.l(c); and (3) two levels because Saint Preux both abused a position of private trust and used a special skill in a manner that significantly facilitated the commission and concealment of the offense pursuant to U.S.S.G. 3B1.3. That total offense level was subject to reduction based on the following clause of the plea agreement:
If defendant Jonathan Saint Preux enters a plea pursuant to this agreement and qualifies for a 2-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a), and if in addition defendant Jonathan Saint Preux’s offense level under the Guidelines prior to the operation on § 3El.l(a) is 16 or greater, defendant Jonathan Saint Preux will be entitled to a further one-point reduction in his offense level pursuant to U.S.S.G. § 3El.l(b).
App. 35.
The district court found that with a total offense level of 24 and Criminal History category of I, Saint Preux fell within the advisory range of 51 to 63 months imprisonment, and imposed a sentence of 57 months imprisonment followed by two years of supervised release. Saint Preux now challenges the district court’s refusal to reduce his guideline offense level by three levels based on his acceptance of responsibility, as stipulated in the plea agreement.
II.
Saint Preux has the burden of establishing that he is entitled to a three level reduction for acceptance of responsibility by a preponderance of the evidence. United States v. Boone, 279 F.3d 163, 193 (3d Cir.2002). The district court’s denial of the three point reduction is entitled to “great deference” because “the sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.” Id. (quoting U.S.S.G. § 3E1.1(a), App. Note 5).
We review factual findings “underlying the denial of a Sentencing Guidelines reduction for acceptance of responsibility for clear error, and reverse only if we are left with a definite and firm conviction that a mistake has been committed.” United States v. Lessner, 498 F.3d 185, 199 (3d Cir.2007) (citing Boone, 279 F.3d at 193; United States v. Felton, 55 F.3d 861, 864 (3d Cir.1995)).
Saint Preux acknowledges that the “law imposes a formidable burden” on his appeal. Appellant’s Br. at 24. He nevertheless argues that he can satisfy the burden because of the terms of the plea agreement even though he nevertheless admits that the written agreement does not promise a three point reduction on its face. Moreover, Saint Preux’s reliance on the terms of the plea agreement ignore the provisions of Application Note 3 to U.S.S.G § 3E1.1 which states that a “defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.”
*749Saint Preux argues that he fully admitted his wrongdoing, gave at least three proffers to the government and even offered to testify against one of his co-conspirators at trial. Appellant’s Br. at 27. The government, however, points to portions of Saint Preux’s testimony both before and during the sentencing hearing that purportedly reflect a lack of remorse and lack of responsibility. For example, at the sentencing hearing, Saint Preux stated that “I did plead guilty, your Honor, but not knowingly, not freely”; “The next day I go to my office because I knew I did not do anything wrong”; and then finally, “I didn’t sign those applications ... [i]t is not even close to my signature.” App. 92, 96, 102-03.
Although Saint Preux clearly had a right to plead not guilty and force the government to prove its case beyond a reasonable doubt, he elected to plead guilty in return for the benefits offered in the plea agreement. However, in doing so, he attempted to plead guilty without admitting guilt. In denying three points for acceptance of responsibility, the court emphasized Saint Preux’s statements to the Probation Office. Saint Preux denied signing all of the fraudulent applications, claiming that Patel, a co-defendant, had forged his signature on over 400 of the applications. Pre-Sentencing Report at 32, ¶ 102. Saint Preux also told the Probation Office that the “government doesn’t have the resources to go after the applicants. So they go after the attorneys.” Id. at 33, ¶ 105. Saint Preux argues that his statements to Probation should not have been considered because his attorney was not present for the interview. That is a frivolous response. The absence of his counsel did not preclude the district court from relying on the statements. Appellant’s Br. at 28.
Saint Preux claims that his statement disclaiming responsibility for 400 of the applications was only a “minor retreat from his previous admission.” Id. at 28-29. However, the size of the retreat need not control how the court views his entitlement to a three point reduction for acceptance of responsibility. The district court was clearly entitled to consider his equivocations when deciding upon the extent of departure Saint Preux was entitled to based on his guilty plea.
Similarly, we will not second guess the district court’s view of the apology Saint Preux finally managed to articulate. The district court properly weighed these considerations and concluded that Saint Preux’s guilty plea should not automatically purchase a three level departure.
III.
For all of the above reasons, we conclude that the district court did not err in refusing to reduce Saint Preux’s guideline offense level based on his acceptance of responsibility, and will therefore affirm the district court’s sentence of 57 months to be followed by two years of supervised release. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470736/ | OPINION OF THE COURT
PER CURIAM.
Petitioners Auw Priyanto and Erna Set-iawati seek review of final orders of re*751moval in this consolidated appeal. For the reasons that follow, we will deny the petitions for review.
Priyanto and Setiawati are both ethnic Chinese Christians and citizens of Indonesia. Both entered the United States on visitor visas, Priyanto in 2001 and Setiawa-ti in 2002, and overstayed. The couple married in the United States and have one child who was born in the United States. In November 2003, the Government served the couple with notices to appear. Both conceded removability and sought asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure.
I.
A. Priyanto
Priyanto claimed that he had been subjected to persecution in Indonesia on account of his religion and ethnicity. To support this claim, he offered testimony about the following events: 1) When he attended elementary school, Muslim students demanded that he buy them food, and on one occasion beat him up. His parents complained to the school’s principal, and there were no further beatings, though the students continually called him derogatory names; 2) He was once mugged by several Muslims while riding on a bus. He claimed that the mugging began after some of the passengers on the bus realized that he was Chinese. After the mugging, he complained to the bus driver, who did not yell at or chase the perpetrators, though he did drop off Pri-yanto in the police district; 3) He once bought doughnuts and complained to the Muslim store owner about them. The store owner called him an ethnic slur, pulled a knife, and threw the doughnuts at him; and 4) On several occasions while walking to church, Muslims would call him names and spit on him.
Priyanto also argued that he would be subjected to further persecution if he were to return to Indonesia. To support this argument, he noted the riots of 1998, as well as other events showing the extent of anti-Chinese sentiment in Indonesia. He also relied on the country’s recent earthquakes, which he claimed had increased unemployment and encouraged Muslims to demand money from the ethnic Chinese. In addition, he presented the 2001 and 2005 Country Reports for Indonesia. He testified that members of his family still live in Indonesia, and admitted that none have been harmed since he came to the United States.
The Immigration Judge (“IJ”) found Priyanto credible, but denied all substantive relief and allowed voluntary departure. The Board of Immigration Appeals (“BIA”) affirmed. First, the BIA found that Priyanto was ineligible for asylum because he had filed his application more than one year after he had entered the United States and had not shown extraordinary circumstances sufficient to excuse the delay of filing. See 8 U.S.C. § 1158(a)(2)(B) & (D). Second, the BIA found that Priyanto was not eligible for withholding of removal because the incidents of harassment that he described did not rise to the level of persecution. In addition, the BIA found that he had failed to show a clear probability that he would be persecuted if he were to return to Indonesia. Finally, the BIA found that Priyanto was not eligible for relief under the CAT because he had not shown that he is more likely than not to be tortured upon return to Indonesia.
B. Setiawati
Setiawati also claimed that she had been persecuted in Indonesia on account of her religion and ethnicity, and that she would *752be subjected to further persecution if she were to return. To support this claim, she offered testimony about the following events: 1) She was teased in elementary school because of her ethnicity; 2) When she was a child, her dog was killed. She suspected Muslim neighbors of the killing; 3) When Muslims would walk past her house on the way to a nearby mosque, they would yell racial epithets at her and, on one occasion, demanded that she turn down the volume on her television; 4) One day, while returning to her home on a motorcycle, she drove through a crowd of people whom she believed to be Muslim. Members of the crowd yelled at her, though she was not harmed; and 5) She once worked in a church that received an anonymous bomb threat. Police later recovered the bomb, which failed to detonate.
Setiawati also argued that she would be persecuted if she were to return to Indonesia. Like Priyanto, she supported her argument by relying on the 1998 riots, the social consequences of the recent earthquakes, and other events motivated by anti-Chinese sentiment. In addition, she noted the 2003 and 2005 Country Conditions Reports for Indonesia.
The IJ found Setiawati credible, but denied all substantive relief and allowed voluntary departure. The IJ found that Set-iawati’s asylum application, which she had filed more than one year after entering the country, was timely because she had originally filed as a derivative to Priyanto’s 2003 asylum application. Nevertheless, the IJ determined that she was ineligible for asylum because none of the events that she described rose to the level of persecution. The IJ also found that she had not established that she would be persecuted in the future. Likewise, the IJ found that she was ineligible for withholding of removal and relief under the CAT. The BIA affirmed without opinion.
C. Jurisdiction
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). In Priyanto’s case, the BIA issued an opinion that “invoke[ed] specific aspects of the IJ’s analysis and fact-finding” to support its conclusion; therefore, we will review both decisions. Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir.2005). In Setiawati’s case, because the BIA affirmed without opinion, we will review the IJ’s decision. Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir.2006). We review the BIA’s findings of fact regarding claims of past persecution and well-founded fears of future persecution under “the deferential substantial evidence standard.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006).
II.
In their consolidated petition for review, Priyanto and Setiawati challenge only the findings that they did not suffer past persecution and did not have a well-founded fear of future persecution and were thus ineligible for asylum (in Setiawati’s case) and withholding of removal (in both cases). Priyanto does not challenge the BIA’s decision that his asylum application was untimely,1 and the parties do not challenge their ineligibility for relief under the CAT. Accordingly, we will not consider those claims.
A. Setiawati’s asylum claim
“Persecution includes threats to life, confinement, torture, and economic restrictions so severe that they constitute a *753threat to life or freedom,” Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.2008) (internal quotations omitted), but it does not “encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional,” Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993).
An applicant can demonstrate entitlement to asylum on the basis of persecution in one of two ways. First, an applicant can provide credible testimony that he or she had been persecuted in the past. See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Setiawati testified to several instances of what she deemed to be past persecution because of her religion and ethnicity. She argues that these events, taken cumulatively, constitute persecution.2 We find that there was substantial evidence to support Id’s conclusion that these events were not extreme enough to satisfy the standard for persecution. See Wong, 539 F.3d at 232; Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005).
The second way that an applicant can obtain asylum is by showing that he or she has a well-founded fear of future persecution upon return to the country of removal. The applicant can make this showing by demonstrating that either “she would be individually singled out for persecution” or “that there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant.” Wong, 539 F.3d at 232. Setiawati does not attempt to demonstrate that she will be singled out for persecution upon return to Indonesia; instead, she attempts to establish a pattern-or-practice claim. She supports her argument by pointing to attacks against Chinese Christians in Indonesia and the 2003 and 2005 Country Reports for Indonesia. The IJ rejected this argument, noting that the 2005 Country Report states that the Indonesian government supports tolerance of all religions and has taken steps to end discriminatory laws in the country. We find that this was a valid basis to reject Setiawati’s claim. See Wong, 539 F.3d at 234. Therefore, she is not entitled to asylum.3
B. The withholding of removal claims
An applicant seeking withholding of removal “must establish a ‘clear probability’ ... that he/she would suffer persecution” if returned to the country of removal. Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006). This standard is higher than the standard governing asylum claims. Id. Accordingly, Setiawati’s request for withholding of removal necessarily fails because her request for asylum failed. See Id.
Priyanto testified to several instances of what he deemed persecution at the hands of Muslims, including a beating, a robbery, and name-calling. The BIA found that these events did not rise to the level of persecution. We find substantial evidence in the record to support the BIA’s decision. See Wong, 539 F.3d at 232; Lie, 396 F.3d at 536. To support his argument that he had a well-founded fear of persecution, Priyanto, like Setiawati, noted the attacks against ethnic Chinese Christians in Indonesia. He also submit*754ted the 2001 and 2005 Country Reports for Indonesia. The BIA rejected this claim, noting that Priyanto’s family has continued to live in Indonesia without incident. We find this to be a valid basis to reject Priyanto’s claim. See Wong, 539 F.3d at 236. Accordingly, we find that Priyanto did not establish eligibility for withholding of removal.
III.
For the foregoing reasons, we will deny the petition for review.
. We ordinarily lack jurisdiction to review the BIA’s conclusion that an asylum application was untimely. See Sukwanputra, 434 F.3d at 633.
. The Government argues that Setiawati failed to raise this argument in her brief and therefore waived judicial review of the issue. However, Setiawati did challenge the BIA's finding that she had not suffered past persecution. Accordingly, she preserved the issue for judicial review.
. Setiawati argues that Chinese Indonesians are a significantly disfavored group and thus must meet a comparably low standard of individualized risk to show a well-founded fear of persecution. We have already rejected that argument. See Lie, 396 F.3d at 538 n. 4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470738/ | *756OPINION
BARRY, Circuit Judge.
This appeal arises out of a former employment relationship between plaintiff Thomas & Betts Corporation (“T & B”) and defendant Glenn Luzzi. In an action commenced in 2001, T & B claimed that when Luzzi left T & B to work for a competitor, defendant Richards Manufacturing Company (“Richards”), he misappropriated information concerning the design, manufacture, and marketing of a line of underground electrical connector prod-uets, and that Richards used this information to capture a lucrative market sector that T & B had dominated for years.1 T & B also brought breach of contract, breach of the duty of loyalty, and fraud claims against Luzzi, and tortious interference with prospective advantage and unjust enrichment claims against Richards. After an exhaustive litigation, which we will reference only as necessary to decide the issues before us, the District Court granted summary judgment for defendants on the misappropriation claim and dismissed T & B’s remaining claims. Final Judgment was entered on June 18, 2008, 2008 WL 2478337. The Court subsequently denied defendants’ motion for sanctions. This appeal and cross-appeal followed. We have jurisdiction to consider these appeals pursuant to 28 U.S.C. § 1291.
T & B contends before us that the District Court formulated and thereafter applied a standard by which to assess whether T & B had a protectible interest in its allegedly misappropriated information, and that that standard was wrong as a matter of New Jersey law. It contends, as well, that the Court misapplied the familiar summary judgment standard of Rule 56 of the Federal Rules of Civil Procedure by finding facts and by failing to draw key inferences in favor of it, T & B, as the non-moving party. Finally, T & B contends that the Court erred in excluding significant portions of the testimony of its primary expert witness. Richards, on the cross-appeal, argues that the Court erred in denying the motion for sanctions.
Because we conclude that the District Court (1) applied an incorrect body of New Jersey law in evaluating T & B’s misappropriation claim and (2) applied too restrictive a standard in evaluating the admissibility of T & B’s expert, we will vacate the order of Final Judgment, and remand for further proceedings. We, therefore, need not discuss Rule 56 and the parties’ positions as to whether its requirements were satisfied, although we commend to all involved a review of that Rule. We will affirm the order of the Court denying sanctions.
I.
Glenn Luzzi was the Director of Engineering at T & B’s Elastimold division, which manufactures, among other things, 600-amp underground oil-resistant electrical connectors, primarily for use by Consolidated Edison (“Con Ed”). In 1998, Luzzi began to explore alternate job opportunities and sought employment with Richards, a company that also manufactured electrical components. Richards told Luzzi that it would not hire him unless T & B released him from the obligations undertaken by him in his 1996 employment agreement, which contained both restrictions on his future employment and confidentiality stipulations in the event of his *757departure from T & B. By letter of December 17, 1998, T & B stated that “Thomas & Betts hereby releases you from any previous employment restrictions which you have signed,” but cautioned Luzzi that, “[n]otwithstanding [this release], it is understood that you are not permitted to share or release information proprietary to Thomas & Betts — Elastimold.”2 (App. at 5281.) Luzzi joined Richards in January 1999.
It is undisputed that Luzzi retained a number of T & B documents (called the “Closet Documents”) in his home after he ended his employment with T & B. These documents fall into two main categories by content: (1) financial reports, customer lists, and sales charts (the “customer data”); and (2) various product specifications, standard operating procedures, and technical drawings (the “product data”). It is also undisputed that T & B had been the sole supplier of a line of 600-amp disconnectable connector products to Con Ed for approximately twenty years,3 but that, approximately eighteen months after Luzzi began working for Richards, Richards was able to develop a compatible product line and, in January 2001, obtained a sole-source contract from Con Ed for the products after offering them at a lower price than T & B.
Richards brought a declaratory judgment action in October 2001, seeking a declaration that it had not misappropriated T & B’s trade secrets or other confidential information. T & B counterclaimed, bringing the claims set forth above.4 In a series of successive interrogatory responses, T & B identified ten trade secrets and ninety-two discrete items of confidential information that it claimed defendants had misappropriated. The parties set forth in detail their positions as to each of these trade secrets and items of confidential information in the Final Pretrial Order (“PTO”).
In its opinion of October 7, 2005, the District Court denied Richards’s motion for partial summary judgment on several of T & B’s counterclaims. In that opinion, the Court articulated the standard by which it would determine whether or not T & B could claim a protective interest in each item of confidential information identified in the PTO — that is, whether the allegedly misappropriated information was, in fact, confidential. Believing that there was not a clearly-defined standard in New Jersey case law, the Court fashioned its *758“proteetibility” standard from two holdings of the Supreme Court of New Jersey.5 In the first, Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 542 A.2d 879 (1988), the Supreme Court assessed the propriety of a species of post-employment restrictive covenants (ie., inventorship “holdover” agreements), while, in the second, Lamorte Burns & Co. v. Walters, 167 N.J. 285, 770 A.2d 1158 (2001), it discussed the tort of misappropriation of confidential information. The District Court’s resultant test consisted of four factors: (1) the degree to which the information is generally known in the industry; (2) the level of specificity and specialized nature of the information; (3) the employer/employee relationship and the circumstances under which the employee was exposed to the information; and (4) whether the information is “current” (i.e., of current value to the employer).
In its next opinion, dated April 4, 2006, and following an extensive hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the District Court significantly limited the testimony of T & B’s primary expert, Van T. Walworth. The Court found that Walworth lacked experience in the field of underground electrical connectors, and found his methodology unreliable.
In opinions dated April 26, 2007, 2007 WL 1237852, and June 18, 2008, the District Court held that T & B failed to furnish sufficient evidence to demonstrate (1) that any of its ten claimed trade secrets were, in fact, secrets, and (2) that it had a protectible interest in any of the discrete items of confidential information. On that basis alone, the Court granted summary judgment on T & B’s misappropriation claim. As T & B’s claims of breach of contract, breach of the duty of loyalty, and unjust enrichment were “premised on” the survival of its misappropriation claim, the Court dismissed those claims as well.6
At oral argument before us, counsel for T & B confirmed that T & B is not appealing the District Court’s ruling as to its claimed trade secrets. Accordingly, with reference to T & B’s appeal of the grant of summary judgment, we decide whether the Court formulated an erroneous standard, or otherwise erred in granting summary judgment for Richards, only as to its analysis of T & B’s claim for the misappropriation of confidential (i.e., non-trade secret) information. We exercise plenary review over the Court’s grant of summary judgment. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir.2009). In conducting our review, we view the underlying facts, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005).
II.
As noted above, T & B argues that the District Court erred in its determination of the legal standard for a protectible interest in information under New Jersey law. Under New Jersey law, information that does not rise to the level of a trade secret may nevertheless be entitled to protection and may serve as the basis for a tort action. Larmorte Burns, 167 N.J. at *759299, 770 A.2d 1158. In Lamorte Bums, an insurance company sued two former employees who admitted taking client information from the company (while they were still employed) in order to solicit those clients for their newly formed competitive business. The Supreme Court of New Jersey held as a matter of law that the information was confidential and proprietary — and, thus, legally protectible — because it was “specific information provided to defendants by their employer, in the course of employment, and for the sole purpose of servicing plaintiffs customers.” Id. at 301, 770 A.2d 1158. The Court found persuasive that the information was not generally available to the public, that the defendants would not have been aware of the information but for their employment, that the information gave the defendants a competitive advantage over their former employer, and that defendants knew that the plaintiff had an interest in protecting the information. Id. It drew heavily on principles of agency law, which provide that an agent has a duty to the principal “ ‘not to use or to communicate information confidentially given him by the principal ... in competition with or to the injury of the principal.’ ” Id. at 300-01, 770 A.2d 1158 (quoting Restatement (Second) of Agency § 395 (1958)).7
The District Court understandably, albeit mistakenly, invoked case law dealing with the interpretation of post-employment restrictive covenants (commonly referred to as “non-compete agreements”), likely because the record was, and remains, unclear whether Luzzi had any forward-looking contractual obligations. See supra note 2. In any event, whatever obligations remained were not the sort of pernicious temporal or geographical restraints of trade frowned upon by the Supreme Court in cases implementing New Jersey non-competition law. See Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 274 A.2d 577 (1971) (temporal and geographical restraint); Solari Indus., Inc. v. Malady, 55 N.J. 571, 264 A.2d 53 (1970) (temporal restraint). In those cases, the Court’s searching reasonableness review of non-compete clauses was designed to alleviate concerns — the hardship on the employee and the public interest in free competition, see Whitmyer, 58 N.J. at 33, 274 A.2d 577 — that are not relevant in this case, where, whether expressed contractually or not, Luzzi had a common law obligation to maintain the secrecy of his employer’s proprietary information. Lamorte Burns, 167 N.J. at 299, 770 A.2d 1158. Thus, in setting its standard, the District Court erred in factoring in Ingersollr-Rand.
On remand, the District Court should consider whether the allegedly misappropriated information was provided to Luzzi by T & B in the course of his employment for the sole purpose of furthering T & B’s business interests. See Lamorte Burns, 167 N.J. at 301, 770 A.2d 1158. To answer that question, the Court should consider the following factors: (1) whether the information was generally available to the public; (2) whether Luzzi would have been aware of the information if not for his employment with T & B; (3) whether the information gave Luzzi — and, by extension, Richards — a competitive advantage vis-á-vis T & B; and (4) whether Luzzi knew that T & B had an interest in protecting the information to preserve its own competitive advantage. This inquiry *760does not entail a “rigorous examination of the information sought to be protected,” as in trade secret law, but rather a focus on the relationship between employer and employee, the expectations of the parties, and the intended use of the information. Id. at 300, 770 A.2d 1158 (quoting Robo-serve Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441, 1456 (11th Cir.1991)). Moreover, it appears to us that, unlike in trade secret law, these four factors are not to be treated as essential elements of a cause of action for the misappropriation of confidential information.
With regard to the first of the Lamorte Burns factors — whether the information is generally available to the public—in Platinum Management, Inc. v. Dahms, 285 N.J.Super. 274, 666 A.2d 1028 (Law Div. 1995), a New Jersey case cited favorably in Lamorte Burns, the court held that customer names were protectible as confidential information, despite the fact that they were “publicly available” in trade directories, because “the fact that they are customers of [the plaintiff]” was not publicly available. Id. at 295, 770 A.2d 1158; see Lamorte Burns, 167 N.J. at 299-300, 770 A.2d 1158. In this case, the District Court should consider that the items of confidential information cited by T & B may serve as the basis for a tort action despite the fact that many of the items of information, examined in isolation, constitute manufacturing techniques that are generally known in the industry. Even if other engineers may have known of these techniques, inferences drawn from the marketplace, where for years no other competitor could duplicate the T & B product line, suggest a fundamental public unawareness that T & B incorporated those techniques in the development and production of 600-amp underground electrical connectors.
With respect to the third of the Lamorte Burns factors, in evaluating whether T & B had a protectible interest in the information, the District Court should consider that the competitive value an employer ascribes to certain information may derive solely from its relation to other information, even when, taken in isolation, that information is neither novel nor unknown. We have explicitly recognized this principle in the context of New Jersey trade secret law, see Rohm & Haas Co. v. Adco Chemical Co., 689 F.2d 424, 433 (3d Cir.1982), and it is equally relevant in the confidential information context. And, importantly, the Court should consider that, at this juncture, it is asked only to determine whether there are genuine issues of material fact in dispute as to whether the information at issue is confidential and proprietary.
III.
We review a district court’s decision to admit or exclude expert testimony for abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008). We may find that the District Court abused its discretion if its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Pineda, 520 F.3d at 243 (quoting In re TMI Litig., 193 F.3d 613, 666 (3d Cir.1999)). To the extent that the Court’s decision involved a legal interpretation of the Federal Rules of Evidence, however, our review is plenary. Id.
Federal Rule of Evidence 702 provides that a qualified expert witness may testify to assist the trier of fact if his testimony is based on sufficient facts or data and is the product of reliable principles and methods, and if the expert applied those principles and methods reliably to the facts of the case. Fed.R.Evid. 702; *761see Daubert, 509 U.S. at 595, 113 S.Ct. 2786. We have interpreted Rule 702’s qualification requirement liberally, and we recently reversed a district court’s conclusion that an expert was unqualified. See Pineda, 520 F.3d at 243 (holding that an engineer with an expertise in glass could testify as to the issue of safety warnings, despite the fact that he was not experienced in the design of automobile rear liftgates (the type of glass at issue) or in the drafting of service manual instructions). We noted that “it is an abuse of discretion to exclude testimony simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers most appropriate.” Id. at 244 (quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.1996)). In Pineda, we emphasized that the inquiry as to reliability is flexible, id. at 248, and that “[a]ny dispute between the parties about the strength of the evidence in this case should be resolved by the jury,” id. at 249 (emphasis added).
The District Court significantly limited the testimony of Walworth, the expert on whom T & B primarily relied, deciding that Walworth could testify as to only: (1) general concepts within the rubber molding industry; (2) his personal observations of T & B’s and Richards’ processes; and (3) his observations of the materials in the case, such as design drawings, that demonstrate similarities between the processes. The Court barred Walworth from offering any testimony as to: (1) what is commonly known in the rubber molding industry; (2) what is generally done in the rubber molding industry with respect to maintaining secrecy in manufacturing operations and whether T & B’s efforts were consistent with such practices; (3) whether or not Richards reverse engineered T & B’s products and what it would take, or how long it would take, to reverse engineer and manufacture the products; (4) the transferability of processes regarding injection molding plasties to manufacturing the products at issue; and (5) whether the information at issue is protec-tible information (ie., the ultimate issue in this ease).
As we held in Pineda, we interpret Rule 702’s qualification requirement liberally and the reliability analysis is flexible. Applying this liberal standard, we conclude that, although the District Court correctly barred Walworth from testifying as to the ultimate legal issue, the Court erred in excluding the remainder of his testimony. Walworth, whose qualifications as an expert in the manufacturing and engineering of products utilizing rubber injection molding are extensive and were not in dispute, should not have been considered unqualified merely because he was not the “best qualified” expert in “the specialization that the court considers most appropriate.” See Pineda, 520 F.3d at 244. For the same reason, Walworth’s testimony would not be unhelpful to a finder of fact merely because it references the rubber molding industry generally and not the subset industry of underground electrical connector manufacturing.8 Moreover, the Court’s *762concerns about Walworth’s reliability — in particular, his “moving target” identification of claims and reliance on the literature in his personal library to formulate his opinion — go to the strength, not the admissibility, of his testimony. Accordingly, we will reverse the District Court’s Daubert holding and permit Walworth’s testimony, save for his testimony as to ultimate legal issue in this case.
IV.
We review a district court’s ruling on a motion for sanctions under Rule 11 for abuse of discretion.9 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Churchill v. Star Enters., 183 F.3d 184, 189 (3d Cir.1999). Richards argued to the District Court that sanctions against T & B were warranted given T & B’s failure to stipulate, after the Court’s summary judgment ruling of April 26, 2007, that its remaining claims could not survive summary judgment based on law of the case. In denying Richards’s motion, the Court expressed its frustration with the manner in which the case had been litigated, but ultimately concluded that T & B’s conduct was not sanctionable. The Court did not abuse its discretion in so concluding, and we will affirm its order denying sanctions without further discussion.
V.
For the reasons discussed above, we will vacate the District Court’s order of Final Judgment entered June 18, 2008 and remand for proceedings consistent with this Opinion. We will affirm the Court’s order denying defendants’ motion for sanctions.
. Defendants have litigated the case jointly and, therefore, reference to "Richards” as a party refers to all defendants, including Blee-ma Manufacturing Corp., a company that provides employees and management services to Richards and has played no meaningful role in this litigation.
. Luzzi also may have been bound by the terms of a 1978 agreement that he signed while working for a predecessor of T & B. The District Court discussed the parties’ dispute as to whether the confidentiality provision of the 1978 or 1996 agreement, both, or neither, controls, but did not resolve it. (App. at 12-13 & n. 1.) We note the parties' stipulation that "T & B released Luzzi from only the non-compete restriction within his [employment agreement]” (App. at 18615 (emphasis added)), which suggests that Luzzi remained contractually bound not to disclose T & B's confidential information.
. In 1996, Richards developed a prototype for the same type of electrical connector manufactured by T & B for Con Ed. Though the product was successfully tested in isolation, Con Ed informed Richards that, in order to be marketable as a second source, the product had to be physically and electrically compatible with the T & B products already in service, which it was not. In addition, Luzzi testified in his deposition that Con Ed approached him in 1997, in his official capacity as Elastimold’s Director of Engineering, to ascertain whether Elastimold would license its design specifications to Richards to create another product supplier. Luzzi's superiors rejected Con Ed’s request.
.In an order dated October 28, 2005, the District Court realigned the parties to their natural pleading positions, making T & B the plaintiff and the collective Richards the defendants.
. The District Court discussed separately the well-defined New Jersey standard for a misappropriation of trade secrets claim in its opinion of January 12, 2004.
. The District Court also dismissed T & B's tortious interference claim on the ground that it was undisputed that Con Ed approached Richards as a potential second source supplier. The Court had earlier dismissed T & B’s fraud claim on separate grounds in an opinion dated April 3, 2006. T & B does not challenge either dismissal here.
. The more recent Restatement is not fundamentally different: "An agent has a duty (1) not to use property of the principal for the agent’s own purposes or those of a third party; and (2) not to use or communicate confidential information of the principal for the agent’s own purposes or those of a third party.” Restatement (Third) of Agency § 8.05 (2006).
. For example, Walworth testified that he has participated in developing systems to maintain the secrecy of manufacturing and engineering processes for rubber molding products at various companies. The Court rejected Walworth’s testimony regarding security and secrecy because what is done in the rubber molding industry is not necessarily material to what is done in the market for underground electrical connectors. It is difficult to see, however, how Walworth’s expertise in the larger industry of rubber injection molding would be irrelevant and unhelpful to a finder of fact charged with analyzing a subset of the industry, particularly *762given the relatively low standard for admissibility under Rule 702.
. Although before the District Court Richards sought sanctions under both Rule 11 and 28 U.S.C. § 1927, it presses only the denial of Rule 11 sanctions before us. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470740/ | PER CURIAM:
Thong C. Tran appeals his convictions and 60-month concurrent sentences for one count of bankruptcy fraud and two counts of making a false declaration/certificate/verification/statement under penalty of perjury in relation to a bankruptcy proceeding, in violation of 18 U.S.C. §§ 152 and 157. On appeal, Tran argues that the district court reversibly erred by denying Tran’s motion to suppress his post-Miranda1 statement when the court failed to address explicitly Tran’s argument that, before receiving Miranda warnings, he had invoked his post-indictment Sixth Amendment right to counsel when he allegedly requested his bankruptcy lawyer’s business card. Second, he argues that the evidence presented at his suppression *760hearing concerning the request for his bankruptcy attorney’s card and the court’s finding that he testified falsely was insufficient to support the court’s application of a two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1.
I. Invocation of the Right to Counsel
“A district court’s ruling on a motion to suppress presents mixed questions of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.2002). We are “required to accept the district court’s factual findings as true unless they are clearly erroneous, but the district court’s application of the law to the facts is reviewed de novo.” Id. at 749 (quotation omitted).
“The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” Texas v. Cobb, 532 U.S. 162, 167, 121 S.Ct. 1335, 1340, 149 L.Ed.2d 321 (2001) (quotation and alteration omitted). The Supreme Court has explained that:
The Sixth Amendment right to counsel ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Id. at 167-68, 121 S.Ct. 1335 (quotation and alterations omitted). The Sixth Amendment attaches at the initiation of adversary judicial proceedings. Michigan v. Jackson, 475 U.S. 625, 631, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986). “[OJnce a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right — even if voluntary, knowing, and intelligent under traditional standards — is presumed invalid if secured pursuant to police-initiated conversation.” Michigan v. Harvey, 494 U.S. 344, 345,110 S.Ct. 1176, 1177, 108 L.Ed.2d 293 (1990) (citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631). The district court must determine if the accused actually invoked his right to counsel. Smith v. Illinois, 469 U.S. 91, 95,105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984). Whether a defendant has invoked his right to counsel is an objective inquiry. Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994).
In Davis, the petitioner was interviewed regarding his possible involvement in a homicide. Id. at 454, 114 S.Ct. at 2353. Before being interviewed, Davis waived his rights to remain silent and to counsel. Id. at 455, 114 S.Ct. at 2353. A hour and a half into the interview Davis said, “Maybe I should talk to a lawyer.” At that point in the interview, the agents inquired as to whether the petitioner was asking for a lawyer or was just making a comment about a lawyer. Davis replied that he was not asking for a lawyer and that he did not want a lawyer. The interview then continued for another hour until Davis said, “I think I want a lawyer before I say anything else.” The interview then ceased. Id. The Supreme Court stated that:
if the suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Rather, the suspect must unambiguously request counsel.
Id. at 459, 114 S.Ct. at 2355 (citations omitted). The Supreme Court recognized that the requirement for a clear assertion of the right to counsel might disadvantage suspects who because of a lack of linguistic skills would not clearly articulate their *761right to counsel although they actually wanted to have a lawyer present. Id. at 460, 114 S.Ct. at 2356. Nonetheless, the Court believed requiring police officers to make difficult judgment calls about whether a suspect invoked his right to counsel was more problematic. See id. at 461, 114 S.Ct. at 2356.
In the instant case, the district court did not make a specific finding as to whether Tran made his alleged request for his bankruptcy lawyer’s card and, thus, did not explicitly address whether Tran invoked his right to counsel. Nevertheless, remand is unnecessary because, even if Tran had made the request to retrieve his bankruptcy lawyer’s business card, this request was too ambiguous to have constituted an invocation of his right to counsel. See Davis, 512 U.S. at 459, 114 S.Ct. at 2355. As the Supreme Court has stated, a “suspect must unambiguously request counsel.” Id. Here, Tran did not make an unambiguous request. Therefore, the district court did not err when it refused to grant Tran’s motion to suppress.
II. U.S.S.G. § 3C1.1
“Although Booker2 established a ‘reasonableness’ standard for the sentence finally imposed on a defendant, the Supreme Court concluded in Booker that district courts must still consider the Guidelines in determining a defendant’s sentence.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005) (citations omitted). Moreover, “[njothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the Guidelines by a district court.” Id. (reaffirming that the pre-Booker standard as to the Guidelines still applies). “Although under Booker, the Sentencing Guidelines are an advisory rather than a mandatory regime, the district court remains obliged to consult and take into account the Guidelines in sentencing.” Id. (quotations omitted)(emphasis in original). “This consultation requirement, at a minimum, obliges the district court to calculate correctly the sentencing range prescribed by the Guidelines.” Id. (emphasis in original).
Where the district court has to make a particularized assessment of the defendant’s credibility or demeanor in determining whether U.S.S.G. § 3C1.1 applies, such as when applying the obstruction-of-justice enhancement for perjury, we accord special deference to the district court’s credibility determinations and review for clear error. United States v. Banks, 347 F.3d 1266, 1269 (11th Cir.2003).
Section 3C1.1 of the Sentencing Guidelines provides as follows:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of the conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
The commentary to this section notes that “committing, suborning, or attempting to suborn perjury” is an example of conduct to which this enhancement applies. U.S.S.G. § 3C1.1 cmt. n. 4(b). The commentary also notes that “providing materially false information to a judge or magistrate” is an example of conduct to which this enhancement applies. Id., cmt. n. 4(f). In addition, the commentary states that “ ‘[mjaterial’ evidence, fact, statement, or information, as used in this section, means *762evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.” Id., cmt. n. 6. We have held “that the threshold for materiality under the commentary to § 3C1.1 is conspicuously low.” United States v. Odedina, 980 F.2d 705, 707 (11th Cir.1993) (quotation omitted). For this enhancement to apply on a finding of perjury, the four elements of perjury must be present. See United States v. Singh, 291 F.3d 756, 763 (11th Cir.2002). The four elements are “(1) the testimony must be under oath or affirmation; (2) the testimony must be false; (3) the testimony must be material; and (4) the testimony must be given with the willful intent to provide false testimony and not as a result of a mistake, confusion, or faulty memory.” Id. at 763 n. 4.
Furthermore, we have stated that “[wjhen applying this enhancement, the district court should make specific findings as to each alleged instance of obstruction by identifying the materially false statements individually. However, a general finding that an enhancement is warranted suffices if it encompasses all of the factual predicates necessary for a perjury finding.” Singh, 291 F.3d at 763 (quotations, citations, and alterations omitted).
Also, we have established standards for whether a defendant has waived the argument that he is entitled to particularized findings that perjury justifies an obstruction enhancement. See United States v. Hubert, 138 F.3d 912 (11th Cir.1998). In Hubert, the appellant’s sentence was enhanced for obstruction of justice based upon his trial testimony and his prior testimony at two hearings. 138 F.3d at 914-15 (11th Cir.1998). Hubert argued that the district court failed to make a sufficiently detailed finding that he committed perjury and obstructed justice. Id. at 915. While noting the detailed findings were not necessary given the sufficiency of the record, we concluded that, in any event, because Hubert failed to request particularized findings regarding the perjurious statements at the sentencing hearing, he waived this argument. Id.
By failing to request that the court make particularized findings as to the perjurious testimony, Tran has waived this argument. See Hubert, 138 F.3d at 915. Moreover, the court’s general finding that Tran had committed perjury or made materially false statements is sufficient to support the application of the enhancement. See Singh, 291 F.3d at 763. First, Tran testified under oath. Second, the court concluded that Tran’s testimony was false. Third, Tran’s testimony was material because it “would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1, cmt. n. 6. Because the standard for materiality under § 3C1.1 is “conspicuously low,” the fact that Tran’s alleged request for his bankruptcy lawyer’s card, if believed, was insufficient to invoke his right to counsel does not negate the materiality of his testimony because it would tend to influence the court. See Odedina, 980 F.2d at 707. Finally, it is apparent from the record that Tran’s testimony could not have been the result of mistake, confusion, or faulty memory.
Conclusion
Because Tran’s alleged request for his bankruptcy lawyer’s business card was insufficient to invoke his right to counsel and because the court’s general finding supports the application of the U.S.S.G. § 3C1.1 obstruetion-of-justice enhancement, we discern no reversible error. Accordingly, based on a review of the record and the parties’ briefs, we affirm Tran’s convictions and sentence.
AFFIRMED.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470743/ | OPINION
McKEE, Circuit Judge.
Mark Brantley appeals his conviction and the sentence that was imposed after a jury found him guilty of unlawful possession of a firearm by a felon. As we shall explain, although we have concerns about the trial proceedings, the record does not support any relief, and we must therefore affirm the judgment of conviction and sentence.
I. Background
Brantley was arrested on June 3, 2005 in New Brunswick, New Jersey for being in a location that was off-limits to him under a “Drug Offender Restraining Order” (“DORO”) that a New Jersey court had entered against him the previous month pursuant to New Jersey’s Drug Offender Restraining Order Act (“DORO Act”), N.J. Stat. Ann. § 2C:35-5.4 et seq.
The arrest occurred after Police Lieutenant Paul Schuster observed Brantley “walking into the area of Lee Ave. and Handy St.” Since Schuster knew that Brantley was well within the area prohibited by the DORO, he directed Detectives Christopher Plowucha and Ronoldy Martinez to arrest Brantley for violating the DORO. While arresting him, Detective Martinez handcuffed Brantley and then conducted a limited “pat down” search of his outer clothing for “any type of contraband.”
Detective Martinez decided not to search Brantley more thoroughly at the time of the arrest because a crowd had gathered across the street. Rather, the Detective thought it best to quickly remove Brantley from the scene and do a more complete search at the police station. After Brantley was taken to the police station, police discovered that he was carrying a handgun, and he was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (2).
Before the ensuing trial, Brantley filed a pretrial motion requesting an “innocent possession” jury instruction. The judge reserved decision on the motion.
For reasons that are not at all apparent on this record, Brantley was brought into the courtroom for his trial with shackles on *765his ankles. The record does not reveal who made the initial decision to shackle Brantley, how that decision was made, or why it was made. However, the Assistant United States Attorney raised the issue of shackling during the trial, apparently in an effort to create a record that would support the restraint. In response, the district court noted that Brantley posed no apparent security threat. However, the judge explained, he never “second-guessed” the judgment of the United States Marshals Service, who ensure the safety of the courthouse, and Brantley remained shackled.
Before Brantley took the stand to testify in his own defense, defense counsel objected to Brantley being shackled during his testimony. The district court stated: “I’m going to make this very simple: I leave that up to the Marshals. They are the first line ... and if they want those shackles to stay on, they will stay on.” However, the Deputy Marshal in the courtroom did not affirm the necessity for the restraints. Instead, he stated that he would have to “defer to [sic] a supervisor before [they] could make that decision.” The district court did not allow the Deputy to consult a supervisor, and instead ruled that Brantley suffered “no unfair prejudice” by being shackled. Brantley was, thus, shackled for the duration of the trial.1
Brantley admitted to possessing the gun, but testified that he was headed to the police department to surrender the gun when he was arrested. He explained that he did not immediately turn over the gun because he was concerned that the police might overreact “in the chaos of the arrest.” At the station, Brantley allegedly told Detective Plowucha that he wanted to “lawfully surrender a handgun to the New Brunswick police department.” According to Brantley, Plowucha “was shocked” and asked Brantley where the gun was located. Brantley then lifted the back of his coat and exposed the handle of the gun that was tucked into his waistband.
As noted at the outset, the jury convicted Brantley of being a felon in illegal possession of a firearm, and the district court refused to give the requested “innocent possession” instruction. It did so because: 1) the court believed that application of the innocent possession defense to the charge of felon in possession of a firearm undermined the congressional intent of keeping guns out of the hands of felons that is reflected in 18 U.S.C. § 922(g)(1); 2) the doctrine has not been accepted in this jurisdiction; and 3) Brantley’s own testimony negated the factual predicate for the defense because Brantley conceded that he made no effort to surrender the gun when he was first approached by the police.
The Presentence Report (“PSR”) calculated a guidelines range of 120 to 150 months imprisonment,2 and recommended *766that Brantley not receive a two-level downward adjustment for acceptance of responsibility. Brantley argued that his sentence should be reduced because of his troubled upbringing, his drug addiction, his positive and consistent relationship with his wife and children, and because he was already serving a sentence of imprisonment. The district court denied the two-level adjustment for acceptance of responsibility because Brantley had not “truthfully admitted to his conduct.” The court also rejected Brantley’s arguments for leniency and imposed the maximum sentence. This appeal followed.
II. Brantley Was Not Entitled to an “Innocent Possession” Charge
Brantley first argues that the district court erred in not giving an “innocent possession” charge to the jury because he took possession of the firearm only so that he could deliver it to police. See United States v. Mason, 233 F.3d 619, 623 (D.C.Cir.2000) (recognizing an innocent possession defense to a section 922(g)(1) charge and noting that Congress could not have intended the “absurd” result of permitting a conviction based on mere knowing possession). Brantley argues that the transitory and innocent possession of a firearm is a defense to 18 U.S.C. § 922(g)(1), and that the instruction was justified by the evidence. Appellant’s Br. at 18-31.
We review the trial court’s refusal to' give a specific jury charge for abuse of discretion. United States v. Leahy, 445 F.3d 634, 642 (3d Cir.2006). As the district court recognized, this court has not ruled on the viability of the innocent possession defense in the context of a section 922(g)(1) charge. The district court concluded that the charge was not warranted by the evidence because Brantley had several opportunities to inform police that he was carrying a gun before they discovered it. We agree.
Even if we accept Brantley’s testimony that he voluntarily disclosed the gun and surrendered it at the police station, it is not disputed that he was stopped on the street by police, searched, and then driven to the police station before he said anything about having a gun. He admits that he did not inform police that he had a gun at any point before reaching the station. Brantley therefore conceded that he possessed the gun longer than necessary to surrender it. See United States v. White, 552 F.3d 240, 249 (2d Cir.2009) (declining to decide “whether to recognize an innocent possession in the section 922(g)(1) context,” but ruling that the trial court did not abuse its discretion in declining to charge the jury on the defense where defendant “failed to adduce sufficient evidence that he possessed the shotgun only for as long as necessary to vitiate a potential threat” to a third party). Thus, even assuming arguendo that innocent possession is a viable defense to a section 922(g)(1) charge and accepting Brantley’s testimony, we cannot conclude that the district court abused its discretion in refusing to give the requested charge on this record.
III. The Arresting Officers Properly Relied on the DORO
Brantley next claims that the statute authorizing the DORO that was imposed on him and that was the basis of his arrest denied him substantive due process of law by unduly restricting his movement. The DORO Act authorizes a court, upon application of a law enforcement officer or prosecuting attorney under specified circumstances, to prohibit certain persons from entering an area where the offense “occurred or is alleged to have occurred or is affected by the criminal offense with which the person is charged.” N.J. Stat. *767Ann. § 2C:35-5.7(a) referencing N.J. Stat. Ann. § 2C:35-5.6.
Brantley does not dispute that the DORO was issued by a judge, based on probable cause, and pursuant to the statute. As the government correctly notes, police officers may in good faith rely on the validity and constitutionality of laws passed by the legislature, with the “possible exception” of laws “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see [them] flaws.” Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); see Illinois v. Krull, 480 U.S. 340, 350-55, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). Here, Brantley has not demonstrated that the DORO Act suffers from these infirmities. Thus, the arrest was valid, and we need not dwell on Brantley’s contention that the restraining order or the underlying ordinance was unconstitutional.3
IV. The Use of Shackles
Brantley’s next claim is much more troubling. He argues that his Fifth Amendment right to a fair trial was violated because he was shackled during his testimony. We review the district court’s decision to require a defendant to wear shackles for an abuse of discretion. Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005).
It is well-settled that shackling a defendant during trial is an extraordinary measure; “no person should be tried while shackled ... except as a last resort.” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).4 As the Supreme Court more recently explained in Deck v. Missouri, shackling a defendant is inherently prejudicial because it implicates three fundamental legal principles: 1) the presumption of innocence; 2) the right to counsel, including the right to participate in one’s defense and the right to testify5; and 3) judicial responsibility for the dignity and decorum that preserves the judicial process. Deck, 544 U.S. at 630-31, 125 S.Ct. 2007. Thus, the Court concluded, “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court deter*768mination ... that they are justified by a state interest specific to a particular trial.” Id. at 629, 125 S.Ct. 2007.
Accordingly, the trial judge “must make a case specific and individualized assessment” of the defendant on trial, taking into account special security needs or the escape risk of the defendant.6 Baker, 432 F.3d at 1244 (citing Deck, 544 U.S. at 633, 125 S.Ct. 2007). The judge must also consider alternatives to shackling. See Allen, 397 U.S. at 344, 90 S.Ct. 1057; see also Szuchon v. Lehman, 273 F.3d 299, 314 (3d Cir.2001) (holding that the trial court properly ordered that defendant be shackled after defendant violently assaulted a witness in front of the jury and after carefully considering alternatives, such as “barring [the defendant] from the courtroom or issuing a contempt citation”). “[T]he defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.’” Deck, 544 U.S. at 635, 125 S.Ct. 2007 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
Nevertheless, even though nothing on this record establishes that the district court undertook the inquiry it should have before allowing Brantley to be shackled during his trial, we can conclude beyond a reasonable doubt that Brantley’s shackles did not contribute to the verdict or undermine his testimony. When he testified, Brantley admitted two of the three elements of the crime he was charged with, and he did not contest the third.7 Brant-ley testified that he was a felon and admitted that he possessed the gun in question, and the government’s testimony regarding interstate commerce was not disputed.8
To be clear, however, we are extremely troubled by the district court’s decision to allow Brantley to remain shackled in the courtroom with absolutely no inquiry into the necessity for that drastic action and certainly no finding that would support it.9 As noted above, the court stated that it would completely defer to the Marshals in *769the courtroom. In doing so, the court abdicated its discretion, and thereby abused that discretion. Ray v. Robinson, 640 F.2d 474, 478 (3d Cir.1981) (“If a district court fails to exercise its discretion, that is itself an abuse of discretion.”).10 It is the judge’s responsibility to ensure that defendants receive due process and fundamental fairness; it is not the job of the U.S. Marshals.
The shackling here is rendered even more troubling when we consider that the Marshals were not prepared to justify a decision to keep Brantley in shackles. When asked for their view, they requested leave to discuss the issue with their supervisor, but the court denied that request. Rather than indulge the Marshals and tolerate a brief delay to determine why shackling might be necessary, the court pressed forward requiring Brantley to suffer the inherent indignity of being shackled during his trial. The court did this based upon its conclusory finding that there was “no unfair prejudice.” In the absence of a documented need for the restraint, declaring “no unfair prejudice” is hardly consistent with the court’s solemn obligation of ensuring that those who come before it are treated with appropriate dignity and afforded due process. A declaration of “no unfair prejudice” is no substitute for a meaningful inquiry into the need to restrain a defendant during trial, and it cannot cure the injury that results to the decorum of the courtroom or the dignity of the individual if restraints are not actually necessary.
Furthermore, the district court’s focus on obscuring the shackles from the jury’s view was misguided. Visible shackles, without justification specific to the defendant, clearly violate due process. Deck, 544 U.S. at 629, 125 S.Ct. 2007. Although courts can take measures to obscure shackles — and should do so even in the rare circumstances that justify shackling — obscured shackles are no less an indignity than visible ones. Moreover, relief may still be appropriate even despite efforts to hide restraints from the jury. See, e.g., Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir.1999) (granting habeas petition based on evidence that the jury saw defendant’s shackles during a trial in which the trial judge instructed defendant to keep his legs under counsel table and escorted defendant to and from the courtroom outside the jury’s presence in order to hide the shackles).
*770Here, though the district court made many efforts to conceal them, Brantley’s shackles may have been visible to jurors during at least part of his testimony. The record reflects that the witness box had spindles through which jurors may have been able to see his legs. In the middle of Brantley’s testimony, after realizing the possibility that the shackles might be visible to the jury, the court decided to put a chair in front of the witness stand. As noted above, the court also placed two Marshals near Brantley in an effort to hide the shackles from the jury while they entered and exited the jury box. Though such contortions may successfully obscure shackles from the jury’s view, see United States v. Tagliamonte, 340 Fed.Appx. 73, 79-82 (3d Cir.2009),11 courts unnecessarily risk the defendant’s fundamental right to a fair trial by relying on them.12 It is also highly risky to assume that the same jurors whom we expect to be alert and attentive during trial will not notice the sudden and unexplained appearance of a chair in front of the jury box or Marshals standing near the defendant as he testifies.
Although Brantley is not entitled to relief, no court should take imposing restraints lightly or cavalierly. Unjustified shackling is a remnant of an earlier era when the accused was brought from prison to the courtroom in chains, unkempt and wearing (at best) prison attire, following which he was exposed to a jury in the worst possible light. The practice evokes fite dehumanizing specter of slavery, and is far from the law’s promise of respect owed to each individual, including the accused. See Allen, 397 U.S. at 350-51, 90 S.Ct. 1057 (Brennan, J., concurring) (concluding that shackling and gagging offend “not only judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law”). It is an extreme measure, that the Supreme Court considers “a last resort.” Any court considering such an extreme measure must first establish that it is actually necessary, not simply a matter of practice or convenience. And in making such a determination, a district judge must scrupulously “make a case specific and individualized assessment” that supports his decision to shackle a defendant and provides a reviewing court with an adequate record. There is certainly nothing convenient about requiring anyone to suffer the indignity of shackling unless his or her own conduct justifies it. We will therefore not hesitate to order a new trial for this kind of abuse of discretion in an appropriate case.
V. The District Court Properly Denied a Downward Adjustment for Acceptance of Responsibility
Finally, Brantley claims that the district court erred in refusing to grant a two-level guideline reduction for acceptance of responsibility. “We review factual findings underlying the denial of a Sentencing Guidelines reduction for acceptance of responsibility for clear error....” United States v. Lessner, 498 *771F.3d 185, 199 (3d Cir.2007). This argument is puzzling because, as the government notes, Brantley did not accept criminal responsibility. Rather, he vigorously argued that he did not have the mens rea required to commit the offense he was charged with, and adheres to that position even now. Brantley does not simply challenge the constitutionality of his arrest; instead, he has consistently maintained that he was on his way to the police station to surrender the gun when he was apprehended even though, as the district court determined and as we have explained, his own testimony fatally undermines that claim. In denying the acceptance of responsibility reduction, the district court found that Brantley had not “truthfully admitted to his conduct,” and the “facts [ad]duced at trial do not support” his claim that he was attempting to return the firearm. We agree.
VI. Conclusion
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. In an effort to prevent the jury from seeing Brantley in shackles, the district court arranged for him to be taken to and from the witness box in the jury’s absence. The court also ordered two Marshals to stand near Brantley so that the jury could not see Brant-ley’s legs or ankles as they entered the jury box. Brantley objected to both the shackles and the arrangement with the Marshals, arguing that the shackles and the Marshals' proximity suggested that he was incarcerated. The judge responded, "Mr. Brantley, you got yourself into that trouble, not me.... You have exactly what you should have on under these circumstances. They’re not coming off."
The court's response is as perplexing as it is confusing as the judge had himself earlier confirmed that Brantley's behavior and demeanor in the courtroom had been perfectly appropriate.
. The statute, however, sets a maximum term of imprisonment of 120 months.
. Brantley also contends that the DORO was issued in violation of his procedural due process rights because he was never given a meaningful opportunity to present evidence to challenge any perceived necessity of issuing the restraining order, and that he was not represented by counsel when the DORO was issued. However, Brantley has failed to develop this argument. He offers nothing more than two unsupported and conclusory sentences in his brief. See Appellant's Br. at 38.
. United States v. Van Sach, 458 F.3d 694, 699 (7th Cir.2006) ("Shackling a defendant is an extreme measure and we understand the prejudice that such an order can have on the jury.”); United States v. Baker, 432 F.3d 1189, 1244 (11th Cir.2005) ("[Tjhe decision to use shackles to restrain a defendant at trial should rarely be employed as a security device.”) (internal citation omitted); Tyars v. Finner, 709 F.2d 1274, 1284 (9th Cir.1983) ("Shackling ... must be limited to cases urgently demanding that action.”); Kennedy v. Cardwell, 487 F.2d 101, 110 (6th Cir.1973) ("[T]he general rule [is] that a fair trial demands that a defendant be tried free of bonds except in extraordinary circumstances.”).
. Given the ignominious history and physical burden of shackles, it is no wonder that courts have long expressed concern that shackles may affect the mental state of the defendant. See People v. Harrington, 42 Cal. 165, 168-169 (1871) (stating that shackling "inevitably tends to confuse and embarrass [the defendant’s] mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense,” especially regarding his ability to be a "competent witness and testify[] on his own behalf”); Hauser v. People, 210 Ill. 253, 71 N.E. 416, 421 (1904) (holding that physical bonds "might lend to confuse or embarrass [the defendant's] mental faculties”).
. Many courts have laid out factors a trial court may consider in determining whether physical restraints are appropriate, some of them obvious. See, e.g., People v. Boose, 66 Ill.2d 261, 5 Ill.Dec. 832, 362 N.E.2d 303, 305-06 (1977). Courts have also recommended holding a formal hearing, during which the parlies may present relevant evidence and suggest alternative security measures. See, e.g., Kennedy, 487 F.2d at 107 ("Several courts, including this one, have recognized that the physical indicia of innocence are so essential to a fair trial that the better practice is to hold a hearing so that factual disputes may be resolved and evidence of the facts surrounding die decision are made a part of the record.”).
. Although the argument is not well-developed by Brantley, the same analysis applies to his argument that the Marshals’ proximity to him during his testimony may have caused the jury to infer that he was dangerous or a risk of flight. Yet, we are similarly troubled by the court's failure to recognize the risk of prejudice that could have resulted from stationing Marshals near Brantley while he was on the witness stand.
. The government presented testimony that the gun was manufactured in Maryland. Brantley was in New Jersey at the time of his arrest.
. Although the AUSA attempted to justify shackling Brantley by referencing his extensive record, it is a regrettable fact that Brant-ley's record is no more imposing or threatening than that of many others who pass through the nation's courtrooms. Yet, countless scores of other defendants with similar or worse criminal records are tried every day without shackles and without incident. This is especially true given the high volume of cases involving drug traffickers that have become the daily fare of all too many federal trial courts. See United States v. Navarro, 476 F.3d 188, 191-92 (3d Cir.2007) ("Possession of a gun is often a practical prerequisite for the sale of controlled substances or commission of other violent acts.”).
*769Therefore, if shackling is justified based only upon Brantley's criminal record, very few defendants would be able to stand trial in, much less enter, the nation’s courtrooms free of shackles and restraints. See United States v. Miller, 531 F.3d 340, 346 (6th Cir.2008) (holding “neither [defendant's] lack of honesty nor his potential prison sentence — without evidence indicating that he posed a threat to courtroom security — suffices as such an essential interest. Were we to accept the government’s position ..., the implementation of physical restraints would become essentially routine in federal drug and firearm prosecutions. This is clearly beyond what the Constitution permits.”).
. Lopez v. Thurmer, 573 F.3d 484, 492 (7th Cir.2009) (noting that the “constitutional infirmity” of allowing law enforcement officials to make decisions implicating due process “is, to put it mildly, firmly established”); Miller, 531 F.3d at 346 (holding that “[b]y deferring to the Marshals' judgment [regarding the use of a stun belt], the district court abdicated its responsibility and thus abused its discretion.”); United States v. Mayes, 158 F.3d 1215, 1226 (11th Cir.1998) (holding that “trial judges should not blindly defer to the recommendation of law enforcement officials as to the appropriateness of shackling without independently reviewing the facts and circumstances thought to warrant such a security measure and carefully considering the legal ramifications of that decision"); Hameed v. Mann, 57 F.3d 217, 222 (2d Cir.1995) (holding that "[i]n determining what restraints are necessary, the court cannot properly delegate that decision to guards or other prison officials but must decide that question for itself”).
. In Tagliamonte, a defendant was tried in shackles before the same trial judge after tire judge took precautions to ensure that the shackles could not be seen by the jury. We would not expect a judge to allow defendants to be routinely shackled. Tagliamonte, like Brantley, was not able to demonstrate prejudice. Tagliamonte could not do so because it was clear that the jury did not see the shackles. As we have explained, Brantley cannot do so because his testimony virtually conceded the elements of the crime he was charged with.
. Moreover, courts must consider the implications of shackles on the other fundamental legal principles laid out in Deck, including the impact on the defendant’s ability to participate in his defense and the dignity of the defendant. See Deck, 544 U.S. at 630-31, 125 S.Ct. 2007. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470744/ | OPINION OF THE COURT
ELLIS, Senior District Judge.
Shawn Brooks appeals from the District Court’s grant of summary judgment in favor of his former employer on the employment discrimination claims he brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. Because we agree with the District Court that the record does not contain evidence from which a jury could reasonably conclude that Brooks was subjected to a hostile work environment or constructively discharged, we will affirm.
I.
Because we write solely for the benefit of the parties, we only briefly summarize the essential, undisputed facts. In September 2000, Shawn Brooks began working as an account executive for Infinity Broadcasting Corporation (“Infinity”), a corporation which is now named CBS Radio, Inc. (“CBS Radio”). In that position, Brooks sold advertising on radio station WYSP in connection with its broadcast of Philadelphia Eagles football games. Among the approximately twenty-five account executives at WYSP, Brooks was the only African-American. Brooks’s immediate supervisor was Joseph Zurzolo, the Eagles Radio Network’s Sales Manager. Zurzolo was supervised by Peter Kleiner, WYSP’s General Sales Manager, who was in turn supervised by Ken Stevens, WYSP’s General Manager.
On May 9, 2001, Zurzolo held a sales meeting with the account executives for the Eagles Radio Network. During the meeting, Zurzolo distributed a book entitled New Dress for Success and stated, “Per human resources, use it.” Zurzolo distributed the book, which was recommended to him by Jeffrey Snodgrass, WYSP’s Sports Sales Manager, because he felt one of the account executives, a white female, was dressing too casually at work. Zurzolo did not read the book before distributing it.
After reading New Dress for Success, Brooks was offended by a number of the book’s passages.1 On May 10, 2001, *773Brooks called Sandy Shields, WYSP’s Business Manager and Human Resources Director, to complain about the book. Shields told Brooks that he had a right to be upset and that she would look into the matter. Shields contacted Stevens, who instructed her to collect all copies of the book that had been distributed to the station’s employees. Shields then contacted Kleiner, and together they collected all copies of the book, except for Brooks’s copy. Kleiner also verbally reprimanded Zurzolo for distributing New Dress for Success without reading it first. One week after the book’s distribution, Kleiner attended an Eagles Radio Network sales meeting and told the staff that the book did not represent the views of Infinity, himself, or Zurzolo, who had not read the book prior to its distribution. Brooks, who after the book’s distribution returned to the office only once, on May 28, 2001, to submit a resignation letter and collect his personal items, was not present and did not know that Kleiner had addressed the staff regarding the book’s distribution.
Following two additional telephone conversations with Shields on May 10 and May 11, 2001, Brooks felt Shields was not going to resolve the matter adequately. Although Zurzolo and Kleiner left several phone messages for Brooks asking him to call them, Brooks never communicated with any of his supervisors about the book’s distribution because he did not trust them. Zurzolo had offended Brooks on a number of occasions prior to the book’s distribution. Specifically, Brooks makes the following additional allegations, which CBS Radio does not dispute for summary judgment purposes:
(i) On one occasion, Zurzolo made a comment to Brooks about “having to go with [Brooks’s] fiancée,” a statement perceived by Brooks to mean that Zur-zolo wanted to have sex with his fiancée.
(ii) On several occasions, Zurzolo “palmed,” or put his hand on, the head of an African-American receptionist, a gesture Brooks viewed as racially offensive.
(iii) On several occasions, Zurzolo used ethnic slurs, including “dago,” in reference to himself.
(iv) On one occasion, Zurzolo inappropriately touched an African-American receptionist while on a sales call.
*774(v) On one occasion, someone stole a promotional banner relating to Brooks’s ING Direct account, an act Brooks perceived as racially motivated.
Although Infinity had adopted a non-discrimination and anti-harassment policy that encouraged employees to report offensive conduct, Brooks did not tell anyone in the office about these incidents because he felt such conduct was tolerated and accepted.2
On May 16, 2001, Brooks filed a complaint with the Pennsylvania Human Relations Commission (“PHRC”), for dual filing with the EEOC, alleging that Infinity had discriminated against him based on his race in violation of the Pennsylvania Human Relations Act by (i) subjecting him to a hostile work environment and (ii) causing his constructive discharge. Brooks’s administrative complaint did not identify any allegation of harassment other than the book’s distribution. After the PHRC found probable cause to believe the book’s distribution violated the Pennsylvania statute and after the parties engaged in discovery, the PHRC held a public hearing on November 6 and November 7, 2003, before a hearing panel of three commissioners. At the hearing, Brooks testified about the book’s distribution, as well as the other incidents of conduct he found offensive.
On February 28, 2005, the PHRC hearing panel issued findings of fact, conclusions of law, and an opinion, all of which were adopted by the full PHRC in its final order. Relying on both the book’s distribution and three of Brooks’s additional allegations of harassment, the PHRC found Brooks had established both his hostile work environment claim and his constructive discharge claim and awarded him $614,262 in economic damages.
On April 5, 2005, Infinity petitioned the Commonwealth Court of Pennsylvania to review the PHRC’s decision. After the petition was granted, Brooks joined in the PHRC’s brief and participated in oral argument. On February 9, 2006, the Commonwealth Court reversed the PHRC’s decision, finding (i) that the PHRC should have considered only the book’s distribution because Brooks did not include the additional allegations of harassment in his PHRC complaint; and (ii) that the book’s distribution was not sufficiently severe or pervasive to create a hostile work environment or cause constructive discharge. The Pennsylvania Supreme Court denied the petitions for review filed by the PHRC and Brooks.
On February 7, 2007, Brooks filed this civil action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. CBS Radio filed a motion to dismiss on the ground that Brooks’s action was foreclosed by the doctrine of issue preclusion and alternatively sought summary judgment. Although the District *775Court denied the motion to dismiss,3 it granted CBS Radio’s motion for summary judgment. Brooks timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Summary judgment is appropriate only where, on the basis of the undisputed material facts, the moving party is entitled to judgment as a matter of law. See Rule 56(c), Fed.R.Civ.P.; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the facts must be viewed, and all reasonable inferences must be drawn, in the light most favorable to the non-moving party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir.1996). Where, as here, the nonmoving party bears the burden of proof at trial, the moving party is entitled to summary judgment on showing that there is a lack of evidence to carry the non-moving party’s burden on an essential element of that party’s cause of action. See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. Our review of the grant of summary judgment is plenary. Moore v. City of Phila., 461 F.3d 331, 340 (3d Cir.2006).
III.
The principles guiding our analysis of Brooks’s hostile work environment claim are clear. To establish a Title VII claim for employment discrimination based on race and due to a hostile work environment, a plaintiff must show (1) that he suffered intentional discrimination because of race; (2) that the discrimination was severe or pervasive; (3) that the discrimination detrimentally affected him; (4) that the discrimination would have detrimentally affected a reasonable person of the same race in his position; and (5) that there is a basis for vicarious liability. See Jensen v. Potter, 435 F.3d 444, 449 & n. 3 (3d Cir.2006), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.2005). Properly conducted, this analysis “must concentrate not on individual incidents, but on the overall scenario.” Cardenas v. Massey, 269 F.3d 251, 261 (3d Cir.2001) (internal quotation marks and citations omitted); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”).
In this case, the District Court’s analysis of Brooks’s hostile work environment claim focused on the first two elements, and the District Court determined that a reasonable jury could neither find that Brooks had suffered intentional discrimination because of his race nor conclude that he had encountered severe or pervasive harassment. Viewing all of the facts in the light most favorable to Brooks, we agree that Brooks’s hostile work environment claim cannot survive a motion for summary judg*776ment. First, a reasonable jury could not find from the record evidence that the incidents of harassment of which Brooks complains were motivated by a racially discriminatory animus. To be sure, the incidents of record may well suggest that Zurzolo was far from a model supervisor and repeatedly exercised poor judgment, including on the occasion when he distributed a book he had not read that contained racially offensive passages. Yet, importantly, Title VII does not represent “ ‘a general civility code for the American workplace’ ” and instead provides relief only to employees who suffer severe or pervasive harassment because of a reason prohibited by Title VII. Jensen, 435 F.3d at 449 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Here, there is simply nothing to suggest that Zurzolo or any other CBS Radio employee intentionally discriminated against Brooks because of his race.4
Moreover, even assuming Brooks could establish that he suffered intentional discrimination because of his race, his hostile work environment claim would still fail because it is pellucidly clear that the incidents he has identified do not constitute the kind of severe or pervasive harassment required by Title VII. See Harris, 510 U.S. at 21-22, 114 S.Ct. 367. It is well established that to prove the second element of a hostile work environment claim, a plaintiff must show that his workplace was “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal quotation marks and citation omitted). Further, it is not sufficient for Brooks to have subjectively perceived the harassment as severe or pervasive; the conduct in question must also be so severe or pervasive that it creates an objectively hostile work environment. See Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir.2001).5 In this respect, it is clear *777that “[o]ecasional insults, teasing, or episodic instances of ridicule are not enough; they do not ‘permeate’ the workplace and change the very nature of the plaintiffs employment.” Jensen, 435 F.3d at 451. In determining whether harassment is sufficiently severe or pervasive to give rise to a Title VII action, courts must “look[ ] at all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23, 114 S.Ct. 367.
These principles, applied here, compel the conclusion that no reasonable jury could find that Brooks experienced racial harassment so severe or pervasive that it “alter[ed] the conditions of [his] employment and create[d] an abusive environment.” Morgan, 536 U.S. at 116, 122 S.Ct. 2061. Although Brooks was understandably offended by the contents of the book he was instructed by Zurzolo to read and follow, the record is clear that Zurzolo did not know about the book’s offensive passages and that employees were quickly informed that the book did not reflect the views of the company or their supervisors. Given this, the distribution of New Dress for Success does not represent sufficiently severe harassment to support a Title VII hostile work environment claim. Nor does this conclusion change when the other incidents of which Brooks complains are taken into account. The harassment Brooks alleges he faced in his workplace was not particularly frequent and was certainly not physically threatening or humiliating; indeed, it is difficult to conceive how the alleged harassment would have had any real interference with Brooks’s work performance. In short, all of the alleged incidents, taken together and viewed in the light most favorable to Brooks, fail to establish that the workplace at WYSP was “permeated with discriminatory intimidation, ridicule, and insult” such that the nature of Brooks’s employment was changed, and the District Court’s grant of summary judgment on Brooks’s hostile work environment claim was appropriate for this reason alone. Id.
We reach the same conclusion for essentially similar reasons with respect to Brooks’s constructive discharge claim. To establish constructive discharge, a plaintiff must show that “the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.1984); see also Aman, 85 F.3d at 1084. Here, Brooks cannot rely on any of the indicators often raised by employees who assert constructive discharge claims. He was never threatened with discharge, nor did CBS Radio ever urge or suggest he resign or retire. He was not demoted, and his pay and benefits were not reduced. He was not involuntarily transferred to a less desirable position, his job responsibilities were not altered in any way, and he was not given unsatisfactory job evaluations. See Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.1993) (noting, in reversing judgment in favor of plaintiffs constructive discharge *778claim, that plaintiff could not show the above-named factors). Additionally, “a reasonable employee will usually explore ... alternative avenues thoroughly before coming to the conclusion that resignation is the only option.” Id. Yet, Brooks stopped coming to work immediately after the book’s distribution and had no communication with any of his supervisors about any of the incidents. Moreover, given our conclusion that Brooks has failed to present any evidence of intentional racial discrimination or of severe or pervasive harassment, it follows that a reasonable person in Brooks’s position would not have felt compelled to resign. Accordingly, the District Court appropriately granted CBS Radio’s motion for summary judgment as to Brooks’s constructive discharge claim.
In addition to his arguments that the District Court erred in determining that a jury could not reasonably conclude that he was subjected to a hostile work environment or constructively discharged, Brooks’s primary contention in this appeal is that the District Court erred in considering facts that were not explicitly found by the PHRC. Brooks’s argument, distilled to its essence, is that (i) because, under Pennsylvania state law, a state court reviewing a PHRC decision is limited to determining whether “substantial evidence” exists to support the PHRC’s findings, see Harrisburg Sch. Dist. v. Pennsylvania Human Relations Comm’n, 77 Pa.Cmwlth. 594, 596, 466 A.2d 760 (1983), and (ii) because federal law “requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged,” Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), the PHRC’s factual findings have preclusive effect in this action and, moreover, represent the only facts that could be considered by the District Court. Although Brooks’s two premises are correct, the conclusion he wishes us to draw plainly does not follow. First, while it is clear that a state court’s judgment affirming a state administrative agency’s determination is entitled to preclusive effect in a subsequent Title VII action under 28 U.S.C. § 1738, see Kremer, 456 U.S. at 463, 102 S.Ct. 1883, it is equally well established that unreviewed state administrative proceedings do not receive preclusive effect on Title VII claims brought in federal court, see Univ. of Tenn. v. Elliott, 478 U.S. 788, 796, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). Here, although the state administrative proceeding was reviewed by a state court, that state court reversed the PHRC’s decision. Given this, the PHRC’s findings of fact clearly cannot be given the preclusive effect that Brooks asserts. Moreover, even if the Pennsylvania Commonwealth Court had affirmed the PHRC’s decision and the PHRC’s findings were accordingly entitled to receive preclu-sive effect in federal court, they would not, as Brooks suggests, become the factual record or the sole facts the District Court could consider. Rather, under settled Pennsylvania principles of issue preclusion, the parties would be foreclosed from relit-igating “ ‘an issue of fact or law which was actually litigated and which was necessary to the original judgment.’ ” Dici v. Pennsylvania, 91 F.3d 542, 548 (3d Cir.1996) (quoting Hebden v. Workmen’s Comp. Appeal Bd., 534 Pa. 327, 330, 632 A.2d 1302 (1993)). There is thus no merit to Brooks’s claim that the District Court erred in considering facts not found by the PHRC.6
*779IV.
We have considered all of Brooks’s arguments on appeal, and none succeed to persuade. Because a jury could not reasonably conclude that Brooks was subjected to a hostile work environment or constructively discharged, we -will affirm the judgment of the District Court.
. Specifically, Brooks was offended by, inter alia, the following passages:
(i) "If you are black selling to white Middle America, dress like a white .... This clothing conveys that you are a member of the establishment and that you are pushing no radical or other feared ideas.”
(ii) "Blacks selling to whites should not wear Afro hairstyles or any clothing that is African in association. If you are selling to corporate America, it's very important that you dress, not as well as the white salesman, but better than them. You have to wear suits, shirts and ties that are expensive *773and more conservative than your white coworkers.”
(iii) "If you are white selling to blacks, you will fare much better if you dress in non-establishment patterns. Black America is essentially divided into two camps, establishment and anti-establishment, and the divisions are not dictated by income alone .... Almost all members of Northern ghettos who are in the lower socioeconomic groups are understandably antiestablishment .... The black establishment includes all blacks who have made it along with almost all Southern, rural blacks, no matter what their position. Southern blacks do not consider themselves disenfranchised
(iv) “When selling to middle class blacks, you cannot dress like a ghetto black ...."
(v) “It is an undeniable fact that the typical upper-middle-class American looks white, Anglo-Saxon and Protestant. He is of medium build, fair complexion with almost no pronounced physical characteristics. He is the model of success; that is, if you run a test, most people of all socioeconomic, racial and ethnic backgrounds will identify with him as such.”
(vi)"The two groups who have the most problems with their appearances are black men and Hispanic men. It is unfortunate but true that our society has conditioned us to look upon members of both groups as belonging to the lower classes, and no matter how high a minority individual rises in status or achievement, he is going to have some difficulty being identified by his success rather than his background. But clothing can help.”
(Administrative Record ("A.R.”) at 69-74.)
. Infinity's policy stated that the corporation “will not tolerate any form of harassment on account of race’’ and that "[h]arrassing conduct includes, but is not limited to[,j epithets, slurs or negative stereotyping; threatening, intimidating or hostile acts; denigrating jokes and display or circulation in the workplace of written or graphic material that denigrates or shows hostility or aversion toward an individual or group (including through e-mail).” (Supp. A.R. at 17, 19.) The policy further instructed employees to “report their complaints to their immediate supervisor, their Department Head, their Station Manager, their Station's designated Ombudsperson, or the Human Resources Department before the conduct becomes severe or pervasive” and advised that "[I]ndividuals should not feel obligated to file their complaints with their immediate supervisor first before bringing the matter to the attention of one of the other Infinity designated representatives identified above.” (Id. at 17.)
. The District Court reached this conclusion by first finding that, under federal law, Brooks had administratively exhausted his five additional allegations of harassment and that these incidents could be considered as part of Brooks's hostile work environment and constructive discharge claims in federal court. Because the Pennsylvania Commonwealth Court had determined that, under state law, Brooks had failed to exhaust the additional allegations, the District Court concluded that the issue decided in the prior state adjudication was not identical to the one before it and accordingly denied the motion to dismiss on the ground of issue preclusion. CBS Radio did not cross-appeal this ruling.
. There is some force to Brooks's argument that the District Court misapplied the "totality of the circumstances” test when determining Brooks could not show that he suffered intentional discrimination because of his race. The District Court began this section of its analysis by noting that although "[f]aeially neutral conduct in addition to overt racial discrimination can support a hostile work environment claim[,] ... there must be at least some overt racially hostile words or conduct to signal the invidious nature of the facially neutral conduct.” (A.R. at 23.) The District Court then concluded that "because there were no overtly or explicitly racially hostile comments or conduct directed at either Mr. Brooks or others,” the undisputed evidence in the record failed to raise a genuine issue of fact as to whether the alleged conduct was intentionally based on race. (A.R. at 24.) As Brooks correctly notes, this line of reasoning conflicts with language found in Aman, where this Circuit indicated that acts of harassment need not be "accompanied by racially discriminatory statements.” Aman, 85 F.3d at 1083; see id. ("[O]vert racial harassment is not necessary to establish a hostile environment.”).
In any event, although the District Court erred by requiring Brooks to show some form of overt racial harassment in order to establish that he was intentionally discriminated against based on race, the District Court nonetheless correctly determined that a reasonable jury could not find that the alleged harassment was motivated by a racially discriminatory animus. Indeed, under Aman, Brooks was required to present "a showing that race is a substantial factor in the harassment, and that if the plaintiff had been white [he] would not have been treated in the same manner.” Id. This he simply failed to do.
. Given that the second prong, the "severe or pervasive” element, includes both an objective and subjective inquiry, this requirement substantially overlaps with the third and fourth elements of this Circuit’s hostile work environment claim, which respectively re*777quire a plaintiff to establish (i) that the discrimination detrimentally affected him and (ii) that the discrimination would have detrimentally affected a reasonable person of the same protected class in his position. Cf. Jensen, 435 F.3d at 451 ("When applied, [the second and fourth prongs] coalesce into a single inquiry: did the plaintiff suffer ... harassment severe or pervasive enough to alter the conditions of her employment and create an abusive working environment?” (internal quotation marks and citations omitted)).
. Brooks also contends that the District Court should have treated the PHRC findings as jury findings and limited itself to determining whether those findings were supported by suf*779ficient evidence. Because Brooks's argument that the PHRC should have been treated as the fact-finder in the federal action rests on his fatally flawed assertion that the PHRC findings should have been given preclusive effect, this argument also fails to persuade. Moreover, it lacks any foundation in logic or authority. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470747/ | OPINION
PER CURIAM.
Hua Li petitions for review of a Board of Immigration Appeals (“BIA” or “Board”) decision denying her motion to reopen her immigration proceedings. We will deny the petition for review.
Li originally applied for asylum and other relief based on threats she received for refusing to marry a government official in *780China. The Immigration Judge (“IJ”) denied relief. The BIA affirmed without opinion on November 17, 2004. Years later, on January 5, 2007, Li filed a motion to reopen and to file a successive asylum application, claiming that she had married a man (who later became a permanent resident of the United States) in a traditional ceremony in 2004, and registered the marriage in New York in 2005. The couple had a child on August 6, 2005, and Li was pregnant with a second child at the time she filed the motion to reopen. She asserted that the motion was exempt from the ninety:day time restriction on motions to reopen because her motion was based on changed country conditions in China and based on facts not previously available to her. Specifically, Chen contended that she would likely be persecuted as a violator of the one-child rule of the family planning law, because enforcement of the law by forcible sterilization or abortion was becoming more frequent in Fujian Province. On September 10, 2007, the BIA denied the motion. The Board found that Li had “not submitted reliable and previously unavailable evidence to establish that reopening is warranted in this case,” and thus the motion was time-barred because it did not fall within any exceptions to the time limitation.1
Li argued in her motion to reopen, citing Shou Yung Guo v. Gonzales, 463 F.3d 109, 112-13 (2d Cir.2006), that the United States Court of Appeals for the Second Circuit had recognized new evidence showing a change in country conditions — that is, a new policy in Fujian Province with regard to enforcement of birth control laws on couples whose children were born abroad.2 A.R. 22. Li argued that reports had earlier shown that special privileges were extended to returning overseas couples with children born abroad, A.R. 28-29; but that such was no longer the case.
In support of her motion to reopen, Li included a number of documents. See A.R. 41, List of Documents in Support of the Motion. The Board indicated that many of the documents Li produced had already been considered and rejected in Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and also commented on specific documents as follows:
• The “Response of the Administrative Office of the National Planning Committee to the Fujian Province Population ...” was unreliable, as the original Chinese version of the document, although dated 2006 had a fax date of March 12, 2005.3 The Board also found that it was materially similar to a document produced in S-Y-G-, which also addressed “the reproductive behaviors of the Zheng, Yu He couple,” and which the Board had determined did “not establish that the respondent himself would be found to violate family policies, or that if he was, his punishment would rise to the level of persecution.” A.R. 3.
*781• The 1999 Chang Le City Question and Answer Document was unauthenticated, and could have been produced at Li’s 2003 hearing. The Board also noted that it had been considered in S-Y-G- and found not to show that the respondent would face persecution.
• The affidavit of demographer Dr. John Aird was not based on first-hand knowledge and had been rejected in Matter of J-W-S- 24 I. & N. Dec. 185,189 (BIA 2007).
• Two news articles recounting forced abortions and/or sterilizations in Linyi, which is in Shandong province, did not discuss problems in Li’s home area.
• The testimony of Harry Wu before a United States House of Representatives committee did not provide “any specific information regarding aliens returned to Fujian Province after the birth of multiple children abroad.” A.R. 4.
• State Department information from 2004 and 2005 did “not contain evidence that someone in the respondent’s position and from her area would be subject to forced sterilization or other persecutory acts upon return to her home province.” Id..
• “[T]he remaining documents submitted by the respondent ... do not ... suffice to meet her burden of proof for reopening under Matter of S-Y-G- ....” Id.
Li also alleged that she asked her mother-in-law to inquire with the villagers’ committee in Li’s hometown, and the mother-in-law was told that Li would not be excluded from family planning procedures if she returned to China. A.R. 59. The Board found that Li’s statement concerning what her mother-in-law learned had limited evidentiary value, as there was no statement from the mother-in-law, and no indication how family planning officials learned that Li had given birth. Based on these conclusions, the BIA found that the evidence did not establish changed circumstances in China sufficient to support a reopening of the proceedings. Finally, the BIA rejected Li’s argument that she could file a successive asylum application that would not be subject to the changed country conditions requirement of an untimely motion to reopen. Li filed a timely petition for review.4
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We review the ultimate denial of a motion to reopen for an abuse of discretion. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). We uphold the BIA’s factual determinations if they are supported by substantial evidence. Korytnyuk v. Ashcroft, 396 F.3d 272, 285 (3d Cir.2005).
As an initial matter, we note that Li’s argument that she may file a successive asylum application without regard to the limits applicable to a motion to reopen is foreclosed by our decision in Liu, in which we held that, after completion of removal proceedings, an alien must file an asylum application in conjunction with a motion to reopen and must meet the time and numerical limitations on motions to reopen. 555 F.3d at 152. We also reject Li’s argument that her case is similar to Zheng v. Attorney General, 549 F.3d 260, 269-71 (3d Cir.2008), where we vacated the denial of motions to reopen based on the BIA’s failure to discuss the evidentiary record. In its decision here, the BIA specifically referred to almost every piece of background information provided by Li, con*782cluding that this evidence was inapplicable because it did not address the treatment of Chinese nationals returning from abroad with United States children.
Li argues, specifically, that the BIA ignored two pieces of evidence: (1) the State Department’s 2003 Consular Information Sheet; and (2) a 1997 “Letter in Response to the Issue of Identification of Nationality.” As the Government has noted in its supplemental brief, the Consular Information Sheet states at the top that it “is current as of today, Thu Jan 22 11:51:39 2004.” Thus, although the document bears a date of May 29, 2003 at the beginning of the text, the BIA may have included it in its discussion of “State Department information from 2004 and 2005.” Further, the BIA also stated that the “remainder” of Li’s documents did not establish that reopening was warranted. The BIA thus could have included the Consular Information Sheet, and the 1997 Letter in this catch-all category.5
Although we have remanded where the Board has “fail[ed] to discuss most of the evidentiary record,” see Zheng, 549 F.3d at 269; we do not require the Board “to write an exegesis on every contention” raised by the movant, see Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002). The BIA here examined the background evidence submitted and determined that it did not address the facts of Li’s case — the treatment of Chinese nationals returning from abroad to Fujian Province with United States citizen children. Substantial evidence supports the BIA’s conclusions.
For the foregoing reasons, we will deny the petition for review.
. In general, a motion to reopen must be filed no later than ninety days after the date of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). The general rule is subject to some exceptions, such as for changed country conditions, if proffered evidence is material, was not available, and could not have been discovered or presented at the earlier hearing. 8 C.F.R. § 1003.2(c)(3)(h).
. The Government disputes this characterization, noting that the Second Circuit simply found the evidence warranted a remand, and, that on remand, the BIA concluded that the alien had not shown that conditions in China had changed materially since her asylum hearing in 1996. Respondent's Brief at 17, n. 8 (citing Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007)).
. The document, at A.R. 73-75 also appears to have a 2001 fax date.
. The petition for review was stayed pending the Court's decisions in several similar cases. Those cases have been decided, and the parties have filed supplemental briefs addressing those decisions.
. The Consular Information Sheet states in part, "If one or both parents of a child are PRC nationals who have not permanently settled in another country, then China regards the child [born abroad] as a PRC national and does not recognize any other citizenship the child may acquire at birth, including U.S. citizenship." A.R. 98. We agree with the Government that the document does not discuss China's family planning policy, nor does it indicate that a Chinese national who returns to China with children born abroad will be persecuted. As to the 1997 Letter, we agree with the Government that, even assuming the BIA did not consider it, no remand is necessary, as the Letter could have been produced at Li's earlier asylum hearing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470752/ | OPINION
PER CURIAM:
Richard Tumundo petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Tumundo, a Christian who is a native and citizen of Indonesia, entered the United States on a non-immigrant visa in December 1994. He remained in the United States beyond the period of time allowed under his visa, and was ultimately placed in removal proceedings. He conceded re-movability and, in 2004, applied for with*789holding of removal and relief under the Convention Against Torture (“CAT”).
In 2006, Tumundo testified before the Immigration Judge (“IJ”). He claimed that in the middle of 1994, his girlfriend at the time became pregnant. The two planned to wed, and she agreed to convert from Islam to Christianity. When her family learned of these plans, they kidnapped Tumundo, locked him in a room that they guarded with axes and machetes, and told him that he could marry her only after converting to Islam. Although the family threatened to kill Tumundo, the only physical injury he suffered during his confinement was a swollen jaw. After approximately a month in captivity, Tumundo escaped and fled to another island in Indonesia, where he remained for about four months without incident before traveling to the United States.
Tumundo explained that, approximately nine years after the child was born, the girlfriend’s family gave the child to Tu-mundo’s father, who lives in Indonesia. The family threatened that if Tumundo’s father raised the child Christian, Tumun-do’s father would be killed. Tumundo believed that the family gave the child to his father in the hopes that doing so would help the family find Tumundo, and because the family was too poor to raise the child.
Tumundo testified that he fears returning to Indonesia because the girlfriend’s family follows the tradition of “siri,” which purportedly requires the family to kill Tumundo because his refusal to convert to Islam and marry the girlfriend shamed her family. He noted that he could not obtain protection from the Indonesian police force because it respects the tradition of siri. Furthermore, he stated that he would not be able to relocate to another island in Indonesia because (1) the family would still find him; and (2) people in Indonesia do not like Christians.
The IJ appeared to find Tumundo’s testimony credible, but nonetheless denied his requests for withholding of removal and relief under the CAT. As to his claim for withholding of removal, the IJ held that the events Tumundo described did not rise to the level of past persecution and were not on account of his race, religion, nationality, membership in a particular social group, or political opinion. The IJ further concluded that Tumundo failed to show that it was more likely than not that the girlfriend’s family would target him upon his return to Indonesia. The IJ observed that many years had passed since the abduction and that there was no indication that the family had the “means or ability to extend [its] vendetta outside [its own] island.” Additionally, the IJ found that the girlfriend’s family is not a group the Indonesian government is unable or unwilling to control.
On appeal, the BIA agreed with the IJ’s reasons for denying Tumundo’s request for relief under the CAT. As for his claim for withholding of removal, the BIA agreed with the IJ’s denial of relief but nonetheless conducted its own analysis. In rejecting Tumundo’s request for withholding of removal, the BIA held that his abduction and the events that followed did not rise to the level of persecution, highlighting the fact that he had not sustained a serious injury. The BIA further concluded that Tumundo failed to show that the family would likely persecute him if he returned to Indonesia. The BIA reasoned that even if the family were still interested in targeting him all these years later, Tumundo had “failed to establish that he could not reasonably avoid the threat of future persecution by relocating within Indonesia.” Moreover, the BIA noted that Tumundo had never sought protection from the Indonesian government, nor had he submitted sufficient evidence in support of his *790contention that the Indonesian police would be unwilling to protect him because it respects the tradition of siri. Finally, the BIA rejected Tumundo’s argument that there is a pattern or practice of persecution against Christians in Indonesia. Tumundo now petitions this Court to review the BIA’s decision.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Tumundo challenges only the denial of his request for withholding of removal.1 Because the BIA issued its own decision, we review its decision rather than the IJ’s decision. See Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230 (3d Cir.2008). We review the BIA’s factual findings— including its conclusions regarding evidence of persecution — for substantial evidence. Id. Under this deferential standard of review, we must uphold the BIA’s findings “unless the evidence not only supports a contrary conclusion, but compels it.” Id. (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001)).
To be entitled to withholding of removal under 8 U.S.C. § 1231(b)(3), an applicant must show that it is more likely than not that he would face persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion if he returned to his country of origin. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003). “[Violence or other harm perpetrated by civilians against [an applicant] ... does not constitute persecution unless such acts are committed by the government or forces the government is either unable or unwilling to control.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (internal quotations omitted).
Substantial evidence supports the BIA’s determination that Tumundo did not establish that it is more likely than not that he would face persecution if he returned to Indonesia. Tumundo’s claim of individualized persecution fails because he did not show that the Indonesian government was or would be unable or unwilling to control the conduct of the girlfriend’s family. Indeed, there is no evidence that he even sought protection from the Indonesian government. Although he claimed that such an attempt would be futile because the Indonesian police respects the tradition of siri, he did not substantiate this claim.
As for his claim that there is a pattern or practice of persecution of Christians in Indonesia, we recently rejected this argument in Wong. In that case, we concluded that the record, which included the 2003 and 2004 U.S. State Department reports on Indonesia, did not compel a finding that there is a pattern or practice of persecution against Chinese Christians in Indonesia. See Wong, 539 F.3d at 233-35. Although not relevant to the decision in that case, we also noted that the 2005 to 2007 country reports documented “improved treatment of Chinese Christians in Indonesia.” Id. at 234. Here, Tumundo relies on the 2003 and 2005 country reports, as well as several articles from 2004 and earlier. We cannot conclude that this evidence compels a finding that there is a pattern or practice of persecution of Christians in Indonesia.
In light of the above, we will deny Tu-mundo’s petition for review.
. Because Tumundo's brief does not contest the BIA’s rejection of his request for relief under the CAT, he has waived this issue. See Voci v. Gonzales, 409 F.3d 607, 610 n. 1 (3d Cir.2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470699/ | SUMMARY ORDER
Petitioners Xiao Ying Liu and Shi Yu Li, natives and citizens of the People’s Repub-*696lie of China, seek review of the August 31, 2007 order of the BIA, denying their motion to reopen. In re Xiao Ying Liu, Shi Yu Li, Nos. A097 160 508, A097 160 509 (B.I.A. Aug. 31, 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 petitioners’ untimely motion to reopen.
Petitioners argue that the BIA erred in concluding that they failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing their 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”). Moreover, contrary to petitioners’ argument, we find nothing in the record that suggests that the BIA ignored the particularized evidence that they submitted in determining that they failed to demonstrate changed country conditions. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006); cf. Jian Hui Shao, 546 F.3d at 172 (finding no error in the BIA’s determination that evidence referencing the family planning policy’s mandatory sterilization requirement does not indicate that sterilization will be performed by force).
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/8470701/ | SUMMARY ORDER
Petitioner Xiang Quan Lin, a native and citizen of the People’s Republic of China, seeks review of a November 15, 2007 order of the BIA denying his motion to reopen. In re Xiang Quan Lin, No. A071 498 570 (B.I.A. Nov. 15, 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 his untimely 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 re*698open 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”).
Lin 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 he 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 also found that the notice was a photocopy and that Lin had failed to provide information about the circumstances surrounding its procurement. 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).
Moreover, we reject Lin’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 Lin’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”). Lin filed his motion to reopen in November 2007, after this Court decided Shou Yung Guo, but he did not submit the so-called Quo 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.
Further, Lin’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 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/8470703/ | SUMMARY ORDER
Petitioner Yan Guang Cheng, a native and citizen of the People’s Republic of China, seeks review of a November 28, 2007 order of the BIA denying his motion to reopen. In re Yan GUang Cheng, No. A078 279 123 (B.I.A. Nov. 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 Cheng’s untimely motion to reopen.
Cheng 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 *700evidence 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”).
Cheng 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. That argument, however, is unavailing, as the BIA does not err when, as here, it relies on a prior adverse credibility determination to reject a document, submitted in support of a motion to reopen, that does not bear independent indicia of authenticity. 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 where 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); see also 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).
Further, we reject Cheng’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 Cheng’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”). Cheng filed his motion to reopen in September 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.
Finally, Cheng’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 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/8470707/ | SUMMARY ORDER
We assume familiarity with the underlying facts and procedural history of this case. On February 10, 2005, a jury convicted Defendant-Appellant Rafil Dhafir of numerous charges relating to his operation of a fraudulent charity, Help the Needy (“HTN”), and improper Medicare billings. The United States District Court for the Northern District of New York (Mordue, J.) principally sentenced Dhafir to 264 months’ imprisonment and ordered restitution in the amount of $865,272.76. Dhafir makes a number of contentions on appeal, most of which lack merit. We address his challenge to the district court’s application of the Sentencing Guidelines in a separate opinion.
Dhafir first claims that the district court violated his Confrontation Clause rights by limiting his counsel’s cross-examination of witnesses about the government’s supposed bias in prosecuting him. Dhafir sought to argue at trial that the government was frustrated by its failure to connect him to terrorist activities and its expenditure of resources on his case. We review the district court’s limitations on cross-examination for abuse of discretion. See United States v. Crowley, 318 F.3d 401, 417 (2d Cir.2003). We have also held that “the right to confront and cross examine witnesses is tempered by a trial judge’s ‘wide latitude’ to impose ‘reasonable limits’ in order to avoid matters that are confusing or of marginal relevance.” United States v. Stewart, 433 F.3d 273, 311 (2d Cir.2006) (quoting Howard v. Walker, 406 F.3d 114, 128-29 (2d Cir.2005)). We find that the court did not abuse its discretion in limiting Dhafir’s crossexamination. Dhafir’s unsupported theories about the government’s bias were of only marginal relevance to the charges against him, and the district court’s restrictions on those questions were well within its latitude in conducting a trial.
We also conclude that the government presented sufficient evidence to convict Dhafir on the mail and wire fraud charges. We review claims regarding the sufficiency of the evidence de novo, but will not vacate a conviction on that basis “if, drawing all inferences in favor of the prosecution and viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Santos, 449 F.3d 93, 102 (2d Cir.2006) (internal quotation marks omitted). Mail *705and wire fraud both require a scheme to defraud with money or property as its object and use of the mails or wires to further the scheme. United States v. Shellef, 507 F.3d 82, 107 (2d Cir.2007); United States v. Ramirez, 420 F.3d 134, 144 (2d Cir.2005). The government put forth ample evidence, largely through the testimony of government agents, that donations to HTN were misused, such that a reasonable jury could conclude that the elements of the charges had been demonstrated. The government also produced sufficient evidence of Dhafir’s misrepresentations to donors through his own statements and through HTN literature.
Dhafir next contends that the government’s questioning of a particular witness, Waleed Smari, as well as its religious references during closing arguments, rendered his trial unfair. The defense did not object at trial on either of these grounds, so we review this claim only for plain error. See, e.g., Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Fed.R.Crim.P. 52(b). Dhafir provides no persuasive authority to support his argument that the government’s questioning of Smari violated Federal Rules of Evidence 701 and 403, or that its closing remarks violated his First Amendment right to freedom of religion. Further, the record shows that at trial, Dhafir’s counsel himself attempted to develop a theory that Dhafir sought religious advice as to the proper uses of donor contributions to HTN and explored this topic during his examination of Smari. We see no error, much less plain error, in the fact that the court allowed the government to ask questions or make arguments touching on religious themes that Dhafir himself introduced.
Dhafir’s arguments regarding join-der of claims also lack merit. He contends that the district court erroneously joined the Medicare fraud counts with the HTN-related counts. We again apply plain error review, as Dhafir raised no objection to the joinder below. Under this standard and given the strength of the government’s case on the HTN-related charges, we determine that, even if the joinder were improper, Dhafir has not shown “prejudice so severe that his conviction constituted a miscarriage of justice.” United States v. Joyner, 201 F.3d 61, 75 (2d Cir.2000) (internal quotation marks omitted). We have already found that the government set forth ample evidence on the mail and wire fraud charges; the government’s proof on the other HTN-related counts was overwhelming as well. Therefore, Dhafir is not entitled to relief on this ground.
Neither are we persuaded that Dhafir’s convictions on Counts One (conspiracy to violate the International Emergency Economic Powers Act) and Fifteen (conspiracy to defraud the United States by impeding the IRS) were multiplicitous because both counts alleged conspiracies in violation of 18 U.S.C. § 371. Dhafir concedes that this issue too may be reviewed only for plain error. We find that this claim has no merit. Counts One and Fifteen clearly charged two separate conspiracies with different underlying objects and non-overlapping elements and overt acts. The two conspiracies also involved different participants. We have held that where “separate counts of a single indictment allege that the defendant participated in more than one conspiracy in violation of the same statutory provision ... and that the defendant, in each alleged conspiracy, had different groups of coconspirators, the question of whether one, or more than one, conspiracy has been proven is a question of fact for a properly instructed jury.” United States v. Jones, 482 F.3d 60, 72 (2d Cir.2006). In this case, the jury found that both conspiracies had been proven *706beyond a reasonable doubt. Dhafir made no argument then or on appeal that the jury was improperly instructed. The district court did not commit plain error in allowing trial to proceed on the indictment as it stood. Further, the district court was permitted to impose overlapping, partially consecutive sentences. See United States v. Reifler, 446 F.3d 65, 113 (2d Cir.2006); United States v. McLeod, 251 F.3d 78, 83-84 (2d Cir.2001).
Finally, we do not agree with Dhafir that the district court illegally directed him to pay restitution to the New York State Medicaid Restitution Fund and the State of New York Law Department, Restitution Account. Dhafir argues that the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, only authorizes restitution to direct victims of an offense, and that the payments to the Medicaid Fund and New York Law Department do not conform with that requirement. Again, Dhafir appears to concede that he did not object to the restitution below, and we agree we should review this claim for plain error rather than deem it waived.
The MVRA defines a “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2). After Dhafir’s trial concluded, the government presented evidence that his fraudulent health care billing scheme caused losses to Medicaid as well as Medicare. Medicaid was therefore a victim of the same criminal scheme and course of conduct that constituted the offense of which Dhafir was convicted. Further, “[a] sentencing court is authorized to provide restitution to ‘any’ victim of the offense, even those not named in the criminal indictment.” United States v. Grundhoefer, 916 F.2d 788, 793-94 (2d Cir.1990). It was not plain error for the district court to consider Medicaid a victim of the same offense conduct that caused losses to Medicare, and to therefore order restitution to Medicaid.
We also decline to overturn the district court’s order of restitution to the New York Law Department Restitution Account, as successor in interest to HTN. No other portion of the restitution order compels compensation by Dhafir to the donor-victims. Therefore, this portion of the order, even if improper, does not rise to the level of plain error because it does not prejudicially affect any of Dhafir’s substantial rights.
For the foregoing reasons, the judgment of conviction and order of restitution are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470709/ | SUMMARY ORDER
Douglas Dobson appeals from an order of the United States District Court for the District of Connecticut (Arterton, J.), denying his motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
*708Dobson was receiving long term disability benefits under a Plan administered by defendant Hartford Life and Accident Insurance Company (“Hartford”), and subject to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq. After paying Dobson benefits for years, Hartford suspended payments in April 1997 “due to lack of proof of continuous disability.” See Dobson v. Hartford Fin. Servs., 196 F.Supp.2d 152, 154 (D.Conn.2002). There followed a year of delay, in which Dobson submitted proofs of his continuing disability. Hartford eventually reinstated his benefits, and made back payments in a lump-sum, but without interest. Id. at 156.
Dobson brought this suit, on behalf of himself and others similarly situated, seeking interest on delayed benefit payments made by Hartford. He alleged two alternative theories: (A) that interest was a benefit implicitly provided by his Plan, and was therefore recoverable in a civil action brought under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), which provides that “[a] civil action may be brought by a participant or beneficiary ... to recover benefits due to him under the terms of his plan”; and (B) that ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3) provides a right to equitable disgorgement of profits Hartford earned by wrongfully delaying his benefit payments.
The district court initially granted Hartford’s motion for summary judgment on Dobson’s § 502(a)(1)(B) claim (and denied class certification on the claim as moot). But the court denied Hartford’s motion for summary judgment on Dobson’s § 502(a)(3) claim, holding that if Hartford’s withholding of Dobson’s benefits was unreasonable, and constitutes a breach of fiduciary duty, Hartford would have to disgorge any profits it had earned on investment of the withheld benefits. The court also denied class certification on the § 502(a)(3) claim because plaintiffs proposed class definition “necessarily recognize[d] that whether Hartford was justified in exceeding the time limits in any particular case will require individualized assessment of the information available to Hartford within the regulation time period, the complexity of the claim of disability, and other claims handling factors.” Dobson, 196 F.Supp.2d at 165. (Following the court’s ruling, Hartford stipulated to judgment in the amount of $3,779.22 in favor of Dobson on his § 502(a)(3) claim.) Dobson appealed.
This Court vacated the dismissal of Dobson’s § 502(a)(1)(B) claim on the ground that interest on unreasonably delayed benefit payments may be an implicit term in Dobson’s Plan. Dobson v. Hartford Fin. Servs. Group, Inc., 389 F.3d 386, 394 (2d Cir.2004). We also vacated the denial of class certification on both claims, and remanded for consideration of the Plan’s explicit requirement that, absent “special circumstances,” benefit determinations be made within certain time periods (equivalent to those set forth in the Department of Labor regulations). Id. at 402.
After our vacatur, Dobson and Hartford entered into a partial settlement agreement pursuant to which Hartford established prospective policies and procedures for the payment of interest on unreasonably delayed benefit eligibility determinations and payments.
On remand, Dobson sought class certification on both claims using a reconfigured class definition that focused on the presumption of entitlement to interest when disability benefits are paid out beyond the relevant time periods. See Dobson v. Hartford Life & Accident Ins. Co., No. 99 cv 2256(JBA), 2006 WL 861021, at * 1 (D.Conn. Mar. 31, 2006). According to the parties, there are potentially 24,000 class *709members, who may, by Dobson’s estimates, be entitled to an average payment of around $77. Dobson acknowledges that delay beyond such time would not, by itself, entitle a class member to interest-Hartford would be liable only if its delay was “unreasonable” in a particular case. See Dobson, 389 F.3d at 394. Dobson therefore proposes relief in the form of a declaratory judgment that class members are entitled to a presumption of entitlement to interest if their benefit payments were delayed beyond the time periods, thereby shifting the burden to Hartford to come forward with evidence of reasonableness in those individual cases where it maintains that its delay was reasonable. Dobson suggests that Hartford’s objections in particular cases could be heard by an independent fiduciary or special master.
The district court denied Dobson’s motion for class certification, finding that the proposed class failed to meet the commonality and typicality requirements of Rule 23(a); and that suit could not be maintained under either Rule 23(b)(1)(B) or Rule 23(b)(2). The court also rejected Dobson’s suggestion to transfer disputed individual cases to a special master. Dobson, 2006 WL 861021, at *4 (“[P]laintiffs suggestion that after determining the legal questions of interpretation of the Plans and Department of Labor regulations, case by case determinations on liability could be ceded to a special master or independent fiduciary appointed by the Court for the purpose, belies plaintiffs attempted transformation of demonstrably individualized claims into class-wide requests for declaratory relief.”).
The district court later granted Dob-son’s motion for summary judgment on his individual § 502(a)(1)(B) claim, but denied his motion for declaratory relief on the ground that it essentially reargued his motion for class certification. Dobson v. Hartford Life & Accident Ins. Co., 518 F.Supp.2d 365 (D.Conn.2007).
Dobson now appeals the denial of his motion for class certification. We review rulings on class certification for abuse of discretion. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir.2001)(“District courts are afforded substantial leeway in deciding issues of class certification.”). The abuse-of-discretion standard applies to the overall determination, as well the “individual requirements of Rule 23.” In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 32 (2d Cir.2006).
On this record, it was no abuse of discretion for the district court to deny class certification. The claims of each of the 24,000 putative class members will invariably turn on whether Hartford’s delay was “reasonable” in each set of particular circumstances. As we previously noted in this case, “[t]he duration of a ‘reasonable time’ to review a claim might vary with such factors as the complexity of the facts, the need for follow-up to verify the proofs, and the difficulty of the determination.” Dobson, 389 F.3d at 393. In the context of disability benefits, the “complexity of the facts” may be as particularized as each individual’s medical history. Such an inquiry is ill-suited for disposition via a class action because there is insufficient commonality. See Fed.R.Civ.P. 23(a). A district court, or special master, could be forced to conduct as many as 24,000 mini-trials, no matter which party bears the burden of proof. See also Fotta v. Trs. of United Mine Workers of Am., 319 F.3d 612, 618-19 (3d Cir.2003) (affirming the denial of class certification in the same context, and noting that “[b]ecause both liability and the appropriate remedy must be determined for each plaintiff, no common issues of law or fact exist.”).
*710Finding no merit in Dobson’s remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470711/ | SUMMARY ORDER
Defendant-Appellant Marco Fidel Cas-tellar appeals from an order of the United States District Court for the Southern District of New York (Rakoff, J.) denying his motion to quash the government’s request for financial disclosure pertaining to the restitution component of his sentence.
28 U.S.C. § 1291 provides that “[t]he courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” Generally, a district court’s decision to compel compliance with a subpoena is not a final decision and therefore is not immediately appealable; to obtain review, the subpoenaed party “must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order, which is regarded as final under § 1291.” In re Air Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 490 F.3d 99, 104 (2d Cir.2007) (internal quotation marks omit*711ted). Castellar’s appeal is premature because he sought relief in the district court before a subpoena had even been issued, much less enforced.
For the foregoing reasons, this appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470713/ | SUMMARY ORDER
Respondent-Appellant Floyd Bennett appeals from a judgment of the United States District Court for the Eastern District of New York (Trager, J.). The district court granted Petitioner-Appellee Ramon Espinal’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
The district court determined that trial counsel rendered constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 *712L.Ed.2d 674 (1984), in failing to investigate a police report that corroborated Espinal’s assertion that he was not at the scene of the crime. See Espinal v. Bennett, 588 F.Supp.2d 388, 399-401 (E.D.N.Y.2008). That failure, according to the district court, was prejudicial to Espi-nal because it prevented him from discovering a potential alibi witness, and “the probability that this evidence would have changed the outcome of petitioner’s trial is sufficient to undermine confidence in the trial verdict.” Id. at 407; see also Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Finally, the district court determined that the state court decisions to the contrary reflect an unreasonable application of clearly established federal law and an unreasonable determination of the facts in light of the evidence presented, so are not entitled to AEDPA deference. Id. at 414-18; see also 28 U.S.C. § 2254(d).
We agree. For substantially the reasons stated by the district court in its thorough opinion, the judgment is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470715/ | SUMMARY ORDER
Lynn Kucharski appeals from a July 16, 2008 judgment entered in the United States District Court for the District of Connecticut (Eginton, J.), granting summary judgment in favor of CORT Furniture Rental (“CORT”). Kucharski challenges the district court’s grant of summary judgment as to her pregnancy discrimination claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
“We review a district court’s grant of summary judgment de novo, affirming when, construing all evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Ruggiero v. County of Orange, 467 F.3d 170, 173 (2d Cir.2006) (internal quotation marks and citations omitted).
Kucharski’s Title VII pregnancy discrimination claim is reviewed under the familiar three-part burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Alternatively, Kuc-harski may rely on the “mixed-motive” test set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion). Under Pnce Waterhouse, Kucharski must “show that an impermissible criterion was in fact a motivating or substantial factor in the employment decision.” Raskin v. Wyatt Co., 125 F.3d 55, 60 (2d Cir.1997) (internal quotation marks omitted). The same standards apply to Kucharski’s state law pregnancy discrimination claims. See Levy v. Comm’n on Human Rights & Opportunities, 236 Conn. 96, 671 A.2d 349, 355-58 (1996).
Even assuming that Kucharski has made out a prima facie case of discrimination under McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817, she has failed to establish “that the presumptively valid reasons for [her termination] were in fact a coverup for a ... discriminatory decision,” id. at 805, 93 S.Ct. 1817, or that “an impermissible criterion was in fact a motivating or substantial factor in the employment decision,” Raskin, 125 F.3d at 60. It is undisputed that CORT’s medical leave policy provides four weeks of paid medical leave to employees who have worked at the company for less than a year. It is also undisputed that Kucharski — who began working at CORT on October 6, 2003 — commenced medical leave due to pregnancy-related complications on April 2, 2004, and failed to return to work by May 3, 2004, as required by CORT’s leave policy. Kucharski does not contest that CORT’s policy applies uniformly regardless of sex or medical condition, and that she was afforded the four-weeks leave to which she was entitled. That is all that Title VII required. Lambert v. Genesee Hosp., 10 F.3d 46, 58 (2d Cir.1993) (holding that “Title VII requires that women affected by pregnancy, childbirth, or related medical conditions be treated the same as other employees who have temporary disabilities”).
Kucharski argues that two pieces of evidence directly establish CORT’s discriminatory conduct. First, Kucharski points to *714an e-mail from supervisor James Mas to other managers at CORT stating that he was “terminating [Kucharski’s] employment due to her inability to work due to complications from her pregnancy.” Second, Kucharski points to a Personnel Action Form on which Mas checked “Health Reasons” as the basis for Kucharski’s termination.
As to Mas’s e-mail, it supplies evidence that Kucharski was fired because of medical complications due to her pregnancy, but that is not unlawful. Title VII does not prohibit the termination of employees who are pregnant- — it prohibits treating pregnant employees dissimilarly from others. As to the Personnel Action Form, the form, on its face, states a true and nondiscriminatory fact: that Kucharski was terminated because health complications precluded her from working. It was Kucharski’s burden to present evidence establishing that the notation reveals discrimination; she failed to do so.
We have considered Kucharski’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/8470719/ | SUMMARY ORDER
Petitioner Zeng Guang Huang, a citizen of the People’s Republic of China, seeks review of an April 18, 2008 order of the BIA affirming the July 31, 2006 decision of Immigration Judge (“IJ”) Philip L. Morace denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zeng Guang Huang, No. A98 723 225 (B.I.A. Apr. 18, 2008), aff'g No. A98 723 225 (Immig. Ct. N.Y. City, July 31, 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, we may consider both the IJ’s and the BIA’s opinions for the sake of completeness. Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006). We review the agency’s factual findings, including adverse credibility determinations, 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). For applications governed 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); see also Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A.2007).
We find that the agency’s adverse credibility determination was supported by substantial evidence. For example, the agency properly noted that Huang’s demeanor during portions of his testimony suggested that he was trying to recall a script, not his actual experiences. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that “a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant”). Moreover, the *718agency properly found inconsistencies in the record concerning (1) the reason for Huang’s arrest in April 2004, and (2) whether, and when, his wife had an intrauterine device inserted by family planning officials. Under the REAL ID Act, these findings were sufficient to support the conclusion that Huang was not credible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam). Accordingly, the agency’s denial of asylum was not improper.
Because Huang’s withholding of removal and CAT claims were premised on the same factual predicate as his asylum claim, the adverse credibility determination was fatal to those claims as well. 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470721/ | SUMMARY ORDER
Petitioner Jian Xing Huang, a native and citizen of the People’s Republic of China, seeks review of a May 29, 2008 order of the BIA denying his motion to reopen. In re Jian Xing Huang, No. A070 903 598 (B.I.A. May 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Huang’s motion to reopen was untimely and number-barred where it was his third motion and was filed more than five years after the agency issued a final order of removal in his proceedings. See 8 C.F.R. § 1003.2(c)(2).
There are no time and numerical limitations for filing a motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). Huang argues that the BIA abused its discretion in finding that he failed to demonstrate such conditions where mistranslations of the 2001 Fujian Province Population and Family Planning Law (“2001 Law”) relied on in the the U.S. Department of State 2007 report, China: Profile of Asylum Claims and Country Conditions were the functional equivalent of changed country conditions. However, a review of the alleged translation errors demonstrates that the purportedly corrected translations do not materially alter the meaning of the country conditions evidence by demonstrating a risk of forced sterilization. Therefore, the BIA did not abuse its discretion in concluding that the purported translation errors did not demonstrate material changed country conditions excusing the time and numerical limitations applicable to Huang’s motion. See 8 C.F.R. § 1003.2(c)(3)(h); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
We also reject Huang’s due process challenge. Huang has no due process right in seeking a discretionary grant of a motion to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Huang has remained in this country illegally for at least nine years. In that time he has filed, and had adjudicated, an asylum application, three motions to reopen, and, now, three petitions for review. He has received ample process. See Yuen *720Jin, 538 F.3d at 157; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (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/8470725/ | SUMMARY ORDER
Yerli Alejandro Garzón-Zapata, a native and citizen of Colombia, seeks review of a November 18, 2008 order of the BIA, affirming the March 15, 2006 decision of Immigration Judge (“IJ”) Alan A. Vomacka, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yerli Alejandro Garzon-Zapata, No. A97 519 759 (B.I.A. Nov. 18, 2008), aff'g No. A97 519 759 (Immig. Ct. N.Y. City Mar. 15, 2006). 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 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 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). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency reasonably concluded that Garzon-Zapata failed to demonstrate that he had suffered past persecution or that he had a well-founded fear of persecution in Colombia on account of a protected ground. The BIA has defined persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A.1985). In order to constitute persecution, the alleged harm must be sufficiently severe, rising above “mere harassment.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006). “[A]n asylum applicant cannot claim past persecution based solely on the harm that was inflicted on a family member on account of that family member’s political opinion or other protected characteristic.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.2007) (citing Melgar de Torres v. Reno, 191 F.3d 307, 313 n. 2 (2d Cir.1999)); see also Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir.2007). We have recognized, however, that there may exist circumstances where harm to an applicant’s family member in conjunction with other factors may be sufficiently severe to amount to past persecution. See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.2006) (recognizing that harm to a family member may constitute persecution to a child because children are dependent on their family and *724community); see also Tao Jiang, 500 F.3d at 141-42. In such eases, the “harm suffered by family members in combination with other factors ... would presumably only be [persecution] where ... the applicant not only shares (or is perceived to share) the characteristic that motivated persecutors to harm the family members, but was also within the zone of risk when the family member was harmed, and suffered some continuing hardship after the incident.” Tao Jiang, 500 F.3d at 141-42 (citing Jorge-Tzoc, 435 F.3d at 150).
In Jorge-Tzoc, we concluded that a Mayan Guatemalan asylum applicant who was not present at or directly victimized by a massacre of his family members and neighbors during a pervasive campaign against Mayans by the Guatemalan army may have nonetheless experienced persecution based on the combination of: (1) his having witnessed his cousin’s bullet-ridden body; (2) his young age at the time (approximately seven years old) and thus his dependency on family and community; (3) his mother’s fear of going out of their home to get food; (4) his forced relocation with other family members to a single room in another village, where they struggled to survive; and (5) the loss of his father’s land and animals. 435 F.3d at 150. Although Garzon-Zapata was presumably in the “zone of risk” when members of the Revolutionary Armed Forces of Colombia (“FARC”) shot his father in front of him when he was four years old, Tao Jiang, 500 F.3d at 141-42, unlike the applicant in Jorge-Tzoc, Garzon-Zapata did not suffer any continuing hardship after his father’s death, and he did not share the characteristic that motivated his father’s persecutors, 435 F.3d at 150.
Indeed, neither Garzon-Zapata nor his mother had any problems in Colombia for eight years after the death of his father. Moreover, contrary to Garzon-Zapata’s claims that after his father’s death, he lost his property and was unable to attend public school while in hiding, his mother testified that they had sold, not lost, their property and that Garzon-Zapata had attended school for at least one year. Furthermore, there is no indication that he and his mother lived in hiding in Colombia after his father’s death. Thus, unlike in Jorge-Tzoc, Garzon-Zapata failed to identify any continuing hardship that he and his family suffered after the death of his father that would rise to the level of persecution. See Jorge-Tzoc, 435 F.3d at 150; see also Tao Jiang, 500 F.3d at 141-42.
In addition, unlike in Jorge-Tzoc, where the Mayan applicant shared the ethnicity that motivated his family’s persecutors, see 435 F.3d at 150, Garzon-Zapata asserted that he was threatened because of his relationship to his father and did not claim to share his father’s characteristic of business and land owner that purportedly motivated his father’s persecutors, see Tao Jiang, 500 F.3d at 141-42. Accordingly, the agency reasonably found that Garzon-Zapata did not demonstrate that he suffered past persecution on account of a protected ground. Id.
Absent past persecution, an applicant may establish eligibility for asylum by showing that he subjectively fears persecution on account of an enumerated ground and that his fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). In this case, the agency reasonably found that Garzon-Zapata failed to establish a well-founded fear of future persecution, relying, in part, on the fact that he and his mother remained unharmed in Colombia for eight years after the FARC purportedly killed his father and threatened him. See Melgar de Torres, 191 F.3d at 313 (finding that where asylum applicant’s mother and daughters continued to live in petitioner’s native *725country, claim of well-founded fear was weakened); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (stating that fear of persecution is diminished when “family members remain in petitioner’s native country without meeting harm”). The agency also reasonably found that Garzon-Zapata’s claim of a well-founded fear of persecution on account of his family membership was undercut by the fact that the FARC, who purportedly killed his father for refusing to pay them extortion money, had not contacted, threatened, or harmed his mother and other family members during the time that they sold his father’s property. See Melgar de Torres, 191 F.3d at 313.
Ultimately, the agency did not err in finding that Garzon-Zapata failed to establish past persecution or a well-founded fear of persecution. Accordingly, the agency reasonably denied his applications for asylum, withholding of removal, and CAT relief.2 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (recognizing that withholding of removal and CAT claims necessarily fail if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim and the factual predicate for the claims is the same); cf. Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006) (providing that “torture requires proof of something more severe than the kind of treatment that would suffice to prove persecution”).
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).
. Contrary to the government's argument, we do not find that Garzon-Zapata abandons his challenge to the agency's denial of his application for CAT relief. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470727/ | SUMMARY ORDER
Hua Weng, a native and citizen of the People’s Republic of China, seeks review of a December 26, 2007 order of the BIA, affirming the November 7, 2003 decision of Immigration Judge (“IJ”) Miriam K. Mills, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hua Weng, No. A73 562 321 (B.I.A. Dec. 26, 2007), aff'g No. A73 562 321 (Immig. Ct. N.Y. City Nov. 7, 2003). 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 factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see 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.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Weng has filed two applications for asylum. The first application was based on her fear of persecution on account of her parents’ alleged participation in the democracy movement.2 In her second application, Weng again stated that she feared persecution on account of her parents’ participation in China’s democracy movement, adding that she also feared persecution for violating the family planning policy. However, on cross-examination Weng admitted that her previous claim was false — i.e., that her parents were not actually involved in the democracy movement. The IJ reasonably relied on this admission in finding Weng not credible.
*727Weng argues that the IJ s credibility determination should reach only as far as her claim based on her parents’ purported involvement in the democracy movement, and should not taint her family planning claim. Yet our precedent does not cabin the reach of an IJ’s credibility determination in that manner. Discussing the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything), we have stated that “a finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007); see also In re O-D-, 21 I. & N. Dec. 1079 (B.I.A.1998). Here, in light of Weng’s admittedly false first asylum application, the IJ was entitled to view with skepticism Weng’s claim based on the birth of her two children. Cf. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006)(finding that an IJ’s adverse credibility determination as to past persecution did not undermine petitioner’s prospective claim where the IJ explicitly credited the basis of that claim— the petitioner’s Christianity).
Having called Weng’s overall credibility into question, the IJ reasonably questioned the subjective nature of Weng’s claim, noting that she had produced no evidence that her children were in the United States, as she had claimed. See Siewe, 480 F.3d at 170. The IJ additionally relied on Weng’s conflicting testimony surrounding the notice she allegedly received from Chinese family planning officials. While Weng testified that she received a written notice, she changed her testimony on cross-examination, stating that the notice was oral. This inconsistency further undermined Weng’s credibility.
Ultimately, the IJ’s adverse credibility determination was supported by substantial evidence. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir.2007). Thus, the IJ properly denied Weng’s application for asylum, withholding of removal, and CAT relief where all three claims were based on the same factual predicate. See Paul, 444 F.3d at 156; Xue Hong Yang v. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Because the agency’s adverse credibility determination was not in error, we need not reach its alternative burden finding. Nonetheless, we note that, as the agency found, Weng failed to meet her burden in demonstrating a well-founded fear of persecution based on her violation of the Chinese family planning policy. See Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.2008); Wei Guang Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir.2006); Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005).
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.
. After a hearing on Weng's first application, a different IJ found her credible, but denied her application based on her failure to meet her burden of proof. Weng filed her second asylum application after the agency reopened her proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470733/ | OPINION
DuBois, District Judge.
Defendant-Appellant Aan Grecco was convicted by jury of violating, inter alia, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. Based in part on a jury finding that Grecco was guilty of conspiracy to commit murder (the third of six enumerated racketeering acts), the District Court sentenced Grecco to sixty-five years incarceration. On direct appeal, we affirmed Grecco’s conviction and sentence. United States v. Gatto, 995 F.2d 449 (3d Cir.1993).
*740On February 22, 2008, Grecco filed a motion for sentencing relief pursuant to 18 U.S.C. § 3582(c)(2). In the motion, Grecco argued that Amendment 591 to the United States Sentencing Guidelines, listed in USSG § 1B1.10(c) as a retroactive1 amendment, invalidated the process by which the District Court calculated his sentence and that he should be resen-tenced under a properly calculated guideline range. The District Court denied Grecco’s motion by Order dated September 26, 2008, 2008 WL 4512530. Grecco appeals that denial.
I.
On July 20, 1989, Grecco and co-defendant Louis Gatto were charged in a seven-count Indictment with operating illegal sports and numbers gambling businesses in violation of RICO, 18 U.S.C. § 1962, the Travel Act, 18 U.S.C. § 1952, and the Organized Crime Control Act of 1970, 18 U.S.C. § 1955. The first two Counts of the Indictment, the only Counts at issue in this appeal, alleged a conspiracy to violate RICO and substantive violations of RICO. Those Counts enumerated six predicate acts as the basis for a pattern of racketeering activity that began in 1973 and continued through the filing date of the Indictment on July 20, 1989. The only relevant predicate act for the purposes of this appeal — Racketeering Act 3 — charged defendants with conspiring to murder Vincent Mistretta (“Mistretta”).2 On June 19, 1991, an anonymous jury found defendants guilty of all predicate acts, including Racketeering Act 3, and convicted defendants on all Counts of the Indictment.
Grecco was sentenced on November 11, 1991. The District Court adopted the factual findings and guidelines calculations in the Presentence Report (“PSR”) which, for Grecco’s RICO violations, began with USSG § 2E1.1, the offense guideline for “Unlawful Conduct Relating to Racketeer Influenced and Corrupt Organizations.” (App. 49; PSR ¶ 72.) USSG § 2E1.1 mandates that the base offense level for RICO offenses shall be the greater of either 19 or the “offense level applicable to the underlying racketeering activity.” In determining the offense level applicable to the underlying racketeering activity, the PSR applied Application Note 1 to USSG § 2E1.1 which directs the court to “treat each underlying offense as if contained in a separate count of conviction.” For Racketeering Act 3, the underlying offense was deemed to be conspiracy to commit murder. (PSR ¶ 85.)
At the sentencing hearing, the parties disagreed over the edition of the United States Sentencing Guidelines (“Guidelines”) which should be used — October 15, 1988 or November 1, 1991.3 At stake was *741Amendment 311 (effective November 1, 1990) which, inter alia, added USSG § 2A1.5 (“Conspiracy or Solicitation to Commit Murder”) to the Homicide subpart of Chapter 2. In earlier editions of the Guidelines, conspiracy to commit murder was included in USSG § 2A2.1 (“Assault With Intent to Commit Murder; Conspiracy or Solicitation to Commit Murder; Attempted Murder”).4 The earlier version of the guideline for conspiracy to commit murder set a base offense level of 20, subject to a number of specific offense characteristics; the later version set a base offense level of 28 and included a cross reference to the first degree murder guideline, USSG § 2A1.1 (base offense level 43), in cases where “the offense resulted in the death of a victim.” Compare USSG § 2A1.5 (1991), with USSG § 2A2.1 (1988).
At sentencing, Grecco objected to the use of the 1991 Guidelines on ex post facto grounds, arguing that the higher base offense level in USSG § 2A1.5 and the USSG § 2A1.5(e)(1) cross reference to first degree murder made the 1991 Guidelines more severe than the 1988 Guidelines. The District Court ruled that Amendment 311 did not change the outcome of the District Court’s Guidelines calculations, (App.46), and ultimately determined that the base offense level for Racketeering Act 3 was 43, based on USSG § 2A1.1.5 The District Court then added 4 levels under USSG § 3B1.1(a) for Grecco’s role in the offense. Although the resulting total offense level of 47 would have led to a life sentence under the Guidelines, the District Court imposed a twenty-year statutory maximum sentence for each of Grecco’s RICO convictions (Counts 1 and 2). See USSG § 5A; 18 U.S.C. § 1963. The District Court also sentenced Grecco to the statutory maximum on the remaining counts of conviction and ordered the sentences to run consecutively, leading to a total sentence of 65 years imprisonment. On direct appeal, we affirmed the District Court’s guidelines calculations and sentence. United States v. Gatto, 995 F.2d 449, 450 n. 1 (3d Cir.1993).
*742On February 22, 2008, Grecco filed a motion for sentencing relief pursuant to 18 U.S.C. § 3582(c)(2). In his motion and on appeal, Grecco argues that the sentencing court “assigned USSG § 2A1.1, first degree murder, as the guideline for [the] underlying racketeering activity, Racketeering Act 3, [the] conspiracy to murder Vincent Mistretta,” but “should have assigned [USSG] § 2A1.5.”6 (Appellant’s Br. 4-5.) According to Grecco, the court’s application of USSG § 2A1.1 instead of USSG § 2A1.5 contravenes retroactive Amendment 591 to the Guidelines.
By Opinion and Order dated September 26, 2008, the District Court denied Grecco’s motion. The District Court essentially assumed that it should have applied USSG § 2A1.5, but then ruled that the application of USSG § 2A1.5 would not have changed Grecco’s sentencing range because the death of Mistretta, the object of the conspiracy to commit murder, made the USSG § 2A1.5(c)(1) cross reference to USSG § 2A1.1 applicable. (App.3.) The District Court reasoned that under such circumstances, the approach advocated by Grecco as Amendment 591-compliant would not result in a lower sentencing range, eliminating the possibility of § 3582(c)(2) sentencing relief. In reaching this conclusion, the District Court relied on a non-precedential opinion of this Court, United States v. Davis, 205 Fed.Appx. 28 (3d Cir.2006) (non-precedential).
The government argues, primarily, that the District Court’s ruling should be affirmed on different grounds. In the government’s view, Amendment 591 does not have any impact on the calculation of the defendant’s sentence because the sentencing court prospectively complied with the method prescribed by Amendment 591. In such circumstances, defendant’s motion for sentencing relief pursuant to § 3582(c)(2) was properly denied because Amendment 591 did not lower the applicable sentencing range on which defendant’s sentence was based. The government’s position is aligned with another non-precedential opinion of this Court, United States v. Sparacio, 312 Fed.Appx. 478 (3d Cir.2009) (non-precedential).
We will affirm on the ground proposed by the government.
II.
We review a district court’s interpretation of the United States Sentencing Guidelines, including amendments, de novo. United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009) (citing United States v. Wood, 526 F.3d 82, 85 (3d Cir.2008)). A court’s ultimate decision of whether to grant or deny a defendant’s motion to *743reduce his sentence under § 3582(c)(2) is reviewed for abuse of discretion. Id. at 154 & n. 2. We may affirm a district court ruling on any ground supported by the record. Kabakjian v. United States, 267 F.3d 208, 213 (3d Cir.2001).
Our analysis begins with 18 U.S.C. § 3582(c)(2), the statutory basis for Grec-co’s motion. Subsection (c)(2) creates an exception to the general rule that a district court “may not modify a term of imprisonment once it has been imposed,” 18 U.S.C. § 3582(c), as follows:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Id. § 3582(c)(2). As we have recently held, defendants seeking sentencing relief pursuant to § 3582(c)(2) must satisfy the section’s two eligibility requirements. “First, the defendant must have been ‘sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission;’ and second, the sentence reduction must be ‘consistent with applicable policy statements issued by the Sentencing Commission.’ ” Doe, 564 F.3d at 309. Where these requirements are not satisfied, the district court does not have jurisdiction to consider any discretionary reduction in sentence under § 3582(c)(2). Id.
With regard to the first requirement, we have held that the phrase “based on a sentencing range that has subsequently been lowered” must be read as a unit and that the term “ ‘sentencing range’ clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the performance of that calculus.” Mateo, 560 F.3d at 155 (quoting United States v. Caraballo, 552 F.3d 6, 10 (1st Cir.2008)). In cases where an amendment to the Guidelines does not impact the sentencing range “actually used” by the sentencing court in deciding on a defendant’s sentence, § 3582(e)(2) sentencing relief is not available. Id.
For the second requirement, the “applicable policy statements issued by the Sentencing Commission” may be found in USSG § 1B1.10. In subsection (a)(2) of that provision, the Sentencing Commission specifies the conditions under which “[a] reduction in the defendant’s term of imprisonment is not consistent with [the Sentencing Commission’s] policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2).” USSG § 1B1.10(a)(2). Specifically, a reduction is not authorized where “(A) [n]one of the amendments listed in subsection (c) is applicable to the defendant; or (B) [a]n amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range.” Id. These limitations on the availability of § 3582(c)(2) relief are binding. Doe, 564 F.3d at 310; see also Wise, 515 F.3d at 221 & n. 11 (noting that Amendment 706 would not become an appropriate basis for a § 3582(c)(2) motion until the effective date of its inclusion in the USSG § 1B1.10(c) list of retroactive amendments); United States v. Thompson, 70 F.3d 279, 281 (3d Cir.1995). For purposes of USSG § 1B1.10(a)(2)(B), the “applicable guideline range” is the sentencing range actually used by the sentencing court after follow*744ing the series of steps laid out in USSG § 1B1.1. Doe, 564 F.3d at 311-12.
The policy statements in USSG § 1B1.10(a)(2) complement the § 3582(c)(2) requirement that a defendant have been sentenced based on a sentencing range that has subsequently been lowered. Doe, 564 F.3d at 310-11. The overarching rule to be derived from the § 3582(c)(2) requirement and the USSG § 1B1.10(a)(2) limitations is that § 3582(c)(2) relief is only available where a guidelines amendment listed in USSG § lB1.10(c) has some impact on the end result of the guidelines calculation process, lowering the guideline range or guideline sentence actually used by the trial court in sentencing the defendant.7 Moreover, this is an eligibility rule which precedes the sentencing court’s discretionary consideration of whether a reduction in sentence is warranted in a particular defendant’s case. Doe, 564 F.3d at 309; see Wise, 515 F.3d at 220 n. 10 (referring to § 3582(c)(2) relief in the context of “qualifying defendants]”); see also United States v. Vautier, 144 F.3d 756, 760 (11th Cir.1998); United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir.1997).
In this case, Grecco bases his § 3582(c)(2) motion on Amendment 591 to the Guidelines, which became effective on November 1, 2000.8 We considered Amendment 591 at length in United States v. Diaz, 245 F.3d 294 (3d Cir.2001) to determine whether it should apply retroactively on appeal. We concluded that the Amendment effected a substantive change in the Guidelines and, therefore, could not be applied retroactively on appeal. Id. at 303, 304. Although this case concerns the retroactive application of Amendment 591 in a different context, the analysis of the Amendment in Diaz remains instructive.
Prior to Amendment 591, the Guidelines directed sentencing courts to determine the offense guideline “most” applicable to the offense of conviction and to use the Statutory Index (Appendix A) for “assistance]” in that determination. See USSG §§ 1B1.1(a), 1B1.2(a) (1991); Diaz, 245 F.3d at 302. The Introduction to the Statutory Index reinforced and clarified this directive, stating that “in an atypical case,” where “the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved, use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted.” USSG App. A, intro. (1991); Diaz, 245 F.3d at 302.
Amendment 591 deleted the permissive language quoted above and substituted mandatory language directing the sentencing court to “[r]efer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction.” USSG § 1B1.2(a) (2000); Diaz, 245 F.3d at 302; see also USSG App. C, amend. 591 (Nov.2000) (deleting permissive language in USSG § 1B1.1(a), USSG § 1B1.2(a), and the Introduction to the Statutory Index). As this Court noted in *745Diaz, the Sentencing Commission promulgated Amendment 591 to “emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction.”9 Diaz, 245 F.3d at 302 (quoting USSG App. C, amend. 591, Reason for Amendment (Nov.2000)) (emphasis in Diaz).
Grecco argues that the District Court’s use of USSG § 2A1.1 (first degree murder) instead of USSG § 2A1.5 (conspiracy to commit murder) violates Amendment 591 because the Racketeering Act found by the jury was the conspiracy to murder Mistretta and not the substantive offense. In essence, Grecco objects to the District Court’s use of USSG § 2A1.1 based on any relevant conduct finding that Grecco committed first degree murder or, indeed, any relevant conduct finding that the conspiracy to murder Mistretta resulted in Mis-tretta’s death such that the USSG § 2A1.5(e)(l) cross reference would apply. According to Grecco, the use of relevant conduct findings to select any “applicable offense guideline” runs afoul of Amendment 591 regardless of how the selection fits within the guidelines calculation process.
In his brief, however, Grecco gives Amendment 591 short shrift, relying instead on provisions of the Guidelines which were not affected by Amendment 591. Grecco does not account for the fact that the initial offense guideline used by the sentencing court for his RICO convictions — USSG § 2E1.1 — was the one listed in the Statutory Index for violations of RICO, 18 U.S.C. § 1962. (PSR ¶¶ 76, 85); USSG App. A. More importantly, Grecco does not endeavor to explain why Amendment 591 should have any impact on the sentencing court’s application of the USSG § 2E1.1(a)(2) cross reference for “underlying racketeering activity,” such as the conspiracy to murder Mistretta. Grecco’s argument fails to appreciate that while the conspiracy to murder Mistretta was a predicate offense for his RICO conviction and was an “underlying offense” treated by the District Court “as if contained in a separate count of conviction” for purposes of the USSG § 2E1.1(a)(2) cross reference, it was not an offense of conviction for Amendment 591 purposes. Grecco’s “underlying criminal activity” was only relevant for cross-referencing, a function not covered by Amendment 591.
Although Diaz did not specifically address the scope of Amendment 591, the Amendment is clearly limited to the sentencing court’s initial selection of an offense guideline. Both the structure and purpose of the Amendment support this conclusion, and it is the same conclusion that has been reached by other courts. See United States v. Hurley, 374 F.3d 38, 40 (1st Cir.2004); United States v. Rivera, 293 F.3d 584, 586-87 (2d Cir.2002).
Instructions for applying the Guidelines appear in USSG § 1B1.1 which prescribes a “sequence of steps” to be taken by the sentencing court in calculating a defendant’s guideline range or guideline sentence. United States v. Johnson, 155 F.3d 682, 684 (3d Cir.1998); accord United States v. McDowell, 888 F.2d 285, 293 (3d Cir.1989). Only the first two steps are relevant to this appeal. At the first step in the process, a comb determines the applicable offense guideline section in Chapter Two (Offense Conduct) for the defendant’s statute of conviction by consulting the Statutory Index (Appendix A). USSG §§ 1B1.1(a), 1B1.2(a). At the second step, described in USSG § lBl.l(b), the court “[d]etermine[s] the base offense *746level and applies] any appropriate section specific offense characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in the order listed.” USSG § 1B1.1(b) (emphasis added). For step two, a court may consider relevant conduct, as defined by USSG § 1B1.3,10 unless otherwise specified by the Guidelines. USSG §§ 1B1.2(b), 1B1.3(a); United States v. Aquino, 555 F.3d 124, 127-28 (3d Cir.2009); Watterson v. United States, 219 F.3d 232, 235-36 (3d Cir.2000).
Amendment 591 revised USSG § 1B1.1(a), USSG § 1B1.2(a), Application Note 1 to USSG § 1B1.2, and the Introduction to the Statutory Index. USSG App. C, amend. 591 (Nov.2000); Diaz, 245 F.3d at 301-02. All of these changes concern the first step in the guidelines application process. Amendment 591 did not modify USSG § 1B1.1(b) (describing step two), USSG § lB1.2(b) (authorizing the use of relevant conduct after step one), or USSG § 1B1.3 (defining relevant conduct). USSG App. C, amend. 591 (Nov. 2000). Thus, although Amendment 591 removed the permissive language that gave sentencing courts some flexibility in selecting offense guidelines based on relevant conduct at step one, it did not invalidate the use of relevant conduct for other steps in the guidelines calculation process.
The Sentencing Commission’s statement of reasons with regard to Amendment 591 confirms this interpretation. In that statement, the Commission described a particular problem that it intended to remedy in promulgating Amendment 591, specifically that various courts had relied on pre-Amenclment language to deviate from the offense guidelines listed in the Statutory Index (Appendix A) for statutes of conviction. USSG App. C, amend. 591, Reason for Amendment (Nov.2000) (citing, inter alia, United States v. Smith, 186 F.3d 290 (3d Cir.1999)); see Diaz, 245 F.3d at 302-03; Hurley, 374 F.3d at 40-41. The Commission specifically noted that relevant conduct findings, while inappropriate when referring to the Statutory Index at step one, nevertheless remain relevant at other steps under USSG § 1B1.3(a). USSG App. C, amend. 591, Reason for Amendment (Nov.2000). At no point does the Commission suggest that Amendment 591 affects, much less invalidates, the application of cross references based on a court’s relevant conduct findings.
In this case, the District Court correctly selected the appropriate offense guideline for the statute of conviction using the Statutory Index. Before Amendment 591, the Statutory Index “provid[ed] a listing to assist” the District Court in selecting USSG § 2E1.1 as the appropriate offense guideline for violations of RICO, 18 U.S.C. § 1962; After Amendment 591, the Statutory Index “conclusively point[ed]” to USSG § 2E1.1 as the offense guideline for Grecco’s RICO conviction. The result, however, is the same, and the Amendment 591 analysis stops there. Because Amendment 591 does not impact the District Court’s subsequent application of the USSG § 2E1.1(a)(2) cross reference for *747“underlying racketeering activity,” it has no bearing on the sentencing errors alleged in Grecco’s motion and, therefore, provides no basis for a reduction in Grecco’s sentence pursuant to 18 U.S.C. § 3582(c)(2).
III.
For all of the foregoing reasons, we conclude that Grecco was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), and that, as a result, the District Court lacked jurisdiction to grant the relief requested in his motion. Thus, we will affirm the order of the District Court denying Grecco’s § 3582(c)(2) motion.
. In United States v. Wise, 515 F.3d 207 (3d Cir.2008), we questioned die accuracy of referring to USSG § 1B1.10(c) amendments as "retroactive" amendments. Id. at 220 n. 10. Nevertheless, the term is commonly used to identify those amendments which may be considered by the district court for purposes of reducing a defendant's sentence under 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Doe, 564 F.3d 305, 308 (3d Cir.2009); United States v. Ahrendt, 560 F.3d 69, 78 n. 7 (1st Cir.2009); United States v. Dunphy, 551 F.3d 247, 249 & n. 2 (4th Cir.2009); United States v. Regalado, 518 F.3d 143, 150 (2d Cir.2008).
. On April 26, 1979, Mistretta was attacked by two men and stabbed repeatedly with an ice pick. Mistretta died as a result of his injuries.
. Sentencing courts use the edition of the Guidelines in effect on the date of sentencing unless it is determined that the use of that edition would violate the Ex Post Facto Clause of the United States Constitution. 18 U.S.C. § 3553(a)(4); USSG § 1B1.11; United States v. Menon, 24 F.3d 550, 566 (3d Cir.1994); United States v. Cianscewski, 894 F.2d 74, 77 n. 6 (3d Cir.1990). Where the use of the current edition would violate the Ex Post *741Facto Clause, the sentencing court uses the edition of the Guidelines in effect on the date the offense was committed. USSG § 1B1.11. The November 1, 1991 Guidelines were in effect at the date of Grecco’s sentencing; the October 15, 1988 Guidelines were in effect at the termination of the RICO conspiracy on July 20, 1989.
. In its opinion below, the District Court incorrectly states that USSG § 2A1.1 included conspiracy to commit murder at the time of Grecco’s 1991 sentencing. In fact, USSG § 2A1.5 was in effect on the date of Grecco's sentencing and covered conspiracy to commit murder. Further, USSG § 2A1.1 never included conspiracy to commit murder. Prior to Amendment 311, as stated in the text above, conspiracy to commit murder was included in the guideline for attempted murder, USSG § 2A2.1. Although Grecco argues in favor of the District Court’s view of Guidelines history, it is not relevant to the instant appeal and is only mentioned for purposes of clarity.
. The parties and the District Court in its opinion below have created a certain amount of confusion with regard to the guidelines treatment of Racketeering Act 3 at sentencing. Grecco asserts that the District Court used USSG § 2A1.1 as the offense guideline for conspiracy to commit murder. The government disagrees and points to a portion of the sentencing transcript which, in its view, suggests that the District Court used USSG § 2A1.1 based on a relevant conduct finding that Grecco murdered Mistretta in furtherance of the conspiracy to murder Mistretta. We note that the record provides scant support for either of these positions. Nevertheless, the dispute is not relevant for the instant appeal because the parties agree (1) that Racketeering Act 3 was conspiracy to commit murder, not first degree murder, and (2) that the District Court selected the base offense level in USSG § 2A1.1 by applying the USSG § 2E 1.1 (a)(2) cross reference for "underlying racketeering activity.”
. We note that Grecco’s instant position — that the sentencing court should have applied USSG § 2A1.5 (1991) (base offense level 28) — directly conflicts with the position Grec-co took at the original sentencing — that the sentencing court should not apply USSG § 2A1.5 (1991). Understanding the shift in defendant's argument requires closer examination of two factors. First, at the 1991 sentencing, defendant was arguing in favor of his proposed alternative, USSG § 2A2.1 (1988) (base offense level 20), on ex post facto grounds. Defendant's ex post facto argument was, however, rejected by both the District Court and this Court. He now argues for the application of USSG § 2A1.5 (1991) in an effort to avoid the provision ultimately used by the sentencing court, USSG § 2A1.1 (base offense level 43). Second, defendant now presents a subsidiary argument, not presented at the original sentencing, that the USSG § 2A1.5(c)(1) cross reference to USSG § 2A1.1 is inapplicable in this case. Any such argument is completely without merit in light of the fact, stated in the PSR and adopted by the District Court at the original sentencing, that Grecco’s conspiracy to murder Mistretta resulted in Mistretta's death. (PSR ¶ 48, 52; App. 49.) At sentencing, defense counsel was given an opportunity to object to the factual findings in the PSR and did not do so. (App.6.)
. Although this Court has distinguished between the 18 U.S.C. § 3582(c)(2) requirement that the defendant’s sentence be "based on a sentencing range” that was subsequently lowered by the Sentencing Commission and the USSG § 1B1.10(a)(2)(B) requirement that an amendment have the effect of lowering the defendant's "applicable guideline range," Doe, 564 F.3d at 310, this Court's analysis of those two provisions reaches the same result. Doe, 564 F.3d at 311-12; Mateo, 560 F.3d at 155.
. For the versions of guideline provisions that predated Amendment 591, we will refer to the 1991 Guidelines which were in effect on the date of Grecco’s sentencing. For the amended versions of these provisions we will refer to the 2000 Guidelines.
. The Sentencing Commission identified one narrow exception to this general rule which is not relevant in the instant case. See USSG § 1B1.2(a).
. "Relevant conduct" is broadly defined to include: "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and ... in the case of jointly undertaken criminal activity ..., all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense; ... all harm that resulted from [those] acts and omissions ..., and all harm that was the object of such acts and omissions; and ... any other information specified in the applicable guideline.” USSG § 1B1.3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470737/ | OPINION OF THE COURT
PER CURIAM.
Petitioners Auw Priyanto and Erna Set-iawati seek review of final orders of re*751moval in this consolidated appeal. For the reasons that follow, we will deny the petitions for review.
Priyanto and Setiawati are both ethnic Chinese Christians and citizens of Indonesia. Both entered the United States on visitor visas, Priyanto in 2001 and Setiawa-ti in 2002, and overstayed. The couple married in the United States and have one child who was born in the United States. In November 2003, the Government served the couple with notices to appear. Both conceded removability and sought asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure.
I.
A. Priyanto
Priyanto claimed that he had been subjected to persecution in Indonesia on account of his religion and ethnicity. To support this claim, he offered testimony about the following events: 1) When he attended elementary school, Muslim students demanded that he buy them food, and on one occasion beat him up. His parents complained to the school’s principal, and there were no further beatings, though the students continually called him derogatory names; 2) He was once mugged by several Muslims while riding on a bus. He claimed that the mugging began after some of the passengers on the bus realized that he was Chinese. After the mugging, he complained to the bus driver, who did not yell at or chase the perpetrators, though he did drop off Pri-yanto in the police district; 3) He once bought doughnuts and complained to the Muslim store owner about them. The store owner called him an ethnic slur, pulled a knife, and threw the doughnuts at him; and 4) On several occasions while walking to church, Muslims would call him names and spit on him.
Priyanto also argued that he would be subjected to further persecution if he were to return to Indonesia. To support this argument, he noted the riots of 1998, as well as other events showing the extent of anti-Chinese sentiment in Indonesia. He also relied on the country’s recent earthquakes, which he claimed had increased unemployment and encouraged Muslims to demand money from the ethnic Chinese. In addition, he presented the 2001 and 2005 Country Reports for Indonesia. He testified that members of his family still live in Indonesia, and admitted that none have been harmed since he came to the United States.
The Immigration Judge (“IJ”) found Priyanto credible, but denied all substantive relief and allowed voluntary departure. The Board of Immigration Appeals (“BIA”) affirmed. First, the BIA found that Priyanto was ineligible for asylum because he had filed his application more than one year after he had entered the United States and had not shown extraordinary circumstances sufficient to excuse the delay of filing. See 8 U.S.C. § 1158(a)(2)(B) & (D). Second, the BIA found that Priyanto was not eligible for withholding of removal because the incidents of harassment that he described did not rise to the level of persecution. In addition, the BIA found that he had failed to show a clear probability that he would be persecuted if he were to return to Indonesia. Finally, the BIA found that Priyanto was not eligible for relief under the CAT because he had not shown that he is more likely than not to be tortured upon return to Indonesia.
B. Setiawati
Setiawati also claimed that she had been persecuted in Indonesia on account of her religion and ethnicity, and that she would *752be subjected to further persecution if she were to return. To support this claim, she offered testimony about the following events: 1) She was teased in elementary school because of her ethnicity; 2) When she was a child, her dog was killed. She suspected Muslim neighbors of the killing; 3) When Muslims would walk past her house on the way to a nearby mosque, they would yell racial epithets at her and, on one occasion, demanded that she turn down the volume on her television; 4) One day, while returning to her home on a motorcycle, she drove through a crowd of people whom she believed to be Muslim. Members of the crowd yelled at her, though she was not harmed; and 5) She once worked in a church that received an anonymous bomb threat. Police later recovered the bomb, which failed to detonate.
Setiawati also argued that she would be persecuted if she were to return to Indonesia. Like Priyanto, she supported her argument by relying on the 1998 riots, the social consequences of the recent earthquakes, and other events motivated by anti-Chinese sentiment. In addition, she noted the 2003 and 2005 Country Conditions Reports for Indonesia.
The IJ found Setiawati credible, but denied all substantive relief and allowed voluntary departure. The IJ found that Set-iawati’s asylum application, which she had filed more than one year after entering the country, was timely because she had originally filed as a derivative to Priyanto’s 2003 asylum application. Nevertheless, the IJ determined that she was ineligible for asylum because none of the events that she described rose to the level of persecution. The IJ also found that she had not established that she would be persecuted in the future. Likewise, the IJ found that she was ineligible for withholding of removal and relief under the CAT. The BIA affirmed without opinion.
C. Jurisdiction
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). In Priyanto’s case, the BIA issued an opinion that “invoke[ed] specific aspects of the IJ’s analysis and fact-finding” to support its conclusion; therefore, we will review both decisions. Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir.2005). In Setiawati’s case, because the BIA affirmed without opinion, we will review the IJ’s decision. Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir.2006). We review the BIA’s findings of fact regarding claims of past persecution and well-founded fears of future persecution under “the deferential substantial evidence standard.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006).
II.
In their consolidated petition for review, Priyanto and Setiawati challenge only the findings that they did not suffer past persecution and did not have a well-founded fear of future persecution and were thus ineligible for asylum (in Setiawati’s case) and withholding of removal (in both cases). Priyanto does not challenge the BIA’s decision that his asylum application was untimely,1 and the parties do not challenge their ineligibility for relief under the CAT. Accordingly, we will not consider those claims.
A. Setiawati’s asylum claim
“Persecution includes threats to life, confinement, torture, and economic restrictions so severe that they constitute a *753threat to life or freedom,” Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.2008) (internal quotations omitted), but it does not “encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional,” Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993).
An applicant can demonstrate entitlement to asylum on the basis of persecution in one of two ways. First, an applicant can provide credible testimony that he or she had been persecuted in the past. See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Setiawati testified to several instances of what she deemed to be past persecution because of her religion and ethnicity. She argues that these events, taken cumulatively, constitute persecution.2 We find that there was substantial evidence to support Id’s conclusion that these events were not extreme enough to satisfy the standard for persecution. See Wong, 539 F.3d at 232; Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005).
The second way that an applicant can obtain asylum is by showing that he or she has a well-founded fear of future persecution upon return to the country of removal. The applicant can make this showing by demonstrating that either “she would be individually singled out for persecution” or “that there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant.” Wong, 539 F.3d at 232. Setiawati does not attempt to demonstrate that she will be singled out for persecution upon return to Indonesia; instead, she attempts to establish a pattern-or-practice claim. She supports her argument by pointing to attacks against Chinese Christians in Indonesia and the 2003 and 2005 Country Reports for Indonesia. The IJ rejected this argument, noting that the 2005 Country Report states that the Indonesian government supports tolerance of all religions and has taken steps to end discriminatory laws in the country. We find that this was a valid basis to reject Setiawati’s claim. See Wong, 539 F.3d at 234. Therefore, she is not entitled to asylum.3
B. The withholding of removal claims
An applicant seeking withholding of removal “must establish a ‘clear probability’ ... that he/she would suffer persecution” if returned to the country of removal. Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006). This standard is higher than the standard governing asylum claims. Id. Accordingly, Setiawati’s request for withholding of removal necessarily fails because her request for asylum failed. See Id.
Priyanto testified to several instances of what he deemed persecution at the hands of Muslims, including a beating, a robbery, and name-calling. The BIA found that these events did not rise to the level of persecution. We find substantial evidence in the record to support the BIA’s decision. See Wong, 539 F.3d at 232; Lie, 396 F.3d at 536. To support his argument that he had a well-founded fear of persecution, Priyanto, like Setiawati, noted the attacks against ethnic Chinese Christians in Indonesia. He also submit*754ted the 2001 and 2005 Country Reports for Indonesia. The BIA rejected this claim, noting that Priyanto’s family has continued to live in Indonesia without incident. We find this to be a valid basis to reject Priyanto’s claim. See Wong, 539 F.3d at 236. Accordingly, we find that Priyanto did not establish eligibility for withholding of removal.
III.
For the foregoing reasons, we will deny the petition for review.
. We ordinarily lack jurisdiction to review the BIA’s conclusion that an asylum application was untimely. See Sukwanputra, 434 F.3d at 633.
. The Government argues that Setiawati failed to raise this argument in her brief and therefore waived judicial review of the issue. However, Setiawati did challenge the BIA's finding that she had not suffered past persecution. Accordingly, she preserved the issue for judicial review.
. Setiawati argues that Chinese Indonesians are a significantly disfavored group and thus must meet a comparably low standard of individualized risk to show a well-founded fear of persecution. We have already rejected that argument. See Lie, 396 F.3d at 538 n. 4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470739/ | *756OPINION
BARRY, Circuit Judge.
This appeal arises out of a former employment relationship between plaintiff Thomas & Betts Corporation (“T & B”) and defendant Glenn Luzzi. In an action commenced in 2001, T & B claimed that when Luzzi left T & B to work for a competitor, defendant Richards Manufacturing Company (“Richards”), he misappropriated information concerning the design, manufacture, and marketing of a line of underground electrical connector prod-uets, and that Richards used this information to capture a lucrative market sector that T & B had dominated for years.1 T & B also brought breach of contract, breach of the duty of loyalty, and fraud claims against Luzzi, and tortious interference with prospective advantage and unjust enrichment claims against Richards. After an exhaustive litigation, which we will reference only as necessary to decide the issues before us, the District Court granted summary judgment for defendants on the misappropriation claim and dismissed T & B’s remaining claims. Final Judgment was entered on June 18, 2008, 2008 WL 2478337. The Court subsequently denied defendants’ motion for sanctions. This appeal and cross-appeal followed. We have jurisdiction to consider these appeals pursuant to 28 U.S.C. § 1291.
T & B contends before us that the District Court formulated and thereafter applied a standard by which to assess whether T & B had a protectible interest in its allegedly misappropriated information, and that that standard was wrong as a matter of New Jersey law. It contends, as well, that the Court misapplied the familiar summary judgment standard of Rule 56 of the Federal Rules of Civil Procedure by finding facts and by failing to draw key inferences in favor of it, T & B, as the non-moving party. Finally, T & B contends that the Court erred in excluding significant portions of the testimony of its primary expert witness. Richards, on the cross-appeal, argues that the Court erred in denying the motion for sanctions.
Because we conclude that the District Court (1) applied an incorrect body of New Jersey law in evaluating T & B’s misappropriation claim and (2) applied too restrictive a standard in evaluating the admissibility of T & B’s expert, we will vacate the order of Final Judgment, and remand for further proceedings. We, therefore, need not discuss Rule 56 and the parties’ positions as to whether its requirements were satisfied, although we commend to all involved a review of that Rule. We will affirm the order of the Court denying sanctions.
I.
Glenn Luzzi was the Director of Engineering at T & B’s Elastimold division, which manufactures, among other things, 600-amp underground oil-resistant electrical connectors, primarily for use by Consolidated Edison (“Con Ed”). In 1998, Luzzi began to explore alternate job opportunities and sought employment with Richards, a company that also manufactured electrical components. Richards told Luzzi that it would not hire him unless T & B released him from the obligations undertaken by him in his 1996 employment agreement, which contained both restrictions on his future employment and confidentiality stipulations in the event of his *757departure from T & B. By letter of December 17, 1998, T & B stated that “Thomas & Betts hereby releases you from any previous employment restrictions which you have signed,” but cautioned Luzzi that, “[n]otwithstanding [this release], it is understood that you are not permitted to share or release information proprietary to Thomas & Betts — Elastimold.”2 (App. at 5281.) Luzzi joined Richards in January 1999.
It is undisputed that Luzzi retained a number of T & B documents (called the “Closet Documents”) in his home after he ended his employment with T & B. These documents fall into two main categories by content: (1) financial reports, customer lists, and sales charts (the “customer data”); and (2) various product specifications, standard operating procedures, and technical drawings (the “product data”). It is also undisputed that T & B had been the sole supplier of a line of 600-amp disconnectable connector products to Con Ed for approximately twenty years,3 but that, approximately eighteen months after Luzzi began working for Richards, Richards was able to develop a compatible product line and, in January 2001, obtained a sole-source contract from Con Ed for the products after offering them at a lower price than T & B.
Richards brought a declaratory judgment action in October 2001, seeking a declaration that it had not misappropriated T & B’s trade secrets or other confidential information. T & B counterclaimed, bringing the claims set forth above.4 In a series of successive interrogatory responses, T & B identified ten trade secrets and ninety-two discrete items of confidential information that it claimed defendants had misappropriated. The parties set forth in detail their positions as to each of these trade secrets and items of confidential information in the Final Pretrial Order (“PTO”).
In its opinion of October 7, 2005, the District Court denied Richards’s motion for partial summary judgment on several of T & B’s counterclaims. In that opinion, the Court articulated the standard by which it would determine whether or not T & B could claim a protective interest in each item of confidential information identified in the PTO — that is, whether the allegedly misappropriated information was, in fact, confidential. Believing that there was not a clearly-defined standard in New Jersey case law, the Court fashioned its *758“proteetibility” standard from two holdings of the Supreme Court of New Jersey.5 In the first, Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 542 A.2d 879 (1988), the Supreme Court assessed the propriety of a species of post-employment restrictive covenants (ie., inventorship “holdover” agreements), while, in the second, Lamorte Burns & Co. v. Walters, 167 N.J. 285, 770 A.2d 1158 (2001), it discussed the tort of misappropriation of confidential information. The District Court’s resultant test consisted of four factors: (1) the degree to which the information is generally known in the industry; (2) the level of specificity and specialized nature of the information; (3) the employer/employee relationship and the circumstances under which the employee was exposed to the information; and (4) whether the information is “current” (i.e., of current value to the employer).
In its next opinion, dated April 4, 2006, and following an extensive hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the District Court significantly limited the testimony of T & B’s primary expert, Van T. Walworth. The Court found that Walworth lacked experience in the field of underground electrical connectors, and found his methodology unreliable.
In opinions dated April 26, 2007, 2007 WL 1237852, and June 18, 2008, the District Court held that T & B failed to furnish sufficient evidence to demonstrate (1) that any of its ten claimed trade secrets were, in fact, secrets, and (2) that it had a protectible interest in any of the discrete items of confidential information. On that basis alone, the Court granted summary judgment on T & B’s misappropriation claim. As T & B’s claims of breach of contract, breach of the duty of loyalty, and unjust enrichment were “premised on” the survival of its misappropriation claim, the Court dismissed those claims as well.6
At oral argument before us, counsel for T & B confirmed that T & B is not appealing the District Court’s ruling as to its claimed trade secrets. Accordingly, with reference to T & B’s appeal of the grant of summary judgment, we decide whether the Court formulated an erroneous standard, or otherwise erred in granting summary judgment for Richards, only as to its analysis of T & B’s claim for the misappropriation of confidential (i.e., non-trade secret) information. We exercise plenary review over the Court’s grant of summary judgment. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir.2009). In conducting our review, we view the underlying facts, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005).
II.
As noted above, T & B argues that the District Court erred in its determination of the legal standard for a protectible interest in information under New Jersey law. Under New Jersey law, information that does not rise to the level of a trade secret may nevertheless be entitled to protection and may serve as the basis for a tort action. Larmorte Burns, 167 N.J. at *759299, 770 A.2d 1158. In Lamorte Bums, an insurance company sued two former employees who admitted taking client information from the company (while they were still employed) in order to solicit those clients for their newly formed competitive business. The Supreme Court of New Jersey held as a matter of law that the information was confidential and proprietary — and, thus, legally protectible — because it was “specific information provided to defendants by their employer, in the course of employment, and for the sole purpose of servicing plaintiffs customers.” Id. at 301, 770 A.2d 1158. The Court found persuasive that the information was not generally available to the public, that the defendants would not have been aware of the information but for their employment, that the information gave the defendants a competitive advantage over their former employer, and that defendants knew that the plaintiff had an interest in protecting the information. Id. It drew heavily on principles of agency law, which provide that an agent has a duty to the principal “ ‘not to use or to communicate information confidentially given him by the principal ... in competition with or to the injury of the principal.’ ” Id. at 300-01, 770 A.2d 1158 (quoting Restatement (Second) of Agency § 395 (1958)).7
The District Court understandably, albeit mistakenly, invoked case law dealing with the interpretation of post-employment restrictive covenants (commonly referred to as “non-compete agreements”), likely because the record was, and remains, unclear whether Luzzi had any forward-looking contractual obligations. See supra note 2. In any event, whatever obligations remained were not the sort of pernicious temporal or geographical restraints of trade frowned upon by the Supreme Court in cases implementing New Jersey non-competition law. See Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 274 A.2d 577 (1971) (temporal and geographical restraint); Solari Indus., Inc. v. Malady, 55 N.J. 571, 264 A.2d 53 (1970) (temporal restraint). In those cases, the Court’s searching reasonableness review of non-compete clauses was designed to alleviate concerns — the hardship on the employee and the public interest in free competition, see Whitmyer, 58 N.J. at 33, 274 A.2d 577 — that are not relevant in this case, where, whether expressed contractually or not, Luzzi had a common law obligation to maintain the secrecy of his employer’s proprietary information. Lamorte Burns, 167 N.J. at 299, 770 A.2d 1158. Thus, in setting its standard, the District Court erred in factoring in Ingersollr-Rand.
On remand, the District Court should consider whether the allegedly misappropriated information was provided to Luzzi by T & B in the course of his employment for the sole purpose of furthering T & B’s business interests. See Lamorte Burns, 167 N.J. at 301, 770 A.2d 1158. To answer that question, the Court should consider the following factors: (1) whether the information was generally available to the public; (2) whether Luzzi would have been aware of the information if not for his employment with T & B; (3) whether the information gave Luzzi — and, by extension, Richards — a competitive advantage vis-á-vis T & B; and (4) whether Luzzi knew that T & B had an interest in protecting the information to preserve its own competitive advantage. This inquiry *760does not entail a “rigorous examination of the information sought to be protected,” as in trade secret law, but rather a focus on the relationship between employer and employee, the expectations of the parties, and the intended use of the information. Id. at 300, 770 A.2d 1158 (quoting Robo-serve Ltd. v. Tom’s Foods, Inc., 940 F.2d 1441, 1456 (11th Cir.1991)). Moreover, it appears to us that, unlike in trade secret law, these four factors are not to be treated as essential elements of a cause of action for the misappropriation of confidential information.
With regard to the first of the Lamorte Burns factors — whether the information is generally available to the public—in Platinum Management, Inc. v. Dahms, 285 N.J.Super. 274, 666 A.2d 1028 (Law Div. 1995), a New Jersey case cited favorably in Lamorte Burns, the court held that customer names were protectible as confidential information, despite the fact that they were “publicly available” in trade directories, because “the fact that they are customers of [the plaintiff]” was not publicly available. Id. at 295, 770 A.2d 1158; see Lamorte Burns, 167 N.J. at 299-300, 770 A.2d 1158. In this case, the District Court should consider that the items of confidential information cited by T & B may serve as the basis for a tort action despite the fact that many of the items of information, examined in isolation, constitute manufacturing techniques that are generally known in the industry. Even if other engineers may have known of these techniques, inferences drawn from the marketplace, where for years no other competitor could duplicate the T & B product line, suggest a fundamental public unawareness that T & B incorporated those techniques in the development and production of 600-amp underground electrical connectors.
With respect to the third of the Lamorte Burns factors, in evaluating whether T & B had a protectible interest in the information, the District Court should consider that the competitive value an employer ascribes to certain information may derive solely from its relation to other information, even when, taken in isolation, that information is neither novel nor unknown. We have explicitly recognized this principle in the context of New Jersey trade secret law, see Rohm & Haas Co. v. Adco Chemical Co., 689 F.2d 424, 433 (3d Cir.1982), and it is equally relevant in the confidential information context. And, importantly, the Court should consider that, at this juncture, it is asked only to determine whether there are genuine issues of material fact in dispute as to whether the information at issue is confidential and proprietary.
III.
We review a district court’s decision to admit or exclude expert testimony for abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008). We may find that the District Court abused its discretion if its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Pineda, 520 F.3d at 243 (quoting In re TMI Litig., 193 F.3d 613, 666 (3d Cir.1999)). To the extent that the Court’s decision involved a legal interpretation of the Federal Rules of Evidence, however, our review is plenary. Id.
Federal Rule of Evidence 702 provides that a qualified expert witness may testify to assist the trier of fact if his testimony is based on sufficient facts or data and is the product of reliable principles and methods, and if the expert applied those principles and methods reliably to the facts of the case. Fed.R.Evid. 702; *761see Daubert, 509 U.S. at 595, 113 S.Ct. 2786. We have interpreted Rule 702’s qualification requirement liberally, and we recently reversed a district court’s conclusion that an expert was unqualified. See Pineda, 520 F.3d at 243 (holding that an engineer with an expertise in glass could testify as to the issue of safety warnings, despite the fact that he was not experienced in the design of automobile rear liftgates (the type of glass at issue) or in the drafting of service manual instructions). We noted that “it is an abuse of discretion to exclude testimony simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers most appropriate.” Id. at 244 (quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.1996)). In Pineda, we emphasized that the inquiry as to reliability is flexible, id. at 248, and that “[a]ny dispute between the parties about the strength of the evidence in this case should be resolved by the jury,” id. at 249 (emphasis added).
The District Court significantly limited the testimony of Walworth, the expert on whom T & B primarily relied, deciding that Walworth could testify as to only: (1) general concepts within the rubber molding industry; (2) his personal observations of T & B’s and Richards’ processes; and (3) his observations of the materials in the case, such as design drawings, that demonstrate similarities between the processes. The Court barred Walworth from offering any testimony as to: (1) what is commonly known in the rubber molding industry; (2) what is generally done in the rubber molding industry with respect to maintaining secrecy in manufacturing operations and whether T & B’s efforts were consistent with such practices; (3) whether or not Richards reverse engineered T & B’s products and what it would take, or how long it would take, to reverse engineer and manufacture the products; (4) the transferability of processes regarding injection molding plasties to manufacturing the products at issue; and (5) whether the information at issue is protec-tible information (ie., the ultimate issue in this ease).
As we held in Pineda, we interpret Rule 702’s qualification requirement liberally and the reliability analysis is flexible. Applying this liberal standard, we conclude that, although the District Court correctly barred Walworth from testifying as to the ultimate legal issue, the Court erred in excluding the remainder of his testimony. Walworth, whose qualifications as an expert in the manufacturing and engineering of products utilizing rubber injection molding are extensive and were not in dispute, should not have been considered unqualified merely because he was not the “best qualified” expert in “the specialization that the court considers most appropriate.” See Pineda, 520 F.3d at 244. For the same reason, Walworth’s testimony would not be unhelpful to a finder of fact merely because it references the rubber molding industry generally and not the subset industry of underground electrical connector manufacturing.8 Moreover, the Court’s *762concerns about Walworth’s reliability — in particular, his “moving target” identification of claims and reliance on the literature in his personal library to formulate his opinion — go to the strength, not the admissibility, of his testimony. Accordingly, we will reverse the District Court’s Daubert holding and permit Walworth’s testimony, save for his testimony as to ultimate legal issue in this case.
IV.
We review a district court’s ruling on a motion for sanctions under Rule 11 for abuse of discretion.9 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Churchill v. Star Enters., 183 F.3d 184, 189 (3d Cir.1999). Richards argued to the District Court that sanctions against T & B were warranted given T & B’s failure to stipulate, after the Court’s summary judgment ruling of April 26, 2007, that its remaining claims could not survive summary judgment based on law of the case. In denying Richards’s motion, the Court expressed its frustration with the manner in which the case had been litigated, but ultimately concluded that T & B’s conduct was not sanctionable. The Court did not abuse its discretion in so concluding, and we will affirm its order denying sanctions without further discussion.
V.
For the reasons discussed above, we will vacate the District Court’s order of Final Judgment entered June 18, 2008 and remand for proceedings consistent with this Opinion. We will affirm the Court’s order denying defendants’ motion for sanctions.
. Defendants have litigated the case jointly and, therefore, reference to "Richards” as a party refers to all defendants, including Blee-ma Manufacturing Corp., a company that provides employees and management services to Richards and has played no meaningful role in this litigation.
. Luzzi also may have been bound by the terms of a 1978 agreement that he signed while working for a predecessor of T & B. The District Court discussed the parties’ dispute as to whether the confidentiality provision of the 1978 or 1996 agreement, both, or neither, controls, but did not resolve it. (App. at 12-13 & n. 1.) We note the parties' stipulation that "T & B released Luzzi from only the non-compete restriction within his [employment agreement]” (App. at 18615 (emphasis added)), which suggests that Luzzi remained contractually bound not to disclose T & B's confidential information.
. In 1996, Richards developed a prototype for the same type of electrical connector manufactured by T & B for Con Ed. Though the product was successfully tested in isolation, Con Ed informed Richards that, in order to be marketable as a second source, the product had to be physically and electrically compatible with the T & B products already in service, which it was not. In addition, Luzzi testified in his deposition that Con Ed approached him in 1997, in his official capacity as Elastimold’s Director of Engineering, to ascertain whether Elastimold would license its design specifications to Richards to create another product supplier. Luzzi's superiors rejected Con Ed’s request.
.In an order dated October 28, 2005, the District Court realigned the parties to their natural pleading positions, making T & B the plaintiff and the collective Richards the defendants.
. The District Court discussed separately the well-defined New Jersey standard for a misappropriation of trade secrets claim in its opinion of January 12, 2004.
. The District Court also dismissed T & B's tortious interference claim on the ground that it was undisputed that Con Ed approached Richards as a potential second source supplier. The Court had earlier dismissed T & B’s fraud claim on separate grounds in an opinion dated April 3, 2006. T & B does not challenge either dismissal here.
. The more recent Restatement is not fundamentally different: "An agent has a duty (1) not to use property of the principal for the agent’s own purposes or those of a third party; and (2) not to use or communicate confidential information of the principal for the agent’s own purposes or those of a third party.” Restatement (Third) of Agency § 8.05 (2006).
. For example, Walworth testified that he has participated in developing systems to maintain the secrecy of manufacturing and engineering processes for rubber molding products at various companies. The Court rejected Walworth’s testimony regarding security and secrecy because what is done in the rubber molding industry is not necessarily material to what is done in the market for underground electrical connectors. It is difficult to see, however, how Walworth’s expertise in the larger industry of rubber injection molding would be irrelevant and unhelpful to a finder of fact charged with analyzing a subset of the industry, particularly *762given the relatively low standard for admissibility under Rule 702.
. Although before the District Court Richards sought sanctions under both Rule 11 and 28 U.S.C. § 1927, it presses only the denial of Rule 11 sanctions before us. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470741/ | PER CURIAM:
Thong C. Tran appeals his convictions and 60-month concurrent sentences for one count of bankruptcy fraud and two counts of making a false declaration/certificate/verification/statement under penalty of perjury in relation to a bankruptcy proceeding, in violation of 18 U.S.C. §§ 152 and 157. On appeal, Tran argues that the district court reversibly erred by denying Tran’s motion to suppress his post-Miranda1 statement when the court failed to address explicitly Tran’s argument that, before receiving Miranda warnings, he had invoked his post-indictment Sixth Amendment right to counsel when he allegedly requested his bankruptcy lawyer’s business card. Second, he argues that the evidence presented at his suppression *760hearing concerning the request for his bankruptcy attorney’s card and the court’s finding that he testified falsely was insufficient to support the court’s application of a two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1.
I. Invocation of the Right to Counsel
“A district court’s ruling on a motion to suppress presents mixed questions of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.2002). We are “required to accept the district court’s factual findings as true unless they are clearly erroneous, but the district court’s application of the law to the facts is reviewed de novo.” Id. at 749 (quotation omitted).
“The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” Texas v. Cobb, 532 U.S. 162, 167, 121 S.Ct. 1335, 1340, 149 L.Ed.2d 321 (2001) (quotation and alteration omitted). The Supreme Court has explained that:
The Sixth Amendment right to counsel ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Id. at 167-68, 121 S.Ct. 1335 (quotation and alterations omitted). The Sixth Amendment attaches at the initiation of adversary judicial proceedings. Michigan v. Jackson, 475 U.S. 625, 631, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986). “[OJnce a criminal defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of that right — even if voluntary, knowing, and intelligent under traditional standards — is presumed invalid if secured pursuant to police-initiated conversation.” Michigan v. Harvey, 494 U.S. 344, 345,110 S.Ct. 1176, 1177, 108 L.Ed.2d 293 (1990) (citing Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631). The district court must determine if the accused actually invoked his right to counsel. Smith v. Illinois, 469 U.S. 91, 95,105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984). Whether a defendant has invoked his right to counsel is an objective inquiry. Davis v. United States, 512 U.S. 452, 458-59, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994).
In Davis, the petitioner was interviewed regarding his possible involvement in a homicide. Id. at 454, 114 S.Ct. at 2353. Before being interviewed, Davis waived his rights to remain silent and to counsel. Id. at 455, 114 S.Ct. at 2353. A hour and a half into the interview Davis said, “Maybe I should talk to a lawyer.” At that point in the interview, the agents inquired as to whether the petitioner was asking for a lawyer or was just making a comment about a lawyer. Davis replied that he was not asking for a lawyer and that he did not want a lawyer. The interview then continued for another hour until Davis said, “I think I want a lawyer before I say anything else.” The interview then ceased. Id. The Supreme Court stated that:
if the suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Rather, the suspect must unambiguously request counsel.
Id. at 459, 114 S.Ct. at 2355 (citations omitted). The Supreme Court recognized that the requirement for a clear assertion of the right to counsel might disadvantage suspects who because of a lack of linguistic skills would not clearly articulate their *761right to counsel although they actually wanted to have a lawyer present. Id. at 460, 114 S.Ct. at 2356. Nonetheless, the Court believed requiring police officers to make difficult judgment calls about whether a suspect invoked his right to counsel was more problematic. See id. at 461, 114 S.Ct. at 2356.
In the instant case, the district court did not make a specific finding as to whether Tran made his alleged request for his bankruptcy lawyer’s card and, thus, did not explicitly address whether Tran invoked his right to counsel. Nevertheless, remand is unnecessary because, even if Tran had made the request to retrieve his bankruptcy lawyer’s business card, this request was too ambiguous to have constituted an invocation of his right to counsel. See Davis, 512 U.S. at 459, 114 S.Ct. at 2355. As the Supreme Court has stated, a “suspect must unambiguously request counsel.” Id. Here, Tran did not make an unambiguous request. Therefore, the district court did not err when it refused to grant Tran’s motion to suppress.
II. U.S.S.G. § 3C1.1
“Although Booker2 established a ‘reasonableness’ standard for the sentence finally imposed on a defendant, the Supreme Court concluded in Booker that district courts must still consider the Guidelines in determining a defendant’s sentence.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005) (citations omitted). Moreover, “[njothing in Booker suggests that a reasonableness standard should govern review of the interpretation and application as advisory of the Guidelines by a district court.” Id. (reaffirming that the pre-Booker standard as to the Guidelines still applies). “Although under Booker, the Sentencing Guidelines are an advisory rather than a mandatory regime, the district court remains obliged to consult and take into account the Guidelines in sentencing.” Id. (quotations omitted)(emphasis in original). “This consultation requirement, at a minimum, obliges the district court to calculate correctly the sentencing range prescribed by the Guidelines.” Id. (emphasis in original).
Where the district court has to make a particularized assessment of the defendant’s credibility or demeanor in determining whether U.S.S.G. § 3C1.1 applies, such as when applying the obstruction-of-justice enhancement for perjury, we accord special deference to the district court’s credibility determinations and review for clear error. United States v. Banks, 347 F.3d 1266, 1269 (11th Cir.2003).
Section 3C1.1 of the Sentencing Guidelines provides as follows:
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of the conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
The commentary to this section notes that “committing, suborning, or attempting to suborn perjury” is an example of conduct to which this enhancement applies. U.S.S.G. § 3C1.1 cmt. n. 4(b). The commentary also notes that “providing materially false information to a judge or magistrate” is an example of conduct to which this enhancement applies. Id., cmt. n. 4(f). In addition, the commentary states that “ ‘[mjaterial’ evidence, fact, statement, or information, as used in this section, means *762evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.” Id., cmt. n. 6. We have held “that the threshold for materiality under the commentary to § 3C1.1 is conspicuously low.” United States v. Odedina, 980 F.2d 705, 707 (11th Cir.1993) (quotation omitted). For this enhancement to apply on a finding of perjury, the four elements of perjury must be present. See United States v. Singh, 291 F.3d 756, 763 (11th Cir.2002). The four elements are “(1) the testimony must be under oath or affirmation; (2) the testimony must be false; (3) the testimony must be material; and (4) the testimony must be given with the willful intent to provide false testimony and not as a result of a mistake, confusion, or faulty memory.” Id. at 763 n. 4.
Furthermore, we have stated that “[wjhen applying this enhancement, the district court should make specific findings as to each alleged instance of obstruction by identifying the materially false statements individually. However, a general finding that an enhancement is warranted suffices if it encompasses all of the factual predicates necessary for a perjury finding.” Singh, 291 F.3d at 763 (quotations, citations, and alterations omitted).
Also, we have established standards for whether a defendant has waived the argument that he is entitled to particularized findings that perjury justifies an obstruction enhancement. See United States v. Hubert, 138 F.3d 912 (11th Cir.1998). In Hubert, the appellant’s sentence was enhanced for obstruction of justice based upon his trial testimony and his prior testimony at two hearings. 138 F.3d at 914-15 (11th Cir.1998). Hubert argued that the district court failed to make a sufficiently detailed finding that he committed perjury and obstructed justice. Id. at 915. While noting the detailed findings were not necessary given the sufficiency of the record, we concluded that, in any event, because Hubert failed to request particularized findings regarding the perjurious statements at the sentencing hearing, he waived this argument. Id.
By failing to request that the court make particularized findings as to the perjurious testimony, Tran has waived this argument. See Hubert, 138 F.3d at 915. Moreover, the court’s general finding that Tran had committed perjury or made materially false statements is sufficient to support the application of the enhancement. See Singh, 291 F.3d at 763. First, Tran testified under oath. Second, the court concluded that Tran’s testimony was false. Third, Tran’s testimony was material because it “would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1, cmt. n. 6. Because the standard for materiality under § 3C1.1 is “conspicuously low,” the fact that Tran’s alleged request for his bankruptcy lawyer’s card, if believed, was insufficient to invoke his right to counsel does not negate the materiality of his testimony because it would tend to influence the court. See Odedina, 980 F.2d at 707. Finally, it is apparent from the record that Tran’s testimony could not have been the result of mistake, confusion, or faulty memory.
Conclusion
Because Tran’s alleged request for his bankruptcy lawyer’s business card was insufficient to invoke his right to counsel and because the court’s general finding supports the application of the U.S.S.G. § 3C1.1 obstruetion-of-justice enhancement, we discern no reversible error. Accordingly, based on a review of the record and the parties’ briefs, we affirm Tran’s convictions and sentence.
AFFIRMED.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470742/ | OPINION
McKEE, Circuit Judge.
Mark Brantley appeals his conviction and the sentence that was imposed after a jury found him guilty of unlawful possession of a firearm by a felon. As we shall explain, although we have concerns about the trial proceedings, the record does not support any relief, and we must therefore affirm the judgment of conviction and sentence.
I. Background
Brantley was arrested on June 3, 2005 in New Brunswick, New Jersey for being in a location that was off-limits to him under a “Drug Offender Restraining Order” (“DORO”) that a New Jersey court had entered against him the previous month pursuant to New Jersey’s Drug Offender Restraining Order Act (“DORO Act”), N.J. Stat. Ann. § 2C:35-5.4 et seq.
The arrest occurred after Police Lieutenant Paul Schuster observed Brantley “walking into the area of Lee Ave. and Handy St.” Since Schuster knew that Brantley was well within the area prohibited by the DORO, he directed Detectives Christopher Plowucha and Ronoldy Martinez to arrest Brantley for violating the DORO. While arresting him, Detective Martinez handcuffed Brantley and then conducted a limited “pat down” search of his outer clothing for “any type of contraband.”
Detective Martinez decided not to search Brantley more thoroughly at the time of the arrest because a crowd had gathered across the street. Rather, the Detective thought it best to quickly remove Brantley from the scene and do a more complete search at the police station. After Brantley was taken to the police station, police discovered that he was carrying a handgun, and he was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (2).
Before the ensuing trial, Brantley filed a pretrial motion requesting an “innocent possession” jury instruction. The judge reserved decision on the motion.
For reasons that are not at all apparent on this record, Brantley was brought into the courtroom for his trial with shackles on *765his ankles. The record does not reveal who made the initial decision to shackle Brantley, how that decision was made, or why it was made. However, the Assistant United States Attorney raised the issue of shackling during the trial, apparently in an effort to create a record that would support the restraint. In response, the district court noted that Brantley posed no apparent security threat. However, the judge explained, he never “second-guessed” the judgment of the United States Marshals Service, who ensure the safety of the courthouse, and Brantley remained shackled.
Before Brantley took the stand to testify in his own defense, defense counsel objected to Brantley being shackled during his testimony. The district court stated: “I’m going to make this very simple: I leave that up to the Marshals. They are the first line ... and if they want those shackles to stay on, they will stay on.” However, the Deputy Marshal in the courtroom did not affirm the necessity for the restraints. Instead, he stated that he would have to “defer to [sic] a supervisor before [they] could make that decision.” The district court did not allow the Deputy to consult a supervisor, and instead ruled that Brantley suffered “no unfair prejudice” by being shackled. Brantley was, thus, shackled for the duration of the trial.1
Brantley admitted to possessing the gun, but testified that he was headed to the police department to surrender the gun when he was arrested. He explained that he did not immediately turn over the gun because he was concerned that the police might overreact “in the chaos of the arrest.” At the station, Brantley allegedly told Detective Plowucha that he wanted to “lawfully surrender a handgun to the New Brunswick police department.” According to Brantley, Plowucha “was shocked” and asked Brantley where the gun was located. Brantley then lifted the back of his coat and exposed the handle of the gun that was tucked into his waistband.
As noted at the outset, the jury convicted Brantley of being a felon in illegal possession of a firearm, and the district court refused to give the requested “innocent possession” instruction. It did so because: 1) the court believed that application of the innocent possession defense to the charge of felon in possession of a firearm undermined the congressional intent of keeping guns out of the hands of felons that is reflected in 18 U.S.C. § 922(g)(1); 2) the doctrine has not been accepted in this jurisdiction; and 3) Brantley’s own testimony negated the factual predicate for the defense because Brantley conceded that he made no effort to surrender the gun when he was first approached by the police.
The Presentence Report (“PSR”) calculated a guidelines range of 120 to 150 months imprisonment,2 and recommended *766that Brantley not receive a two-level downward adjustment for acceptance of responsibility. Brantley argued that his sentence should be reduced because of his troubled upbringing, his drug addiction, his positive and consistent relationship with his wife and children, and because he was already serving a sentence of imprisonment. The district court denied the two-level adjustment for acceptance of responsibility because Brantley had not “truthfully admitted to his conduct.” The court also rejected Brantley’s arguments for leniency and imposed the maximum sentence. This appeal followed.
II. Brantley Was Not Entitled to an “Innocent Possession” Charge
Brantley first argues that the district court erred in not giving an “innocent possession” charge to the jury because he took possession of the firearm only so that he could deliver it to police. See United States v. Mason, 233 F.3d 619, 623 (D.C.Cir.2000) (recognizing an innocent possession defense to a section 922(g)(1) charge and noting that Congress could not have intended the “absurd” result of permitting a conviction based on mere knowing possession). Brantley argues that the transitory and innocent possession of a firearm is a defense to 18 U.S.C. § 922(g)(1), and that the instruction was justified by the evidence. Appellant’s Br. at 18-31.
We review the trial court’s refusal to' give a specific jury charge for abuse of discretion. United States v. Leahy, 445 F.3d 634, 642 (3d Cir.2006). As the district court recognized, this court has not ruled on the viability of the innocent possession defense in the context of a section 922(g)(1) charge. The district court concluded that the charge was not warranted by the evidence because Brantley had several opportunities to inform police that he was carrying a gun before they discovered it. We agree.
Even if we accept Brantley’s testimony that he voluntarily disclosed the gun and surrendered it at the police station, it is not disputed that he was stopped on the street by police, searched, and then driven to the police station before he said anything about having a gun. He admits that he did not inform police that he had a gun at any point before reaching the station. Brantley therefore conceded that he possessed the gun longer than necessary to surrender it. See United States v. White, 552 F.3d 240, 249 (2d Cir.2009) (declining to decide “whether to recognize an innocent possession in the section 922(g)(1) context,” but ruling that the trial court did not abuse its discretion in declining to charge the jury on the defense where defendant “failed to adduce sufficient evidence that he possessed the shotgun only for as long as necessary to vitiate a potential threat” to a third party). Thus, even assuming arguendo that innocent possession is a viable defense to a section 922(g)(1) charge and accepting Brantley’s testimony, we cannot conclude that the district court abused its discretion in refusing to give the requested charge on this record.
III. The Arresting Officers Properly Relied on the DORO
Brantley next claims that the statute authorizing the DORO that was imposed on him and that was the basis of his arrest denied him substantive due process of law by unduly restricting his movement. The DORO Act authorizes a court, upon application of a law enforcement officer or prosecuting attorney under specified circumstances, to prohibit certain persons from entering an area where the offense “occurred or is alleged to have occurred or is affected by the criminal offense with which the person is charged.” N.J. Stat. *767Ann. § 2C:35-5.7(a) referencing N.J. Stat. Ann. § 2C:35-5.6.
Brantley does not dispute that the DORO was issued by a judge, based on probable cause, and pursuant to the statute. As the government correctly notes, police officers may in good faith rely on the validity and constitutionality of laws passed by the legislature, with the “possible exception” of laws “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see [them] flaws.” Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); see Illinois v. Krull, 480 U.S. 340, 350-55, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). Here, Brantley has not demonstrated that the DORO Act suffers from these infirmities. Thus, the arrest was valid, and we need not dwell on Brantley’s contention that the restraining order or the underlying ordinance was unconstitutional.3
IV. The Use of Shackles
Brantley’s next claim is much more troubling. He argues that his Fifth Amendment right to a fair trial was violated because he was shackled during his testimony. We review the district court’s decision to require a defendant to wear shackles for an abuse of discretion. Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005).
It is well-settled that shackling a defendant during trial is an extraordinary measure; “no person should be tried while shackled ... except as a last resort.” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).4 As the Supreme Court more recently explained in Deck v. Missouri, shackling a defendant is inherently prejudicial because it implicates three fundamental legal principles: 1) the presumption of innocence; 2) the right to counsel, including the right to participate in one’s defense and the right to testify5; and 3) judicial responsibility for the dignity and decorum that preserves the judicial process. Deck, 544 U.S. at 630-31, 125 S.Ct. 2007. Thus, the Court concluded, “the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court deter*768mination ... that they are justified by a state interest specific to a particular trial.” Id. at 629, 125 S.Ct. 2007.
Accordingly, the trial judge “must make a case specific and individualized assessment” of the defendant on trial, taking into account special security needs or the escape risk of the defendant.6 Baker, 432 F.3d at 1244 (citing Deck, 544 U.S. at 633, 125 S.Ct. 2007). The judge must also consider alternatives to shackling. See Allen, 397 U.S. at 344, 90 S.Ct. 1057; see also Szuchon v. Lehman, 273 F.3d 299, 314 (3d Cir.2001) (holding that the trial court properly ordered that defendant be shackled after defendant violently assaulted a witness in front of the jury and after carefully considering alternatives, such as “barring [the defendant] from the courtroom or issuing a contempt citation”). “[T]he defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.’” Deck, 544 U.S. at 635, 125 S.Ct. 2007 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).
Nevertheless, even though nothing on this record establishes that the district court undertook the inquiry it should have before allowing Brantley to be shackled during his trial, we can conclude beyond a reasonable doubt that Brantley’s shackles did not contribute to the verdict or undermine his testimony. When he testified, Brantley admitted two of the three elements of the crime he was charged with, and he did not contest the third.7 Brant-ley testified that he was a felon and admitted that he possessed the gun in question, and the government’s testimony regarding interstate commerce was not disputed.8
To be clear, however, we are extremely troubled by the district court’s decision to allow Brantley to remain shackled in the courtroom with absolutely no inquiry into the necessity for that drastic action and certainly no finding that would support it.9 As noted above, the court stated that it would completely defer to the Marshals in *769the courtroom. In doing so, the court abdicated its discretion, and thereby abused that discretion. Ray v. Robinson, 640 F.2d 474, 478 (3d Cir.1981) (“If a district court fails to exercise its discretion, that is itself an abuse of discretion.”).10 It is the judge’s responsibility to ensure that defendants receive due process and fundamental fairness; it is not the job of the U.S. Marshals.
The shackling here is rendered even more troubling when we consider that the Marshals were not prepared to justify a decision to keep Brantley in shackles. When asked for their view, they requested leave to discuss the issue with their supervisor, but the court denied that request. Rather than indulge the Marshals and tolerate a brief delay to determine why shackling might be necessary, the court pressed forward requiring Brantley to suffer the inherent indignity of being shackled during his trial. The court did this based upon its conclusory finding that there was “no unfair prejudice.” In the absence of a documented need for the restraint, declaring “no unfair prejudice” is hardly consistent with the court’s solemn obligation of ensuring that those who come before it are treated with appropriate dignity and afforded due process. A declaration of “no unfair prejudice” is no substitute for a meaningful inquiry into the need to restrain a defendant during trial, and it cannot cure the injury that results to the decorum of the courtroom or the dignity of the individual if restraints are not actually necessary.
Furthermore, the district court’s focus on obscuring the shackles from the jury’s view was misguided. Visible shackles, without justification specific to the defendant, clearly violate due process. Deck, 544 U.S. at 629, 125 S.Ct. 2007. Although courts can take measures to obscure shackles — and should do so even in the rare circumstances that justify shackling — obscured shackles are no less an indignity than visible ones. Moreover, relief may still be appropriate even despite efforts to hide restraints from the jury. See, e.g., Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir.1999) (granting habeas petition based on evidence that the jury saw defendant’s shackles during a trial in which the trial judge instructed defendant to keep his legs under counsel table and escorted defendant to and from the courtroom outside the jury’s presence in order to hide the shackles).
*770Here, though the district court made many efforts to conceal them, Brantley’s shackles may have been visible to jurors during at least part of his testimony. The record reflects that the witness box had spindles through which jurors may have been able to see his legs. In the middle of Brantley’s testimony, after realizing the possibility that the shackles might be visible to the jury, the court decided to put a chair in front of the witness stand. As noted above, the court also placed two Marshals near Brantley in an effort to hide the shackles from the jury while they entered and exited the jury box. Though such contortions may successfully obscure shackles from the jury’s view, see United States v. Tagliamonte, 340 Fed.Appx. 73, 79-82 (3d Cir.2009),11 courts unnecessarily risk the defendant’s fundamental right to a fair trial by relying on them.12 It is also highly risky to assume that the same jurors whom we expect to be alert and attentive during trial will not notice the sudden and unexplained appearance of a chair in front of the jury box or Marshals standing near the defendant as he testifies.
Although Brantley is not entitled to relief, no court should take imposing restraints lightly or cavalierly. Unjustified shackling is a remnant of an earlier era when the accused was brought from prison to the courtroom in chains, unkempt and wearing (at best) prison attire, following which he was exposed to a jury in the worst possible light. The practice evokes fite dehumanizing specter of slavery, and is far from the law’s promise of respect owed to each individual, including the accused. See Allen, 397 U.S. at 350-51, 90 S.Ct. 1057 (Brennan, J., concurring) (concluding that shackling and gagging offend “not only judicial dignity and decorum, but also that respect for the individual which is the lifeblood of the law”). It is an extreme measure, that the Supreme Court considers “a last resort.” Any court considering such an extreme measure must first establish that it is actually necessary, not simply a matter of practice or convenience. And in making such a determination, a district judge must scrupulously “make a case specific and individualized assessment” that supports his decision to shackle a defendant and provides a reviewing court with an adequate record. There is certainly nothing convenient about requiring anyone to suffer the indignity of shackling unless his or her own conduct justifies it. We will therefore not hesitate to order a new trial for this kind of abuse of discretion in an appropriate case.
V. The District Court Properly Denied a Downward Adjustment for Acceptance of Responsibility
Finally, Brantley claims that the district court erred in refusing to grant a two-level guideline reduction for acceptance of responsibility. “We review factual findings underlying the denial of a Sentencing Guidelines reduction for acceptance of responsibility for clear error....” United States v. Lessner, 498 *771F.3d 185, 199 (3d Cir.2007). This argument is puzzling because, as the government notes, Brantley did not accept criminal responsibility. Rather, he vigorously argued that he did not have the mens rea required to commit the offense he was charged with, and adheres to that position even now. Brantley does not simply challenge the constitutionality of his arrest; instead, he has consistently maintained that he was on his way to the police station to surrender the gun when he was apprehended even though, as the district court determined and as we have explained, his own testimony fatally undermines that claim. In denying the acceptance of responsibility reduction, the district court found that Brantley had not “truthfully admitted to his conduct,” and the “facts [ad]duced at trial do not support” his claim that he was attempting to return the firearm. We agree.
VI. Conclusion
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. In an effort to prevent the jury from seeing Brantley in shackles, the district court arranged for him to be taken to and from the witness box in the jury’s absence. The court also ordered two Marshals to stand near Brantley so that the jury could not see Brant-ley’s legs or ankles as they entered the jury box. Brantley objected to both the shackles and the arrangement with the Marshals, arguing that the shackles and the Marshals' proximity suggested that he was incarcerated. The judge responded, "Mr. Brantley, you got yourself into that trouble, not me.... You have exactly what you should have on under these circumstances. They’re not coming off."
The court's response is as perplexing as it is confusing as the judge had himself earlier confirmed that Brantley's behavior and demeanor in the courtroom had been perfectly appropriate.
. The statute, however, sets a maximum term of imprisonment of 120 months.
. Brantley also contends that the DORO was issued in violation of his procedural due process rights because he was never given a meaningful opportunity to present evidence to challenge any perceived necessity of issuing the restraining order, and that he was not represented by counsel when the DORO was issued. However, Brantley has failed to develop this argument. He offers nothing more than two unsupported and conclusory sentences in his brief. See Appellant's Br. at 38.
. United States v. Van Sach, 458 F.3d 694, 699 (7th Cir.2006) ("Shackling a defendant is an extreme measure and we understand the prejudice that such an order can have on the jury.”); United States v. Baker, 432 F.3d 1189, 1244 (11th Cir.2005) ("[Tjhe decision to use shackles to restrain a defendant at trial should rarely be employed as a security device.”) (internal citation omitted); Tyars v. Finner, 709 F.2d 1274, 1284 (9th Cir.1983) ("Shackling ... must be limited to cases urgently demanding that action.”); Kennedy v. Cardwell, 487 F.2d 101, 110 (6th Cir.1973) ("[T]he general rule [is] that a fair trial demands that a defendant be tried free of bonds except in extraordinary circumstances.”).
. Given the ignominious history and physical burden of shackles, it is no wonder that courts have long expressed concern that shackles may affect the mental state of the defendant. See People v. Harrington, 42 Cal. 165, 168-169 (1871) (stating that shackling "inevitably tends to confuse and embarrass [the defendant’s] mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense,” especially regarding his ability to be a "competent witness and testify[] on his own behalf”); Hauser v. People, 210 Ill. 253, 71 N.E. 416, 421 (1904) (holding that physical bonds "might lend to confuse or embarrass [the defendant's] mental faculties”).
. Many courts have laid out factors a trial court may consider in determining whether physical restraints are appropriate, some of them obvious. See, e.g., People v. Boose, 66 Ill.2d 261, 5 Ill.Dec. 832, 362 N.E.2d 303, 305-06 (1977). Courts have also recommended holding a formal hearing, during which the parlies may present relevant evidence and suggest alternative security measures. See, e.g., Kennedy, 487 F.2d at 107 ("Several courts, including this one, have recognized that the physical indicia of innocence are so essential to a fair trial that the better practice is to hold a hearing so that factual disputes may be resolved and evidence of the facts surrounding die decision are made a part of the record.”).
. Although the argument is not well-developed by Brantley, the same analysis applies to his argument that the Marshals’ proximity to him during his testimony may have caused the jury to infer that he was dangerous or a risk of flight. Yet, we are similarly troubled by the court's failure to recognize the risk of prejudice that could have resulted from stationing Marshals near Brantley while he was on the witness stand.
. The government presented testimony that the gun was manufactured in Maryland. Brantley was in New Jersey at the time of his arrest.
. Although the AUSA attempted to justify shackling Brantley by referencing his extensive record, it is a regrettable fact that Brant-ley's record is no more imposing or threatening than that of many others who pass through the nation's courtrooms. Yet, countless scores of other defendants with similar or worse criminal records are tried every day without shackles and without incident. This is especially true given the high volume of cases involving drug traffickers that have become the daily fare of all too many federal trial courts. See United States v. Navarro, 476 F.3d 188, 191-92 (3d Cir.2007) ("Possession of a gun is often a practical prerequisite for the sale of controlled substances or commission of other violent acts.”).
*769Therefore, if shackling is justified based only upon Brantley's criminal record, very few defendants would be able to stand trial in, much less enter, the nation’s courtrooms free of shackles and restraints. See United States v. Miller, 531 F.3d 340, 346 (6th Cir.2008) (holding “neither [defendant's] lack of honesty nor his potential prison sentence — without evidence indicating that he posed a threat to courtroom security — suffices as such an essential interest. Were we to accept the government’s position ..., the implementation of physical restraints would become essentially routine in federal drug and firearm prosecutions. This is clearly beyond what the Constitution permits.”).
. Lopez v. Thurmer, 573 F.3d 484, 492 (7th Cir.2009) (noting that the “constitutional infirmity” of allowing law enforcement officials to make decisions implicating due process “is, to put it mildly, firmly established”); Miller, 531 F.3d at 346 (holding that “[b]y deferring to the Marshals' judgment [regarding the use of a stun belt], the district court abdicated its responsibility and thus abused its discretion.”); United States v. Mayes, 158 F.3d 1215, 1226 (11th Cir.1998) (holding that “trial judges should not blindly defer to the recommendation of law enforcement officials as to the appropriateness of shackling without independently reviewing the facts and circumstances thought to warrant such a security measure and carefully considering the legal ramifications of that decision"); Hameed v. Mann, 57 F.3d 217, 222 (2d Cir.1995) (holding that "[i]n determining what restraints are necessary, the court cannot properly delegate that decision to guards or other prison officials but must decide that question for itself”).
. In Tagliamonte, a defendant was tried in shackles before the same trial judge after tire judge took precautions to ensure that the shackles could not be seen by the jury. We would not expect a judge to allow defendants to be routinely shackled. Tagliamonte, like Brantley, was not able to demonstrate prejudice. Tagliamonte could not do so because it was clear that the jury did not see the shackles. As we have explained, Brantley cannot do so because his testimony virtually conceded the elements of the crime he was charged with.
. Moreover, courts must consider the implications of shackles on the other fundamental legal principles laid out in Deck, including the impact on the defendant’s ability to participate in his defense and the dignity of the defendant. See Deck, 544 U.S. at 630-31, 125 S.Ct. 2007. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470746/ | OPINION
PER CURIAM.
Hua Li petitions for review of a Board of Immigration Appeals (“BIA” or “Board”) decision denying her motion to reopen her immigration proceedings. We will deny the petition for review.
Li originally applied for asylum and other relief based on threats she received for refusing to marry a government official in *780China. The Immigration Judge (“IJ”) denied relief. The BIA affirmed without opinion on November 17, 2004. Years later, on January 5, 2007, Li filed a motion to reopen and to file a successive asylum application, claiming that she had married a man (who later became a permanent resident of the United States) in a traditional ceremony in 2004, and registered the marriage in New York in 2005. The couple had a child on August 6, 2005, and Li was pregnant with a second child at the time she filed the motion to reopen. She asserted that the motion was exempt from the ninety:day time restriction on motions to reopen because her motion was based on changed country conditions in China and based on facts not previously available to her. Specifically, Chen contended that she would likely be persecuted as a violator of the one-child rule of the family planning law, because enforcement of the law by forcible sterilization or abortion was becoming more frequent in Fujian Province. On September 10, 2007, the BIA denied the motion. The Board found that Li had “not submitted reliable and previously unavailable evidence to establish that reopening is warranted in this case,” and thus the motion was time-barred because it did not fall within any exceptions to the time limitation.1
Li argued in her motion to reopen, citing Shou Yung Guo v. Gonzales, 463 F.3d 109, 112-13 (2d Cir.2006), that the United States Court of Appeals for the Second Circuit had recognized new evidence showing a change in country conditions — that is, a new policy in Fujian Province with regard to enforcement of birth control laws on couples whose children were born abroad.2 A.R. 22. Li argued that reports had earlier shown that special privileges were extended to returning overseas couples with children born abroad, A.R. 28-29; but that such was no longer the case.
In support of her motion to reopen, Li included a number of documents. See A.R. 41, List of Documents in Support of the Motion. The Board indicated that many of the documents Li produced had already been considered and rejected in Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and also commented on specific documents as follows:
• The “Response of the Administrative Office of the National Planning Committee to the Fujian Province Population ...” was unreliable, as the original Chinese version of the document, although dated 2006 had a fax date of March 12, 2005.3 The Board also found that it was materially similar to a document produced in S-Y-G-, which also addressed “the reproductive behaviors of the Zheng, Yu He couple,” and which the Board had determined did “not establish that the respondent himself would be found to violate family policies, or that if he was, his punishment would rise to the level of persecution.” A.R. 3.
*781• The 1999 Chang Le City Question and Answer Document was unauthenticated, and could have been produced at Li’s 2003 hearing. The Board also noted that it had been considered in S-Y-G- and found not to show that the respondent would face persecution.
• The affidavit of demographer Dr. John Aird was not based on first-hand knowledge and had been rejected in Matter of J-W-S- 24 I. & N. Dec. 185,189 (BIA 2007).
• Two news articles recounting forced abortions and/or sterilizations in Linyi, which is in Shandong province, did not discuss problems in Li’s home area.
• The testimony of Harry Wu before a United States House of Representatives committee did not provide “any specific information regarding aliens returned to Fujian Province after the birth of multiple children abroad.” A.R. 4.
• State Department information from 2004 and 2005 did “not contain evidence that someone in the respondent’s position and from her area would be subject to forced sterilization or other persecutory acts upon return to her home province.” Id..
• “[T]he remaining documents submitted by the respondent ... do not ... suffice to meet her burden of proof for reopening under Matter of S-Y-G- ....” Id.
Li also alleged that she asked her mother-in-law to inquire with the villagers’ committee in Li’s hometown, and the mother-in-law was told that Li would not be excluded from family planning procedures if she returned to China. A.R. 59. The Board found that Li’s statement concerning what her mother-in-law learned had limited evidentiary value, as there was no statement from the mother-in-law, and no indication how family planning officials learned that Li had given birth. Based on these conclusions, the BIA found that the evidence did not establish changed circumstances in China sufficient to support a reopening of the proceedings. Finally, the BIA rejected Li’s argument that she could file a successive asylum application that would not be subject to the changed country conditions requirement of an untimely motion to reopen. Li filed a timely petition for review.4
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We review the ultimate denial of a motion to reopen for an abuse of discretion. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). We uphold the BIA’s factual determinations if they are supported by substantial evidence. Korytnyuk v. Ashcroft, 396 F.3d 272, 285 (3d Cir.2005).
As an initial matter, we note that Li’s argument that she may file a successive asylum application without regard to the limits applicable to a motion to reopen is foreclosed by our decision in Liu, in which we held that, after completion of removal proceedings, an alien must file an asylum application in conjunction with a motion to reopen and must meet the time and numerical limitations on motions to reopen. 555 F.3d at 152. We also reject Li’s argument that her case is similar to Zheng v. Attorney General, 549 F.3d 260, 269-71 (3d Cir.2008), where we vacated the denial of motions to reopen based on the BIA’s failure to discuss the evidentiary record. In its decision here, the BIA specifically referred to almost every piece of background information provided by Li, con*782cluding that this evidence was inapplicable because it did not address the treatment of Chinese nationals returning from abroad with United States children.
Li argues, specifically, that the BIA ignored two pieces of evidence: (1) the State Department’s 2003 Consular Information Sheet; and (2) a 1997 “Letter in Response to the Issue of Identification of Nationality.” As the Government has noted in its supplemental brief, the Consular Information Sheet states at the top that it “is current as of today, Thu Jan 22 11:51:39 2004.” Thus, although the document bears a date of May 29, 2003 at the beginning of the text, the BIA may have included it in its discussion of “State Department information from 2004 and 2005.” Further, the BIA also stated that the “remainder” of Li’s documents did not establish that reopening was warranted. The BIA thus could have included the Consular Information Sheet, and the 1997 Letter in this catch-all category.5
Although we have remanded where the Board has “fail[ed] to discuss most of the evidentiary record,” see Zheng, 549 F.3d at 269; we do not require the Board “to write an exegesis on every contention” raised by the movant, see Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002). The BIA here examined the background evidence submitted and determined that it did not address the facts of Li’s case — the treatment of Chinese nationals returning from abroad to Fujian Province with United States citizen children. Substantial evidence supports the BIA’s conclusions.
For the foregoing reasons, we will deny the petition for review.
. In general, a motion to reopen must be filed no later than ninety days after the date of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). The general rule is subject to some exceptions, such as for changed country conditions, if proffered evidence is material, was not available, and could not have been discovered or presented at the earlier hearing. 8 C.F.R. § 1003.2(c)(3)(h).
. The Government disputes this characterization, noting that the Second Circuit simply found the evidence warranted a remand, and, that on remand, the BIA concluded that the alien had not shown that conditions in China had changed materially since her asylum hearing in 1996. Respondent's Brief at 17, n. 8 (citing Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007)).
. The document, at A.R. 73-75 also appears to have a 2001 fax date.
. The petition for review was stayed pending the Court's decisions in several similar cases. Those cases have been decided, and the parties have filed supplemental briefs addressing those decisions.
. The Consular Information Sheet states in part, "If one or both parents of a child are PRC nationals who have not permanently settled in another country, then China regards the child [born abroad] as a PRC national and does not recognize any other citizenship the child may acquire at birth, including U.S. citizenship." A.R. 98. We agree with the Government that the document does not discuss China's family planning policy, nor does it indicate that a Chinese national who returns to China with children born abroad will be persecuted. As to the 1997 Letter, we agree with the Government that, even assuming the BIA did not consider it, no remand is necessary, as the Letter could have been produced at Li's earlier asylum hearing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470749/ | OPINION
PER CURIAM.
Zainul Abedin appeals from an order of the Board of Immigration Appeals (BIA), which dismissed his appeal of an Immigration Judge’s (IJ’s) final order of removal. We will deny the petition for review.
Zainul Abedin is a native and citizen of Pakistan. He entered the United States as a crewman in 1997 and remained longer than permitted. In 2003 he was placed in removal proceedings, and he applied for asylum and related relief. The Immigration Judge (IJ) found that his asylum application was untimely, but considered him for withholding of removal and protection under the Convention Against Torture (CAT).
In hearings before the IJ, Abedin testified that he is a member of the Pakistan Muslim League-Nawaz Group (PML), and that he joined the party in 1990. He testified that Nawaz Sharif was in power at the time. When his party was not in power, he witnessed his friends being beaten up. He himself was not beaten, because he was in hiding here and there. He testified that if he returned to Pakistan, he believed that members of his party would be arrested. His wife and three children continue to live in Pakistan. He has one son who is a permanent resident of the United States.
The IJ found that Abedin’s testimony that he was an active party member was not credible, as his job as a crewman meant he was often at sea for nine months or more. The IJ found that even if his testimony was credible, it was not clear that he had to leave Pakistan, as his party was in power when he left. The Court *784noted that Abedin is in poor health, and speculated that it was unlikely he would be actively involved in politics if he returned to Pakistan. The IJ denied relief, but granted voluntary departure.
On appeal, the BIA held that the IJ properly found that Abedin’s asylum application was untimely. The BIA noted that Abedin had not challenged the IJ’s adverse credibility finding on appeal, and found that the IJ properly determined that Abedin had failed to meet his burden of proof for withholding of removal and relief under the CAT. The BIA dismissed the appeal, but granted 60 days voluntary departure. Abedin filed a timely petition for review.
Abedin has not challenged the IJ’s finding that his asylum claim was untimely filed.1 Thus, we confine our review to the denial of withholding of removal.2 Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003). We review the final order of the BIA, but to the extent that the BIA adopts parts of the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to defer to the IJ was appropriate. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005).
Whereas asylum is discretionary, withholding of removal under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), is mandatory if the applicant meets a more stringent standard — that it is “more likely than not” that he or she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if deported to his or her home country. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003). An IJ’s adverse credibility determination is reviewed for substantial evidence. See Berishaj v. Ashcroft, 378 F.3d 314, 322-23 (3d Cir.2004). Adverse credibility determinations based on speculation or conjecture are not upheld. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Under this standard, this Court upholds an adverse credibility determination unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Id.3
Abedin argues that the IJ’s credibility finding was “flawed” because she concluded that Abedin could not have a credible fear of persecution because he left while the party he supported was in power. We agree with Abedin that, although he may not have had a fear of persecution when he left Pakistan, he might have had a credible fear of persecution at a later date, when the Pakistan Muslim League-Nawaz Group was no longer in power. However, the IJ denied relief, at least in part, because she “[did] not find respondent’s testimony credible that he was an active member of the Pakistan Muslim League.” A.R. 46. Abedin did not challenge this finding on appeal to the BIA. The IJ also denied relief because Abedin did not provide corroboration of his claim — he “did not submit any documents to support his statement that he is a member of the PML, Pakistan Muslim League.” A.R. 47. *785The IJ noted that Abedin had been in immigration proceedings for three years, and thus could have obtained the documents, which he said he had left “at home.” A.R. 47; A.R. 127.4 Our review of the record does not compel us to find that Abedin established through credible testimony or documentary evidence that he was an active member of the PML.
Abedin also argues that the IJ erred in determining, without record support, that Abedin was not likely to participate in politics if he returned to Pakistan. It is true that Abedin was not specifically asked whether he would participate in politics in Pakistan; however, it was of course his burden to establish why he would fear returning to Pakistan. Abedin’s only evidence in support of his fear of future persecution was his vague statement that people who belong to the PML and people who speak against General Musharraf will get arrested. A.R. 123. That statement does not compel us to find that Abedin will face persecution, particularly when coupled with the finding that Abedin did not credibly establish that he had been active in politics before he left Pakistan. We also find that the IJ did not err in considering the fact that Abedin, who had been in poor health in the United States, was unlikely to engage in political activity in Pakistan. A.R. 47. Because Abedin did not credibly establish that it was more likely than not that he would be persecuted in Pakistan, we will deny his petition for review.5
. In any event, absent a constitutional claim or question of law, we lack jurisdiction to review a determination regarding the timeliness of an asylum application or the existence of changed or extraordinary circumstances justifying late filing. Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir.2006).
. Because Abedin has not challenged the finding that he was ineligible for protection under the CAT, his claim is waived. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
. The provisions of the Real ID Act of 2005 concerning the Court's review of an adverse credibility finding do not apply in this case because Abedin applied for relief before the Act's effective date. See Kaita v. Attorney General of the United States, 522 F.3d 288, 296 (3d Cir.2008).
. It appears that Abedin meant he left the documents in Pakistan. He noted that he has contact with his wife in Pakistan. A.R. 123.
. We decline Abedin's invitation to take judicial notice of changed country conditions in Pakistan, as our review is confined to the administrative record before us. 8 U.S.C. § 1252(b)(4)(A); Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir.2004). We further cannot consider his claim that the attorney who represented him before the IJ was ineffective, as he did not raise the claim before the BIA. 8 U.S.C. § 1252(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470810/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel H. Sloan has filed a petition for writ of mandamus or prohibition with this court, requesting we remove Judge Norman K. Moon from further adjudicating Sloan’s civil action in the United States District Court for the Western District of Virginia. Mandamus relief is available only when the petitioner has a clear right to the relief sought. United States v. Moussaoui, 333 F.3d 509, 517 (4th Cir.2003). Further, mandamus is a drastic remedy and should be used only in extraordinary circumstances. Id. at 516. Mandamus may not be used as a substitute for appeal. In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979).
*907Similarly, a writ of prohibition should not issue unless it “clearly appears that the inferior court is about to exceed its jurisdiction.” Smith v. Whitney, 116 U.S. 167, 176, 6 S.Ct. 570, 29 L.Ed. 601 (1886). A writ of prohibition, like mandamus, a drastic remedy, should be granted only where the petitioner’s right to the requested relief is clear and indisputable. In re Vargas, 728 F.2d 1461, 1468 (10th Cir.1983); In re Missouri, 664 F.2d 178, 180 (8th Cir.1981). Further, a writ of prohibition should be granted only where the petitioner has no other adequate means of relief, In re Bankers Trust Co., 775 F.2d 545, 547 (3d Cir.1985), and a writ of prohibition may not be used as a substitute for the normal appellate process. Missouri, 664 F.2d at 180.
Our review of the record indicates that Sloan’s action has been dismissed by the district court and no motions remain outstanding. Sloan v. Smith, No. 6:09-cv-00005-NKM, 2009 WL 453298 (W.D.Va. Feb. 24, 2009 WL 1097505, Apr. 23, 2009). Accordingly, while we grant leave to proceed in forma pauperis, we deny Sloan’s petition as moot. 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.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470815/ | PER CURIAM: *
Robinson Jimenez-Laines asserts that this court should remand for correction of a clerical error in the judgment pursuant to Federal Rule of Criminal Procedure 36. We remand for the limited purpose of correcting the judgment to reflect that Jimenez was convicted and sentenced under 8 U.S.C. § 1326(a) and (b)(1) rather than under § 1326(a) and (b)(2). See Fed. R.Crim.P. 36.
REMANDED FOR THE LIMITED PURPOSE OF CORRECTING CLERICAL ERROR IN JUDGMENT.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470816/ | PER CURIAM: *
The judgment of the district court is AFFIRMED for essentially the reasons provided in its Memorandum and Order of May 3, 2007, 2007 WL 1306841, and its Memorandum and Order of August 15, 2008.1
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. We are satisfied that the district court correctly dismissed any joint and several liability claims against Daniel Hollman and the law firm of Hollman, Lyon, Patterson & Durell, Inc., in these orders. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470819/ | JERRY E. SMITH, Circuit Judge: *
I.
Raymond Lebouef was injured on August 23, 2005, while working on a fixed oil platform and sued Newfield Exploration Company on September 29, 2006, under the Outer Continental Shelf Lands Act. Lebouef amended his complaint on September 18, 2007, to add Island Operating Company, Inc. (“Island Operating”) as a defendant. The parties do not dispute the applicability of Texas’s two-year statute of limitations to this personal-injury action.
Island Operating’s answer to the second amended complaint did not raise a limitations bar but only stated, without explanation, “The Complaint filed herein fails to state a claim upon which relief can be granted.” Several months later, after participating in discovery and further proceedings, both defendants moved for summary judgment on a substantive issue that Lebouef does not raise on appeal; Island *984Operating also argued that the suit is barred by limitations.
The district court held that the limitations defense was not waived, because, it stated, a court can raise it sua sponte; the court granted summary judgment for both defendants. Lebouef appeals, claiming (1) that Island Operating cannot rely on limitations, because it was not properly pleaded as an affirmative defense; (2) the district court should not have raised the limitations bar sua sponte; and (3) limitations was tolled.
II.
A court may raise a limitations bar sua sponte only in a limited number of particular circumstances. For example, in a suit by a prisoner under 42 U.S.C. § 1983, the district court has a statutory responsibility to screen out frivolous suits.1
A court may also dismiss a suit sua sponte if a limitations bar destroys federal jurisdiction. “It is well-established that, if a waiver of sovereign immunity contains a limitations period, a plaintiffs failure to file his action within that period deprives the court of jurisdiction.” Gandy Nursery, Inc. v. United States, 318 F.3d 631, 637 (5th Cir.2003). A government defendant who fails to assert limitations as an affirmative defense has thus not waived it, because the defect in the claim means that the court does not have jurisdiction to hear the suit at all. Id. “[S]ubject-matter jurisdiction is not waivable, and the federal courts are under a continuing duty to inquire into the basis of jurisdiction in the district court.” Warren v. United States, 874 F.2d 280, 281-82 (5th Cir.1989).
Both of those situations are special cases in which the court has some particular duty to decide the limitations issue because of a statutory command or a jurisdictional limitation. They are exceptions to the general rule that a defendant must raise an affirmative defense in his answer to the complaint. Federal Rule of Civil Procedure 8(c) requires that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... statute of limitations.” If the affirmative defense is not included in the complaint, it is waived. Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198 (5th Cir.1991). Once the defendant has waived that defense, it “cannot revive the defense in a memorandum in support of a motion for summary judgment,” Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976), as Island Operating tried to do here. It follows that in an ordinary civil case, where the district court has no special duty to examine the pleadings, the affirmative defense of statute of limitations can be waived and may not be raised by the court sua sponte. See Eriline Co. v. Johnson, 440 F.3d 648, 657 (4th Cir.2006).
Island Operating argues that it properly raised the limitations bar in its answer by its statement that Lebouef failed to state a claim on which relief could be granted. That statement was not sufficient to provide any notice to Lebouef that there was a limitations problem or that Island Operating intended to raise a limitations defense. True, “[t]he pleading of affirmative defenses is governed by the same liberal standards as those for a complaint.” Ma*985rine Overseas Servs., Inc. v. Crossocean Shipping Co., Inc., 791 F.2d 1227, 1233 (5th Cir.1986). But given that there are nineteen affirmative defenses listed in rule 8(c), as well as other deficiencies that can cause failure to state a claim, the defendant must provide at least some information that alerts the plaintiff to what the alleged problem is. Island Operating’s unelaborated statement of failure to state a claim did not provide enough information to preserve its affirmative defense.
Island Operating also claims that Le-bouef had actual notice of the limitations issue because of informal conversations that took place out of court between the attorneys. The content of the conversations is disputed, and, because they are not in the record, we take no notice of them, even assuming, arguendo, that the existence of such discussions would make a difference.
The summary judgment is REVERSED, and this matter is REMANDED for further proceedings. We express no opinion on how this litigation should proceed on remand.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. See 28 U.S.C. § 1915A (requiring the court to review prisoner suits and dismiss any complaint that “is frivolous, malicious, or fails to state a claim on which relief may be granted.”); 28 U.S.C. § 1915(e)(2) (authorizing sua sponte dismissal of in forma pauperis petitions that are frivolous, malicious, or fail to state a claim); Stanley v. Foster, 464 F.3d 565, 567-68 & n. 2 (5th Cir.2006) (authorizing sua sponte dismissal of § 1983 suit on statute of limitations grounds under § 1915(e)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470820/ | KEITH, Circuit Judge.
Petitioner Jose Sanie (“Sanie”) seeks this Court’s review of an order from the Board of Immigration Appeals (“BIA”), denying his application for asylum, withholding of removal, protection under the Convention Against Torture, and cancellation of removal. For the following reasons, we DISMISS the petition for review, in part, and DENY it, in part, and AFFIRM the BIA’s decision.
I.
A. Procedural Summary
On December 20, 1992, Petitioner Jose Sanie (“Sanie”) applied for asylum, pursuant to 8 U.S.C. § 1158(b)(1), and withholding of removal, pursuant to 8 U.S.C. § 1231(b)(3). He also applied for Suspension of Deportation or Special Rule Cancellation of Removal under section 203 of the Nicaraguan and Cental American Relief Act (“NACARA”) of 1997 (“Special Rule Cancellation”).1 Sanie was denied Special Rule Cancellation, and the matter was referred to an immigration judge (“IJ”) in accordance with 8 C.F.R. § 240.70.
On August 7, 2006, the Department of Homeland Security served Sanie with a Notice to Appear (“Notice”), charging him *64with removability under 8 U.S.C. § 1182(a)(6)(A)®. On October 8, 2006, Sanie appeared before the IJ and admitted the factual allegations in the Notice and conceded his removability. That same date, Sanie indicated that he wished to renew his request for asylum and that he would seek cancellation of removal under 8 U.S.C. § 1229b(b)(l). On February 28, 2007, Sanie filed his application for cancellation of removal with the immigration court.
Same’s merits hearing was held on September 25, 2007 in Memphis, Tennessee. He was the only testifying witness, and spoke before the IJ with the help of a Spanish interpreter. He also submitted a list of exhibits, including a declaration from Frank O. Mora, Ph.D., an academic with expertise in Latin American politics and society.
An oral decision was rendered the day of the hearing. The IJ denied Same’s applications for asylum, withholding of removal, cancellation of removal, and voluntary departure on the merits while finding that Sanie was not eligible to apply for CAT relief because of the age of his asylum application. Sanie appealed the IJ’s decision and the BIA dismissed the appeal in an order and opinion dated July 22, 2008. The instant petition for review timely followed on August 14, 2008.
B. Removal Proceeding
Sanie is a native and citizen of Guatemala and of Quiche descent.2 He resided with his family in Almolonga, Quetzal-tenango, Guatemala. Sanie came to the United States in June 1990 as a thirteen-year-old during the civil war between the Guatemalan government and a national guerrilla movement.
According to Same’s testimony, found credible by the IJ, several guerrilla members broke into Same’s family’s home in Guatemala one night during late May of 1990. The guerrillas informed Same’s father that they wanted to take Sanie and his two brothers to join their rebel forces. Same’s father refused to let his children go, telling the guerrillas that he did not believe in their cause and that he sided with the government in the civil war. In response, the guerrillas beat Same’s father with their hands and various unidentified weapons that they carried. Sanie stated he was also “beaten some” during the encounter but that his mother “received most of the beats up (sic)” while she protected him. Sanie further stated the beating his mother received was “not much.” Id. The guerrillas were in the home for a total of eight to ten minutes before fleeing.
Shortly after this incident, Same’s father decided to send Sanie and his brothers to the United States out of concern for their safety. Sanie entered the United States illegally on June 20, 1990. His father, as well as his sister, continued to live in Guatemala as of the date of Same’s immigration hearing.
The 2005 United States Department of State Country Report on Human Rights Practices in Guatemala (“State Department Report”), included as part of the administrative record, indicated the civil war between the government and the guerrillas ended in 1996 when a formal peace accord was signed. Sanie, however, alleged the fighting continues based on reports from his father. Accordingly, San-ie feared returning to Guatemala out of concern that the guerrillas would seek to harm or kill him in retribution for his prior refusal to join their cause.
*65Sanie claimed that former guerrillas visited his father in 1998, and warned him that Sanie and his brothers would be killed if they returned to Guatemala. Sanie testified that guerrillas still operate across all of Guatemala and thus he could not safely relocate to another part of the country if he were removed from the United States. Sanie did not claim that his family members living in Guatemala have been harmed by guerrillas since the May 1990 incident. Same’s father told him, however, that one individual who returned to Guatemala in 2006 was kidnaped and never reappeared. The circumstances surrounding the alleged kidnaping are not contained in the record.
The declaration from Dr. Mora alleged that “irregular forces, such as former Guatemalan guerrillas engaged in political and criminal activities exercise near absolute control in the more remote areas of the country.” He further suggested that Same’s social status and former residency in the remote area of Quetzaltenango would likely lead to “continued harassment, intimidation, and violence that he experienced before leaving the country.” According to Dr. Mora, “[i]n small rural communities where ... the effectiveness of law enforcement agencies is dismal, the repression or murder of past victims of human right violations” may occur.
The State Department Report acknowledged the existence of widespread “societal violence” in Guatemala and specifically attributed hundreds of killings and other crimes to “non-state actors with links to organized crime, gangs, private security companies, and alleged ‘clandestine groups.’ ” The State Department Report, however, did not indicate that these acts of violence were committed for political reasons. Furthermore, the document noted the absence of reports of politically motivated disappearances in Guatemala as well as politically motivated killings by the government and its agents.
Sanie has remained in the United States and has not returned to Guatemala since he left in 1990. He is married and has two daughters, who are both United States citizens. The family resides in Cookeville, Tennessee where Sanie works as a machine operator in a sofa assembly facility. His wife is a Mexican national without legal status in the United States. The elder daughter, Jazlinn Cojom (“Jazlinn”), was born in the United States on June 10, 2002. The younger daughter, Nicole Co-jom (“Nicole”), was also born in the United States on February 2, 2006. Id. Sanie indicated that if he were returned to Guatemala, he would not take his children with him for safety reasons due to the alleged threat from guerrillas. He also complained of limited economic opportunity for himself and educational opportunities for his children.
C. The IJ’s Decision
The IJ found Sanie to be a credible witness but determined that he failed to present sufficient objective evidence to establish past persecution or a “well-founded fear” of future persecution. Specifically, the IJ found that the single incident in 1990 “when guerrillas came to [Same’s] house one night for 8 to 10 minutes, and beat his father and pushed around his mother while respondent was being protected by his mother from injury” did not constitute “persecution” under 8 U.S.C. § 1101(a)(42)(A). The IJ also held that Sank did not demonstrate a “well-founded fear of persecution” given that the civil war in Guatemala had ended and the guerrillas were “no longer in the business of recruiting people to join their ranks.” In addition, the IJ determined that Same’s claim to be a member of a social group consisting of returning Guatemalans did *66not warrant asylum relief because the violence in Guatemala appeared to be pervasive and not directed at any particular socioeconomic group. The IJ further found that Sanie had not shown that his Quiche ethnic identity would subject him to persecution. Finally, the IJ determined that Sanie had not demonstrated a country-wide threat of persecution. For these reasons, Sanic’s asylum application was denied, as was his application for withholding of removal under the more stringent “clear probability of persecution” standard.
The IJ also denied Sanic’s application for cancellation of removal because he found that Sanie failed to establish that his removal would result in “exceptional and extremely unusual hardship” to his daughters. In reaching this conclusion, the IJ noted that both his children were healthy and did not have special needs in school. The IJ emphasized that the children were of “tender years” and that Spanish was the language spoken at home. The IJ further found that although Sanic’s daughters would likely receive “diminished educational opportunities” in Guatemala, they still would not suffer “exceptional and extremely unusual hardship” under BIA precedent because they would not be completely deprived of an education.
The IJ ruled that Sanie was not eligible for CAT relief because of the age of his asylum application. Finally, the IJ denied Sanic’s application for voluntary departure because of his inability to pay for his way out of the United States.
D. The BIA’s Decision
At the outset of its July 22, 2008 opinion and order, the BIA dismissed Sanic’s appeal with respect to his claims for withholding of removal, voluntary departure, and CAT relief because Sanie did not challenge the IJ’s determination in his administrative brief.3 With respect to Sanic’s asylum claim, the BIA found that Sanie had “failed to meet his burden of proof for asylum.” Specifically, it concurred in the IJ’s decision that the “credible, [] single incident in 1990, with respect to [Sanie] directly, did not rise to the level of [past] persecution.” The BIA determined that Sanie lacked a “well-founded fear” of future persecution given that he had not shown that the threat of persecution existed country-wide. In reaching its conclusion, the BIA noted that Sanic’s father had remained in Guatemala unharmed since the 1990 incident. The BIA also rejected Sanic’s claim that his ethnic identity and/or status as a returnee to Guatemala from the United States established an objectively well-founded fear of persecution.
The BIA adopted and affirmed the IJ’s decision to deny Sanie cancellation of removal based on a failure to establish “exceptional and extremely unusual hardship” with respect to his daughters. The BIA specifically stated that Sanie did not qualify for such relief because the “hardship [Sanic’s] daughters will face ... is the same or similar to that of other similarly situated children facing the removal of a parent.”
II.
“When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as supplemented by the BIA, becomes the basis for review.” Zhao v. Holder, 569 F.3d 238, 246 (6th Cir.2009). While the Court reviews legal conclusions de novo, factual determinations are reviewed under a substantial evidence stan*67dard. Id. We must uphold the BIA’s factual determinations as to whether Sanie sustained his burden of proof regarding eligibility for asylum and withholding of removable if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (internal quotation marks and citations omitted). “Under this deferential standard, we may not reverse the Boards’s or the immigration judge’s determination simply because we would have decided the matter differently.” Kaba v. Mukasey, 546 F.3d 741, 747 (6th Cir.2008) (internal quotation marks and citations omitted). “Rather, to overturn such a factual determination, ‘we must find that the evidence not only supports [a contrary] conclusion, but compels it.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
III.
To establish eligibility for asylum, Sanie must demonstrate that he qualifies as a refugee. 8 C.F.R. § 1208.13(b); 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as an alien “who is unable or unwilling to return to [his or her country of nationality], and is unable or unwilling to avail himself or herself of the protection of, that country because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Once an alien demonstrates that he or she is a refugee, the Attorney General has the discretion to decide whether to grant the applicant asylum. 8 U.S.C. § 1158(b)(1)(A).
A. Past Persecution
To demonstrate past persecution, “the conduct on which the application for asylum is based must go beyond what might reasonably be characterized as mere harassment.” Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.2005) (per curiam). Our Court has emphasized that persecution “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Lumaj v. Gonzales, 462 F.3d 574, 577 (6th Cir.2006) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993)). Moreover, “ ‘[persecution’ within the meaning of 8 U.S.C. § 1101(a)(42)(A) requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.1998); see also Ndrecaj v. Mukasey, 522 F.3d 667, 674 (6th Cir.2008). Yet the presence of physical violence is not necessarily sufficient to compel a finding of persecution. See Gilaj, 408 F.3d at 284 (citing with approval Gjokic v. Ashcroft, 104 Fed.Appx. 501, 505 (6th Cir.2004)).
Sanie argues that the threats of violence and physical beating he and his family received at the hands of the guerrillas during the single encounter in May 1990 “clearly establishfed]” that he “was the victim of past persecution.” This Court has recognized that a single incident may establish persecution provided it is “correspondingly severe.” See Mohammed v. Keisler, 507 F.3d 369, 371 (6th Cir.2007). But, we have also held that a single beating does not necessarily compel a finding of persecution even if it could support such a determination. See Lumaj, 462 F.3d at 577; Gjokic, 104 Fed.Appx. at 505.
In Lumaj, the Court confronted allegations by a female asylum applicant that she was attacked by two men claiming to be police officers, beaten, and then forced into a car. 462 F.3d at 577. The Court rejected the petitioner’s claim of past per*68secution based on “this one, isolated incident, of limited severity” notwithstanding her suffering of “some bodily injuries” as she “was not detained, imprisoned, tortured, or sexually assaulted in any way.” Id. In Gjokic, the petitioner alleged that after attending a demonstration, protesting the mistreatment of ethnic Albanians, Serbian police beat him with rubber sticks and he suffered bruising as a result. 104 Fed.Appx. at 502. Gjokic held that “while even a single beating offends one’s sense of civilized governmental conduct, a single beating does not compel a finding of persecution.” Id. at 505.
Same’s claim of past persecution is weaker than those rejected by this Court in Lumaj and Gjokic. First, it was Same’s father, rather than Sanie, who was the primary target of the guerrillas’ beatings. While Sanie testified to being “beaten .some” during the encounter, he indicated that his mother protected him and that she “received most of the beats up (sic).” He further acknowledged that even the beating she received was “not much.” To the extent we were not compelled in Lumaj and Gjokic to find past persecution based on the assault of the asylum applicants in those cases, there is even less support for doing so when the individual did not bear the brunt of the attack.
Second, the extent of harm suffered by Sanie undercuts his claim of persecution. Lumaj rejected a persecution claim despite allegations by the petitioner of “bodily injuries,” 462 F.3d at 577, while Gjokic denied a persecution finding even though its petitioner suffered from “bruising.” 104 Fed.Appx. at 502. Unlike Lumaj and Gjokic, Sanie does not offer any evidence that he suffered injuries.
We also find the short duration of the incident to be significant. Sanie testified that the guerrillas were in his house for only eight to ten minutes. The brevity of the encounter, although undoubtedly traumatic, does not compel a finding of past persecution. See Gjokic, 104 Fed.Appx. at 505 (citing with approval Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995) (holding that “[ajlthough a reasonable fact-finder could have found” a brief detention and beating requiring no medical care “sufficient to establish past persecution ... a fact-finder would [not] be compelled to do so.”)).
At bottom, while the harsh treatment endured by Sanie may have supported a finding of past persecution, we find that it does not compel such a determination. See Lumaj, 462 F.3d at 577. Thus, we decline to disturb the BIA’s ruling that Sanie did not suffer past persecution.
B. Well-Founded Fear of Future Persecution
In order to demonstrate eligibility for asylum on the basis of a well-founded fear of future persecution under 8 C.F.R. § 208.13(b)(2), an applicant must establish that:
(1) he or she has a fear of persecution in his or her country on account of race, religion, nationality, membership in a particular social group, or political opinion; (2) there is a reasonable possibility of suffering such persecution if he or she were to return to that country; and (3) he or she is unable or unwilling to return to that country because of such fear.
Mikhailevitch, 146 F.3d at 389. “An applicant’s fear of persecution must be both subjectively genuine and objectively reasonable.” Id. Because Sanie has failed to demonstrate past persecution, he is not entitled to the presumption of a well-founded fear of future persecution. Gilaj, 408 F.3d at 285.
*69The IJ ruled that Same’s fear of persecution was not well-founded, in part, because the civil war in Guatemala had ended. The State Department Report supports the IJ’s finding as it states the civil war between the government and the guerrillas ceased in 1996 when a formal peace agreement was reached by the two sides. Based on this evidence, the IJ concluded there was no reasonable possibility that Sanie will suffer persecution “because the civil war is over, and the guerrillas are no longer in the business of recruiting people to join their ranks.”
Despite formal cessation of the civil war, Sanie alleges that the fighting continues based on reports from his father. But, Sanic’s speculations are not sufficient to compel a finding that the Guatemalan government and guerrillas continue to fight or that guerrilla forces remain active. Several sister circuits have held that the formal end to the Guatemalan civil war undermined or eliminated the threat of future persecution by guerrilla forces. See, e.g., De Leon v. Gonzales, 153 Fed.Appx. 3, 6 n. 4 (1st Cir.2005) (asylum applicant lacked well-founded fear of persecution on return to Guatemala because peace accords had been signed and the civil war was over); Ordonez Tumax v. Ashcroft, 79 Fed.Appx. 642, 644 (5th Cir.2003) (finding substantial evidence supported the IJ’s finding that Guatemalan peace accord eliminated the possibility that petitioner would not be pressured to join guerrillas); Ramos-Ortiz v. Ashcroft, 70 Fed.Appx. 68, 72 (3d Cir. 2003) (relying on the signing of peace accords in Guatemala to agree with IJ that petitioner did not face a well-founded fear of future persecution). In light of the end of the civil war and absence of evidence to suggest that guerrillas remain active, this Court is not compelled by the record to find that Sanic’s fear of reprisal or recruitment by guerrillas forces is well-founded.
Nevertheless, Sanie maintains that even if the fighting has ceased in Guatemala, former guerrillas will target him when he returns because he did not join them during the civil war. Relevantly, Sanie testified that his father was contacted by former guerrillas in 1998, two years after the formal end of the conflict. The guerrillas allegedly threatened that Sanie would be killed if he returned home. Sanie also claimed that his father knew of an individual who returned to Guatemala in 2006 and was subsequently abducted. The BIA implicitly rejected the significance of this evidence and found Sanic’s “status as a returnee to Guatemala from the United States does not, without more, establish an objectively well-founded fear of being subject to persecution.”
As noted by the BIA, Sanic’s father has remained unharmed in Guatemala since 1990. This fact suggests that the threat of harm from former guerrilla members has subsided, particularly since Sanic’s father was the principal objector to the guerrillas’ recruitment of his sons. See Zacarias v. Gonzales, 232 Fed.Appx. 458, 463 (6th Cir. 2007) (finding the threat of harm against petitioner by guerrillas was undermined because petitioner’s close relatives lived in Guatemala for many years without incident); Matter of A-E-M-, 211. & N. Dec. 1157, 1160 (BIA 1998) (noting that an applicant’s fear of persecution is undercut when his family remains in the native country unharmed). Furthermore, while Sanie was threatened by former guerrillas in 1998, that incident occurred eight to nine years before Sanic’s immigration hearing in 2007. The significant passage of time serves as further evidence that Sanie would not be persecuted if he returned to Guatemala. See Emelkin v. Ashcroft, 97 Fed.Appx. 27, 29 (6th Cir. 2004) (finding a lapse of over ten years since petitioner’s parents and brother were harmed undercut reasonableness of peti*70tioner’s fear of persecution due to his ethnicity upon return to Moldova).
Nor are we persuaded by the alleged abduction of Same’s family acquaintance who returned to Guatemala following the end of the war. As the IJ observed, “[w]e do not know why that man was taken into custody, and we do not know who took him into custody, and we do not know the circumstances under which he was taken into custody.” Given these unknowns, the evidence does not compel us to find that Sanie has a well-founded fear of persecution resulting from his status as a Guatemalan who resisted guerrillas for political reasons and returned home after the civil war.4
C. Conclusion
Because the record does not compel a finding that Sanie suffered past persecution or that he possesses a well-founded fear of future persecution, the Court denies Same’s asylum claim.
IV.
Sanie also challenges the BIA’s denial of his application for cancellation of removal. An individual qualifies for cancellation of removal if he: (1) has remained physically in the United States for a continuous of period of not less than ten years; (2) has been of good moral character during that period; (3) has not been convicted of certain criminal offenses; and (4) establishes that removal would result in “exceptional and extremely unusual” hardship to his spouse, parent, or child who is a citizen or lawful permanent resident of the United States. 8 U.S.C. § 1229b(b)(l); Santana-Albarran v. Ashcroft, 393 F.3d 699, 702 (6th Cir.2005). The government retains discretion to deny relief even if the applicant satisfies all four elements. See id.
In this case, the BIA, adopting and affirming the IJ’s opinion, concluded Sanie did not meet his burden of proof because his young daughters, both United States citizens, would not suffer “exceptionally and extremely unusual” hardship as a result of Same’s removal to Guatemala. Sanie disputes the validity of this finding on appeal, arguing that his children will suffer extreme hardship due to diminished educational opportunities in Guatemala and his supposed inability to financially support them if removed to his native country.
Regardless of the merits of Same’s claims, judicial review of this issue is foreclosed by 8 U.S.C. § 1252(a)(2)(B)(i), which specifically divests courts of jurisdiction to review administrative judgments pertaining to cancellation of removal claims. This provision, in addition to the broader mandate of 8 U.S.C. § 1252(a)(2)(B)(ii), bars our consideration of any discretionary decision made in immigration cases, other than those relating to applications for asylum.5 See Santana-Albarran, 393 F.3d at *71703 (stating § 1252(a)(2)(B) “specifically divests jurisdiction of a court to review judgments regarding the granting of discretionary relief, including the cancellation of removal”); Valenzuela-Alccmtar v. INS, 309 F.3d 946, 949-50 (6th Cir.2002) (holding administrative determination regarding hardship under prior, less stringent, “suspension of deportation” standard is considered a discretionary issue and not subject to judicial review). Accordingly, we cannot review the IJ’s finding that Sanie did not demonstrate the requisite extreme hardship on behalf of his children to be eligible for cancellation of removal. Notably, Sanie does not address the issue of jurisdiction in his brief.
While two recognized exceptions to the jurisdictional bar created by § 1252(a)(2)(B) exist, neither applies in this case. First, Sanie does not raise a colorable constitutional claim or question of law with respect to cancellation of removal that would justify our review of the IJ’s ruling on this issue. 8 U.S.C. § 1252(a)(2)(D). Second, Sanie does not allege the IJ ignored or failed to follow precedent in making his hardship determination. Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir.2008) (holding a claim that the BIA ignored its own precedent when deciding hardship prong of cancellation of removal test was subject to judicial review). He instead argues that the record demonstrates that his children will have “little or no education opportunities in Guatemala” and that he will be unable to support them financially if removed to his native country. These claims essentially challenge the IJ’s assessment of the evidence in finding a lack of “exceptionally and extremely unusual” hardship. Such a determination is a discretionary matter not subject to judicial review. See Valenzuela-Alcantar, 309 F.3d at 949-50. To the extent Sanie mentions BIA precedent, he does so only to characterize the precedent as inapplicable rather than claiming it demands a different result. See Sanie Br. 27 (stating his situation “is distinguishable from [Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001)] and [Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002)].”).
Given the inapplicability of the exceptions to § 1252(a)(2)(B), we are without jurisdiction to review Same’s application for cancellation of removal, and accordingly, dismiss his petition for review.
V.
Finally, Sanie indicated in his petition that he was also challenging the BIA’s decisions to deny withholding of removal and CAT relief. He does not, however, include any meaningful argument related to these issues in the brief submitted to this Court. He instead offers only perfunctory references to them in his summary and concluding statement. By failing to develop his arguments, Sanie waived withholding of removal and CAT relief as grounds for relief from the IJ’s removal order. See Shlcabari v. Gonzales, 427 F.3d 324, 327 n. 1 (6th Cir.2005) (ruling applicants waived withholding of removal and CAT relief claims by mentioning them only in the statement of issues section of their brief). Therefore, we dismiss Same’s petition for these claims.
VI.
For the reasons stated above, we DISMISS the petition for review, in part, and *72DENY it, in part, and AFFIRM the BIA’s decision.
. See Pub.L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997).
. The Quiche are indigenous to Guatemala and have Mayan ancestry.
. Even though the BIA disagreed with the IJ's finding that Sanie could not apply for CAT relief, the BIA did not disturb the ruling because Sanie failed to challenge the IJ's denial of CAT relief in his administrative brief.
. The BIA, as well as the IJ, also concluded that Sanie did not establish a "well-founded fear” because he failed to demonstrate that he possessed a fear of country-wide persecution. See Bern v. Gonzales, 468 F.3d 390, 397 (6th Cir.2006) (requiring petitioner to prove he had a "well-founded fear of persecution throughout the entire country,” not just in city of former residence). Given the substantial evidence that Sanie does not have a well-founded fear of persecution even in his former area of residence, the Court need not review the BIA's determination regarding the absence of a country-wide threat of persecution. Nor must we assess the reasonableness of expecting Sanie to relocate to another part of the country.
. 8 U.S.C. § 1252(a)(2)(B) states in relevant part, "no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section ... 1229b [pertaining to cancellation of removal] of this title, or (ii) any other decision or action of the Attor*71ney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) [pertaining to asylum] of this title.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470823/ | *146ORDER
Guillermo Orduno was caught in the investigation of a drug ring operating in East St. Louis, Illinois, and St. Louis, Missouri. Orduno was arrested after he helped procure a shipment of 35 kilograms of cocaine and accompanied that shipment from Arizona to Illinois. He was convicted after a jury trial of possession with intent to distribute, 21 U.S.C. § 841(a)(1), and sentenced to 170 months’ imprisonment. Orduno filed a notice of appeal, but his appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern any nonfrivolous ground for appeal. Orduno filed a response to his lawyer’s submission. See Cir. R. 51(b). Limiting our review to the potential issues identified in counsel’s facially adequate supporting brief and in Orduno’s submission, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009), we grant counsel’s motion and dismiss the appeal.
At trial the government presented the testimony of five players in the drug shipment. They testified that Orduno was a middleman in the drug deal — he was the connection between a dealer who could get a large quantity of cocaine and another middleman in Arizona who could sell the cocaine to a buyer in Illinois. The dealer, the other middleman, the buyer, and Ordu-no all accompanied the shipment from Arizona to Illinois to assure that nothing went wrong. Something did go wrong, though, because the buyer was cooperating with the authorities. Orduno did not testify at his trial or present any other evidence. His lawyer argued to the jury that the government’s witnesses were not believable. Although counsel acknowledged that Orduno had been present, he argued that the government had not proved that he actually participated in the drug deal. The jury disagreed and voted to convict.
We begin with Orduno’s suggestion that appellate counsel could argue that the delay in bringing him to trial violated the Speedy Trial Act, 18 U.S.C. §§ 3161-74. But by failing to seek dismissal on this ground in the district court, Orduno waived his right to enforce the act’s time limit. See id. at § 3162(a)(2); United States v. Broadnax, 536 F.3d 695, 698-99 (7th Cir.2008) (citing United States v. Morgan, 384 F.3d 439, 443 (7th Cir.2004)). Orduno’s waiver precludes us from applying even plain-error review, see Broadnax, 536 F.3d at 698-99, so any argument under the Speedy Trial Act would be frivolous.
Next, counsel considers whether Orduno could challenge the jury verdict as lacking evidentiary support because no evidence showed that he physically possessed the cocaine. But conviction under § 841(a)(1) can be supported by proof of constructive possession, i.e., evidence that the defendant “had the power and intent to exercise control over the illegal drugs.” See United States v. Campbell, 534 F.3d 599, 605-06 (7th Cir.2008) (quotation marks and citation omitted). Moreover, the district court correctly instructed the jurors that they could find Orduno guilty if they found that he aided and abetted the commission of the charged offense. See United States v. Loscalzo, 18 F.3d 374, 383 (7th Cir.1994). The testimony showed that Orduno was a critical link between the buyer and the seller, that he accompanied the shipment across the country, and that, had things gone according to plan, he would have been the one responsible for cutting the cocaine with an additive to increase its quantity. That evidence was more than sufficient.
Counsel also considers a challenge to the district court’s refusal to give the jury a mere-presence instruction. See Pattern Criminal Federal Jury Instruc*147TIONS FOR THE SEVENTH CIRCUIT § 5.11 (“A defendant’s presence at the scene of a crime and knowledge that a crime is being committed is not alone sufficient to establish the defendant’s guilt.”). The district court properly refused to give the instruction because Orduno did not identify any evidence consistent with his theory of mere presence. See United States v. Glover, 479 F.3d 511, 519 (7th Cir.2007); United States v. Robinson, 96 F.3d 246, 251 (7th Cir.1996). Although Orduno argued that the government had not met its burden of proving that he participated in the drug shipment, he conceded that there was no testimony that would support a mere-presence theory. Based on that concession, any argument about the mere-presence instruction would be frivolous.
Next, counsel and Orduno consider challenges to the prison sentence. Both point to statements made by the district court that could possibly suggest that the court misunderstood the breadth of its sentencing discretion after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Counsel focuses on the court’s statement that the factors enumerated in 18 U.S.C. § 3553(a) did not support a variance above or below the guidelines range. Taken out of context, this statement could be read to mean that the district court improperly applied a presumption of reasonableness to the guidelines range. See United States v. Allday, 542 F.3d 571, 572-74 (7th Cir.2008). But read in context with the district court’s correct explanation of its responsibility to start with the guidelines but ultimately to follow the 3553(a) factors, the statement does not create an appealable issue. See United States v. Hurt, 574 F.3d 439, 442-43 (7th Cir.2009); Allday, 542 F.3d at 572-74. Orduno’s proposed argument that the district court mistakenly believed an extraordinary explanation was necessary for any below-guidelines sentence is likewise frivolous. The district court never suggested that an extraordinary explanation would justify the below-guidelines sentence that Orduno sought. It merely rejected the requested sentence because Or-duno’s justification did not support it.
Counsel also considers a challenge to the substantive reasonableness of Ordu-no’s prison sentence. Because that sentence falls within the guidelines range, we would presume that it is reasonable. See United States v. Sawyer, 558 F.3d 705, 714-15 (7th Cir.2009). But counsel points to nothing, and we see nothing, that would overcome that presumption, so any argument about the substantive reasonableness of the sentence would be frivolous.
Orduno suggests one last challenge to his sentence: he did not benefit from the “safety valve,” which provides a two-point decrease in offense level for certain nonviolent drug offenses and frees the defendant from the application of statutory minimum penalties. A defendant can qualify if he is a first-time offender, was not an organizer or leader, and has cooperated with the government before sentencing. See 18 U.S.C. § 3553(f); U.S.S.G. §§ 2Dl.l(b)(ll), 5C1.2. But Orduno never mentioned the safety valve in the district court, and he does not even suggest that he satisfied its conditions. Any argument about the safety valve would, therefore, be frivolous.
Finally, counsel discusses whether Ordu-no might raise an ineffective-assistance claim. But appellate counsel also represented Orduno at trial and has not identified any perceived deficiencies in his own performance. In any event, claims about trial counsel are rarely appropriate for direct appeal, see United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005), and that is especially true where appellate counsel would have to impugn his own *148performance, see United States v. Rezin, 322 F.3d 443, 445 (7th Cir.2003). If there is any possible challenge to counsel’s performance, that claim should be held for a postconviction proceeding where the record can be fully developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Harris, 394 F.3d at 557-58.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470825/ | MEMORANDUM **
California state prisoner Gary William Hallford appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1988 action, without prejudice, for a failure to exhaust administrative remedies as required by the Prison Litigation and Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the factual findings regarding exhaustion for clear error and the application of law de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We affirm in part, vacate in part, and remand.
The district court correctly determined that Hallford’s procedurally defective and post-suit grievances did not satisfy the exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that *177“proper exhaustion” requires adherence to administrative procedural rules); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (holding that exhaustion under 42 U.S.C. § 1997e(a) must occur prior to the commencement of the action).
The district court recognized that Hall-ford terminated his administrative appeal at the first formal level of appeal after his request for a vegetarian meal card was granted. Having received all available remedies within the administrative process, Hallford was not required to continue to appeal this issue for purposes of exhaustion. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005) (concluding that “a prisoner need not press on to exhaust further levels of review once he has [ ] received all ‘available’ remedies”). Therefore the district court should not have dismissed Hall-ford’s claim regarding the September 19, 2004 grievance over non-issuance of a vegetarian meal card. We vacate the judgment with respect to the dismissal of Hallford’s First Amendment claim regarding the denial of a vegetarian meal card and remand for further proceedings since Hallford may be entitled to pursue a claim for damages.
Hallford’s remaining contentions are unpersuasive.
We grant Hallford’s “Motion for Addendum to Previously Submitted Exhibits.” The Clerk shall file the exhibit attached to the Motion received on May 19, 2009.
Each party shall bear their own costs.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470829/ | MEMORANDUM *
Captain Charles Garner (“Garner”) appeals the district court’s grant of summary judgment in favor of Delta Airlines Inc. (“Delta”) on Garner’s retaliation claim pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(d). We review the district court’s grant of summary judgment de novo. Warren III v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). We reverse.
To establish a prima facie case of retaliation, Garner must show that: (1) he “engaged in statutorily protected activity”; (2) “he was discharged or suffered some other adverse employment action”; and (3) “there is a causal connection” between the protected activity and the adverse employment action. O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir.1996). Only the third element is at issue in this case, because Delta does not dispute that Garner established elements one and two.1
To prevail under the summary judgment standard, Garner must present facts supporting a prima facie case of retaliation. Warren III, 58 F.3d at 442. If Garner “establishes a prima facie case, the burden of production shifts to [Delta] to articulate a legitimate, non-discriminatory reason” for discharging Garner. Id. If Delta does so, Garner must present facts to show that Delta’s articulated reason “was merely pretextual.” Id. A “plaintiff who has established a prima facie case need produce very little evidence of discriminatory motive to raise a genuine issue of fact as to pretext.” Id. at 443 (internal quotation marks omitted).
Garner presented facts supporting a pri-ma facie case of retaliation. Yartzoff v. Thomas, 809 F.2d 1371,1376 (9th Cir.1987) (“Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.”). Delta then “articulate[d] a legitimate, non-discriminatory reason for [Garner’s termination].” Warren III, 58 F.3d at 442. Finally, Garner presented enough evidence to raise a genuine issue of fact regarding pretext. See Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir.2003) (holding that pretext may be found when a company policy is “ambiguous” and the company’s enforcement against employees who violate the policy is “inconsistent”).
Accordingly, the district court’s order granting summary judgment to Delta on *182Garner’s retaliation claim is REVERSED and REMANDED for proceedings consistent with this disposition.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. We find that Garner established elements one and two because he “engaged in statutorily protected activity” and "he was [subsequently] discharged.” Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470831/ | MEMORANDUM **
Marie Antoniette Baloyo, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. *183We review for substantial evidence and will uphold the agency’s decision unless the evidence compels a contrary conclusion. Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995). We deny the petition for review.
In her opening brief, Baloyo does not challenge the agency’s finding that she failed to establish past persecution, and has therefore waived the issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived). Substantial evidence supports the agency’s finding that Baloyo failed to demonstrate a clear probability of future persecution on the basis of her Catholic religion, or on the basis that she has lived in the United States and would be presumed to hold Western views. See Prasad, 47 F.3d at 340. Accordingly, her withholding of removal claim fails.
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/8470984/ | *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 |
https://www.courtlistener.com/api/rest/v3/opinions/8470812/ | PER CURIAM: *
This is a consolidated appeal of the district court’s dismissal of claims against Jefferson Parish, Louisiana in two cases concerning property damage from flooding that occurred as a result of the levee breaches in New Orleans during Hurricane Katrina. The plaintiffs-appellants, property owners in Jefferson Parish and Orleans Parish, allege that the property damage resulted from deficiencies in the New Orleans flood protection system. In their original complaints, filed on August 28, 2006, the plaintiffs-appellants named as defendants the Board of Commissioners of the Orleans Levee District, the Board of Commissioners of the Port of New Orleans, the Sewerage & Water Board of New Orleans, the East Jefferson Levee District, Jefferson Parish, and the Louisiana Department of Transportation and Development. In their second amended complaints, filed on April 11, 2007, the plaintiffs-appellants added the United States as a defendant. On October 12, 2007, 2007 WL 3003511, the district court dismissed the claims against Jefferson Parish in both actions. On March 27, 2008, the district court entered final judgments under Federal Rule of Civil Procedure 54(b) with regard to those claims, and the plaintiffs-appellants appealed. This appeal solely concerns the plaintiffs-appellants’ claims against Jefferson Parish. The plaintiffs-appellants’ claims against other defendants, including the United States, are still pending in the district court.
The district court recognized two distinct categories of claims asserted by the plaintiffs-appellants against Jefferson Parish: (1) claims based on actions taken by the Parish during Hurricane Katrina; and (2) claims based on the Parish’s alleged general failure to maintain certain levees and drainage features. The district court dismissed the first category of claims because it found that La.Rev.Stat. § 29:735 granted immunity to the Parish for all actions taken at the time of Hurricane Katrina. The district court dismissed the second category of claims for two reasons. First, the district court held that La.Rev. Stat. § 9:2800 retroactively immunized public bodies from all damages arising from Hurricane Katrina. Second, the district court held that the Parish was not under a duty to maintain the levees under Louisiana state law. Both parties agree in their briefing that the district court erred in holding that La.Rev.Stat. § 9:2800 insulated Jefferson Parish from liability, as the Louisiana Supreme Court has held this statute unconstitutional as applied to claims accruing prior to the law’s passage. See Burmaster v. Plaquemines Parish Gov’t, 982 So.2d 795 (La.2008). Additionally, at oral argument, the plaintiffs-appellants conceded that La.Rev.Stat. § 29:735 immunized Jefferson Parish against any claims relating to its actions taken during Hurricane Katrina.1 Thus, the parties’ only remaining substantive dispute is over whether Jefferson Parish was under a general duty to maintain the levees under Louisiana law.
*931However, we decline to reach the merits of this dispute because the district court exercised subject matter jurisdiction over this case on improper grounds. Although Jefferson Parish did not appeal the district court’s ruling on jurisdiction, this panel must nonetheless consider whether federal subject matter jurisdiction exists. See E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 467 (5th Cir.2009) (“Although neither party raises the issue of subject matter jurisdiction, this court must consider jurisdiction sua sponte.”).
The district court exercised jurisdiction over the plaintiffs-appellants’ claims against Jefferson Parish on the basis of supplemental jurisdiction. Specifically, the district court held that it had original jurisdiction over the plaintiffs-appellants’ federal tort claims act claims against the United States that were added in the second amended complaint, and that those claims and the claims against Jefferson Parish arose out of a common nucleus of operative fact, thus warranting the exercise of supplemental jurisdiction over the claims against the Parish. However, the new claims against the United States added in the second amended complaint cannot be relied upon to establish subject matter jurisdiction because while a plaintiff may amend a complaint to cure inadequate jurisdictional allegations, amendment may not create subject matter jurisdiction when none exists. See 3 James Wm. Moore et al., Moore’s Federal Practice § 15.14[3], at 15-34 (3d ed. 1999) (“Essentially, a plaintiff may correct the complaint to show that jurisdiction does in fact exist; however, if there is no federal jurisdiction, it may not be created by amendment.”). That is, an amendment may remedy jurisdictional problems of the “technical” or “formal” variety,2 but it may not “create an entirely new jurisdictional basis to provide competence in a court which lacked authority over the case ab initio.” Falise v. Am. Tobacco Co., 241 B.R. 63, 67 (E.D.N.Y.1999) (Weinstein, J.). This court has specifically held that an amendment may not remedy a jurisdictional defect by asserting a cause of action to serve as a statutory basis for federal question jurisdiction. See Whitmire v. Victus Ltd., 212 F.3d 885, 888 (5th Cir.2000) (citing Boelens v. Redman Homes, Inc., 759 F.2d 504, 512 (5th Cir.1985) (holding that because “the plaintiffs’ motion to amend seeks not to remedy technically inadequate jurisdictional allegations, but rather to substitute new causes of action over which there would be jurisdiction,” the motion must be denied “[b]ecause § 1653 is limited to curing technical defects only”)); see also United States v. U.S. Fid. & Guar. Co., 959 F.Supp. 345, 347 (ED.La.1996) (“[W]hen a federal court lacks jurisdiction over the original complaint, as is the instant situation, the Federal Rules of Procedure do not allow the addition of a new party to create jurisdiction.”). Thus, supplemental jurisdiction based on the plaintiffs-appellants’ federal tort claims act claims against the United States does not provide a valid basis for subject matter jurisdiction over the plaintiffs-appellants’ claims against the Parish. Although Jefferson Parish did not object to the plain*932tiffs-appellants amending the complaint to add the federal tort claims act claims, “[s]ubject matter jurisdiction can neither be conferred nor destroyed by the parties’ agreement or waiver.” Buchner v. FDIC, 981 F.2d 816, 821 (5th Cir.1993).
The plaintiffs-appellants asserted another basis for supplemental jurisdiction over their claims against the Parish in the district court: a common nucleus of operative fact with third-party beneficiary claims in the original complaint based on Acts of Assurance that several defendants signed in favor of the United States.3 Those third-party beneficiary claims as pleaded arise under Louisiana state law, but the plaintiffs-appellants argued that they trigger original subject matter jurisdiction because federal law controls the interpretation of the underlying Acts of Assurance, specifically the hold harmless provisions contained therein that were executed for the benefit of the United States and which the plaintiffs-appellants argued should be interpreted to create a duty to third parties. Federal law arguably does control the interpretation of the Acts of Assurance because the federal government entered into them pursuant to authority conferred by federal statute. See United States v. Seckinger, 397 U.S. 203, 210, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970) (“[F]ederal law controls the interpretation of the contract. This conclusion results from the fact that the contract was entered into pursuant to authority conferred by federal statute and, ultimately, by the Constitution.” (citations omitted)). However, the mere presence of a federal issue in a state cause of action is not sufficient to permit federal jurisdiction; this court has held that the presence of such a federal issue is sufficient to create federal jurisdiction only where: (1) resolving the federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial responsibilities. See Singh v. Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir.2008). Although the parties did not raise the issue of whether the third-party beneficiary claims give rise to federal jurisdiction on appeal, it was briefed in the district court, and we fail to see any substantial federal question implicated in the third-party beneficiary claims based on the hold harmless provisions in the Acts of Assurance. Further, the plaintiffs-appellants failed to meet their burden of demonstrating a common nucleus of operative fact between the third-party beneficiary claims and the claims against Jefferson Parish, making only conclusory and unsupported assertions to that effect. See New Orleans & Gulf Coast Ry. Co. v. Barrrois, 533 F.3d 321, 327 (5th Cir.2008) (“The party seeking to assert federal jurisdiction ... has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists.”).
Accordingly, we VACATE the judgment of the district court and DISMISS this suit for lack of jurisdiction.4
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. The plaintiffs-appellants conceded this point due to the Louisiana Court of Appeal’s recent unpublished opinion interpreting La.Rev.Stat. § 29:735, Chicago Property Interests, L.L.C. v. Broussard, No. 08-C-1210 (La.Ct.App. March 6, 2009), which was decided after the district court entered final judgment and briefs were filed in this appeal.
. Dropping a dispensable party to perfect diversity jurisdiction is considered to be such a "technical” or "formal” correction. See 3 James Wm. Moore et ah, Moore's Federal Practice § 15.14[3], at 15-36 (3d ed. 1999) ("A plaintiff may not amend the complaint to substitute a new plaintiff in order to cure a lack of jurisdiction, because a plaintiff may not create jurisdiction when none exists. A plaintiff may, however, drop dispensable parties, those parties not needed to establish subject matter jurisdiction, in order to perfect diversity jurisdiction." (footnotes omitted)).
. It appears that the district court has since dismissed those claims.
. The plaintiffs-appellants' motion to supplement the record is denied as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470814/ | PER CURIAM: *
Robinson Jimenez-Laines asserts that this court should remand for correction of a clerical error in the judgment pursuant to Federal Rule of Criminal Procedure 36. We remand for the limited purpose of correcting the judgment to reflect that Jimenez was convicted and sentenced under 8 U.S.C. § 1326(a) and (b)(1) rather than under § 1326(a) and (b)(2). See Fed. R.Crim.P. 36.
REMANDED FOR THE LIMITED PURPOSE OF CORRECTING CLERICAL ERROR IN JUDGMENT.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470817/ | PER CURIAM: *
The judgment of the district court is AFFIRMED for essentially the reasons provided in its Memorandum and Order of May 3, 2007, 2007 WL 1306841, and its Memorandum and Order of August 15, 2008.1
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. We are satisfied that the district court correctly dismissed any joint and several liability claims against Daniel Hollman and the law firm of Hollman, Lyon, Patterson & Durell, Inc., in these orders. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470818/ | JERRY E. SMITH, Circuit Judge: *
I.
Raymond Lebouef was injured on August 23, 2005, while working on a fixed oil platform and sued Newfield Exploration Company on September 29, 2006, under the Outer Continental Shelf Lands Act. Lebouef amended his complaint on September 18, 2007, to add Island Operating Company, Inc. (“Island Operating”) as a defendant. The parties do not dispute the applicability of Texas’s two-year statute of limitations to this personal-injury action.
Island Operating’s answer to the second amended complaint did not raise a limitations bar but only stated, without explanation, “The Complaint filed herein fails to state a claim upon which relief can be granted.” Several months later, after participating in discovery and further proceedings, both defendants moved for summary judgment on a substantive issue that Lebouef does not raise on appeal; Island *984Operating also argued that the suit is barred by limitations.
The district court held that the limitations defense was not waived, because, it stated, a court can raise it sua sponte; the court granted summary judgment for both defendants. Lebouef appeals, claiming (1) that Island Operating cannot rely on limitations, because it was not properly pleaded as an affirmative defense; (2) the district court should not have raised the limitations bar sua sponte; and (3) limitations was tolled.
II.
A court may raise a limitations bar sua sponte only in a limited number of particular circumstances. For example, in a suit by a prisoner under 42 U.S.C. § 1983, the district court has a statutory responsibility to screen out frivolous suits.1
A court may also dismiss a suit sua sponte if a limitations bar destroys federal jurisdiction. “It is well-established that, if a waiver of sovereign immunity contains a limitations period, a plaintiffs failure to file his action within that period deprives the court of jurisdiction.” Gandy Nursery, Inc. v. United States, 318 F.3d 631, 637 (5th Cir.2003). A government defendant who fails to assert limitations as an affirmative defense has thus not waived it, because the defect in the claim means that the court does not have jurisdiction to hear the suit at all. Id. “[S]ubject-matter jurisdiction is not waivable, and the federal courts are under a continuing duty to inquire into the basis of jurisdiction in the district court.” Warren v. United States, 874 F.2d 280, 281-82 (5th Cir.1989).
Both of those situations are special cases in which the court has some particular duty to decide the limitations issue because of a statutory command or a jurisdictional limitation. They are exceptions to the general rule that a defendant must raise an affirmative defense in his answer to the complaint. Federal Rule of Civil Procedure 8(c) requires that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... statute of limitations.” If the affirmative defense is not included in the complaint, it is waived. Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198 (5th Cir.1991). Once the defendant has waived that defense, it “cannot revive the defense in a memorandum in support of a motion for summary judgment,” Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir.1976), as Island Operating tried to do here. It follows that in an ordinary civil case, where the district court has no special duty to examine the pleadings, the affirmative defense of statute of limitations can be waived and may not be raised by the court sua sponte. See Eriline Co. v. Johnson, 440 F.3d 648, 657 (4th Cir.2006).
Island Operating argues that it properly raised the limitations bar in its answer by its statement that Lebouef failed to state a claim on which relief could be granted. That statement was not sufficient to provide any notice to Lebouef that there was a limitations problem or that Island Operating intended to raise a limitations defense. True, “[t]he pleading of affirmative defenses is governed by the same liberal standards as those for a complaint.” Ma*985rine Overseas Servs., Inc. v. Crossocean Shipping Co., Inc., 791 F.2d 1227, 1233 (5th Cir.1986). But given that there are nineteen affirmative defenses listed in rule 8(c), as well as other deficiencies that can cause failure to state a claim, the defendant must provide at least some information that alerts the plaintiff to what the alleged problem is. Island Operating’s unelaborated statement of failure to state a claim did not provide enough information to preserve its affirmative defense.
Island Operating also claims that Le-bouef had actual notice of the limitations issue because of informal conversations that took place out of court between the attorneys. The content of the conversations is disputed, and, because they are not in the record, we take no notice of them, even assuming, arguendo, that the existence of such discussions would make a difference.
The summary judgment is REVERSED, and this matter is REMANDED for further proceedings. We express no opinion on how this litigation should proceed on remand.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. See 28 U.S.C. § 1915A (requiring the court to review prisoner suits and dismiss any complaint that “is frivolous, malicious, or fails to state a claim on which relief may be granted.”); 28 U.S.C. § 1915(e)(2) (authorizing sua sponte dismissal of in forma pauperis petitions that are frivolous, malicious, or fail to state a claim); Stanley v. Foster, 464 F.3d 565, 567-68 & n. 2 (5th Cir.2006) (authorizing sua sponte dismissal of § 1983 suit on statute of limitations grounds under § 1915(e)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470824/ | MEMORANDUM **
California state prisoner Gary William Hallford appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1988 action, without prejudice, for a failure to exhaust administrative remedies as required by the Prison Litigation and Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the factual findings regarding exhaustion for clear error and the application of law de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We affirm in part, vacate in part, and remand.
The district court correctly determined that Hallford’s procedurally defective and post-suit grievances did not satisfy the exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that *177“proper exhaustion” requires adherence to administrative procedural rules); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (holding that exhaustion under 42 U.S.C. § 1997e(a) must occur prior to the commencement of the action).
The district court recognized that Hall-ford terminated his administrative appeal at the first formal level of appeal after his request for a vegetarian meal card was granted. Having received all available remedies within the administrative process, Hallford was not required to continue to appeal this issue for purposes of exhaustion. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.2005) (concluding that “a prisoner need not press on to exhaust further levels of review once he has [ ] received all ‘available’ remedies”). Therefore the district court should not have dismissed Hall-ford’s claim regarding the September 19, 2004 grievance over non-issuance of a vegetarian meal card. We vacate the judgment with respect to the dismissal of Hallford’s First Amendment claim regarding the denial of a vegetarian meal card and remand for further proceedings since Hallford may be entitled to pursue a claim for damages.
Hallford’s remaining contentions are unpersuasive.
We grant Hallford’s “Motion for Addendum to Previously Submitted Exhibits.” The Clerk shall file the exhibit attached to the Motion received on May 19, 2009.
Each party shall bear their own costs.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470826/ | MEMORANDUM *
Kevin Clark appeals the district court’s grant of summary judgment to Defendants Town of Buckeye and Town officials Murel Stephens, Dustin Hull, and Carroll Reynolds, in their official capacities, (collectively, “the Town”) in Clark’s § 1983 action alleging violations of his due process and First Amendment rights in connection with his termination. We have jurisdiction to review the district court’s final order pursuant to 28 U.S.C. § 1291, and we review de novo the grant of summary judgment. Lukovsky v. City & County of San *179Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We reverse the grant of summary judgment as to Clark’s pre-termination due process claim, affirm on all other claims, and remand for further proceedings.
1. A public employee who is dis-missable only for cause is “entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing.” Gilbert v. Homar, 520 U.S. 924, 929, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). Although the pre-termination hearing “need not be elaborate,” it must provide the employee “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 470 U.S. at 545, 546, 105 S.Ct. 1487; see also Gilbert, 520 U.S. at 929, 117 S.Ct. 1807. This ensures that the employee has a “meaningful opportunity” to contest whether the charges “are true and support the proposed [disciplinary] action.” Loudermill, 470 U.S. at 543, 546,105 S.Ct. 1487. The facts regarding the process afforded Clark prior to his termination are not in dispute. However, because the Town has not demonstrated that it explained to Clark the evidence upon which it based its termination decision, nor that it provided Clark a “meaningful opportunity” to challenge the decision to terminate on the basis of that evidence, the Town is not entitled to judgment as a matter of law. We therefore reverse the grant of summary judgment on Clark’s pre-termination due process claim, and remand for further proceedings.
2. Clark argues that his post-termination hearing was constitutionally insufficient because the hearing officer barred him from presenting testimony from several witnesses regarding retaliatory statements made by the Town Mayor. We disagree. Because the hearing officer made a reasonable determination that the testimony was not relevant to his inquiry into whether the Town had cause to fire Clark, the exclusion of such evidence did not violate due process. See Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir.1992) (“A defendant has no right ... to present irrelevant evidence.”). We therefore affirm the grant of summary judgment to the Town on Clark’s post-termination due process claim.
3. Clark contends that the Town terminated him in retaliation for his local campaign activities undertaken in his position as the president of the local lodge of the Fraternal Order of Police (“FOP”). Although Clark presents significant evidence of retaliatory animus related to his campaigning, “[u]nder certain circumstances, a public employer is permitted to take adverse employment action against an employee for engaging in speech that is normally protected by the First Amendment, and the court need not conduct a Pickering balancing test.” Nichols v. Dancer, 567 F.3d 423, 426 (9th Cir.2009). The district court concluded that the Town policy banning Town employees from “engaging in any political activities relating to any Town election beyond the private expression of personal opinion” was constitutional, and that Clark’s actions in endorsing and campaigning for a mayoral candidate in his role as FOP president were therefore not subject to First Amendment protection against adverse employment action. Clark does not challenge the district court’s conclusion regarding the constitutionality of policy on appeal. Rather, he argues that his campaign activities fell within the Town policy exception for “private expression of personal opinion” because he campaigned *180while off-duty and out of uniform. However, because Clark failed to raise this argument before the district court, he has waived it on appeal. Travelers Property Cas. Co. of America v. Conocophillips Co., 546 F.3d 1142, 1146 (9th Cir.2008). We therefore affirm the grant of summary judgment on Clark’s free speech claim.
4. Clark also makes a distinct claim that he was terminated because of his association with the FOP, in violation of his First Amendment right to free association. In order to survive summary judgment, Clark must demonstrate that a genuine issue of material fact exists as to whether his association with the FOP, independent of his unprotected leadership of the FOP campaign against the Town may- or, was a'“substantial or motivating factor” in the Town’s decision to terminate him. Nichols, 567 F.3d at 426 (internal quotation omitted). Although Clark offers significant evidence of Town animosity towards the FOP, the evidence relates almost entirely to anger regarding the FOP’s campaign activities, and Clark’s leadership of such activities. The evidence Clark presents is insufficient to raise a genuine issue of material fact as to whether his association with the FOP, independent of its prohibited campaign activities, was a factor motivating his termination. We therefore affirm the grant of summary judgment on Clark’s free association claim.
AFFIRMED in part; REVERSED and REMANDED in part. The parties shall bear their own costs of appeal.
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/8470828/ | MEMORANDUM *
Captain Charles Garner (“Garner”) appeals the district court’s grant of summary judgment in favor of Delta Airlines Inc. (“Delta”) on Garner’s retaliation claim pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(d). We review the district court’s grant of summary judgment de novo. Warren III v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). We reverse.
To establish a prima facie case of retaliation, Garner must show that: (1) he “engaged in statutorily protected activity”; (2) “he was discharged or suffered some other adverse employment action”; and (3) “there is a causal connection” between the protected activity and the adverse employment action. O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir.1996). Only the third element is at issue in this case, because Delta does not dispute that Garner established elements one and two.1
To prevail under the summary judgment standard, Garner must present facts supporting a prima facie case of retaliation. Warren III, 58 F.3d at 442. If Garner “establishes a prima facie case, the burden of production shifts to [Delta] to articulate a legitimate, non-discriminatory reason” for discharging Garner. Id. If Delta does so, Garner must present facts to show that Delta’s articulated reason “was merely pretextual.” Id. A “plaintiff who has established a prima facie case need produce very little evidence of discriminatory motive to raise a genuine issue of fact as to pretext.” Id. at 443 (internal quotation marks omitted).
Garner presented facts supporting a pri-ma facie case of retaliation. Yartzoff v. Thomas, 809 F.2d 1371,1376 (9th Cir.1987) (“Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.”). Delta then “articulate[d] a legitimate, non-discriminatory reason for [Garner’s termination].” Warren III, 58 F.3d at 442. Finally, Garner presented enough evidence to raise a genuine issue of fact regarding pretext. See Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir.2003) (holding that pretext may be found when a company policy is “ambiguous” and the company’s enforcement against employees who violate the policy is “inconsistent”).
Accordingly, the district court’s order granting summary judgment to Delta on *182Garner’s retaliation claim is REVERSED and REMANDED for proceedings consistent with this disposition.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. We find that Garner established elements one and two because he “engaged in statutorily protected activity” and "he was [subsequently] discharged.” Id. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470830/ | MEMORANDUM **
Marie Antoniette Baloyo, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. *183We review for substantial evidence and will uphold the agency’s decision unless the evidence compels a contrary conclusion. Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995). We deny the petition for review.
In her opening brief, Baloyo does not challenge the agency’s finding that she failed to establish past persecution, and has therefore waived the issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived). Substantial evidence supports the agency’s finding that Baloyo failed to demonstrate a clear probability of future persecution on the basis of her Catholic religion, or on the basis that she has lived in the United States and would be presumed to hold Western views. See Prasad, 47 F.3d at 340. Accordingly, her withholding of removal claim fails.
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/8471106/ | OPINION
PER CURIAM.
Petitioner Lily Bossert, a native and citizen of Peru, entered the United States without being inspected, admitted or paroled in 1991, and has resided in this coun*802try ever since. On October 14, 1997, her status was adjusted to that of a lawful permanent resident based on her marriage to Francis Bossert. Her permanent residence status on a conditional basis was terminated, however, on October 14, 1999. Bossert had filed a Form 1-751 Petition to Remove the Conditions on Residence under Immigration & Nationality Act (“INA”) § 216(c)(4)(B), 8 U.S.C. § 1186a, but it was denied by the District Director, who determined that the marriage had not been entered into in good faith. A.R. 47-49.
Bossert was served by regular mail with a Notice To Appear on March 20, 2000, which charged that she was removable under INA § 237(a)(l)(D)(i), 8 U.S.C. § 1227(a)(l)(D)(i), as an alien who has had her permanent residence status on a conditional basis terminated. The Notice To Appear was mailed to “664 Norwood Terr. Apt. # 1, Elizabeth, NJ 07202,” and it did not specify a time and place for Bossert’s removal hearing. Notice of the hearing date was mailed separately and at a later date. Bossert failed to show for her hearing on May 25, 2000, and the Immigration Judge (“IJ”) ordered her removed in ab-sentia, from the United States to Peru. A.R. 46.
On March 80, 2007, Bossert, through counsel, filed a motion to reopen the removal proceedings in Immigration Court, contending that she did not receive actual or constructive notice of her hearing. She also related that she had met someone new, a U.S. citizen, Francis Muniz, and was considering marriage, and she had filed a Freedom of Information Act (“FOIA”) request to learn about her immigration status. She learned about the order of removal when she received her FOIA response. Bossert acknowledged that she received the Notice To Appear that was mailed to her, but noted that it did not specify the date and time of the removal hearing. In an affidavit attached to the motion to reopen, Bossert stated that she never received actual or constructive notice of the date and time of the removal hearing. In this affidavit, Bossert also revealed that she lived at the “Nor-wood Terrace” address until she moved to her current address in July 2005. A.R. 14.
The Department of Homeland Security opposed the motion to reopen. The government asserted that the hearing notice, setting the date of the hearing for May 25, 2000, was mailed on March 29, 2000 to the “Norwood Terrace” address, and there was no indication in the record of proceedings that it had been returned to the Immigration Court as undeliverable.
On April 30, 2007, the IJ denied the motion to reopen on the ground that the evidence was insufficient to rebut the presumption of regular mail delivery. He reasoned that the hearing notice was sent to the same address as the Notice To Appear, Bossert admitted that she received the Notice To Appear, and her assertion that she did not actually receive the hearing notice was not persuasive considering her history of marriage fraud.
Bossert appealed to the Board of Immigration Appeals, raising a due process argument that she did not actually or constructively receive notice of her removal hearing. On March 12, 2008, the Board dismissed the appeal. The Board first addressed our decision in Santana Gonzalez v. Att’y Gen., 506 F.3d 274 (3d Cir.2007), which lowered the presumption of delivery that applies when immigration authorities send notice of a hearing by regular mail instead of certified mail. Having reviewed the holding of Santana Gonzalez, the Board then observed that the record in that case disclosed various attempts by the alien to inform DHS of her change of address, and that our decision emphasized that the alien, who was entitled to adjust *803her status under the Cuban Adjustment Act, had little or no incentive to avoid her scheduled hearing, and had little to gain by failing to appear, id. at 280-81. Applying Santana Gonzalez to the facts of Bos-sert’s case, the Board concluded that the record contained no corroborating circumstantial evidence supporting her claim of non-receipt. Nor did she allege that she had applied for or was eligible for any type of relief. Accordingly, she had good reason to avoid the hearing. Moreover, she waited almost seven years to file her motion to reopen, and did so only after she was considering entering into another marriage.
Bossert timely petitioned for review and sought a stay of removal, which we denied. The government has filed a motion to dismiss the petition for review on the ground that Bossert is a fugitive and not entitled to call upon the resources of this Court. Bossert has filed written opposition to this motion.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a). We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this deferential standard of review, we will not disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. Santana Gonzalez, 506 F.3d at 276 (citations omitted).
An alien must be provided written notice of her removal proceedings. 8 U.S.C. § 1229(a)(1). The notice must inform the alien of, among other things, “[t]he time and place at which the proceedings will be held.” Id. at (a)(l)(G)(i). If there is any change or postponement in the time and place of an alien’s removal proceedings, the government must provide the alien written notice specifying the new time or place of the proceedings, and the consequences for failing to appear. Id. at (a)(2). Written notice must be given to the alien in person, or, “if personal service is not practicable, through service by mail....” 8 U.S.C. § 1229(a)(1), (2)(A). Written notice by the Attorney General is sufficient if “provided at the most recent address provided” by the alien. 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1003.26(d).
An alien in removal proceedings shall be ordered removed in absentia if she fails to appear at a scheduled hearing after having been properly provided written notice of the time and place of that hearing, and the government establishes by clear, unequivocal, and convincing evidence that the notice was provided and that the alien is removable as charged. 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1003.26(c). An order of removal entered in absentia may be rescinded upon a motion to reopen filed within 180 days of the date of the order of removal where the alien demonstrates that her failure to appear was because of exceptional circumstances. It may also be rescinded upon a motion to reopen filed at any time where the alien demonstrates that she did not receive proper notice of her hearing, or that she was in federal or state custody and failed to appear through no fault of her own. 8 U.S.C. § 1229a(b)(5)(C)(i)-(ii); 8 C.F.R. § 1003.23(b)(4)(ii). Because Bos-sert’s motion to reopen was filed outside the 180-day deadline, she was required to demonstrate non-receipt of the hearing notice.
In Santana Gonzalez, we held that, “[a]s the word ‘receive’ indicates, the key question in reopening a removal proceeding for lack of notice is not whether the Immigration Court properly mailed the notice to the alien, but whether the alien actually received the notice.” 506 F.3d at 277. We lowered the presumption of delivery that applies when immigration authorities send notice of a hearing by regular, first-class *804mail. The strong presumption of receipt applies when a notice from Immigration Court is sent by certified mail, but less evidence is required to overcome the presumption when a hearing notice is sent by regular mail. See id. at 278.
An alien may rebut the presumption of receipt, and potentially establish non-receipt, by producing certain contrary evidence. See id. at 279-80. Such evidence may include a sworn affidavit by the alien, or other person residing at the same address, that she never received the written notice. See id. An alien’s affidavit claiming non-receipt of a notice sent by regular mail, along with corroborating circumstantial evidence, may be sufficient to raise a factual issue requiring an evidentiary hearing before the IJ. See id. at 280. In addition, whether the alien initiated proceedings with immigration authorities is evidence of non-receipt because such initiation indicates no motive to avoid the agency. See id. In Santana Gonzalez, the petitioner likely did not have a motive to avoid the scheduled hearing because she was entitled to adjustment of status under the Cuban Adjustment Act. Id. at 280-81.
Recently, in Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008), the Board established a set of guidelines with respect to the type of evidence the agency should consider that might rebut the presumption of receipt, including, but not limited to: (1) the alien’s affidavit; (2) affidavits from family members or other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the alien’s actions upon learning of the in-absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the alien had an incentive to appear; (5) any prior application or other prima facie evidence in the record or motion of statutory eligibility for relief, also indicating an incentive to appear; (6) the alien’s previous attendance at Immigration Court hearings; and (7) any other circumstances or evidence indicating possible non-receipt of notice. See id. at 674. All relevant evidence submitted must be considered, and “[e]ach case must be evaluated based on its own particular circumstances and evidence.” Id.
We conclude that the Board applied the correct standard in Bossert’s case, see Santana Gonzalez, 506 F.3d 274, considered all of the relevant evidence, see Matter of M-R-A-, 24 I. & N. Dec. at 674, and properly determined that she failed to overcome the presumption of receipt. In support of her claim, Bossert offered her own affidavit, and she contends in her brief that the Board did not give adequate weight to it. We have carefully reviewed her affidavit, but because of the non-corroborating circumstantial evidence in her case, the affidavit does not rebut the presumption of receipt, or even give rise to a genuine dispute about the facts. In her affidavit, Bossert admitted to receiving through the mail both the March 20, 2000 Notice To Appear and the District Director’s February 25, 2000 denial of her adjustment of status application; these items were addressed to her at “664 Nor-wood Terr. Apt # 1, Elizabeth, New Jersey 07202.” A.R. 41. The hearing notice was mailed to the same address on March 29, 2000, A.R. 52, only nine days after the Notice To Appear was mailed.1 According *805to her affidavit, Bossert lived at the Nor-wood Terrace address until July 2005. A.R. 14. Furthermore, at no time has Bossert claimed that she was having any trouble receiving her regular mail, and, as the Board noted, the hearing notice was not returned for non-delivery. We thus conclude that Bossert’s assertion of non-receipt is not corroborated by the circumstantial evidence, but, instead, is undermined by it.
We further agree with the Board that Bossert had good reason to avoid her removal hearing. Unlike the alien in Santana Gonzalez who, “at all times sought to have a hearing to adjust her status,” 506 F.3d at 281, Bossert did nothing for five years prior to submitting her FOIA request, and did not file a motion to reopen until almost seven years after her in ab-sentia removal proceeding. Bossert was not diligent in obtaining counsel to pursue her motion to reopen. She contends that, because she had the opportunity to have the District Director’s February 25, 2000 denial of her adjustment application reviewed in removal proceedings, see 8 C.F.R. § 216.5(f), this fact supports her claim that she had no intention of evading immigration authorities, see Petitioner’s Brief, at 16-18. But nowhere in her affidavit does she acknowledge the basis for the District Director’s decision, or claim that she would have sought review of it. The government observed, and we agree, that this factual circumstance led the Board to conclude that Bossert did not allege that she had applied for or was eligible for any type of immigration relief.
Last, Bossert contends that the IJ erred in concluding that she lacked credibility on the issue of non-receipt of the hearing notice because she could not meet her evidentiary burden to show a bona fide marriage. However, the Board did not similarly conclude that the marriage finding diminished the probative weight of Bossert’s affidavit, and the Board’s decision is the only one we review. See Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 189 (3d Cir.2007) (because only Board’s decision is final order of removal, IJ’s decision not reviewed where Board does not adopt its findings and reasoning).
Accordingly, we conclude that the Board did not abuse its discretion in denying Bossert’s motion to reopen. Unlike in Santana Gonzalez, the record here does not contain the necessary circumstantial evidence to support her claim of non-re-eeipt of the hearing notice.
For the foregoing reasons, we will deny the petition for review. The government’s motion to dismiss the petition for review pursuant to the Fugitive Disentitlement Doctrine is denied.2
. The hearing notice plainly states that a hearing was scheduled for May 25, 2000 at 9:30 a.m. in Newark Immigration Court.
. Pursuant to the Fugitive Disentitlement Doctrine, a criminal defendant who has failed to surrender may be barred from calling upon the resources of a court. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (per curiam). Although we have applied the doctrine to aliens, Arana v. Immigration & Naturalization Serv., 673 F.2d 75, 77 (3d Cir.1982) (per curiam), we decline to apply it here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471108/ | OPINION
PER CURIAM.
Gerald Smith filed a civil rights action against numerous individuals, including various judges and attorneys who have taken some part in his legal matters, and Matthew Bender, Chief of the Lehighton Police Department. The District Court dismissed the action as to all defendants except Bender. In his amended complaint, Smith alleged that Bender used excessive force against him. Smith appeals following entry of orders by the District Court granting Bender’s motion for summary judgment.1 We will affirm the judgment of the District Court.
I.
Smith alleges that (then) Officer Bender violated the Eighth Amendment by using excessive force against him on two occasions: on November 24, 2005, when Bender pulled him over for running through a stop sign, and on January 25, 2006, when Bender escorted him to a preliminary hearing in leg restraints. Smith alleges that, related to the traffic stop, Bender grabbed his forearm, then later used pepper spray on him, causing injuries. Smith also alleges that, after a chase, Bender used a slapstick on him, striking him in the back of his legs and in the ribs. Related to the preliminary hearing, Smith alleges that his leg restraints were too tight, and that Bender dragged him by the shoulder across the street.
Bender filed a motion for summary judgment and an accompanying statement of facts pursuant to Middle District of Pennsylvania Local Rule 56.1. Smith opposed the motion, but neglected to file a counter-statement of facts. The magistrate judge recommended granting the summary judgment motion, and the District Court, over Smith’s objections, adopted the magistrate judge’s recommendation. Smith now appeals.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review, and must determine whether the record, when viewed in the light most favorable to Smith, shows that there is no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law. See Torres v. Fauver, 292 F.3d 141,145 (3d Cir.2002).
III.
At the outset, we note that it is not clear whether the District Court conducted a de novo review of the report and recommendation. The District Court observed that because Smith “failed to set forth specific objections” to the magistrate judge’s ree-*808ommendations, de novo review was not required, yet it characterized its conclusions as being based upon “an independent examination.” A review of Smith’s objections reveals that they were highly specific, and directed at particularized factual statements in the report and recommendation. Accordingly, de novo review was warranted. Regardless of the standard applied, the District Court was correct in granting the motion for summary judgment.
Because Smith neglected to file “a separate, short and concise statement of material facts, responding to the numbered paragraphs set forth” in Bender’s statement of facts, the District Court was entitled to deem the statement of facts as admitted. See Local Rule 56.1. These facts include that Smith exited his vehicle and assumed a fighting stance after being pulled over for a routine traffic stop. Instead of placing his hands on his vehicle as Bender instructed, Smith physically resisted. After being sprayed with pepper spray, Smith kicked Bender in the chest, knocked him to the ground and charged him. Although Bender attempted to contact backup assistance during this time, he was unsuccessful. Smith ran away causing Bender to chase after him. After Bender caught Smith he ordered Smith to the ground, but Smith again resisted. Bender struck Smith in the leg, and was then able to get Smith’s hands behind his back and put him in custody.
When considering Bender’s motion for summary judgment, the District Court incorrectly analyzed Smith’s traffic stop-related excessive force claim as an Eighth Amendment claim and applied the standard used to evaluate the use of force against inmates by prison officials. Though Smith is currently incarcerated, his primary excessive force claim arises out of the vehicle stop resulting in his arrest. Accordingly, the claim is analyzed under the Fourth Amendment’s objective reasonableness standard. See Lora-Pena v. F.B.I., 529 F.3d 503, 505 (3d Cir.2008). The relevant inquiry is whether the officer’s actions were objectively reasonable in light of the facts and circumstances confronting him. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The proper application of this inquiry “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. Other factors to consider include the possibility that the suspect is violent, the duration of the action, and the possibility that the suspect may be armed. See Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir.2007).
The record supports the District Court’s conclusions that the force used by Bender was applied in an effort to restore discipline during a reasonably perceived threat, that Smith’s injuries were limited, and that the severity of the force Bender used was reasonable.
The District Court correctly applied the Eighth Amendment standard to Smith’s other excessive force claim. Since Smith was a pretrial detainee at the time he was transported to his preliminary hearing, the claim related to that transportation is analyzed as a potential violation of the Due Process Clause of the Fourteenth Amendment. See generally Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990). However, in evaluating such excessive force claims this Court applies the standard governing Eighth Amendment cruel and unusual punishment cases. See Fuentes v. Wagner, 206 F.3d *809335, 345 (3d Cir.2000) (relevant inquiry is “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm”).
Bender’s unopposed statement of facts state that Smith stopped in the middle of the street in his leg restraints when they arrived at the hearing, requiring Bender to forcibly move him the rest of the way to get out of the road. The District Court correctly concluded that Bender had not used excessive force.
Accordingly, we agree that Bender is entitled to judgment as a matter of law. We correspondingly agree with the District Court’s order denying Smith’s motion to reconsider. We will affirm the judgment of the District Court. In addition, in his argument in support of this appeal, Smith requests appointment of counsel. That motion is denied.
. Smith does not substantively challenge on appeal the dismissal of the case as to the defendants other than Bender. Smith accused these defendants of conspiring to create false charges and complaints against him, and the District Court correctly concluded Smith failed to state a claim and that the defendants were either immune from suit or did not act under color of state law. We will not further address his claims with regard to these defendants in this opinion. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470832/ | MEMORANDUM **
Marek Bernacki, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals’ order summarily dismissing his appeal from an immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C. § 1252. We review questions of law de novo, Heman-dez-Gil v. Gonzales, 476 F.3d 803, 804 n. 1 (9th Cir.2007), and we deny the petition for review.
The IJ properly denied Bernacki’s applications for asylum and withholding of removal because Bernacki failed to comply with the IJ’s November 18, 2004, and March 25, 2005, orders and failed to request a continuance from the IJ. See 8 C.F.R. § 1003.31(c).
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/8470834/ | MEMORANDUM **
Ranjit Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying his application for asylum and withholding of removal and denying his motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and for abuse of discretion the denial of the motion to remand, Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir.2008). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on Singh’s submission of a fraudulent identity document and his inconsistent testimony as to how he obtained that document. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (affirming negative credibility finding based on, inter alia, discrepancies regarding identity).
We lack jurisdiction to consider Singh’s argument that he did not know his driver’s license contained an altered photograph because Singh failed to raise this issue to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In the absence of credible testimony, Singh failed to establish eligibility for asylum or withholding of removal. See Fa-rah, 348 F.3d at 1156.
The BIA did not abuse its discretion in denying Singh’s motion to remand because Singh did not submit previously unavailable evidence of identity. See 8 U.S.C. § 1229a(e)(7)(B); 8 C.F.R. § 1003.2(e)(1); Romero-Ruiz, 538 F.3d at 1064.
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/8470838/ | MEMORANDUM **
Michael Jack Owl appeals from the sentence imposed following the revocation of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Owl contends that the district court’s justifications for imposing a 45-month term of supervised release following a second supervised release revocation were insufficient. The supervised release term imposed was the maximum authorized by statute for Owl’s underlying offense of aggravated sexual abuse. See 18 U.S.C. § 3583(h); see also U.S.S.G. § 5D1.2(b)(2) (policy statement) (recommending the statutory maximum term of supervised release for sex offenders). The record reflects that the district court’s explanation for imposing the sentence was sufficient. Accordingly, the sentence is reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.2007).
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/8470840/ | MEMORANDUM **
Everardo Valenzuela-Ruiz appeals from the 77-month sentence imposed following his guilty-plea conviction for illegal re-entry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Valenzuela-Ruiz contends that the district court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence beyond the two year statutory maximum, because the temporal relationship between his removal(s) and his prior felony conviction was not alleged in the information nor admitted by him. Because the information alleged at least one date of removal which Ruiz admitted at the Rule 11 hearing, the district court’s determination that the removal was subsequent to a prior felony conviction did not violate Apprendi. See United States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*190ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471107/ | OPINION
PER CURIAM.
Petitioner Lily Bossert, a native and citizen of Peru, entered the United States without being inspected, admitted or paroled in 1991, and has resided in this coun*802try ever since. On October 14, 1997, her status was adjusted to that of a lawful permanent resident based on her marriage to Francis Bossert. Her permanent residence status on a conditional basis was terminated, however, on October 14, 1999. Bossert had filed a Form 1-751 Petition to Remove the Conditions on Residence under Immigration & Nationality Act (“INA”) § 216(c)(4)(B), 8 U.S.C. § 1186a, but it was denied by the District Director, who determined that the marriage had not been entered into in good faith. A.R. 47-49.
Bossert was served by regular mail with a Notice To Appear on March 20, 2000, which charged that she was removable under INA § 237(a)(l)(D)(i), 8 U.S.C. § 1227(a)(l)(D)(i), as an alien who has had her permanent residence status on a conditional basis terminated. The Notice To Appear was mailed to “664 Norwood Terr. Apt. # 1, Elizabeth, NJ 07202,” and it did not specify a time and place for Bossert’s removal hearing. Notice of the hearing date was mailed separately and at a later date. Bossert failed to show for her hearing on May 25, 2000, and the Immigration Judge (“IJ”) ordered her removed in ab-sentia, from the United States to Peru. A.R. 46.
On March 80, 2007, Bossert, through counsel, filed a motion to reopen the removal proceedings in Immigration Court, contending that she did not receive actual or constructive notice of her hearing. She also related that she had met someone new, a U.S. citizen, Francis Muniz, and was considering marriage, and she had filed a Freedom of Information Act (“FOIA”) request to learn about her immigration status. She learned about the order of removal when she received her FOIA response. Bossert acknowledged that she received the Notice To Appear that was mailed to her, but noted that it did not specify the date and time of the removal hearing. In an affidavit attached to the motion to reopen, Bossert stated that she never received actual or constructive notice of the date and time of the removal hearing. In this affidavit, Bossert also revealed that she lived at the “Nor-wood Terrace” address until she moved to her current address in July 2005. A.R. 14.
The Department of Homeland Security opposed the motion to reopen. The government asserted that the hearing notice, setting the date of the hearing for May 25, 2000, was mailed on March 29, 2000 to the “Norwood Terrace” address, and there was no indication in the record of proceedings that it had been returned to the Immigration Court as undeliverable.
On April 30, 2007, the IJ denied the motion to reopen on the ground that the evidence was insufficient to rebut the presumption of regular mail delivery. He reasoned that the hearing notice was sent to the same address as the Notice To Appear, Bossert admitted that she received the Notice To Appear, and her assertion that she did not actually receive the hearing notice was not persuasive considering her history of marriage fraud.
Bossert appealed to the Board of Immigration Appeals, raising a due process argument that she did not actually or constructively receive notice of her removal hearing. On March 12, 2008, the Board dismissed the appeal. The Board first addressed our decision in Santana Gonzalez v. Att’y Gen., 506 F.3d 274 (3d Cir.2007), which lowered the presumption of delivery that applies when immigration authorities send notice of a hearing by regular mail instead of certified mail. Having reviewed the holding of Santana Gonzalez, the Board then observed that the record in that case disclosed various attempts by the alien to inform DHS of her change of address, and that our decision emphasized that the alien, who was entitled to adjust *803her status under the Cuban Adjustment Act, had little or no incentive to avoid her scheduled hearing, and had little to gain by failing to appear, id. at 280-81. Applying Santana Gonzalez to the facts of Bos-sert’s case, the Board concluded that the record contained no corroborating circumstantial evidence supporting her claim of non-receipt. Nor did she allege that she had applied for or was eligible for any type of relief. Accordingly, she had good reason to avoid the hearing. Moreover, she waited almost seven years to file her motion to reopen, and did so only after she was considering entering into another marriage.
Bossert timely petitioned for review and sought a stay of removal, which we denied. The government has filed a motion to dismiss the petition for review on the ground that Bossert is a fugitive and not entitled to call upon the resources of this Court. Bossert has filed written opposition to this motion.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a). We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this deferential standard of review, we will not disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. Santana Gonzalez, 506 F.3d at 276 (citations omitted).
An alien must be provided written notice of her removal proceedings. 8 U.S.C. § 1229(a)(1). The notice must inform the alien of, among other things, “[t]he time and place at which the proceedings will be held.” Id. at (a)(l)(G)(i). If there is any change or postponement in the time and place of an alien’s removal proceedings, the government must provide the alien written notice specifying the new time or place of the proceedings, and the consequences for failing to appear. Id. at (a)(2). Written notice must be given to the alien in person, or, “if personal service is not practicable, through service by mail....” 8 U.S.C. § 1229(a)(1), (2)(A). Written notice by the Attorney General is sufficient if “provided at the most recent address provided” by the alien. 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1003.26(d).
An alien in removal proceedings shall be ordered removed in absentia if she fails to appear at a scheduled hearing after having been properly provided written notice of the time and place of that hearing, and the government establishes by clear, unequivocal, and convincing evidence that the notice was provided and that the alien is removable as charged. 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1003.26(c). An order of removal entered in absentia may be rescinded upon a motion to reopen filed within 180 days of the date of the order of removal where the alien demonstrates that her failure to appear was because of exceptional circumstances. It may also be rescinded upon a motion to reopen filed at any time where the alien demonstrates that she did not receive proper notice of her hearing, or that she was in federal or state custody and failed to appear through no fault of her own. 8 U.S.C. § 1229a(b)(5)(C)(i)-(ii); 8 C.F.R. § 1003.23(b)(4)(ii). Because Bos-sert’s motion to reopen was filed outside the 180-day deadline, she was required to demonstrate non-receipt of the hearing notice.
In Santana Gonzalez, we held that, “[a]s the word ‘receive’ indicates, the key question in reopening a removal proceeding for lack of notice is not whether the Immigration Court properly mailed the notice to the alien, but whether the alien actually received the notice.” 506 F.3d at 277. We lowered the presumption of delivery that applies when immigration authorities send notice of a hearing by regular, first-class *804mail. The strong presumption of receipt applies when a notice from Immigration Court is sent by certified mail, but less evidence is required to overcome the presumption when a hearing notice is sent by regular mail. See id. at 278.
An alien may rebut the presumption of receipt, and potentially establish non-receipt, by producing certain contrary evidence. See id. at 279-80. Such evidence may include a sworn affidavit by the alien, or other person residing at the same address, that she never received the written notice. See id. An alien’s affidavit claiming non-receipt of a notice sent by regular mail, along with corroborating circumstantial evidence, may be sufficient to raise a factual issue requiring an evidentiary hearing before the IJ. See id. at 280. In addition, whether the alien initiated proceedings with immigration authorities is evidence of non-receipt because such initiation indicates no motive to avoid the agency. See id. In Santana Gonzalez, the petitioner likely did not have a motive to avoid the scheduled hearing because she was entitled to adjustment of status under the Cuban Adjustment Act. Id. at 280-81.
Recently, in Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008), the Board established a set of guidelines with respect to the type of evidence the agency should consider that might rebut the presumption of receipt, including, but not limited to: (1) the alien’s affidavit; (2) affidavits from family members or other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the alien’s actions upon learning of the in-absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the alien had an incentive to appear; (5) any prior application or other prima facie evidence in the record or motion of statutory eligibility for relief, also indicating an incentive to appear; (6) the alien’s previous attendance at Immigration Court hearings; and (7) any other circumstances or evidence indicating possible non-receipt of notice. See id. at 674. All relevant evidence submitted must be considered, and “[e]ach case must be evaluated based on its own particular circumstances and evidence.” Id.
We conclude that the Board applied the correct standard in Bossert’s case, see Santana Gonzalez, 506 F.3d 274, considered all of the relevant evidence, see Matter of M-R-A-, 24 I. & N. Dec. at 674, and properly determined that she failed to overcome the presumption of receipt. In support of her claim, Bossert offered her own affidavit, and she contends in her brief that the Board did not give adequate weight to it. We have carefully reviewed her affidavit, but because of the non-corroborating circumstantial evidence in her case, the affidavit does not rebut the presumption of receipt, or even give rise to a genuine dispute about the facts. In her affidavit, Bossert admitted to receiving through the mail both the March 20, 2000 Notice To Appear and the District Director’s February 25, 2000 denial of her adjustment of status application; these items were addressed to her at “664 Nor-wood Terr. Apt # 1, Elizabeth, New Jersey 07202.” A.R. 41. The hearing notice was mailed to the same address on March 29, 2000, A.R. 52, only nine days after the Notice To Appear was mailed.1 According *805to her affidavit, Bossert lived at the Nor-wood Terrace address until July 2005. A.R. 14. Furthermore, at no time has Bossert claimed that she was having any trouble receiving her regular mail, and, as the Board noted, the hearing notice was not returned for non-delivery. We thus conclude that Bossert’s assertion of non-receipt is not corroborated by the circumstantial evidence, but, instead, is undermined by it.
We further agree with the Board that Bossert had good reason to avoid her removal hearing. Unlike the alien in Santana Gonzalez who, “at all times sought to have a hearing to adjust her status,” 506 F.3d at 281, Bossert did nothing for five years prior to submitting her FOIA request, and did not file a motion to reopen until almost seven years after her in ab-sentia removal proceeding. Bossert was not diligent in obtaining counsel to pursue her motion to reopen. She contends that, because she had the opportunity to have the District Director’s February 25, 2000 denial of her adjustment application reviewed in removal proceedings, see 8 C.F.R. § 216.5(f), this fact supports her claim that she had no intention of evading immigration authorities, see Petitioner’s Brief, at 16-18. But nowhere in her affidavit does she acknowledge the basis for the District Director’s decision, or claim that she would have sought review of it. The government observed, and we agree, that this factual circumstance led the Board to conclude that Bossert did not allege that she had applied for or was eligible for any type of immigration relief.
Last, Bossert contends that the IJ erred in concluding that she lacked credibility on the issue of non-receipt of the hearing notice because she could not meet her evidentiary burden to show a bona fide marriage. However, the Board did not similarly conclude that the marriage finding diminished the probative weight of Bossert’s affidavit, and the Board’s decision is the only one we review. See Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 189 (3d Cir.2007) (because only Board’s decision is final order of removal, IJ’s decision not reviewed where Board does not adopt its findings and reasoning).
Accordingly, we conclude that the Board did not abuse its discretion in denying Bossert’s motion to reopen. Unlike in Santana Gonzalez, the record here does not contain the necessary circumstantial evidence to support her claim of non-re-eeipt of the hearing notice.
For the foregoing reasons, we will deny the petition for review. The government’s motion to dismiss the petition for review pursuant to the Fugitive Disentitlement Doctrine is denied.2
. The hearing notice plainly states that a hearing was scheduled for May 25, 2000 at 9:30 a.m. in Newark Immigration Court.
. Pursuant to the Fugitive Disentitlement Doctrine, a criminal defendant who has failed to surrender may be barred from calling upon the resources of a court. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (per curiam). Although we have applied the doctrine to aliens, Arana v. Immigration & Naturalization Serv., 673 F.2d 75, 77 (3d Cir.1982) (per curiam), we decline to apply it here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471111/ | OPINION
PER CURIAM.
Sa’eedu Massaquoi appeals an order of the United States District Court for the Middle District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241. We will affirm.
On July 13, 1999, Massaquoi was arrested by Pennsylvania authorities for state parole violations; the Pennsylvania Board of Probation and Parole later ordered him to serve a 72-month sentence as a technical and convicted parole violator. Massa-quoi remained in state custody until September 16, 1999, when he was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum to answer charges stemming from two armed bank robberies committed while Massaquoi was on parole. He was arraigned on those charges in the United States District Court for the Eastern District of Pennsylvania on September 21, 1999, he was convicted on May 10, 2000, and he was sentenced to 646 months of imprisonment on September 21, 2000. That sentence began to run on February 27, 2001, the date Pennsylvania authorities released Massa-quoi to the exclusive custody of the federal Bureau of Prisons (“BOP”).
In calculating Massaquoi’s projected release date, the BOP contacted Pennsylvania officials to determine what portion of the time served prior to February 27, 2001, had been credited to his state parole violator sentences. Pennsylvania officials indicated that Massaquoi’s parole violator term had been credited with only the period of time between July 13, 1999 (the date of his state arrest) and September 21,1999 (the date of his federal arraignment). Therefore, because the 524 days from September 22, 1999 (the day after his federal arraignment) to February 26, 2001 (the day before he began serving his federal sentence) had not been credited to his parole violator term, the BOP credited that time to his federal sentence.
Massaquoi filed the present petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, claiming that those 524 days should have been credited to his state parole violator term, rather than to his federal sentence. The District Court denied the § 2241 petition, holding that the “time [Massaquoi] spent in ... custody which was not credited against his state parole revocation term ... was [properly] credited toward his federal sentence.” Massaquoi appealed.1
Pursuant to 28 U.S.C. § 2241, district courts are authorized to issue a writ of habeas corpus to a state or federal prisoner who “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Massaquoi alleged that the BOP improperly applied 18 U.S.C. § 3585(b), which prohibits the BOP from crediting a defendant for time served prior to commencement of a federal sentence if such time has already been credited towards another sentence. See Rios v. Wiley, 201 F.3d 257, 272 (3d Cir.2000). In this case, Massaquoi was in the primary custody of Pennsylvania from the date of his arrest (July 13, 1999) until the day before his federal sentence commenced (February 26, 2001). See Ruggiano v. Reish, 307 F.3d 121, 125 (3d Cir. 2002) (holding that “[a] prisoner detained pursuant to a writ ad prosequendum is considered to remain in the primary custody of the first jurisdiction unless and until *811the first sovereign relinquishes jurisdiction over the person”). A portion of that time (from July 13, 1999, to September 21, 1999) was credited against Massaquoi’s parole violator sentences.2 Under Pennsylvania’s Parole Act, however, a federal sentence for a crime committed by a convicted parole violator must be served before the state parole violation sentence is served. See 61 P.S. § 331.21a(a). Therefore, Pennsylvania did not credit Massaquoi’s parole violator sentences with the time he spent in primary state custody from September 22, 1999, to February 26, 2001. Because that time had not been credited toward another sentence, the BOP did not violate § 3585(b) by crediting that time to Massaquoi’s federal sentence.
For the reasons stated, we will affirm the District Court’s judgment.
. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court's legal conclusions and apply a clearly erroneous standard to its findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002).
. Massaquoi does not challenge this determination and, to the extent he alleges that Pennsylvania authorities failed to properly calculate his sentence, he has not identified any provision of the “Constitution or laws or treaties of the United States” that was violated. In addition, the BOP has no obvious authority over the manner in which Pennsylvania credits parole violator sentences. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471113/ | OPINION
PER CURIAM.
Petitioner Yi Guo Huang, a native and citizen of China, seeks review of a November 30, 2007 decision by the Board of Immigration Appeals, denying his motion to reopen removal proceedings. Huang arrived in the United States in January 1992, without inspection. On October 9, 1999, the former Immigration and Naturalization Service, now the Department of Homeland Security, served him with a Notice to Appear, charging that he was removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Although Huang failed to attend his hearing, and, as a result, was ordered removed in absentia, he successfully moved to reopen proceedings. Huang applied for asylum, withholding of removal, and for protection under the Convention Against Torture, claiming that he feared persecution if he returns to China because he was in violation of China’s birth control policies.1
The Immigration Judge, in a December 1, 2003 decision, considered Huang’s claim that he would be persecuted in China on account of the birth of his two children in China, in 1989 and 1991, but denied him relief, finding him not credible due to several material inconsistencies between his asylum applications, dated January 12, 1992 and March 26, 1994, and his hearing testimony. Huang appealed to the Board of Immigration Appeals, which, on May 26, 2005, affirmed the IJ’s order of removal and adverse credibility finding. Huang petitioned for review of the Board’s May 26, 2005 decision in this Court at C.A. No. 05-3186, but the petition was procedurally terminated by Order of the Clerk on August 14, 2006.
On May 10, 2007, Huang filed an untimely motion to reopen with the Board, based on alleged changed conditions in China with respect to enforcement of its birth control policies. In that motion, Huang indicated that he is from Fujian Province, and he claimed that his return to China would result in him being placed in “re-education” or “labor camps,” or forcibly sterilized due to having had two children in violation of China’s “one-child” policy. In support of his motion to reopen, Huang submitted three brief translated articles that were not dated. A.R. 19-26. The first article, from World Journal News, indicated that in Fujian Province local authorities have set up “population schools” to hold an offending woman’s family members in custody until she agrees to an abortion or sterilization. A.R. 20. As a result, women who are about to give birth to their second child plan to hide in relatives’ homes in Hong Kong and then re-ten to China after they give birth. A.R. 21. The second translated article indicates that these “population schools” provoke resentment among citizens because they violate China’s “central policy.” A.R. 24. The article also notes that the local government is discussing whether to allow people to give birth to a second child. Id. *813The third translated article chronicles the heartbreak of a family who had one of its members detained at a “population school.” A.R.25.
Huang also asked the Board to reopen proceedings in light of the country condition documents discussed in Slum Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), and he contended that he meets the definition of a “particular social group” in that the Chinese government punishes repatriated Chinese citizens for disloyalty to the Communist Party.
On November 30, 2007, the Board denied Huang’s motion to reopen. The Board found that the motion was time- and number-barred under 8 U.S.C. § 1229a(e)(7)(A), (C)(i), and that the evidence Huang submitted was insufficient to support his claim of changed country conditions, so as to create an exception to the tune limit for filing a motion to reopen, see id. at 1229a(c)(7)(C)(ii). The Board noted that the submitted evidence consisted only of three poorly translated newspaper articles, which did not specifically reference Huang’s circumstances, and which failed to establish that China has a policy of forced sterilizations for returnees from the United States. For authority, the Board relied on Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and Matter of J-W-S- 24 I. & N. Dec. 185 (BIA 2007), and supplied par-entheticals to explain the relevance of these cases.2 In addition, the Board noted that Huang’s children were born in China on December 3, 1989 and December 16, 1991, and that his wife continues to reside there without being harmed. The Board concluded by denying Huang’s request for equitable tolling and declining to exercise its sua sponte authority to reopen proceedings, and the Board rejected Huang’s particular social group claim on the merits.3 Huang has timely petitioned for review.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a). The Board’s jurisdiction arose under 8 C.F.R. § 1003.2(c), which grants it authority to adjudicate motions regarding matters that it has previously considered. We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this deferential standard of review, we will not disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
The regulation governing motions to reopen provides that: “A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary *814material.... A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.... ” 8 C.F.R. § 1003.2(c)(1). Although a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), this time limitation does not apply if the alien seeks reopening “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Because Huang’s motion was untimely, being filed two years after the removal order became final, his motion had to be based on changed country conditions in China with respect to the government’s enforcement of its birth control policies. We conclude, however, that the Board did not abuse its discretion in denying his untimely motion to reopen because Huang did not make the required showing. Huang based his allegation of changed circumstances arising in China, and his assertion that his evidence was material to his claim of persecution, on three brief undated articles which indicated that, in Fujian Province, authorities have set up “population schools,” where a pregnant woman’s family members are held until the woman agrees to an abortion or sterilization. We are not persuaded that these articles, even assuming that they post-date Huang’s December 1, 2003 removal hearing, have any bearing on his present circumstances. Huang has two children who are now young adults, making the noted “population schools” seemingly inapplicable to him. The Board’s determination that the articles are not material to Huang’s claim that conditions have changed in China since his removal hearing, and that he will be forced into a labor camp or forcibly sterilized if he returns to China, was thus not arbitrary, irrational, or contrary to the law. See Guo, 386 F.3d at 562. We agree that Huang failed to make the showing necessary to excuse the untimeliness of his motion to reopen.
Huang also argues that the documents the Court of Appeals for the Second Circuit considered in Shou Yung Guo, 463 F.3d 109, be considered in support of his motion to reopen. These documents, he contends, that is, the 2003 Changle City Family Planning Administration decision and 2003 Fujian Province Decision, see Petitioner’s Brief, at vi, demonstrate a policy in China of forcibly sterilizing persons with two or more children. See Petitioner’s Brief, at 11.4 In Shou Yung Guo, the Second Circuit explained that the 2003 Changle City Family Planning Administration decision held that, where either parent remains a Chinese national with no permanent residence overseas, any child of such a couple is deemed a Chinese national and shall be treated as such for domestic administrative purposes. 463 F.3d at 112-13. The decision states that Chinese nationals having children in violation of China’s family planning policies will be sanctioned according to family planning rules and regulations enforced at the local level. Id. The Fujian Province Department of Family Planning Administration affirmed the *815Changle City opinion, and emphasized that no exceptions would be made for Chinese citizens whose reproductive behavior overseas violates local rules. Id.
Huang did not submit these documents with his motion to reopen, relying instead on the three undated translated newspaper articles, but he asserts that the Board abused its discretion when it failed to consider them anyway, because they were in the Board’s possession as a result of prior litigation by other parties in the Second Circuit. See Petitioner’s Brief, at 12. In a related argument, Huang contends that the Board’s reliance in his case on Matter of J-W-S- and Matter of S-Y-G- is in violation of Second Circuit law. See Petitioner’s Brief, at 15-16.5
Matter of S-Y-G- 24 I. & N. Dec. 247, is the decision issued by the Board following the Second Circuit’s remand in Shou Yung Guo, 463 F.3d 109, and, in it, the Board held that the applicant did not meet her burden to show that the proffered evidence reflected “changed circumstances” in China. The Board held that the documents submitted, which included the 2003 Changle City Administrative Opinion and the 2003 Fujian Province Administrative Decision, reflected general birth planning policies in the applicant’s home province that did not specifically show any likelihood that she or similarly situated Chinese nationals would be persecuted as a result of the birth of a second child in the United States. 241. & N. Dec. at 254-256. The Board noted that a 2007 Department of State letter established that children born outside of China, and who are not registered as permanent residents of China, are “not counted” against parents for purposes of family planning compliance. The State Department was not aware of either a national or provincial policy requiring that a parent be sterilized after the birth of two children. Id. at 255-56. With respect to one petitioner whose children were born many years apart, the Board cited the State Department’s 2005 Profile of Asylum Claims and Country Conditions for the proposition that provincial law indicates that married couples may apply to have a second child within certain time frames that are being increasingly relaxed. Id. at 256.
Similarly, in Matter of J-W-S-, the Board, on remand from the Second Circuit, addressed a petitioner’s claim that he had a well-founded fear of persecution on account of having two United States citizen children. 24 I. & N. Dec. at 186-88. The Board held that the alien failed to establish that he had a well-founded fear of forced sterilization in China. Id. at 190-192. Citing the State Department’s 2006 Country Report, the Board noted that Chinese citizens who violate family planning policies face only economic penalties, such as job loss and destruction of property. Id. at 190. The Board also noted that a 2007 State Department report stated that children born outside of China are not considered permanent residents of China and therefore are not counted against parents for purposes of family planning compliance. Id. at 190-91. Furthermore, according to government publications issued in 2005, 2006, and 2007, Fujian Province is lax and uneven in its family planning policy enforcement, that physical coercion is officially condemned, that there is no evidence of forced abortions, and any sanc*816tions returning parents may face would be economic. Id. at 194.
Returning to Huang’s arguments, we find that the Board, in applying Matter of S-Y-G- to his case, necessarily considered the Shou Yung Guo documents. Cf Shao v. Mukasey, 546 F.3d 138, 151 (2d Cir. 2008) (“Although the documents prompting remand in Shou Yung Guo v. Gonzales, 463 F.3d at 113, see supra at [146-47], had not been part of the record at [one of the other petitioner’s] removal proceedings, the BIA nevertheless considered the possibility that this evidence might support an “enforcement” finding favorable to petitioner”). Furthermore, the Board addressed in its written decision the issues relevant to the Shou Yung Guo documents to the extent required, given that Huang did not comply with the regulation requiring him to submit the actual evidence with his motion to reopen. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material....”).
It also was not wrong under Second Circuit law for the Board to apply Matter of S-Y-G-. Shao v. Mukasey, 546 F.3d at 169-172, is the reported decision wherein the Second Circuit denied the petition for review relating to Matter of S-Y-G-. See Shao, 546 F.3d at 165 (“[w]hile official documents from Fujian Province and Changle City indicate that Chinese nationals who violate birth limits while abroad will be subject to the same punishment as citizens whose violations occur in China, the BIA reasonably observed that these documents made no “reference] to sterilization, much less forced sterilization,” as a possible punishment”). The Second Circuit in Shao, 546 F.3d at 163-64 & n. 26, 172, also discussed with approval the Board’s decision in Matter ofJ-W-S- and, for that matter, it discussed with approval the Board’s decision in Matter of J-H-S-, 24 I. & N. Dec. 196, 203 (BIA 2007), wherein the Board addressed the sterilization issue with respect to children born in China. Matter of J-H-S- held that the evidence showed that physical coercion to achieve compliance with family planning goals is uncommon and unsanctioned by China’s national laws, and overall policy is more heavily reliant on incentives and economically-based penalties, see Shao, 546 F.3d at 158-161, 165.6
In sum, the record fully supports the Board’s conclusion that Huang did not demonstrate changed circumstances in China sufficient to excuse the untimeliness of his motion and justify reopening of his removal proceedings. We find that the Board’s decision was consistent with the standards we set forth in Zheng v. Att’y Gen. of U.S., 549 F.3d 260 (3d Cir.2008), in that the Board adequately considered the materials Huang submitted with his motion to reopen.
For the foregoing reasons, we will deny the petition for review.
. To qualify for asylum or withholding of removal, an applicant must establish that he has a well-founded fear that he will be persecuted if removed to his home country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). "[A] person who has a well founded fear that he or she will be forced to [abort a pregnancy or undergo involuntary sterilization] or [is] subject to persecution for [failure, refusal, or resistance to undergo such a procedure] shall be deemed to have a well founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
. The Matter of S-Y-G- parenthetical stated that, despite claims by the asylum respondents of an official policy of sterilization after the birth of two children, the State Department was not aware of such a policy at either the national or provincial level. The Matter of J-W-S- parenthetical stated that the evidence of record did not demonstrate that the Chinese government has a national policy of requiring forced sterilization of a parent who returns with a second child born outside of China, or that the respondent’s province of origin persecuted those with children born abroad. A.R. 2.
. With respect to equitable tolling, the Board properly noted that Huang did not allege deficient performance of counsel nor did he assert that he was unaware of the Board's prior decision. Huang has not pressed this argument in his brief on appeal, and thus we consider it waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993). Huang also has not pressed his particular social group argument on appeal, and so it too is waived. Id. In addition, we are without jurisdiction to review the Board's decision declining to exercise its sua sponte authority to reopen removal proceedings. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003).
. The 1999 Changle City Family Planning Handbook, to the extent Huang has relied on it in his brief, see Petitioner’s Brief, at vi, plainly was available to him prior to his December 2003 removal hearing and thus cannot be relied upon to justify reopening under the "changed circumstances” exception. 8 C.F.R. § 1003.2(c)(1).
. We take this occasion to note that we find Huang’s reliance throughout his brief on Second Circuit law more than a little curious. Although we may find the reasoning of a sister court persuasive, see Reilly v. City of Atlantic City, 532 F.3d 216, 229 (3d Cir.2008), we are bound only by the law in this circuit, see Institutional Investors Group v. Avaya, 564 F.3d 242, 276 n. 50 (3d Cir.2009), and a litigant should acknowledge this prior to making an argument based on case law from another circuit.
. Because Shao v. Mukasey directly addresses Matter of S-Y-G-, we conclude that it is unnecessary for us to reach Huang’s arguments concerning Lin v. U.S. Dep't of Justice, 459 F.3d 255 (2d Cir.2006). See Petitioner’s Brief, at 15-16. For the same reason, we decline Huang's request for a remand to the Board in order for it to consider Gao v. Muka-sey, 508 F.3d 86 (2d Cir.2007), see Petitioner’s Brief, at 19-20, and his request that we retain jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471115/ | OPINION
PER CURIAM.
Mirsanjar Mirhakim petitions for review of a final order of removal entered by the Board of Immigration Appeals (“BIA”), which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
Mirhakim is a native of Uzbekistan. He was admitted into the United States in *818February 2004 to attend a photography convention. He overstayed his admission period and worked without authorization. In April 2006, he was served with a notice to appear, charging him as being removable pursuant to 8 U.S.C. § 1227(a)(1)(B) (remaining beyond authorized period), and § 1227(a)(l)(C)(I) (failing to comply with non-immigrant status). He conceded re-movability and sought asylum, withholding of removal, and relief under the CAT.
Mirhakim testified that he is a devout Muslim.1 Although the majority of Uz-beks are also Muslim, many are not devout. Those who are devout, he claimed, are persecuted by the government. In support of his application, Mirhakim testified to the following events: 1) he graduated from a high school that was later closed by the Uzbek government, though he testified that the school was not religious; 2) he was required to work as a translator for the KGB for four days. Some of his duties included the translation of religious documents in order to determine if they contained any extremist messages; 3) he attended religious meetings, where he befriended a man who was later arrested for organizing an anti-government group;2 and 4) he was stopped and questioned by the police because he wore a beard, a sign in Uzbekistan of a devout Muslim.
Mirhakim also attempted to demonstrate a well-founded fear that he will be persecuted upon return to Uzbekistan. First, he pointed to an incident that occurred in May 2005 in the city of Andijon, during which at least 173 government protesters were killed. Mirhakim also testified that after he left Uzbekistan to attend the photography convention, the KGB questioned his family about his whereabouts. In addition, he claimed that he could not freely worship in his home country because the Uzbek government requires religious organizations to register and surveils the mosques that are allowed to operate. Finally, he claimed that if he were to marry, his wife and daughters would be discriminated against because they would wear hijabs, which are required by his branch of Islam but are viewed with suspicion by the Uzbek government.
The Immigration Judge (“IJ”) did not make a credibility determination,3 but denied all substantive relief. The IJ found that Mirhakim was ineligible for asylum because he had filed his application more than one year after he had entered the United States and had not shown changed or extraordinary circumstances sufficient to excuse the delay of filing. See 8 U.S.C. § 1158(a)(2)(B) & (D).4 In addition, the IJ *819found that Mirhakim was ineligible for withholding of removal because he had not demonstrated past persecution and had failed to show a clear probability that he would be persecuted if he were to return to Uzbekistan. Finally, the IJ found that Mirhakim was ineligible for relief under the CAT because he had not shown that he is more likely than not to be tortured upon return to Uzbekistan.
The BIA adopted and affirmed the IJ’s decision, adding that the Andijon incident, by itself, did not amount to the changed country conditions that would justify an extension of the one-year deadline in § 1158(a)(2)(B). The BIA also noted that the continued surveillance and harassment of Muslims in Uzbekistan did not materially change the circumstances in the country, and that Mirhakim had not shown that he will likely be persecuted or tortured upon return to Uzbekistan. Mirhakim then filed a timely petition for review.
In his petition, Mirhakim argues that the BIA erred in finding that he had not established changed country circumstances to warrant an exception to the one-year asylum application deadline. He also argues that the BIA erred in finding that he was ineligible for withholding of removal. To the extent that Mirhakim challenges the timeliness determination, we lack jurisdiction. See 8 U.S.C. § 1158(a)(3). In addition, we will not consider the denial of CAT relief because Mirhakim 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).
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). 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. See Voei v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005). “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Determinations that an alien experienced “persecution” or has a “well-founded fear of persecution” are findings of fact that we review under the substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). 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, 242 F.3d at 484).
An applicant seeking withholding of removal “must establish a ‘clear probability’ ... that he/she would suffer persecution” if returned to the country of removal. Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006). “Persecution includes threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.2008) (internal quotations omitted), but it does not “encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional,” Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993).
An applicant can create a presumption of future persecution by “establishing] that he suffered persecution in the past.” Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir.2005). Mirhakim has not *820made this showing. His sole contacts with government officials came when he worked as a translator for the KGB and when he was questioned by the police because of his beard. On these occasions, he was not confined, assaulted, or threatened. The closing of his former high school and the arrest of his friend did not directly affect him and, in any event, did not constitute persecution of Mirhakim. See Wong, 539 F.3d at 232. Substantial evidence supports the conclusion that Mirhakim did not suffer anything amounting to past persecution.5
An applicant who cannot show past persecution may still be eligible for withholding of removal if he or she can demonstrate a likelihood of future persecution. See Zubeda, 333 F.3d at 469-70. Here, substantial evidence supports the conclusion that Mirhakim did not establish a likelihood of future persecution. He testified that, shortly after he arrived in the United States, the KGB questioned his family about him. His speculation that the KGB is waiting to persecute him upon return to Uzbekistan is insufficient to establish a likelihood of future persecution. See also Toussaint v. Att’y Gen., 455 F.3d 409, 415 (3d Cir.2006) (finding that a statement “that a person would be in danger in a particular place does not mean she is likely to be persecuted”). In addition, we note that the Uzbek government allowed Mirhakim to freely leave the country. See Ali v. Gonzales, 401 F.3d 11, 16 (1st Cir. 2005) (finding that the applicant’s ability to freely leave the country is one factor to consider in evaluating the applicant’s well-founded-fear claim). His fear that any wife or daughters that he may have in the future will be discriminated against because they would wear hijabs is also insufficient to show that he will be singled out for persecution. First, he has neither a wife nor a daughter. See S-Cheng v. Ashcroft, 380 F.3d 320, 323 (8th Cir.2004) (rejecting a well-founded-fear claim “based on hypothetical or speculative facts”); Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir.2005) (same). Second, even if Mirhakim were married and had daughters, the discrimination — and it would be discrimination, and not persecution, see Chen v. Ashcroft, 381 F.3d 221, 233 n. 20 (3d Cir.2004) — on the basis of the hijabs would be directed at them, and not at him.
The IJ noted that the Uzbek government suppresses what it perceives to be religious extremism. Mirhakim argued that, as a pious Muslim, he is likely to be affected by this policy. To support this argument, he testified that the Uzbek government keeps the mosques in the country under surveillance. However, surveillance itself is insufficient to establish a well-founded fear of persecution. See Chavarria v. Gonzalez, 446 F.3d 508, 519 (3d Cir.2006) (finding that surveillance that is “neither highly imminent nor menacing” does not “rise to the level of persecution”). Thus, the BIA’s conclusion that Mirhakim did not show that he will not suffer future persecution is supported by substantial evidence in the record.6
*821For the foregoing reasons, we will deny the petition for review.
. Mirhakim testified in English because he was unwilling to speak with an Uzbek in the room for fear that the Uzbek government would learn about the testimony. The Immigration Judge noted that Mirhakim did not appear to have any difficulty understanding the questions or articulating his answers. Mi-rhakim did not raise any arguments about testifying in English in his appeal to the BIA, nor does he do so here. Accordingly, any claim about the language of his testimony is waived.
. Although Mirhakim testified that his friend was arrested for organizing an anti-government group, he argued in his appeal to the BIA, and again in his petition for review, that his friend was arrested "for his religious practices.” The BIA did not address this discrepancy. In any event, the BIA plausibly concluded that the arrest of this friend, who was a part of the group that attended the religious meetings, was insufficient to show that Mi-rhakim had been or likely will be persecuted if forced to return to Uzbekistan.
. Since the IJ did not make a credibility determination, we proceed as if Mirhakim's testimony was credible. See Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003).
. For the first time in the proceedings, Mi-rhakim makes an extraordinary-circumstances claim. He argues that he paid a lawyer to file his asylum application at a time *819when the filing would have been timely, but that the lawyer disappeared with the money. Since Mirhakim did not raise this argument below, he cannot raise it here. See 8 U.S.C. § 1252(d) (requiring applicants to exhaust all administrative remedies available as of right); Joseph v. Att’y Gen., 465 F.3d 123, 125 (3d Cir.2006). Mirhakim may wish to bring his argument for ineffective assistance of counsel to the BIA in a motion to reopen.
. In his brief, Mirhakim states that he was under constant surveillance by the Uzbek government. (Pet. Br. at 17) However, Mirhakim did not testify that the Uzbek government constantly surveilled him.
. Mirhakim also asks that we grant him humanitarian asylum. Humanitarian asylum is available only in the case of an alien who has suffered particularly atrocious past persecution. See 8 C.F.R. § 208.13(b)(l)(iii); Naizgi v. Gonzales, 455 F.3d 484, 488 (4th Cir.2006). Here, of course, we have upheld the finding that Mirhakim suffered nothing amounting to past persecution at all.
In the alternative, Mirhakim asks that we remand the case to the BIA for a new hearing. Because we find that substantial evidence supports the BIA's decision, we have no basis on which to remand. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471117/ | OPINION
PER CURIAM.
Sheng-Yong Cao petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For *822the reasons that follow, we will deny his petition for review.
Cao, a native and citizen of China, entered the United States in January 1992 bearing a false Japanese passport. He was denied entry and immediately applied for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”), claiming that he was terminated from his job and sought by the police after reporting his boss’s corruption. His application remained unadjudicated until October 14, 2004, when the Government initiated removal proceedings against him. He then filed a supplemental asylum application in which he stated that he also feared returning to China because he had two U.S.-born children in violation of China’s family planning policies. In August 2006, Cao filed another supplemental asylum application in which he re-stated both of these claims. He later amended his application after the birth of a third child in the United States. Following a hearing, the IJ denied relief, determining that Cao’s testimony was not credible with respect to significant parts of his claim of retribution by his boss and the police and that, even assuming it was credible, he failed to demonstrate persecution on account of a protected ground. (A.R.55.) With respect to his sterilization claim, the IJ concluded that Cao had failed to meet his burden of proof. (Id.) The BIA affirmed and Cao filed a petition for review.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. To qualify for asylum, Cao must show that he is “unable or unwilling to return to [China]
... 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); 8 U.S.C. § 1158. To establish eligibility for withholding of removal, he must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993). “[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) (quoting Fatin, 12 F.3d at 1240). The well-founded fear of persecution standard involves both a subjectively genuine fear of persecution and an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). For relief under the CAT, Cao must demonstrate that it is more likely than not that he would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
The IJ denied relief because she found that Cao was not credible and had not met his burden of demonstrating a well-founded fear of persecution. These are both factual findings subject to review under the substantial evidence standard. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Under this deferential standard of review, we will uphold the findings of the BIA or IJ “unless the evidence not only supports a contrary conclusion but compels it.” Abdille, 242 F.3d at 484. However, an adverse credibility finding based on inconsistencies must be based on matters that go to the heart of the asylum claim.1 Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because the BIA’s decision clearly incorporated the adverse credibility findings made by the IJ, *823we review both determinations at this time. See Chen, 376 F.3d at 222.
Based on a thorough review of the record, we conclude that the IJ’s adverse credibility finding is supported by substantial evidence. Cao’s primary claim for relief is that he would be persecuted based on his confrontation with his former employer in 1991. In his written asylum application, Cao alleged: “the president of the company where I was working in China wrongly used company funds to build his own house. When I confronted him about it and said that the company and the government in China was [sic] corrupt, the president used his political power as a member of the local government to have me beaten and have the police arrest me.” (A.R.236.) He confronted the president, Mr. Wang, at an open meeting, where Mr. Wang denied the accusations and forced petitioner to leave the meeting. (A.R.276.) Cao claimed that Mr. Wang later offered him a bribe in exchange for petitioner’s agreement not to expose him to the public, and when he refused, Mr. Wang sent people to beat him up. (A.R.276.) He reported this to the police, who did not respond to his complaints but did try to arrest him. (A.R.276.) Cao also claimed that he was listed as an anti-communist dissident and that he feared that the police would arrest him upon his return. (A.R.236.) As noted by the IJ and the BIA, however, Cao’s testimony at the hearing differed from his written allegations in several significant respects: whether he returned to work after the incident or not, whether he quit his job or was fired, whether he was included on an anti-dissident list maintained by the Chinese government, whether such a list still existed, and whether the police continue to look for Mm despite the passage of fifteen years. In light of these discrepancies, the IJ concluded that Cao was not credible and the BIA agreed.2 Based on the evidence in the record, we are not compelled to reach a contrary conclusion.
With respect to Ms sterilization claim, we agree that Cao failed to carry his burden of demonstrating an objectively reasonable possibility of sterilization should he be returned to China. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004) (requiring asylum applicant to demonstrate by “credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution”). Cao presented to the IJ nothing more than his testimony that he has three U.S.-born children. (A.R.112.) The BIA has previously held that such evidence, without more, is insufficient to support an asylum claim based on China’s coercive family planning policies. See generally In re C-C-, 23 I. & N. Dec. 899 (BIA 2006) (concluding that without additional evidence to the contrary, recent State Department Country Reports indicate that petitioner’s claimed fear of forcible sterilization was not reasonable); Yu v. Attorney Gen., 513 F.3d 346 (3d Cir.2008) (affirming BIA determination based on same evidence presented in In re C-C-); see also Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (agreeing with IJ that respondent failed to sustain burden of proof in light of complete lack of evidence corroborating specifics of asylum claim).
Based on the foregoing, we conclude that the IJ’s adverse credibility finding was based on specific reasons supported by the record, that Cao has not shown that the record compels a finding that he was credible and entitled to relief, and that the IJ’s determination that Cao failed to dem*824onstrate a well-founded fear of persecution was supported by substantial evidence. Accordingly, we will deny the petition for review.
. In enacting the Real ID Act of 2005, Congress addressed this standard. See Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005), codified at 8 U.S.C. § 1158(b)(l)(B)(iii). However, the new provision does not apply to applications for relief filed before the enactment of the Act. See id.
. The IJ also held, in the alternative, that Cao failed to demonstrate a well-founded fear of persecution on account of a protected ground. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471119/ | OPINION
PER CURIAM.
Juan Pablo Perez-Gill petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will dismiss the petition in part and deny the remainder.
I.
Perez-Gill, a native and citizen of the Dominican Republic, first entered the United States in 1997 as a lawful permanent resident. He lived here with his mother, also a lawful permanent resident, and some cousins. His father, wife, and son live in the Dominican Republic. After returning to the Dominican Republic to visit his family, he sought to reenter the United States on February 20, 2007. When he did, fingerprint screening revealed that he had used an alias in the United States and had been convicted of at least three crimes. Perez-Gill at first disclaimed the alias and criminal history, but *825eventually admitted to both. The Government instituted removal proceedings charging Perez-Gill as removable for seeking admission to the United States by fraud or willful misrepresentation, see 8 U.S.C. § 1182(a)(6)(C)®, and falsely representing himself to be a citizen, see 8 U.S.C. § 1182(a)(6)(C)(ii). The Government later added a third charge of commission of a crime of moral turpitude (i.e., assaulting a police officer with a dangerous weapon). See 8 U.S.C. § 1182(a)(2)(A)(i)(I).
Perez-Gill concedes removability, but applied for discretionary cancellation of removal under 8 U.S.C. § 1229b.1 The Immigration Judge (“IJ”) held a hearing and granted the application on August 30, 2007. The IJ expressed concern with Perez-Gill’s conduct, including (1) his multiple arrests and convictions, (2) his failure to file tax returns since 1999, and (3) his purchase of a fake driver’s license and assumption of a false identity. The IJ explained that Perez-Gill’s explanations for his conduct “had a certain hollow ring” and that he had spun a “web of deceit.” (IJ Dec. at 5; A.41.) He ultimately granted the application, however, primarily out of sympathy for Perez-Gill’s mother. (IJ Dec. at 7; A.43.) In doing so, the IJ noted that “I don’t think [Perez-Gill] has shown that even individually he deserves this,” and that his ruling came “within a razor’s edge of going the other way[.]” (Id.)
The Government appealed. The BIA reviewed the IJ’s exercise of discretion de novo, see 8 C.F.R. § 1003.1(d)(3)(ii), and, after thoroughly discussing the relevant factors, concluded that the IJ’s ruling struck the wrong balance. Accordingly, the BIA sustained the Government’s appeal and ordered Perez-Gill’s removal to the Dominican Republic. Perez-Gill petitions for review.
II.
“This Court generally lacks jurisdiction to review discretionary decisions made under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)®). In addition, we generally lack jurisdiction to review removal orders entered against aliens who committed crimes involving moral turpitude. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review “constitutional claims or questions of law.” Mendez-Reyes, 428 F.3d at 189 (citing 8 U.S.C. § 1252(a)(2)(D)). The Government asks us to dismiss Perez-Gill’s petition for lack of jurisdiction because his arguments amount to no more than a challenge to the BIA’s exercise of its discretion in balancing the relevant factors. We agree that much of Perez-Gill’s brief argues merely that the discretionary factors weigh in his favor, and we will dismiss his petition to that extent. See Cospito v. Att’y Gen., 539 F.3d 166,171 (3d Cir.2008).
Though Perez-Gill raises two arguments that might be characterized as questions of law that we have jurisdiction to review, they are unpersuasive. Perez-Gill notes that the BIA referred to his criminal history as “serious,” whereas the IJ referred to *826his behavior merely as “mischievous.” Thus, he argues that the BIA both engaged in impermissible fact-finding and overruled the IJ’s finding of fact without determining that they were “clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i) & (iv). The BIA, however, neither found any facts nor overruled any of the IJ’s findings. It did not, for example, find that Perez-Gill had engaged in any conduct beyond that discussed by the IJ. The BIA characterized that conduct as “serious,” but that characterization merely indicates the weight it accorded that conduct in the exercise of its discretion. It is not a finding of fact. See Wallace v. Gonzales, 463 F.3d 135, 140 — 41 (2d Cir.2006) (rejecting similar argument).
Moreover, it is not inconsistent with the IJ’s view of Perez-Gill’s conduct. The IJ stated that Perez-Gill likely “engaged in a bit more mischievous activities than he’s owned up to today” (IJ Dec. at 5; A.41), but he clearly regarded Perez-Gill’s conduct as “serious” — he referred to the adoption of a false identity as “serious,” (id.), and stated that he did not believe Perez-Gill had considered the “serious consequences” of his actions (IJ Dec. at 6; A.42). Thus, the BIA did not overturn any factual finding made by the IJ. Instead, it merely disagreed with the IJ’s exercise of his discretion, and we lack jurisdiction to review that ruling.
Accordingly, we will dismiss the petition to the extent that it challenges the BIA’s exercise of discretion and deny it to the extent it raises questions of law.
. Under this provision, the Attorney General may, in his discretion, cancel the removal of an alien who (1) has been lawfully admitted for permanent residence for not less than five years, (2) has continuously resided in the United States in any status for seven years, and (3) has not been convicted of an aggravated felony. If those requirements are met (and there is no dispute that they are in this case), then the IJ must review the record as a whole and "balance the adverse factors evidencing the alien's undesirability as a permanent resident with the social and humane considerations presented in his (or her) behalf to determine whether the granting of ... relief appears in the best interest of this country.” Matter of C-V-T, 22 I. & N. Dec. 7, 11 (BIA 1998) (internal quotations omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471121/ | OPINION OF THE COURT
PER CURIAM.
Petitioner Mei Yang seeks review of a final order of removal of the Board of Immigration Appeals (“BIA”) denying her motion to reopen her deportation proceedings. We will deny the petition.
I.
Mei Yang is a 28-year-old native and citizen of China, who entered the United States without being admitted or paroled in January 2001. In February 2001, the Immigration and Naturalization Service filed a Notice to Appear and placed Yang in removal proceedings. In turn, Yang filed an application for asylum based upon her political opposition to the Chinese government’s property expropriation policy.
On March 12, 2002, the IJ, after reviewing Yang’s hearing testimony and the evidence of record, denied Yang’s asylum application. The IJ found numerous discrepancies and omissions between Yang’s asylum application, written documents, and her testimony and ultimately concluded that she was not credible. Yang appealed the IJ’s decision and, on January 29, 2003, the BIA affirmed, in part, the IJ’s decision.1 Yang did not file a petition for review of the BIA’s decision with this Court.
More than four years later, on June 4, 2007, Yang filed with the BIA a motion to reopen and to file a successive asylum application. She asserted that the motion was exempt from the ninety-day time restriction governing motions to reopen because her motion was based on changed country conditions in China and based on facts not previously available to her. Specifically, Yang contended that if she returned to China, she would likely be persecuted as a violator of the one-child rule of the family planning law because enforcement of the law was becoming more frequent in Fujian Province, Yang’s home province. Since her removal hearing in March 2002, Yang had given birth to two children and was pregnant with her third child at the time she filed her motion to reopen.
*828In support of her motion, Yang relied upon the United States Court of Appeals for the Second Circuit’s decision in Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006). Specifically, Yang argued that “the Second Circuit has taken notice of evidence which confirms that Chinese nationals who have children abroad are nonetheless subject to ordinary enforcement of the one-child rule, including sterilization.” (A.R.28.) In further support of her motion, Yang included the following documents: a 2003 Consular Information Sheet, 2005 and 2006 Annual Reports of the Congressional — Executive Commission on China; the congressional testimony of Dr. John Aird and Harry Wu; Changle City Family Planning Q & A Handbook; 2006 Policy Statement from the Administrative Office of the National Population and Family Planning Committee; a 2007 World Journal excerpt on family planning practices in Fujian Province; a 1997 letter from the Department of Public Security of The People’s Republic of China; newspaper articles on family planning practices in the regions of Linyi and Guangxi.
On January 11, 2008, the BIA ruled that Yang’s motion to reopen was time-barred under 8 C.F.R. § 1003.2(c)(2). The BIA concluded that Yang had not overcome this bar by showing changed country conditions in China as permitted under 8 C.F.R. § 1003.2(c)(3)(h).
II.
Although we have jurisdiction to review the BIA’s order denying Yang’s motion to reopen, see, e.g., Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), the scope of our review is quite limited. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Under the regulations, the BIA “has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Accordingly, the Court reviews the BIA’s denial of a motion to reopen for abuse of discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409. Thus, in order to succeed on the petition for review, Yang must ultimately show that the BIA’s discretionary decision was somehow arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted). Yang has failed to make such a showing.
III.
Yang does not dispute that she filed an untimely motion to reopen. Instead, she argues that her motion should be considered pursuant to one of the exceptions to the time restriction applicable to such motions. See 8 C.F.R. § 1003.2(c)(2). As mentioned above, the BIA found that there was “insufficient evidence in this case establishing changed circumstances in China,” as required by 8 C.F.R. § 1003.2(e)(3)(ii) in order to avoid application of the time restriction.
Yang argues that the BIA, in denying her untimely motion to reopen, gave only “scant consideration of the proffered previously-unavailable evidence.” (Petitioner’s Brief at 10.) We disagree.
As a preliminary matter, we agree with the Government that Yang’s changed personal circumstance, i.e., the birth of her children, is distinct from changed county conditions.2 See Liu v. Attorney General, *829555 F.3d 145, 150-51 (3d Cir.2009); see also Wang v. Board of Immigration Appeals, 437 F.3d 270, 273 (2d Cir.2006). Relief is appropriately denied “where a petitioner is seeking to reopen [her] asylum case due to circumstances entirely of [her] own making after being ordered to leave the United States.” Wang, 437 F.3d at 274.
In addition, Yang unsuccessfully argues that the BIA erred by failing to adequately consider the evidence of changed conditions that she submitted with her motion to reopen. The record reflects that the BIA issued a clear and well-supported decision denying Yang’s claim.
The BIA first determined that Yang’s reliance upon the Second Circuit’s decision in Guo v. Gonzales, was misplaced. It pointed out that the BIA, upon remand in Guo, “ultimately determined that the [alien’s] evidence did not adequately support the reopening of the record.” (A.R.2.) The BIA also noted that Yang’s assertion regarding the case of Yu He Zheng (discussed in the 2006 Policy Statement), similar to its finding in Matter of S-Y-G-, 24 I. & N. Dec. 247, 252 (BIA 2007), did not establish changed circumstances. Furthermore, Yang’s Q & A document stated only that giving birth outside of family planning guidelines “could” result in a fee (as noted in Matter of S-Y-G-) and her proffered 2004 consular sheet and 2005 Congressional report failed to establish that she would be persecuted. The 1997 letter that Yang included with her motion was clearly “previously available” and the 2006 Congressional report indicated that alleged “coercion” of those with several children consisted primarily of fines, which did not constitute “perseeution.” Additionally, the BIA concluded that Harry Wu’s 2004 congressional testimony was unclear and lacked a foundational basis and that recent State Department reports indicating that Chinese children born abroad are “not counted” for birth planning purposes for returnees is more persuasive than the testimonial documents submitted by both Wu and John Aird.
Lastly, the BIA found that the 2007 World Journal excerpt was not only unreliable, but had no relevance to Yang or her locality and that there was insufficient evidence that the articles discussing family planning policies in Linyi and Guangxi had any relevance to Yang’s case. What is more, Yang admitted in her motion to reopen that “China officially does not permit forced abortions and sterilizations and [instead] relies on economic measures.” (Bee A.R. 17.) As a result, the BIA concluded that the evidence was insufficient to establish changed circumstances in China and denied reopening Yang’s case on that basis.
Based upon that analysis, we do not agree with Yang’s assertion that the BIA failed to consider her new evidence or that the evidence does not support the BIA’s conclusion. Indeed, we have remanded where the BIA has “fail[ed] to discuss most of the evidentiary record,” see Zheng v. Att’y Gen., 549 F.3d 260, 269 (3d Cir. 2008). However, the BIA carefully considered Yang’s motion and concluded that she failed to present evidence demonstrating that she will be subject to “arrest, physical mistreatment or the degree of economic sanctions that would rise to the level of persecution” upon her return to China. *830(A.R.2.) Substantial evidence supports the BIA’s conclusions.
Having found no abuse of discretion on the part of the BIA in denying Yang’s untimely filed motion to reopen, we will deny the petition for review.
. The BIA affirmed the IJ's decision finding Yang's claim lacked credibility and, even if true, failed to establish eligibility for relief. It reversed the IJ's determination that Yang filed a frivolous asylum application. (A.R.142-43.)
. Yang also argues that, according to Guo v. Ashcroft, 386 F.3d 556 (3d Cir.2004), she meets the prima facie standard for reopening merely based upon her change in personal circumstances. (Petitioner's Brief at 13.) She claims that “at a minimum,” her personal circumstances entitle her to have her case heard. (Id.) We disagree. Guo involved a *829situation entirely different from that of Yang: (1) the alien in Guo submitted a timely motion to reopen, and was not required to establish changed country conditions in China; (2) in Guo, the alien, in contrast to Yang, had the burden to establish a prima facie case demonstrating a reasonable likelihood that she would prevail on the merits; and (3) the BIA in Guo, unlike here, applied the wrong standard. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471123/ | OPINION
SMITH, Circuit Judge.
Appellants Andre Cooper, Jamain Williams, and Vincent Williams (collectively, the “Defendants”) challenge their convictions and sentences for various Racketeer Influenced and Corrupt Organizations Act (“RICO”), conspiracy, drug, and firearms violations stemming from their participation in an alleged RICO enterprise, the “Boyle Street Boys.” We write primarily to address Jamain’s claims that the evidence was insufficient to prove that the Boyle Street Boys were a RICO enterprise, and that Jamain participated in two murders to maintain his position in the Boyle Street Boys, in violation of the Violent Crimes in Aid of Racketeering Act (“VICAR”), 18 U.S.C. § 1959. We will affirm.1
Inasmuch as we write primarily for the parties, who are familiar with this case, we need not recite additional factual or procedural background.
Jamain claims that the Government’s evidence was insufficient to show that the Boyle Street Boys had the structure necessary to be a RICO enterprise. See Boyle v. United States, — U.S.-, -, 129 S.Ct. 2237, 2244, 173 L.Ed.2d 1265 (2009) (“[A]n association-in-fact enterprise must have a structure.”). Jamain argues that the Boyle Street Boys made decisions on an unorganized, ad hoc basis, and otherwise had no hierarchy. But the Supreme Court has rejected the argument that an association-in-fact enterprise must possess these characteristics. Id. at 2245 (“Such a group need not have a hierarchical structure or a ‘chain of command’; decisions may be made on an ad hoc basis and by any number of methods.... Members of the group need not have fixed roles.... The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies.”). Indeed, in Boyle, the Supreme Court affirmed the conviction of a defendant who was allegedly part of a “loosely and informally organized” group. Id. at 2241.
According to the Supreme Court, an association-in-fact enterprise “must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Id. at 2244. Here, the evidence was more than sufficient to establish each of these elements. First, the Government introduced evidence that the Boyle Street Boys had a purpose: selling drugs on the corner of Boyle Street and Culhane. In addition to the evidence showing that members of the group sold drugs at that location, members testified that individuals who wanted to sell drugs *832on that corner needed the permission of a senior member in order to do so, and that senior members hid guns around the surrounding neighborhood so that members had access to them in case anything went wrong. Second, the Government adduced evidence of relationships between the members of the Boyle Street Boys. Members testified that the group saw themselves as a “family” bound together by a code of loyalty. Senior members also met and discussed whether to kill individuals seen as a threat to the group, and if so, to plan how the murders would be carried out. Third, the Government introduced evidence of sufficient longevity: the Boyle Street Boys conducted its activities throughout a period spanning approximately six years. Accordingly, the evidence was sufficient to show that the Boyle Street Boys were a RICO enterprise.
Jamain also argues that the evidence was insufficient to sustain two of his convictions for violating VICAR. “VICAR was enacted by Congress in 1984 as a violent crime corollary to the RICO statute.” United States v. Jones, 566 F.3d 353, 361 (3d Cir.2009). The statute sets forth penalties for committing and conspiring to commit murder for the “purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a); see also Jones, 566 F.3d at 361. Here, the jury found Jamain guilty of conspiring to commit one murder and actually committing another with such a position-related purpose.2
Jamain argues that the evidence was insufficient because personal grudges motivated the two murders. We disagree. A senior member of the Boyle Street Boys testified that the group believed that the first victim posed a threat to all the members in the group. As a result, the senior members, including Jamain, met and decided to kill the first victim. Since members of Boyle Street Boys were bound together by a code of loyalty, which meant that “[i]f one of us had problems, we all had problems” (J.A. 5532), a rational trier of fact could conclude beyond a reasonable doubt that Jamain would have lost standing in the group had he opted out of participating in the murder. Similarly, although Jamain had a personal motive to commit the second murder — to retaliate against a perceived threat to his personal safety — the evidence introduced at trial supports a finding that Jamain committed the murder to maintain his leadership role in the Boyle Street Boys.3 At the time, the group had acquired a reputation as “Millers” (J.A. 4782), that “[i]f people had a problem with you, they were going to have a problem with [the senior members of the group].” (J.A. 4783). Maintaining this reputation was important to the *833group. Based on this evidence, a rational trier of fact could conclude beyond a reasonable doubt that Jamain committed the second murder in order to maintain his position as the leader of the Boyle Street Boys. As a result, the evidence was sufficient to support Jamain’s VICAR convictions.
Defendants also assert twelve other grounds for appeal. We have scrutinized the record and the Defendants’ briefs, but see no merit to any of these claims. Accordingly, we will affirm the Defendants’ convictions and sentences.
. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review challenges to the sufficiency of the evidence by ' Viewing] the evidence in the light most favorable to the government and will sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal citations and quotations omitted).
We commend both of counsel for their very cogent and very helpful oral arguments.
. We reject Jamain's contention that VICAR requires the murders to have a connection with the purpose of the RICO enterprise. It is true that the VICAR's definition of enterprise mirrors RICO’s definition. Compare 18 U.S.C. § 1959(b)(2) ('“[E]nterprise’ includes any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, which is engaged in, or the activities of which affect, interstate or foreign commerce.”) with 18 U.S.C. § 1961(4) (" '[E]nter-prise’ includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”). But VICAR's plain language does nothing to tie the purpose of the murder with the purpose of the enterprise. Instead, VICAR only specifies that the purpose of the VICAR murder must be related to the murderer's position in the enterprise. See 18 U.S.C. § 1959(a) (providing that murder for "the purpose of gaining entrance to or maintaining or increasing position in an enterprise” constitutes VICAR murder (emphasis added)).
. Jamain claims that he was not the leader of the Boyle Street Boys, but three members of the group testified that he was. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471126/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Joi Caplen appeals from the District Court’s orders entering summary judgment against her. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In March 1993, Caplen and her husband, Larry, executed a promissory note in favor of Mellon Bank, secured by a mortgage on their home in Blue Bell, Pennsylvania. Under the terms of the note and mortgage, the Caplens agreed to carry hazard insurance on the property and to provide evidence of insurance to the bank; if they failed to do so, the bank was authorized to “force place” insurance on the property— that is, to independently obtain insurance and add the cost of the premiums to the principal due under the note — in order to protect its security interest in the property-1
The Caplens eventually defaulted on the note. On June 5, 2000, Mellon Bank initiated foreclosure proceedings in the Court of Common Pleas of Montgomery County. While that action was pending, Mellon Bank sold the note and mortgage to Alaska Seaboard Partners, LP (ASP). ASP’s servicing affiliate, Security National Servicing Corporation (SNSC), then sent a series of letters to the Caplens, informing them that ASP had acquired their loan and asking them to provide proof of insurance. The Caplens did not respond to these letters.
On March 14, 2002, the Court of Common Pleas entered judgment against the Caplens in the amount of $116,662.38, plus post-judgment interest. Soon afterwards, *835the Caplens and ASP entered into a forbearance agreement, under which the Ca-plens again agreed, among other things, to provide proof of insurance on their property. When the Caplens still did not supply proof of insurance, SNSC obtained a force-placed insurance policy underwritten at Lloyd’s.
In December 2003, SNSC cancelled its Lloyd’s policy and replaced it with a policy issued by Security National Insurance Company (SNI), a captive insurance company that provides force-placed insurance to Security National Master Holding Company, LLC (SNMHC) and its affiliated companies, including ASP and SNSC. The SNI force-placed policy contained an “other insurance” clause, which provided:
“If there is available to the Assured any other insurance at the time of loss ... covering the same property against the same perils insured against under this Policy ... this insurance shall not be called upon in contribution until the amount due from all such [other] insurance shall have been exhausted; it being the intent of this insurance to indemnify the Assured for only the difference between the amount due from such other insurance and the amount of actual loss sustained by the Assured not exceeding, however, the applicable limit specified in this Policy.”
App. 559 ¶ 14. The SNI policy listed “Security National Holding Company, LLC” as the “Assured.” App. 553.
On November 10, 2004, a fire destroyed the Caplens’ home. Soon afterwards, the Caplens sent a letter to SNSC to inform it of the fire but, as they admit, used an incorrect zip code; SNSC never received the incorrectly addressed letter. The Ca-plens then defaulted on the note for a second time, prompting ASP to file a motion to reassess damages in the foreclosure action. In connection with that motion, SNSC sent an inspector to the Caplens’ property on April 20, 2005; when the inspector saw the damage caused by the fire, he quickly informed SNSC.
A few weeks later, SNSC was contacted by an attorney representing the Blue Bell Woods Community Association — the homeowners’ association for the development in which the Caplens’ home was located— who informed SNSC that the Caplens’ property was covered by an insurance policy issued to the association by the Greater New York Mutual Insurance Company and that the proceeds of that policy would be used to repair the property. Among the many provisions of the Greater New York policy was a clause titled “Unit-Owner’s Insurance,” which specified: “A unit-owner may have other insurance covering the same property as this insurance. This insurance is intended to be primary, and not to contribute with such other insurance.” App. 116 ¶ 6.
On June 24, 2005, the Court of Common Pleas granted ASP’s motion to reassess damages and entered an amended judgment against the Caplens in the amount of $129,127.44 — including $1,607.13 for premiums on the SNI force-placed insurance policy from March 2001 through February 2005 — plus post-judgment interest. A little over a year later, the Caplens sold their property for a net profit. They ultimately paid $2,407.21 to ASP for premiums on the SNI policy through June 2006.
On November 15, 2005, Joi Caplen filed this suit in the United States District Court for the Eastern District of Pennsylvania against SNMHC, ASP, SNSC, and SNI, as well as Alaska Seaboard Investments, Inc. (ASI), Security National Master Manager, LLC, and Robin P. Arkley II. She asserted claims predicated on breach of fiduciary duty, breach of contract, fraud, abuse of process, and bad faith under Pa. Cons.Stat. Ann. § 8371, among other claims. Following discovery, *836the defendants moved for summary judgment, which the District Court granted as to all counts. This timely appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C. § 1332 and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision to grant summary judgment, applying the same standard the district court should apply. Union Pac. R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 125 (3d Cir.2002). Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the nonmoving party and all reasonable inferences from the evidence must be drawn in that party’s favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009). ‘We may affirm the District Court’s order granting summary judgment on different grounds, so long as the record supports the judgment.” Id. (citing Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir.2006) and Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n. 1 (3d Cir.1983)).
III.
On appeal, Caplen argues that the District Court erred in determining that SNI did not owe her any duty under its force-placed policy because, she insists, she and her husband “were insureds under the policy.” This argument is without merit.
Under Pennsylvania law, a court interpreting an insurance policy “must ascertain the intent of the parties as manifested by the language of the written agreement. When the policy language is clear and unambiguous, the court must give effect to the language of the contract.”2 Riccio v. Am. Republic Ins. Co., 550 Pa. 254, 705 A.2d 422, 426 (1997). “[A]n insurance policy, like every other written contract, must be read in its entirety and the intent of the policy is gathered from consideration of the entire instrument.” Id.; accord Nationwide Ins. Co. v. Schneider, 906 A.2d 586, 591 (Pa.Super.Ct.2006).
Caplen acknowledges that she is not a named insured under the SNI policy, but supports her argument by pointing to language in the SNI policy indicating that it insures “the financial interest of a Borrower in Covered Property in the event that such Covered Property suffers Direct Physical Loss or Damage.” App. 556 ¶ 1. But the SNI policy also unambiguously provides that it may be “called upon in contribution” only after all other available insurance on the property has been “exhausted.” App. 559 ¶ 14. In brief, the SNI policy is plainly an “excess” policy— Caplen’s argument to the contrary notwithstanding — and the undisputed evidence in the record demonstrates that the Greater New York insurance policy completely covered the cost of restoring the Caplens’ home, leaving no excess amount for the SNI policy to contribute. Thus, after considering the SNI policy in its entirety, we agree with the District Court that SNI did not owe Caplen any duty under its policy. Moreover, to the extent Caplen intends to argue that the District Court erred in concluding that SNI owed her no fiduciary duty, she points to no *837evidence in the record or case law that would lead us to disturb that determination. Accordingly, Caplen’s claims against SNI fail as a matter of law.
We also reject Caplen’s contention that the District Court should not have granted summary judgment in favor of the other defendants on her abuse of process claim. “The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it.” McGee v. Feege, 517 Pa. 247, 535 A.2d 1020, 1023 (1987) (internal citation omitted). To establish a claim for abuse of process, a plaintiff must show that the defendant “(1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed!,] and (3) harm has been caused to the plaintiff.” Cruz v. Princeton Ins. Co., 972 A.2d 14, 15 n. 1 (2009) (internal quotation marks omitted); accord Rosen v. Am. Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 192 (1993).
Caplen argues that ASP (and, by extension, the other non-SNI defendants) only sought reimbursement for premiums on the SNI force-placed policy in the foreclosure action, and refused to release the lien on the Caplens’ property, in order “to extort greater payment than what is owed by the already strapped sub-prime borrower.” But ASP was authorized, under the clear terms of the mortgage and promissory note, to force place insurance on the Ca-plens’ property in the absence of proof of insurance, and Caplen has introduced no evidence that she ever provided such proof. Nor has she introduced any evidence that ASP pursued any aspect of the foreclosure process for illegitimate reasons. The District Court correctly granted summary judgment on this claim.3
IV.
For the foregoing reasons, we will affirm the District Court’s orders granting summary judgment in favor of the defendants.
. In relevant part, the promissory note provided:
If you require me to, I will insure the Collateral against loss.... Any insurance policy will provide for payment of the insurance proceeds to you to the extent necessary to pay the amounts which I owe under this note. I will give you any insurance policy or a certificate to show that I have it. If I do not buy and maintain the required insurance, or if I do not pay the premiums, you may, if you choose, do these things for me for me [sic]. If you do this and I do not reimburse you for the premiums within a specified time, you may add the unpaid balance of the premiums to the unpaid balance of the Principal Amount of this note. In this case, interest will be charged on the unpaid balance of these premiums at the rate shown on page 1 of this note, beginning on die dale you paid the premiums.
I direct all insurance companies providing ... insurance on real ... property ... in connection with this loan to pay you any money owed to me.... You may use any such money to pay amount [sic] which I owe under this note.
App. 74. Likewise, the mortgage provided: Mortgagor shall keep the Mortgaged Property insured against loss by fire ... in such amounts as Mortgagee shall require.... Mortgagor shall deliver written evidence of all such insurance to Mortgagee.
If Mortgagor fails to obtain and keep in force any required insurance or fails to pay the premiums on such insurance, Mortgagee at its sole option may elect to do so. In the event of loss, Mortgagor shall give prompt notice to the Insurer and Mortgagee. Mortgagee at its option may elect to make proof of loss if Mortgagor does not do so promptly____
[insurance proceeds shall be applied to restoration or repair of the Mortgaged Property or to reduction of the Obligation, as Mortgagee may determine in its sole discretion.
App. 67.
. The District Court determined, and the parties do not dispute, that the substantive law of Pennsylvania governs here. See, e.g., Benier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir.2009).
. We have considered the sundry other assertions in Caplen's appellate briefs and, to the extent we can decipher them, we reject them as unsupported by the record. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471128/ | *843OPINION
PER CURIAM.
Ronald K. Miles, Gordon C. Miles, Kenneth Miles, Ernest L. Miles, Jr., and Joyce Cauley (collectively referred to as the “Plaintiffs”) appeal pro se from the order of the United States District Court for the District of New Jersey dismissing their § 1983 complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(1), (6).1
The Plaintiffs are siblings who inherited six contiguous properties (hereafter “Plaintiffs’ property”) in the Township of Barnegat (“Barnegat Township”), New Jersey, in January 2003. According to the Plaintiffs, Barnegat Township allegedly created public rights of way (Catherine Street and Cloverdale Road) on the Plaintiffs’ property, approved plans for water drainage from adjacent properties (the adult community developments known as “Pheasant Run” and Heritage Point South”), and granted easements to these private development corporations for water drainage onto the Plaintiffs’ property. From 1988 through 2004, the overflow from the detention basins flooded their property, creating a man-made wetland that has rendered the property “unbuilda-ble,” according to the Plaintiffs. The County of Ocean’s (“Ocean County”) underground storm water tunnels, which run through the Plaintiffs’ land, allegedly contributed to the flooding problem. The Plaintiffs say that the Pinelands Commission, which had previously declared the Plaintiffs’ property to be “buildable,” changed its position and declared that part of the property constituted a wetland. They also allege that the Department of Environmental Protection allowed some of the defendants to file fraudulent applications for the placement of wells on the Plaintiffs’ property.
The Plaintiffs believe that adjacent landowner defendants Deetz, Gerken, Bisigna-no, and Filardo placed wells on their property without their consent; fraudulently granted easements to the property to Verizon New Jersey, Connectiv (now known as “Atlantic County Electric Company”), and Comcast of New Jersey; and otherwise encroached on the Plaintiffs’ land. They alleged that Verizon, Connectiv, and Com-cast placed utility lines, cables, and telephone wires on their property without their consent; the surveyor defendants omitted or misstated key information from their respective surveys in an effort to diminish their property; and the engineering defendants encroached on their property by placing detention basins so close to the boundary that the water runoff caused their land to flood. The Defendants deny the Plaintiffs’ claims and dispute the boundaries of the Plaintiffs’ property.
In 2005, the Plaintiffs filed a twenty-six count § 1983 complaint alleging violations of their Fifth Amendment rights under the Takings Clause, violations of procedural due process, and a widespread § 1983 conspiracy involving all of the defendants to encroach on and diminish their property. In addition to the § 1983 claims, the Plaintiffs raised state-law claims, including, inter alia, a claim that the Township fraudulently changed the boundaries of their property on various Township maps. They sought damages.
Some of the Defendants filed answers to the Amended Complaint, and asserted *844cross-claims against their co-Defendants for contribution and indemnification. After some discovery had transpired, most of the Defendants filed motions to dismiss, claiming that the District Court lacked subject-matter jurisdiction and that, in any event, the Plaintiffs failed to state a claim upon which relief could be granted. In March 2007, the Magistrate Judge allowed Plaintiffs’ counsel to withdraw from the case. The Plaintiffs filed pro se responses in opposition to the Defendants’ dismissal motions. They also requested permission to file a second amended complaint.
By order entered on January 7, 2008, 2008 WL 89910, the District Court granted the Defendants’ motions to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, and dismissed the Plaintiffs Amended Complaint in its entirety as to all Defendants. The District Court ruled that it lacked jurisdiction to consider the Plaintiffs’ takings claims because they were unripe under Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).2 Assuming that a taking of their property had occurred, the District Court concluded that the Plaintiffs failed to avail themselves of New Jersey’s procedures for obtaining compensation pursuant to the Eminent Domain Act of 1971, N.J.S.A. § 20:3-1 et seq. The District Court dismissed under Rule 12(b)(6) the Plaintiffs’ claims alleging violations of procedural due process because New Jersey afforded them a full judicial mechanism with which to challenge the Township’s decision to build a road on their property. The District Court dismissed the remainder of the § 1983 claims for failure to state a plausible claim of state action with respect to the private party defendants. The District Court refused to exercise supplemental jurisdiction over the Plaintiffs’ state law claims and over the Defendants’ cross-claims. The Plaintiffs filed this timely appeal. ■
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal on the grounds of ripeness and failure to state a claim upon which relief may be granted is plenary. Taylor Inv. v. Upper Darby Twp., 983 F.2d 1285, 1289 (3d Cir.1993) (ripeness); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999) (Rule 12(b)(6) failure to state a claim). A district court is not limited to the face of the pleadings in deciding a motion to dismiss a claim as unripe. See Taylor Inv., 983 F.2d at 1289 n. 7.
In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Well-pleaded factual content is ac*845cepted as true for purposes of determining whether the complaint states a plausible claim for relief. Id. at 1950. The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
We conclude that District Court properly dismissed the Plaintiffs’ procedural due process claims for the reasons stated in the District Court’s Opinion. Viewing the allegations as true, the factual matter falls far short of permitting us to infer a plausible connection among the private party defendants and a governmental agency or official such that them private actions would constitute “state action.” See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.1995) (“A private action is not converted into one under color of state law merely by some tenuous connection to state action”). In addition, the single-sentence conclusory allegations of a conspiracy contained in the Amended Complaint are insufficient to allege a plausible conspiracy among the defendants to deprive the Plaintiffs of their constitutional rights under § 1983. See Iqbal, 129 S.Ct. at 1949; see also Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir.1993) (holding that establishing the existence of an ‘understanding’ among private parties and state actors for § 1983 conspiracy purposes is really nothing more than another way to show state action by alleging a private party’s connection to a state actor).
We agree with the District Court’s conclusion that the Plaintiffs’ takings claims are not ripe for review under Williamson County, as they have not availed themselves of their remedies under New Jersey law.3 Relying on County Concrete Corp. v. Township of Roxbury, 442 F.3d 159 (3d Cir.2006), the Plaintiffs argue that their challenge to the “direct conduct” of the Ocean County and Barnegat Township defendants in taking their property without instituting an eminent domain proceeding, is the kind of “facial” takings claim that is not subject to Williamson County. *846(Plaintiffs Brief at 3 & 6). The Plaintiffs’ reliance on County Concrete is misplaced. The landowner in County Concrete raised a takings claim that attacked a zoning ordinance on its face as violating the landowner’s right of just compensation under the Takings Clause. County Concrete, 442 F.3d at 168. Here, the plaintiffs’ inverse condemnation claim seeks just compensation, not the invalidation of an ordinance or statute on its face.
Relying on Blanche Road Corp. v. Bensalem Turp., 57 F.3d 253 (3d Cir.1995), the Plaintiffs next argue that their claims against Barnegat Township and Ocean County are substantive due process claims to which the rule in Williamson County does not apply. The Plaintiffs are mistaken. In Blanche Road, the plaintiff landowner’s substantive due process claim, alleging a harassment campaign waged by Township employees against the plaintiff landowner, constituted an actionable § 1983 claim based on the landowner’s right to be free from harassment in its land development efforts. Id. at 268. The substantive due process claim was unrelated to Bensalem Township’s decision regarding Blanche Road’s land-use permit application. Id. Here, there is no actionable substantive due process claim unrelated to the Defendants’ conduct in taking the Plaintiffs’ property without resort to the Eminent Domain Act. Whether the claims are characterized as substantive due process claims or as a takings claims, the result is the same. The claims are not ripe for review until the Plaintiffs avail themselves of their just compensation remedies in state court.
We have thoroughly reviewed the remainder of the Plaintiffs’ claims on appeal and conclude that they are meritless. Because there was no justiciable federal question, the District Court did not abuse its discretion in declining to exercise supplemental jurisdiction over the Plaintiffs’ state law claims. See 28 U.S.C. § 1367(c). As for the Plaintiffs’ motion to file a second amended complaint, which we understand to have been overlooked or denied implicitly, we conclude that it would be futile to remand the matter for the District Court’s consideration, as nothing in the proposed second amended complaint cures the defects in the Amended Complaint. See Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir.2002). The Plaintiffs judicial bias claim also lacks merit. The Magistrate Judge’s adverse rulings do not form an adequate basis for recusal. See SecuraComm Consulting, Inc. v. Securacom, Inc., 224 F.3d 273, 278 (3d Cir.2000). Moreover, we find nothing in the record that suggests “a deep-seated favoritism or antagonism” by the District Court that would preclude fair judgment. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Accordingly, we will affirm the judgment of the District Court.
. Defendants Kelleher, Hess, Rahn, DeMeil-ler, and Gioia, former employees of Barnegat Township, are not parties because they were not served; defendant Darlene Deetz was dismissed from the case by stipulation of the parties. (See D. Ct. Op. at 2 n. 3 & 4). On December 24, 2008, we dismissed the appeal as to Ocean County Board of Health pursuant to the stipulation of the parties.
. Bamegat Township and Ocean County argue that the Plaintiffs failed to present a federal question on the face of their Amended Complaint. We disagree. The Plaintiffs’ Fifth Amendment takings claims present a federal question. The immediate federal issue is whether the constitutional claims are justiciable or ripe for a federal court’s consideration of the federal question. See County Concrete Corp. v. Township of Roxbwy, 442 F.3d at 164 ("The ripeness doctrine serves to determine whether a party has brought an action prematurely and counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.” (internal quotations and citations omitted)). Here, the District Court disposed of the claims on ripeness grounds.
. Strictly speaking, the Plaintiffs' takings claims are in the nature of "inverse condemnation” because they allege a taking of their property without resort to the eminent domain process and without just compensation, in violation of the Takings Clause. " '[fin-verse condemnation' is essentially 'a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.' " Peduto v. City of North Wildwood, 878 F.2d 725, 728 n. 4 (3d Cir.1989) (quoting United States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980)). It is “a remedy designed to protect the landowner whose property has been taken de facto by insuring that he is paid reasonable compensation for it.” Matter of Jersey Central Power & Light Co., 166 N.J.Super. 540, 544, 400 A.2d 128 (N. J.Super. 1979).
The Plaintiffs' inverse condemnation claims are the kind that are subject to the ripeness requirements under Williamson County. See Peduto, 878 F.2d at 728 (“Under Williamson, appellants must still obtain a judgment on their inverse condemnation claim in state court before their federal claims ripen”). Under New Jersey law, aggrieved property owners like the Plaintiffs may initiate an action for inverse condemnation by requesting a writ of mandamus from the Law Division of the Superior Court compelling the governmental entity to initiate condemnation proceedings. Id. The Plaintiffs admit that they have not pursued an action for just compensation pursuant to New Jersey law. (Plaintiffs’ Brief, at 7). Hence, their claims are not ripe for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471130/ | OPINION
PER CURIAM.
Petitioner Miriam Dore, a native and citizen of Liberia, seeks review of a final order of removal. However, she has failed to demonstrate that she will experience any harm if removed to Liberia. As a result, and as explained more fully below, we will deny the petition for review.
I.
Dore entered the United States in July 2006, using a false passport and tourist visa from the Ivory Coast. She was issued a Notice to Appear by DHS, and removal proceedings commenced in Elizabeth, New Jersey. Dore conceded removability, but sought asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) to prevent her removal.
Dore testified that she is of Mandingo ethnicity. She is illiterate and could not remember when she or any of her children was born. Dore testified that her husband was killed in the early nineties by rebel forces fighting under Charles Taylor during the first Liberian Civil War. Dore testified that her husband was targeted both because of his Mandingo ethnicity and the fact that he had been a supporter of Samuel Doe, who was then president of Liberia. After her husband’s death, Dore fled from one part of Liberia to another, attempting to “run[] from the war.” (A.R.84.) She eventually came to stay with a daughter, Miriam, in the Ivory Coast. She resided there for some time before deciding to go to the United States to live with another daughter, Makoya.
The Immigration Judge (“IJ”) first determined that “due to the limited testimony provided by [Dore] in court, the Court is not at a position to make a ruling as to whether [Dore’s] testimony was credible.” *848(A.R.10.) The IJ found, though, that even “[i]f one is to accept her testimony on [sic] face value” (A.R.10), the record did not demonstrate entitlement to asylum. (A.R.10) (“[Dore] suffered no past persecution in Liberia and there is no evidence that if removed from the United States to Liberia she would suffer harm on account of an actual or imputed ground enumerated in the Act”). The IJ also determined that Dore had failed to show that members of the Mandingo ethnicity are subjected to a pattern or practice of persecution, or that she would likely be tortured upon removal. The Board of Immigration Appeals (“BIA”) adopted and affirmed the LPs decision denying all requested relief, and dismissed the appeal. Dore then filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). When the BIA adopts the decision of the IJ as its own, as it did here, we review the decisions of both the IJ and BIA. See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir.2007). We review factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc).
III.1
To obtain asylum as a refugee, Dore must show that she “is unable or unwilling to return to [her country of nationality] ... because of persecution or a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42). “In order to establish persecution, an applicant must ‘show past or potential harm rising to the level of persecution on account of a statutorily enumerated ground that is committed by the government or by forces the government is unable or unwilling to control.’ ” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.2007) (quotation omitted). Race, religion and nationality are all privileged grounds. See 8 U.S.C. § 1101(a)(42)(A).
For substantially the reasons set forth in the IJ’s decision, we agree with the IJ and BIA that Dore’s spare account of her wartime experience is insufficient to demonstrate past or prospective persecution based on one of the enumerated grounds. See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir.2005) (“[h]arm resulting from • country-wide civil strife is not persecution ‘on account of an enumerated statutory factor”); Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom’”) (quotation omitted).2
The record does not reveal that Dore was individually targeted during the civil war because of her ethnicity or political opinion. Although she testified that her husband was killed because of his support for the former Liberian president, there is no evidence to demonstrate that her husband’s political opinion can or would be *849imputed to Dore almost two decades after his death. And in fact, Dore repeatedly stated during the hearing that she did not have any political associations, opinions or beliefs. (A.R.89-90.)
Furthermore, we agree with the IJ that while the country reports detail a whole host of societal problems in Liberia, the record does not reveal a pattern or practice of persecution of members of the Mandingo ethnic group. But even accepting as true Dore’s allegation that her ethnicity somehow precludes safe return to her hometown of Gnta, that allegation by itself does not demonstrate that she would be unwelcome in a different part of Liberia. Therefore, we conclude that substantial evidence supports the IJ’s finding concerning Dore’s ineligibility for asylum. Given that conclusion, we necessarily also conclude that the IJ’s finding concerning Dore’s ineligibility for withholding of removal is supported by substantial evidence.
Accordingly, we will deny the petition for review.
. Though Dore’s brief sets forth the applicable standard for CAT claims, she makes no allegation that she will be tortured if removed to Liberia. We deem Dore’s abandonment of argument concerning CAT relief to be a waiver of claims arising under that treaty. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
. Dore’s counsel all but concedes as much in his brief: “Ms. Dore's case is one in which she does not have much evidence to support her case.” (Pet. Br. at 16.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470833/ | MEMORANDUM **
Marek Bernacki, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals’ order summarily dismissing his appeal from an immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C. § 1252. We review questions of law de novo, Heman-dez-Gil v. Gonzales, 476 F.3d 803, 804 n. 1 (9th Cir.2007), and we deny the petition for review.
The IJ properly denied Bernacki’s applications for asylum and withholding of removal because Bernacki failed to comply with the IJ’s November 18, 2004, and March 25, 2005, orders and failed to request a continuance from the IJ. See 8 C.F.R. § 1003.31(c).
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/8470835/ | MEMORANDUM **
Ranjit Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying his application for asylum and withholding of removal and denying his motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and for abuse of discretion the denial of the motion to remand, Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir.2008). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on Singh’s submission of a fraudulent identity document and his inconsistent testimony as to how he obtained that document. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (affirming negative credibility finding based on, inter alia, discrepancies regarding identity).
We lack jurisdiction to consider Singh’s argument that he did not know his driver’s license contained an altered photograph because Singh failed to raise this issue to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In the absence of credible testimony, Singh failed to establish eligibility for asylum or withholding of removal. See Fa-rah, 348 F.3d at 1156.
The BIA did not abuse its discretion in denying Singh’s motion to remand because Singh did not submit previously unavailable evidence of identity. See 8 U.S.C. § 1229a(e)(7)(B); 8 C.F.R. § 1003.2(e)(1); Romero-Ruiz, 538 F.3d at 1064.
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/8470837/ | *187MEMORANDUM **
Baljit Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s decision denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Reviewing for substantial evidence, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on the inconsistencies between Singh’s testimony and his asylum declaration regarding the extent of his affiliation with the Babbar Khalsa Party which goes to the heart of his claim, see id. at 741-42, and based on Singh’s failure to call his mother as a witness, see Sidhu v. INS, 220 F.3d 1085, 1091 (9th Cir.2000) (“[Wjhere the IJ has reason to question the applicant’s credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review.”).
In the absence of credible testimony, Singh failed to establish he is eligible for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Because Singh’s CAT claim is based on the testimony the agency found not credible, and he points to no other evidence to show it is more likely than not he would be tortured if he returned to India, his CAT claim fails. 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/8470839/ | MEMORANDUM **
Michael Jack Owl appeals from the sentence imposed following the revocation of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Owl contends that the district court’s justifications for imposing a 45-month term of supervised release following a second supervised release revocation were insufficient. The supervised release term imposed was the maximum authorized by statute for Owl’s underlying offense of aggravated sexual abuse. See 18 U.S.C. § 3583(h); see also U.S.S.G. § 5D1.2(b)(2) (policy statement) (recommending the statutory maximum term of supervised release for sex offenders). The record reflects that the district court’s explanation for imposing the sentence was sufficient. Accordingly, the sentence is reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.2007).
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/8470841/ | MEMORANDUM **
Everardo Valenzuela-Ruiz appeals from the 77-month sentence imposed following his guilty-plea conviction for illegal re-entry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Valenzuela-Ruiz contends that the district court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence beyond the two year statutory maximum, because the temporal relationship between his removal(s) and his prior felony conviction was not alleged in the information nor admitted by him. Because the information alleged at least one date of removal which Ruiz admitted at the Rule 11 hearing, the district court’s determination that the removal was subsequent to a prior felony conviction did not violate Apprendi. See United States v. Mendoza-Zaragoza, 567 F.3d 431, 434 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*190ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471110/ | OPINION
PER CURIAM.
Sa’eedu Massaquoi appeals an order of the United States District Court for the Middle District of Pennsylvania denying his habeas petition filed pursuant to 28 U.S.C. § 2241. We will affirm.
On July 13, 1999, Massaquoi was arrested by Pennsylvania authorities for state parole violations; the Pennsylvania Board of Probation and Parole later ordered him to serve a 72-month sentence as a technical and convicted parole violator. Massa-quoi remained in state custody until September 16, 1999, when he was transferred to federal custody pursuant to a writ of habeas corpus ad prosequendum to answer charges stemming from two armed bank robberies committed while Massaquoi was on parole. He was arraigned on those charges in the United States District Court for the Eastern District of Pennsylvania on September 21, 1999, he was convicted on May 10, 2000, and he was sentenced to 646 months of imprisonment on September 21, 2000. That sentence began to run on February 27, 2001, the date Pennsylvania authorities released Massa-quoi to the exclusive custody of the federal Bureau of Prisons (“BOP”).
In calculating Massaquoi’s projected release date, the BOP contacted Pennsylvania officials to determine what portion of the time served prior to February 27, 2001, had been credited to his state parole violator sentences. Pennsylvania officials indicated that Massaquoi’s parole violator term had been credited with only the period of time between July 13, 1999 (the date of his state arrest) and September 21,1999 (the date of his federal arraignment). Therefore, because the 524 days from September 22, 1999 (the day after his federal arraignment) to February 26, 2001 (the day before he began serving his federal sentence) had not been credited to his parole violator term, the BOP credited that time to his federal sentence.
Massaquoi filed the present petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, claiming that those 524 days should have been credited to his state parole violator term, rather than to his federal sentence. The District Court denied the § 2241 petition, holding that the “time [Massaquoi] spent in ... custody which was not credited against his state parole revocation term ... was [properly] credited toward his federal sentence.” Massaquoi appealed.1
Pursuant to 28 U.S.C. § 2241, district courts are authorized to issue a writ of habeas corpus to a state or federal prisoner who “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Massaquoi alleged that the BOP improperly applied 18 U.S.C. § 3585(b), which prohibits the BOP from crediting a defendant for time served prior to commencement of a federal sentence if such time has already been credited towards another sentence. See Rios v. Wiley, 201 F.3d 257, 272 (3d Cir.2000). In this case, Massaquoi was in the primary custody of Pennsylvania from the date of his arrest (July 13, 1999) until the day before his federal sentence commenced (February 26, 2001). See Ruggiano v. Reish, 307 F.3d 121, 125 (3d Cir. 2002) (holding that “[a] prisoner detained pursuant to a writ ad prosequendum is considered to remain in the primary custody of the first jurisdiction unless and until *811the first sovereign relinquishes jurisdiction over the person”). A portion of that time (from July 13, 1999, to September 21, 1999) was credited against Massaquoi’s parole violator sentences.2 Under Pennsylvania’s Parole Act, however, a federal sentence for a crime committed by a convicted parole violator must be served before the state parole violation sentence is served. See 61 P.S. § 331.21a(a). Therefore, Pennsylvania did not credit Massaquoi’s parole violator sentences with the time he spent in primary state custody from September 22, 1999, to February 26, 2001. Because that time had not been credited toward another sentence, the BOP did not violate § 3585(b) by crediting that time to Massaquoi’s federal sentence.
For the reasons stated, we will affirm the District Court’s judgment.
. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court's legal conclusions and apply a clearly erroneous standard to its findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002).
. Massaquoi does not challenge this determination and, to the extent he alleges that Pennsylvania authorities failed to properly calculate his sentence, he has not identified any provision of the “Constitution or laws or treaties of the United States” that was violated. In addition, the BOP has no obvious authority over the manner in which Pennsylvania credits parole violator sentences. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471112/ | OPINION
PER CURIAM.
Petitioner Yi Guo Huang, a native and citizen of China, seeks review of a November 30, 2007 decision by the Board of Immigration Appeals, denying his motion to reopen removal proceedings. Huang arrived in the United States in January 1992, without inspection. On October 9, 1999, the former Immigration and Naturalization Service, now the Department of Homeland Security, served him with a Notice to Appear, charging that he was removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Although Huang failed to attend his hearing, and, as a result, was ordered removed in absentia, he successfully moved to reopen proceedings. Huang applied for asylum, withholding of removal, and for protection under the Convention Against Torture, claiming that he feared persecution if he returns to China because he was in violation of China’s birth control policies.1
The Immigration Judge, in a December 1, 2003 decision, considered Huang’s claim that he would be persecuted in China on account of the birth of his two children in China, in 1989 and 1991, but denied him relief, finding him not credible due to several material inconsistencies between his asylum applications, dated January 12, 1992 and March 26, 1994, and his hearing testimony. Huang appealed to the Board of Immigration Appeals, which, on May 26, 2005, affirmed the IJ’s order of removal and adverse credibility finding. Huang petitioned for review of the Board’s May 26, 2005 decision in this Court at C.A. No. 05-3186, but the petition was procedurally terminated by Order of the Clerk on August 14, 2006.
On May 10, 2007, Huang filed an untimely motion to reopen with the Board, based on alleged changed conditions in China with respect to enforcement of its birth control policies. In that motion, Huang indicated that he is from Fujian Province, and he claimed that his return to China would result in him being placed in “re-education” or “labor camps,” or forcibly sterilized due to having had two children in violation of China’s “one-child” policy. In support of his motion to reopen, Huang submitted three brief translated articles that were not dated. A.R. 19-26. The first article, from World Journal News, indicated that in Fujian Province local authorities have set up “population schools” to hold an offending woman’s family members in custody until she agrees to an abortion or sterilization. A.R. 20. As a result, women who are about to give birth to their second child plan to hide in relatives’ homes in Hong Kong and then re-ten to China after they give birth. A.R. 21. The second translated article indicates that these “population schools” provoke resentment among citizens because they violate China’s “central policy.” A.R. 24. The article also notes that the local government is discussing whether to allow people to give birth to a second child. Id. *813The third translated article chronicles the heartbreak of a family who had one of its members detained at a “population school.” A.R.25.
Huang also asked the Board to reopen proceedings in light of the country condition documents discussed in Slum Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), and he contended that he meets the definition of a “particular social group” in that the Chinese government punishes repatriated Chinese citizens for disloyalty to the Communist Party.
On November 30, 2007, the Board denied Huang’s motion to reopen. The Board found that the motion was time- and number-barred under 8 U.S.C. § 1229a(e)(7)(A), (C)(i), and that the evidence Huang submitted was insufficient to support his claim of changed country conditions, so as to create an exception to the tune limit for filing a motion to reopen, see id. at 1229a(c)(7)(C)(ii). The Board noted that the submitted evidence consisted only of three poorly translated newspaper articles, which did not specifically reference Huang’s circumstances, and which failed to establish that China has a policy of forced sterilizations for returnees from the United States. For authority, the Board relied on Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), and Matter of J-W-S- 24 I. & N. Dec. 185 (BIA 2007), and supplied par-entheticals to explain the relevance of these cases.2 In addition, the Board noted that Huang’s children were born in China on December 3, 1989 and December 16, 1991, and that his wife continues to reside there without being harmed. The Board concluded by denying Huang’s request for equitable tolling and declining to exercise its sua sponte authority to reopen proceedings, and the Board rejected Huang’s particular social group claim on the merits.3 Huang has timely petitioned for review.
We will deny the petition for review. We have jurisdiction under INA § 242(a), 8 U.S.C. § 1252(a). The Board’s jurisdiction arose under 8 C.F.R. § 1003.2(c), which grants it authority to adjudicate motions regarding matters that it has previously considered. We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this deferential standard of review, we will not disturb the Board’s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
The regulation governing motions to reopen provides that: “A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary *814material.... A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.... ” 8 C.F.R. § 1003.2(c)(1). Although a motion to reopen “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,” 8 C.F.R. § 1003.2(c)(2), this time limitation does not apply if the alien seeks reopening “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Because Huang’s motion was untimely, being filed two years after the removal order became final, his motion had to be based on changed country conditions in China with respect to the government’s enforcement of its birth control policies. We conclude, however, that the Board did not abuse its discretion in denying his untimely motion to reopen because Huang did not make the required showing. Huang based his allegation of changed circumstances arising in China, and his assertion that his evidence was material to his claim of persecution, on three brief undated articles which indicated that, in Fujian Province, authorities have set up “population schools,” where a pregnant woman’s family members are held until the woman agrees to an abortion or sterilization. We are not persuaded that these articles, even assuming that they post-date Huang’s December 1, 2003 removal hearing, have any bearing on his present circumstances. Huang has two children who are now young adults, making the noted “population schools” seemingly inapplicable to him. The Board’s determination that the articles are not material to Huang’s claim that conditions have changed in China since his removal hearing, and that he will be forced into a labor camp or forcibly sterilized if he returns to China, was thus not arbitrary, irrational, or contrary to the law. See Guo, 386 F.3d at 562. We agree that Huang failed to make the showing necessary to excuse the untimeliness of his motion to reopen.
Huang also argues that the documents the Court of Appeals for the Second Circuit considered in Shou Yung Guo, 463 F.3d 109, be considered in support of his motion to reopen. These documents, he contends, that is, the 2003 Changle City Family Planning Administration decision and 2003 Fujian Province Decision, see Petitioner’s Brief, at vi, demonstrate a policy in China of forcibly sterilizing persons with two or more children. See Petitioner’s Brief, at 11.4 In Shou Yung Guo, the Second Circuit explained that the 2003 Changle City Family Planning Administration decision held that, where either parent remains a Chinese national with no permanent residence overseas, any child of such a couple is deemed a Chinese national and shall be treated as such for domestic administrative purposes. 463 F.3d at 112-13. The decision states that Chinese nationals having children in violation of China’s family planning policies will be sanctioned according to family planning rules and regulations enforced at the local level. Id. The Fujian Province Department of Family Planning Administration affirmed the *815Changle City opinion, and emphasized that no exceptions would be made for Chinese citizens whose reproductive behavior overseas violates local rules. Id.
Huang did not submit these documents with his motion to reopen, relying instead on the three undated translated newspaper articles, but he asserts that the Board abused its discretion when it failed to consider them anyway, because they were in the Board’s possession as a result of prior litigation by other parties in the Second Circuit. See Petitioner’s Brief, at 12. In a related argument, Huang contends that the Board’s reliance in his case on Matter of J-W-S- and Matter of S-Y-G- is in violation of Second Circuit law. See Petitioner’s Brief, at 15-16.5
Matter of S-Y-G- 24 I. & N. Dec. 247, is the decision issued by the Board following the Second Circuit’s remand in Shou Yung Guo, 463 F.3d 109, and, in it, the Board held that the applicant did not meet her burden to show that the proffered evidence reflected “changed circumstances” in China. The Board held that the documents submitted, which included the 2003 Changle City Administrative Opinion and the 2003 Fujian Province Administrative Decision, reflected general birth planning policies in the applicant’s home province that did not specifically show any likelihood that she or similarly situated Chinese nationals would be persecuted as a result of the birth of a second child in the United States. 241. & N. Dec. at 254-256. The Board noted that a 2007 Department of State letter established that children born outside of China, and who are not registered as permanent residents of China, are “not counted” against parents for purposes of family planning compliance. The State Department was not aware of either a national or provincial policy requiring that a parent be sterilized after the birth of two children. Id. at 255-56. With respect to one petitioner whose children were born many years apart, the Board cited the State Department’s 2005 Profile of Asylum Claims and Country Conditions for the proposition that provincial law indicates that married couples may apply to have a second child within certain time frames that are being increasingly relaxed. Id. at 256.
Similarly, in Matter of J-W-S-, the Board, on remand from the Second Circuit, addressed a petitioner’s claim that he had a well-founded fear of persecution on account of having two United States citizen children. 24 I. & N. Dec. at 186-88. The Board held that the alien failed to establish that he had a well-founded fear of forced sterilization in China. Id. at 190-192. Citing the State Department’s 2006 Country Report, the Board noted that Chinese citizens who violate family planning policies face only economic penalties, such as job loss and destruction of property. Id. at 190. The Board also noted that a 2007 State Department report stated that children born outside of China are not considered permanent residents of China and therefore are not counted against parents for purposes of family planning compliance. Id. at 190-91. Furthermore, according to government publications issued in 2005, 2006, and 2007, Fujian Province is lax and uneven in its family planning policy enforcement, that physical coercion is officially condemned, that there is no evidence of forced abortions, and any sanc*816tions returning parents may face would be economic. Id. at 194.
Returning to Huang’s arguments, we find that the Board, in applying Matter of S-Y-G- to his case, necessarily considered the Shou Yung Guo documents. Cf Shao v. Mukasey, 546 F.3d 138, 151 (2d Cir. 2008) (“Although the documents prompting remand in Shou Yung Guo v. Gonzales, 463 F.3d at 113, see supra at [146-47], had not been part of the record at [one of the other petitioner’s] removal proceedings, the BIA nevertheless considered the possibility that this evidence might support an “enforcement” finding favorable to petitioner”). Furthermore, the Board addressed in its written decision the issues relevant to the Shou Yung Guo documents to the extent required, given that Huang did not comply with the regulation requiring him to submit the actual evidence with his motion to reopen. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material....”).
It also was not wrong under Second Circuit law for the Board to apply Matter of S-Y-G-. Shao v. Mukasey, 546 F.3d at 169-172, is the reported decision wherein the Second Circuit denied the petition for review relating to Matter of S-Y-G-. See Shao, 546 F.3d at 165 (“[w]hile official documents from Fujian Province and Changle City indicate that Chinese nationals who violate birth limits while abroad will be subject to the same punishment as citizens whose violations occur in China, the BIA reasonably observed that these documents made no “reference] to sterilization, much less forced sterilization,” as a possible punishment”). The Second Circuit in Shao, 546 F.3d at 163-64 & n. 26, 172, also discussed with approval the Board’s decision in Matter ofJ-W-S- and, for that matter, it discussed with approval the Board’s decision in Matter of J-H-S-, 24 I. & N. Dec. 196, 203 (BIA 2007), wherein the Board addressed the sterilization issue with respect to children born in China. Matter of J-H-S- held that the evidence showed that physical coercion to achieve compliance with family planning goals is uncommon and unsanctioned by China’s national laws, and overall policy is more heavily reliant on incentives and economically-based penalties, see Shao, 546 F.3d at 158-161, 165.6
In sum, the record fully supports the Board’s conclusion that Huang did not demonstrate changed circumstances in China sufficient to excuse the untimeliness of his motion and justify reopening of his removal proceedings. We find that the Board’s decision was consistent with the standards we set forth in Zheng v. Att’y Gen. of U.S., 549 F.3d 260 (3d Cir.2008), in that the Board adequately considered the materials Huang submitted with his motion to reopen.
For the foregoing reasons, we will deny the petition for review.
. To qualify for asylum or withholding of removal, an applicant must establish that he has a well-founded fear that he will be persecuted if removed to his home country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42), 1158(b), 1231(b)(3). "[A] person who has a well founded fear that he or she will be forced to [abort a pregnancy or undergo involuntary sterilization] or [is] subject to persecution for [failure, refusal, or resistance to undergo such a procedure] shall be deemed to have a well founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
. The Matter of S-Y-G- parenthetical stated that, despite claims by the asylum respondents of an official policy of sterilization after the birth of two children, the State Department was not aware of such a policy at either the national or provincial level. The Matter of J-W-S- parenthetical stated that the evidence of record did not demonstrate that the Chinese government has a national policy of requiring forced sterilization of a parent who returns with a second child born outside of China, or that the respondent’s province of origin persecuted those with children born abroad. A.R. 2.
. With respect to equitable tolling, the Board properly noted that Huang did not allege deficient performance of counsel nor did he assert that he was unaware of the Board's prior decision. Huang has not pressed this argument in his brief on appeal, and thus we consider it waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993). Huang also has not pressed his particular social group argument on appeal, and so it too is waived. Id. In addition, we are without jurisdiction to review the Board's decision declining to exercise its sua sponte authority to reopen removal proceedings. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003).
. The 1999 Changle City Family Planning Handbook, to the extent Huang has relied on it in his brief, see Petitioner’s Brief, at vi, plainly was available to him prior to his December 2003 removal hearing and thus cannot be relied upon to justify reopening under the "changed circumstances” exception. 8 C.F.R. § 1003.2(c)(1).
. We take this occasion to note that we find Huang’s reliance throughout his brief on Second Circuit law more than a little curious. Although we may find the reasoning of a sister court persuasive, see Reilly v. City of Atlantic City, 532 F.3d 216, 229 (3d Cir.2008), we are bound only by the law in this circuit, see Institutional Investors Group v. Avaya, 564 F.3d 242, 276 n. 50 (3d Cir.2009), and a litigant should acknowledge this prior to making an argument based on case law from another circuit.
. Because Shao v. Mukasey directly addresses Matter of S-Y-G-, we conclude that it is unnecessary for us to reach Huang’s arguments concerning Lin v. U.S. Dep't of Justice, 459 F.3d 255 (2d Cir.2006). See Petitioner’s Brief, at 15-16. For the same reason, we decline Huang's request for a remand to the Board in order for it to consider Gao v. Muka-sey, 508 F.3d 86 (2d Cir.2007), see Petitioner’s Brief, at 19-20, and his request that we retain jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471114/ | OPINION
PER CURIAM.
Mirsanjar Mirhakim petitions for review of a final order of removal entered by the Board of Immigration Appeals (“BIA”), which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
Mirhakim is a native of Uzbekistan. He was admitted into the United States in *818February 2004 to attend a photography convention. He overstayed his admission period and worked without authorization. In April 2006, he was served with a notice to appear, charging him as being removable pursuant to 8 U.S.C. § 1227(a)(1)(B) (remaining beyond authorized period), and § 1227(a)(l)(C)(I) (failing to comply with non-immigrant status). He conceded re-movability and sought asylum, withholding of removal, and relief under the CAT.
Mirhakim testified that he is a devout Muslim.1 Although the majority of Uz-beks are also Muslim, many are not devout. Those who are devout, he claimed, are persecuted by the government. In support of his application, Mirhakim testified to the following events: 1) he graduated from a high school that was later closed by the Uzbek government, though he testified that the school was not religious; 2) he was required to work as a translator for the KGB for four days. Some of his duties included the translation of religious documents in order to determine if they contained any extremist messages; 3) he attended religious meetings, where he befriended a man who was later arrested for organizing an anti-government group;2 and 4) he was stopped and questioned by the police because he wore a beard, a sign in Uzbekistan of a devout Muslim.
Mirhakim also attempted to demonstrate a well-founded fear that he will be persecuted upon return to Uzbekistan. First, he pointed to an incident that occurred in May 2005 in the city of Andijon, during which at least 173 government protesters were killed. Mirhakim also testified that after he left Uzbekistan to attend the photography convention, the KGB questioned his family about his whereabouts. In addition, he claimed that he could not freely worship in his home country because the Uzbek government requires religious organizations to register and surveils the mosques that are allowed to operate. Finally, he claimed that if he were to marry, his wife and daughters would be discriminated against because they would wear hijabs, which are required by his branch of Islam but are viewed with suspicion by the Uzbek government.
The Immigration Judge (“IJ”) did not make a credibility determination,3 but denied all substantive relief. The IJ found that Mirhakim was ineligible for asylum because he had filed his application more than one year after he had entered the United States and had not shown changed or extraordinary circumstances sufficient to excuse the delay of filing. See 8 U.S.C. § 1158(a)(2)(B) & (D).4 In addition, the IJ *819found that Mirhakim was ineligible for withholding of removal because he had not demonstrated past persecution and had failed to show a clear probability that he would be persecuted if he were to return to Uzbekistan. Finally, the IJ found that Mirhakim was ineligible for relief under the CAT because he had not shown that he is more likely than not to be tortured upon return to Uzbekistan.
The BIA adopted and affirmed the IJ’s decision, adding that the Andijon incident, by itself, did not amount to the changed country conditions that would justify an extension of the one-year deadline in § 1158(a)(2)(B). The BIA also noted that the continued surveillance and harassment of Muslims in Uzbekistan did not materially change the circumstances in the country, and that Mirhakim had not shown that he will likely be persecuted or tortured upon return to Uzbekistan. Mirhakim then filed a timely petition for review.
In his petition, Mirhakim argues that the BIA erred in finding that he had not established changed country circumstances to warrant an exception to the one-year asylum application deadline. He also argues that the BIA erred in finding that he was ineligible for withholding of removal. To the extent that Mirhakim challenges the timeliness determination, we lack jurisdiction. See 8 U.S.C. § 1158(a)(3). In addition, we will not consider the denial of CAT relief because Mirhakim 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).
We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). 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. See Voei v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005). “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Determinations that an alien experienced “persecution” or has a “well-founded fear of persecution” are findings of fact that we review under the substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). 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, 242 F.3d at 484).
An applicant seeking withholding of removal “must establish a ‘clear probability’ ... that he/she would suffer persecution” if returned to the country of removal. Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006). “Persecution includes threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.2008) (internal quotations omitted), but it does not “encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional,” Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993).
An applicant can create a presumption of future persecution by “establishing] that he suffered persecution in the past.” Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir.2005). Mirhakim has not *820made this showing. His sole contacts with government officials came when he worked as a translator for the KGB and when he was questioned by the police because of his beard. On these occasions, he was not confined, assaulted, or threatened. The closing of his former high school and the arrest of his friend did not directly affect him and, in any event, did not constitute persecution of Mirhakim. See Wong, 539 F.3d at 232. Substantial evidence supports the conclusion that Mirhakim did not suffer anything amounting to past persecution.5
An applicant who cannot show past persecution may still be eligible for withholding of removal if he or she can demonstrate a likelihood of future persecution. See Zubeda, 333 F.3d at 469-70. Here, substantial evidence supports the conclusion that Mirhakim did not establish a likelihood of future persecution. He testified that, shortly after he arrived in the United States, the KGB questioned his family about him. His speculation that the KGB is waiting to persecute him upon return to Uzbekistan is insufficient to establish a likelihood of future persecution. See also Toussaint v. Att’y Gen., 455 F.3d 409, 415 (3d Cir.2006) (finding that a statement “that a person would be in danger in a particular place does not mean she is likely to be persecuted”). In addition, we note that the Uzbek government allowed Mirhakim to freely leave the country. See Ali v. Gonzales, 401 F.3d 11, 16 (1st Cir. 2005) (finding that the applicant’s ability to freely leave the country is one factor to consider in evaluating the applicant’s well-founded-fear claim). His fear that any wife or daughters that he may have in the future will be discriminated against because they would wear hijabs is also insufficient to show that he will be singled out for persecution. First, he has neither a wife nor a daughter. See S-Cheng v. Ashcroft, 380 F.3d 320, 323 (8th Cir.2004) (rejecting a well-founded-fear claim “based on hypothetical or speculative facts”); Huang v. I.N.S., 421 F.3d 125, 129 (2d Cir.2005) (same). Second, even if Mirhakim were married and had daughters, the discrimination — and it would be discrimination, and not persecution, see Chen v. Ashcroft, 381 F.3d 221, 233 n. 20 (3d Cir.2004) — on the basis of the hijabs would be directed at them, and not at him.
The IJ noted that the Uzbek government suppresses what it perceives to be religious extremism. Mirhakim argued that, as a pious Muslim, he is likely to be affected by this policy. To support this argument, he testified that the Uzbek government keeps the mosques in the country under surveillance. However, surveillance itself is insufficient to establish a well-founded fear of persecution. See Chavarria v. Gonzalez, 446 F.3d 508, 519 (3d Cir.2006) (finding that surveillance that is “neither highly imminent nor menacing” does not “rise to the level of persecution”). Thus, the BIA’s conclusion that Mirhakim did not show that he will not suffer future persecution is supported by substantial evidence in the record.6
*821For the foregoing reasons, we will deny the petition for review.
. Mirhakim testified in English because he was unwilling to speak with an Uzbek in the room for fear that the Uzbek government would learn about the testimony. The Immigration Judge noted that Mirhakim did not appear to have any difficulty understanding the questions or articulating his answers. Mi-rhakim did not raise any arguments about testifying in English in his appeal to the BIA, nor does he do so here. Accordingly, any claim about the language of his testimony is waived.
. Although Mirhakim testified that his friend was arrested for organizing an anti-government group, he argued in his appeal to the BIA, and again in his petition for review, that his friend was arrested "for his religious practices.” The BIA did not address this discrepancy. In any event, the BIA plausibly concluded that the arrest of this friend, who was a part of the group that attended the religious meetings, was insufficient to show that Mi-rhakim had been or likely will be persecuted if forced to return to Uzbekistan.
. Since the IJ did not make a credibility determination, we proceed as if Mirhakim's testimony was credible. See Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003).
. For the first time in the proceedings, Mi-rhakim makes an extraordinary-circumstances claim. He argues that he paid a lawyer to file his asylum application at a time *819when the filing would have been timely, but that the lawyer disappeared with the money. Since Mirhakim did not raise this argument below, he cannot raise it here. See 8 U.S.C. § 1252(d) (requiring applicants to exhaust all administrative remedies available as of right); Joseph v. Att’y Gen., 465 F.3d 123, 125 (3d Cir.2006). Mirhakim may wish to bring his argument for ineffective assistance of counsel to the BIA in a motion to reopen.
. In his brief, Mirhakim states that he was under constant surveillance by the Uzbek government. (Pet. Br. at 17) However, Mirhakim did not testify that the Uzbek government constantly surveilled him.
. Mirhakim also asks that we grant him humanitarian asylum. Humanitarian asylum is available only in the case of an alien who has suffered particularly atrocious past persecution. See 8 C.F.R. § 208.13(b)(l)(iii); Naizgi v. Gonzales, 455 F.3d 484, 488 (4th Cir.2006). Here, of course, we have upheld the finding that Mirhakim suffered nothing amounting to past persecution at all.
In the alternative, Mirhakim asks that we remand the case to the BIA for a new hearing. Because we find that substantial evidence supports the BIA's decision, we have no basis on which to remand. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471120/ | OPINION OF THE COURT
PER CURIAM.
Petitioner Mei Yang seeks review of a final order of removal of the Board of Immigration Appeals (“BIA”) denying her motion to reopen her deportation proceedings. We will deny the petition.
I.
Mei Yang is a 28-year-old native and citizen of China, who entered the United States without being admitted or paroled in January 2001. In February 2001, the Immigration and Naturalization Service filed a Notice to Appear and placed Yang in removal proceedings. In turn, Yang filed an application for asylum based upon her political opposition to the Chinese government’s property expropriation policy.
On March 12, 2002, the IJ, after reviewing Yang’s hearing testimony and the evidence of record, denied Yang’s asylum application. The IJ found numerous discrepancies and omissions between Yang’s asylum application, written documents, and her testimony and ultimately concluded that she was not credible. Yang appealed the IJ’s decision and, on January 29, 2003, the BIA affirmed, in part, the IJ’s decision.1 Yang did not file a petition for review of the BIA’s decision with this Court.
More than four years later, on June 4, 2007, Yang filed with the BIA a motion to reopen and to file a successive asylum application. She asserted that the motion was exempt from the ninety-day time restriction governing motions to reopen because her motion was based on changed country conditions in China and based on facts not previously available to her. Specifically, Yang contended that if she returned to China, she would likely be persecuted as a violator of the one-child rule of the family planning law because enforcement of the law was becoming more frequent in Fujian Province, Yang’s home province. Since her removal hearing in March 2002, Yang had given birth to two children and was pregnant with her third child at the time she filed her motion to reopen.
*828In support of her motion, Yang relied upon the United States Court of Appeals for the Second Circuit’s decision in Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006). Specifically, Yang argued that “the Second Circuit has taken notice of evidence which confirms that Chinese nationals who have children abroad are nonetheless subject to ordinary enforcement of the one-child rule, including sterilization.” (A.R.28.) In further support of her motion, Yang included the following documents: a 2003 Consular Information Sheet, 2005 and 2006 Annual Reports of the Congressional — Executive Commission on China; the congressional testimony of Dr. John Aird and Harry Wu; Changle City Family Planning Q & A Handbook; 2006 Policy Statement from the Administrative Office of the National Population and Family Planning Committee; a 2007 World Journal excerpt on family planning practices in Fujian Province; a 1997 letter from the Department of Public Security of The People’s Republic of China; newspaper articles on family planning practices in the regions of Linyi and Guangxi.
On January 11, 2008, the BIA ruled that Yang’s motion to reopen was time-barred under 8 C.F.R. § 1003.2(c)(2). The BIA concluded that Yang had not overcome this bar by showing changed country conditions in China as permitted under 8 C.F.R. § 1003.2(c)(3)(h).
II.
Although we have jurisdiction to review the BIA’s order denying Yang’s motion to reopen, see, e.g., Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), the scope of our review is quite limited. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Under the regulations, the BIA “has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Accordingly, the Court reviews the BIA’s denial of a motion to reopen for abuse of discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409. Thus, in order to succeed on the petition for review, Yang must ultimately show that the BIA’s discretionary decision was somehow arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (quotation omitted). Yang has failed to make such a showing.
III.
Yang does not dispute that she filed an untimely motion to reopen. Instead, she argues that her motion should be considered pursuant to one of the exceptions to the time restriction applicable to such motions. See 8 C.F.R. § 1003.2(c)(2). As mentioned above, the BIA found that there was “insufficient evidence in this case establishing changed circumstances in China,” as required by 8 C.F.R. § 1003.2(e)(3)(ii) in order to avoid application of the time restriction.
Yang argues that the BIA, in denying her untimely motion to reopen, gave only “scant consideration of the proffered previously-unavailable evidence.” (Petitioner’s Brief at 10.) We disagree.
As a preliminary matter, we agree with the Government that Yang’s changed personal circumstance, i.e., the birth of her children, is distinct from changed county conditions.2 See Liu v. Attorney General, *829555 F.3d 145, 150-51 (3d Cir.2009); see also Wang v. Board of Immigration Appeals, 437 F.3d 270, 273 (2d Cir.2006). Relief is appropriately denied “where a petitioner is seeking to reopen [her] asylum case due to circumstances entirely of [her] own making after being ordered to leave the United States.” Wang, 437 F.3d at 274.
In addition, Yang unsuccessfully argues that the BIA erred by failing to adequately consider the evidence of changed conditions that she submitted with her motion to reopen. The record reflects that the BIA issued a clear and well-supported decision denying Yang’s claim.
The BIA first determined that Yang’s reliance upon the Second Circuit’s decision in Guo v. Gonzales, was misplaced. It pointed out that the BIA, upon remand in Guo, “ultimately determined that the [alien’s] evidence did not adequately support the reopening of the record.” (A.R.2.) The BIA also noted that Yang’s assertion regarding the case of Yu He Zheng (discussed in the 2006 Policy Statement), similar to its finding in Matter of S-Y-G-, 24 I. & N. Dec. 247, 252 (BIA 2007), did not establish changed circumstances. Furthermore, Yang’s Q & A document stated only that giving birth outside of family planning guidelines “could” result in a fee (as noted in Matter of S-Y-G-) and her proffered 2004 consular sheet and 2005 Congressional report failed to establish that she would be persecuted. The 1997 letter that Yang included with her motion was clearly “previously available” and the 2006 Congressional report indicated that alleged “coercion” of those with several children consisted primarily of fines, which did not constitute “perseeution.” Additionally, the BIA concluded that Harry Wu’s 2004 congressional testimony was unclear and lacked a foundational basis and that recent State Department reports indicating that Chinese children born abroad are “not counted” for birth planning purposes for returnees is more persuasive than the testimonial documents submitted by both Wu and John Aird.
Lastly, the BIA found that the 2007 World Journal excerpt was not only unreliable, but had no relevance to Yang or her locality and that there was insufficient evidence that the articles discussing family planning policies in Linyi and Guangxi had any relevance to Yang’s case. What is more, Yang admitted in her motion to reopen that “China officially does not permit forced abortions and sterilizations and [instead] relies on economic measures.” (Bee A.R. 17.) As a result, the BIA concluded that the evidence was insufficient to establish changed circumstances in China and denied reopening Yang’s case on that basis.
Based upon that analysis, we do not agree with Yang’s assertion that the BIA failed to consider her new evidence or that the evidence does not support the BIA’s conclusion. Indeed, we have remanded where the BIA has “fail[ed] to discuss most of the evidentiary record,” see Zheng v. Att’y Gen., 549 F.3d 260, 269 (3d Cir. 2008). However, the BIA carefully considered Yang’s motion and concluded that she failed to present evidence demonstrating that she will be subject to “arrest, physical mistreatment or the degree of economic sanctions that would rise to the level of persecution” upon her return to China. *830(A.R.2.) Substantial evidence supports the BIA’s conclusions.
Having found no abuse of discretion on the part of the BIA in denying Yang’s untimely filed motion to reopen, we will deny the petition for review.
. The BIA affirmed the IJ's decision finding Yang's claim lacked credibility and, even if true, failed to establish eligibility for relief. It reversed the IJ's determination that Yang filed a frivolous asylum application. (A.R.142-43.)
. Yang also argues that, according to Guo v. Ashcroft, 386 F.3d 556 (3d Cir.2004), she meets the prima facie standard for reopening merely based upon her change in personal circumstances. (Petitioner's Brief at 13.) She claims that “at a minimum,” her personal circumstances entitle her to have her case heard. (Id.) We disagree. Guo involved a *829situation entirely different from that of Yang: (1) the alien in Guo submitted a timely motion to reopen, and was not required to establish changed country conditions in China; (2) in Guo, the alien, in contrast to Yang, had the burden to establish a prima facie case demonstrating a reasonable likelihood that she would prevail on the merits; and (3) the BIA in Guo, unlike here, applied the wrong standard. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471124/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Joi Caplen appeals from the District Court’s orders entering summary judgment against her. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In March 1993, Caplen and her husband, Larry, executed a promissory note in favor of Mellon Bank, secured by a mortgage on their home in Blue Bell, Pennsylvania. Under the terms of the note and mortgage, the Caplens agreed to carry hazard insurance on the property and to provide evidence of insurance to the bank; if they failed to do so, the bank was authorized to “force place” insurance on the property— that is, to independently obtain insurance and add the cost of the premiums to the principal due under the note — in order to protect its security interest in the property-1
The Caplens eventually defaulted on the note. On June 5, 2000, Mellon Bank initiated foreclosure proceedings in the Court of Common Pleas of Montgomery County. While that action was pending, Mellon Bank sold the note and mortgage to Alaska Seaboard Partners, LP (ASP). ASP’s servicing affiliate, Security National Servicing Corporation (SNSC), then sent a series of letters to the Caplens, informing them that ASP had acquired their loan and asking them to provide proof of insurance. The Caplens did not respond to these letters.
On March 14, 2002, the Court of Common Pleas entered judgment against the Caplens in the amount of $116,662.38, plus post-judgment interest. Soon afterwards, *835the Caplens and ASP entered into a forbearance agreement, under which the Ca-plens again agreed, among other things, to provide proof of insurance on their property. When the Caplens still did not supply proof of insurance, SNSC obtained a force-placed insurance policy underwritten at Lloyd’s.
In December 2003, SNSC cancelled its Lloyd’s policy and replaced it with a policy issued by Security National Insurance Company (SNI), a captive insurance company that provides force-placed insurance to Security National Master Holding Company, LLC (SNMHC) and its affiliated companies, including ASP and SNSC. The SNI force-placed policy contained an “other insurance” clause, which provided:
“If there is available to the Assured any other insurance at the time of loss ... covering the same property against the same perils insured against under this Policy ... this insurance shall not be called upon in contribution until the amount due from all such [other] insurance shall have been exhausted; it being the intent of this insurance to indemnify the Assured for only the difference between the amount due from such other insurance and the amount of actual loss sustained by the Assured not exceeding, however, the applicable limit specified in this Policy.”
App. 559 ¶ 14. The SNI policy listed “Security National Holding Company, LLC” as the “Assured.” App. 553.
On November 10, 2004, a fire destroyed the Caplens’ home. Soon afterwards, the Caplens sent a letter to SNSC to inform it of the fire but, as they admit, used an incorrect zip code; SNSC never received the incorrectly addressed letter. The Ca-plens then defaulted on the note for a second time, prompting ASP to file a motion to reassess damages in the foreclosure action. In connection with that motion, SNSC sent an inspector to the Caplens’ property on April 20, 2005; when the inspector saw the damage caused by the fire, he quickly informed SNSC.
A few weeks later, SNSC was contacted by an attorney representing the Blue Bell Woods Community Association — the homeowners’ association for the development in which the Caplens’ home was located— who informed SNSC that the Caplens’ property was covered by an insurance policy issued to the association by the Greater New York Mutual Insurance Company and that the proceeds of that policy would be used to repair the property. Among the many provisions of the Greater New York policy was a clause titled “Unit-Owner’s Insurance,” which specified: “A unit-owner may have other insurance covering the same property as this insurance. This insurance is intended to be primary, and not to contribute with such other insurance.” App. 116 ¶ 6.
On June 24, 2005, the Court of Common Pleas granted ASP’s motion to reassess damages and entered an amended judgment against the Caplens in the amount of $129,127.44 — including $1,607.13 for premiums on the SNI force-placed insurance policy from March 2001 through February 2005 — plus post-judgment interest. A little over a year later, the Caplens sold their property for a net profit. They ultimately paid $2,407.21 to ASP for premiums on the SNI policy through June 2006.
On November 15, 2005, Joi Caplen filed this suit in the United States District Court for the Eastern District of Pennsylvania against SNMHC, ASP, SNSC, and SNI, as well as Alaska Seaboard Investments, Inc. (ASI), Security National Master Manager, LLC, and Robin P. Arkley II. She asserted claims predicated on breach of fiduciary duty, breach of contract, fraud, abuse of process, and bad faith under Pa. Cons.Stat. Ann. § 8371, among other claims. Following discovery, *836the defendants moved for summary judgment, which the District Court granted as to all counts. This timely appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C. § 1332 and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision to grant summary judgment, applying the same standard the district court should apply. Union Pac. R.R. Co. v. Greentree Transp. Trucking Co., 293 F.3d 120, 125 (3d Cir.2002). Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the nonmoving party and all reasonable inferences from the evidence must be drawn in that party’s favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009). ‘We may affirm the District Court’s order granting summary judgment on different grounds, so long as the record supports the judgment.” Id. (citing Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir.2006) and Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n. 1 (3d Cir.1983)).
III.
On appeal, Caplen argues that the District Court erred in determining that SNI did not owe her any duty under its force-placed policy because, she insists, she and her husband “were insureds under the policy.” This argument is without merit.
Under Pennsylvania law, a court interpreting an insurance policy “must ascertain the intent of the parties as manifested by the language of the written agreement. When the policy language is clear and unambiguous, the court must give effect to the language of the contract.”2 Riccio v. Am. Republic Ins. Co., 550 Pa. 254, 705 A.2d 422, 426 (1997). “[A]n insurance policy, like every other written contract, must be read in its entirety and the intent of the policy is gathered from consideration of the entire instrument.” Id.; accord Nationwide Ins. Co. v. Schneider, 906 A.2d 586, 591 (Pa.Super.Ct.2006).
Caplen acknowledges that she is not a named insured under the SNI policy, but supports her argument by pointing to language in the SNI policy indicating that it insures “the financial interest of a Borrower in Covered Property in the event that such Covered Property suffers Direct Physical Loss or Damage.” App. 556 ¶ 1. But the SNI policy also unambiguously provides that it may be “called upon in contribution” only after all other available insurance on the property has been “exhausted.” App. 559 ¶ 14. In brief, the SNI policy is plainly an “excess” policy— Caplen’s argument to the contrary notwithstanding — and the undisputed evidence in the record demonstrates that the Greater New York insurance policy completely covered the cost of restoring the Caplens’ home, leaving no excess amount for the SNI policy to contribute. Thus, after considering the SNI policy in its entirety, we agree with the District Court that SNI did not owe Caplen any duty under its policy. Moreover, to the extent Caplen intends to argue that the District Court erred in concluding that SNI owed her no fiduciary duty, she points to no *837evidence in the record or case law that would lead us to disturb that determination. Accordingly, Caplen’s claims against SNI fail as a matter of law.
We also reject Caplen’s contention that the District Court should not have granted summary judgment in favor of the other defendants on her abuse of process claim. “The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it.” McGee v. Feege, 517 Pa. 247, 535 A.2d 1020, 1023 (1987) (internal citation omitted). To establish a claim for abuse of process, a plaintiff must show that the defendant “(1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed!,] and (3) harm has been caused to the plaintiff.” Cruz v. Princeton Ins. Co., 972 A.2d 14, 15 n. 1 (2009) (internal quotation marks omitted); accord Rosen v. Am. Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 192 (1993).
Caplen argues that ASP (and, by extension, the other non-SNI defendants) only sought reimbursement for premiums on the SNI force-placed policy in the foreclosure action, and refused to release the lien on the Caplens’ property, in order “to extort greater payment than what is owed by the already strapped sub-prime borrower.” But ASP was authorized, under the clear terms of the mortgage and promissory note, to force place insurance on the Ca-plens’ property in the absence of proof of insurance, and Caplen has introduced no evidence that she ever provided such proof. Nor has she introduced any evidence that ASP pursued any aspect of the foreclosure process for illegitimate reasons. The District Court correctly granted summary judgment on this claim.3
IV.
For the foregoing reasons, we will affirm the District Court’s orders granting summary judgment in favor of the defendants.
. In relevant part, the promissory note provided:
If you require me to, I will insure the Collateral against loss.... Any insurance policy will provide for payment of the insurance proceeds to you to the extent necessary to pay the amounts which I owe under this note. I will give you any insurance policy or a certificate to show that I have it. If I do not buy and maintain the required insurance, or if I do not pay the premiums, you may, if you choose, do these things for me for me [sic]. If you do this and I do not reimburse you for the premiums within a specified time, you may add the unpaid balance of the premiums to the unpaid balance of the Principal Amount of this note. In this case, interest will be charged on the unpaid balance of these premiums at the rate shown on page 1 of this note, beginning on die dale you paid the premiums.
I direct all insurance companies providing ... insurance on real ... property ... in connection with this loan to pay you any money owed to me.... You may use any such money to pay amount [sic] which I owe under this note.
App. 74. Likewise, the mortgage provided: Mortgagor shall keep the Mortgaged Property insured against loss by fire ... in such amounts as Mortgagee shall require.... Mortgagor shall deliver written evidence of all such insurance to Mortgagee.
If Mortgagor fails to obtain and keep in force any required insurance or fails to pay the premiums on such insurance, Mortgagee at its sole option may elect to do so. In the event of loss, Mortgagor shall give prompt notice to the Insurer and Mortgagee. Mortgagee at its option may elect to make proof of loss if Mortgagor does not do so promptly____
[insurance proceeds shall be applied to restoration or repair of the Mortgaged Property or to reduction of the Obligation, as Mortgagee may determine in its sole discretion.
App. 67.
. The District Court determined, and the parties do not dispute, that the substantive law of Pennsylvania governs here. See, e.g., Benier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir.2009).
. We have considered the sundry other assertions in Caplen's appellate briefs and, to the extent we can decipher them, we reject them as unsupported by the record. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471125/ | OPINION
PER CURIAM.
Warren Boardley appeals from an order of the United States District Court for the District of New Jersey, which denied his petition filed pursuant to 28 U.S.C. § 2241, challenging a decision of the United States Parole Commission. We will affirm, albeit for different reasons. In re Mushroom Transp. Co., Inc., 882 F.3d 325, 344 (3d Cir.2004) (court of appeals may affirm on different grounds than those relied on by district court).
I.
As the parties are familiar with the facts, we relate here only those facts essential to our holding. Boardley is serving a 47-year sentence for participation in a racketeering enterprise, aiding and abetting, RICO conspiracy, conspiracy to distribute and possess with intent to distribute heroin and cocaine, and conspiracy to defraud the United States. He first became eligible for parole in 1998. The United States Parole Commission (“the Commission”) determined to continue Boardley to a 15 year reconsideration in August, 2013, noting, inter alia:
[Y]ou have admitted as part of your pleas [sic] agreement to ordering 5 attempted murders. In addition, the evidence provided by the court supports that you also ordered the murder of 3 additional individuals.
Supp.App. at 97. In an administrative appeal, Boardley argued against this finding, stating that the Commission should not have considered any unproven allegations about contract murder. However, the National Appeals Board affirmed the decision, noting, among other things, Boardley’s “responsibility for five attempted murders and three murders.” SuppApp. at 99.
Boardley filed a habeas petition pursuant to 28 U.S.C. § 2241 in the District Court in 2000, raising numerous issues challenging the 1998 parole decisions. See Boardley v. United States Parole Commission, M.D. Pa. Civ. No. 99-CV-00816. The District Court in that case dismissed some of Boardley’s claims for failure to exhaust administrative remedies, dismissed other claims that it found non-cognizable in a § 2241 petition, and denied others on the merits. On appeal to our Court, Boardley argued, inter alia, that the Commission erred in relying on information tying him to murders and attempted murders, depriving it of “good cause” for holding him beyond the guideline range. We found that although Boardley had presented a form of that argument in his appeal to the National Appeals Board, he had not included it in his habeas petition. We stated that even if we could construe Boardley’s petition as having *839raised the issue, it would not prevail on the merits. See Boardley v. United States Parole Commission, C.A. No. 00-3526 (3d Cir. June 13, 2001) (per curiam) (not prec-edential).
Following several interim parole decisions not relevant here, the Commission conducted a statutory interim hearing on June 5, 2006. At the hearing, Boardley requested that proceedings be reopened, and presented a transcript of a September 2005 deposition given under oath by Aaron Headspeth. Headspeth had previously implicated Boardley in several murders, but in the deposition, Headspeth retracted his previous statements, stating that he had only told federal authorities what they wanted to hear in order to try to obtain favorable treatment in regards to charges pending against him. The Hearing Examiner deferred a final decision in order to consider the evidence presented. On January 10, 2007, the Examiner recommended that the Commission deny the request to reopen and continue to a 15-year reconsideration hearing in February 2013.1 The Examiner noted that four witnesses not including Headspeth had implicated Boardley in ordering murders, and that Headspeth’s recantation did not change the statements made by the other cooperating witnesses. Supp.App. 116-18.2 On January 22, 2007, the Commission ordered no change in the 15-year reconsideration date of February 2013. SuppApp. 119. The National Appeals Board affirmed on December 18, 2007, finding that the Commission reasonably concluded that the deposition and part of an affidavit Boardley had submitted did not impact the previous findings made by the Commission. Supp. App. 133.
Boardley then filed the § 2241 petition at issue here, arguing that the Commission’s decision to continue his incarceration is based on an inaccurate factual predicate (■ie., linking him to the contract murder of three individuals), and that the decision is arbitrary and capricious and violates his right to due process. After receiving an answer and Boardley’s reply, the District Court determined that there was a rational basis in the record for the Commission’s decision, and denied the § 2241 petition. Boardley filed a timely notice of appeal.
II.
We have recognized “that the abuse-of-the-writ doctrine applies to section 2241 petitions; thus, a petitioner may not raise new claims that could have been resolved in a previous action.” Queen v. Miner, 530 F.3d 253, 255 (3d Cir.2008) (per curiam); 28 U.S.C. § 2244(a). Boardley had an opportunity to challenge the Commission’s finding that he was tied to three murders in his 2000 habeas corpus petition but he failed to properly do so. In order to raise the claim in the petition at issue here, Boardley was required to establish either: 1) cause and prejudice, i.e., that some objective external factor impeded his efforts to raise the claim earlier and that actual prejudice resulted from the alleged errors; or 2) a fundamental miscarriage of justice would result from a failure to entertain his claim. See United States v. Roberson, 194 F.3d 408, 410 (3d Cir.1999).
The Supreme Court has held that the abuse of writ doctrine precludes inmates from relitigating the same issues in subsequent petitions or from raising new issues that could have been raised in an earlier *840petition. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (“Our recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.”). Boardley has been on notice since the first Commission decision in 1998 that the Commission had considered evidence tying him to three murders in denying him parole, and he thus could have raised the claim in his earlier petition. Boardley might argue that the factual predicate of his claim, ie., Headspeth’s deposition, was not available at the time of his earlier petition, but he has not explained why he could not have requested Headspeth’s testimony earlier.
Assuming, arguendo, that Boardley could show that some objective external factor impeded his efforts to raise the claim earlier, he cannot show prejudice. As noted above, we stated in our opinion concerning Boardley’s earlier habeas petition that such a claim, if properly raised, would be without merit:
In the sentencing transcript, which was referenced by the hearing examiners, Boardley’s attorney stated that his client had admitted culpability for the attempted murders, if not the contract murders. See Sent. Tr., 9; see also 28 C.F.R. § 2.20, Severity Index, Chapter 1, ¶ 102 (stating that attempted crimes are to be treated “as the offense attempted”). Moreover, the sentencing court recognized that Boardley had some conspiratorial liability for the contract murders committed by his coconspirators. See Sent. Tr., 10; see also 28 C.F.R. § 2.20, Severity Index, Chapter 13(A)(4) (noting that a prisoner is to be held responsible for the foreseeable acts of coconspira-tors). Thus, there was a rational basis in the record for the conclusion that Boardley was “responsible] for five attempted murders and three murders.” See Appeals Board’s Order, 1.
Boardley v. United States Parole Commission, C.A. No. 00-3526, slip op. at 7-8 (3d Cir. June 13, 2001). We further noted that the Commission’s severity index rating relied “largely on Boardley’s own admissions,” rather than those of his codefen-dants. Id. at 8, n. 4. The contents of Headspeth’s deposition do not negate the other evidence relied on by the Commission; thus, Boardley would not be prejudiced even if the Commission had failed to consider the Headspeth deposition. United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (to show prejudice, petitioner must show that errors “worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions.”).
Likewise, Boardley has failed to show that a fundamental miscarriage of justice would occur if his petition is dismissed as an abuse of the writ. A fundamental miscarriage of justice may arise where “a petitioner supplements a constitutional claim with a colorable showing of factual innocence.” Id. at 495, 111 S.Ct. 1454 (quotation and citation omitted). Boardley has not presented a colorable claim of factual innocence.
Accordingly, we will affirm the District Court’s denial of Boardley’s § 2241 petition.3
. In 2002, the Commission had reopened and advanced Boardley's 15-year reconsideration date by six months (to February 2013) for superior program achievement. Supp.App. at 106-07.
. The District Court opinion here quotes the Examiner’s recommendation at length, see Dist. Ct. Op. at 4-6.
. The Motion by Appellees for leave to file its brief and supplemental appendix under seal is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471129/ | OPINION
PER CURIAM.
Petitioner Miriam Dore, a native and citizen of Liberia, seeks review of a final order of removal. However, she has failed to demonstrate that she will experience any harm if removed to Liberia. As a result, and as explained more fully below, we will deny the petition for review.
I.
Dore entered the United States in July 2006, using a false passport and tourist visa from the Ivory Coast. She was issued a Notice to Appear by DHS, and removal proceedings commenced in Elizabeth, New Jersey. Dore conceded removability, but sought asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) to prevent her removal.
Dore testified that she is of Mandingo ethnicity. She is illiterate and could not remember when she or any of her children was born. Dore testified that her husband was killed in the early nineties by rebel forces fighting under Charles Taylor during the first Liberian Civil War. Dore testified that her husband was targeted both because of his Mandingo ethnicity and the fact that he had been a supporter of Samuel Doe, who was then president of Liberia. After her husband’s death, Dore fled from one part of Liberia to another, attempting to “run[] from the war.” (A.R.84.) She eventually came to stay with a daughter, Miriam, in the Ivory Coast. She resided there for some time before deciding to go to the United States to live with another daughter, Makoya.
The Immigration Judge (“IJ”) first determined that “due to the limited testimony provided by [Dore] in court, the Court is not at a position to make a ruling as to whether [Dore’s] testimony was credible.” *848(A.R.10.) The IJ found, though, that even “[i]f one is to accept her testimony on [sic] face value” (A.R.10), the record did not demonstrate entitlement to asylum. (A.R.10) (“[Dore] suffered no past persecution in Liberia and there is no evidence that if removed from the United States to Liberia she would suffer harm on account of an actual or imputed ground enumerated in the Act”). The IJ also determined that Dore had failed to show that members of the Mandingo ethnicity are subjected to a pattern or practice of persecution, or that she would likely be tortured upon removal. The Board of Immigration Appeals (“BIA”) adopted and affirmed the LPs decision denying all requested relief, and dismissed the appeal. Dore then filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). When the BIA adopts the decision of the IJ as its own, as it did here, we review the decisions of both the IJ and BIA. See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir.2007). We review factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc).
III.1
To obtain asylum as a refugee, Dore must show that she “is unable or unwilling to return to [her country of nationality] ... because of persecution or a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42). “In order to establish persecution, an applicant must ‘show past or potential harm rising to the level of persecution on account of a statutorily enumerated ground that is committed by the government or by forces the government is unable or unwilling to control.’ ” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.2007) (quotation omitted). Race, religion and nationality are all privileged grounds. See 8 U.S.C. § 1101(a)(42)(A).
For substantially the reasons set forth in the IJ’s decision, we agree with the IJ and BIA that Dore’s spare account of her wartime experience is insufficient to demonstrate past or prospective persecution based on one of the enumerated grounds. See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir.2005) (“[h]arm resulting from • country-wide civil strife is not persecution ‘on account of an enumerated statutory factor”); Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom’”) (quotation omitted).2
The record does not reveal that Dore was individually targeted during the civil war because of her ethnicity or political opinion. Although she testified that her husband was killed because of his support for the former Liberian president, there is no evidence to demonstrate that her husband’s political opinion can or would be *849imputed to Dore almost two decades after his death. And in fact, Dore repeatedly stated during the hearing that she did not have any political associations, opinions or beliefs. (A.R.89-90.)
Furthermore, we agree with the IJ that while the country reports detail a whole host of societal problems in Liberia, the record does not reveal a pattern or practice of persecution of members of the Mandingo ethnic group. But even accepting as true Dore’s allegation that her ethnicity somehow precludes safe return to her hometown of Gnta, that allegation by itself does not demonstrate that she would be unwelcome in a different part of Liberia. Therefore, we conclude that substantial evidence supports the IJ’s finding concerning Dore’s ineligibility for asylum. Given that conclusion, we necessarily also conclude that the IJ’s finding concerning Dore’s ineligibility for withholding of removal is supported by substantial evidence.
Accordingly, we will deny the petition for review.
. Though Dore’s brief sets forth the applicable standard for CAT claims, she makes no allegation that she will be tortured if removed to Liberia. We deem Dore’s abandonment of argument concerning CAT relief to be a waiver of claims arising under that treaty. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
. Dore’s counsel all but concedes as much in his brief: “Ms. Dore's case is one in which she does not have much evidence to support her case.” (Pet. Br. at 16.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471131/ | OPINION
PER CURIAM.
Oscar Alexis Pacheco petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
Pacheco, a native and citizen of Honduras, entered the country in 1997 and remained beyond the time period authorized by the Immigration Service. On March 15, 2006, Pacheco was served with a notice to appear charging him with removability under INA § 237(a)(1)(B). Pacheco conceded removability as charged, but applied for withholding of removal, and protection under the Convention Against Torture (“CAT”), on the ground that he had suffered past persecution and feared future persecution because of his employment as a money transporter for a bank. Specifically, Pacheco alleged that while he worked for the bank he was the victim of crime, his co-workers were robbed and killed by criminals, and his uncle was murdered while transporting automobiles from Guatemala to Honduras.
On November 8, 2006, an Immigration Judge (“IJ”) rendered an oral decision and order denying Pacheco’s petitions for relief. The IJ determined that Pacheco was not a victim of past persecution due to his race, religion, political opinion, nationality or membership in a social group. Further, the IJ found that Pacheco did not show that he would likely be tortured if he were removed to Honduras. On appeal, the BIA affirmed the IJ’s decision. Pacheco then filed a timely petition for review of the BIA’s decision in this Court.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yuswpov v. Att’y Gen., 518 F.3d 185,197 (3d Cir.2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
To be eligible for withholding of removal, Pacheco must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Honduras based on his race, religion, nationality, membership in a particular social group or political opinion. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief under the CAT, Pacheco must demonstrate that it is more likely than not that he would be tortured if removed to Honduras. See 8 C.F.R. § 208.16(c)(2). The torturous acts must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
Pacheco argues that the BIA improperly determined that he was not a member of a particular social group for purposes of withholding of removal. We have held that:
membership in a “particular social group” can be attributed to either: 1) those who possess immutable characteristics such as race, gender or a prior position, status or condition; or 2) those who possess a characteristic that is capable of being changed but is of such fundamental importance that individuals *851should not be required to modify it, e.g., religion .... Past persecution itself does not define the group.
Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir.2005).
Pacheco’s job as a transporter for a bank is not an immutable characteristic nor is it of such fundamental importance that he should not be required to modify it. See Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985)(voluntary members in a taxi cab cooperative that refused to yield to a guerilla group were not part of a social group) overruled in paH as stated in Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Further, as the BIA found, there is no evidence that gangs would target former bank employees who transported checks.
Pacheco’s experience in Honduras, namely being robbed while transporting money, does not constitute past persecution. See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (citations omitted) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ”). Moreover, while the murder of Pacheco’s uncle is undoubtedly a tragic event, Pacheco has not shown how the murder is related to his withholding of removal claim. Finally, Pacheco has not presented any evidence that upon his return to Honduras he would be tortured by the government or that the government would acquiesce in any torture of him by third parties. Thus, Pacheco is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc).
For these reasons we will deny Pacheco’s petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470842/ | MEMORANDUM **
Francois Poitier Givens, a California state prisoner, appeals pro se from the district court’s judgment dismissing his action for failure to comply with a court order to file an amended complaint. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992), and we affirm.
The district court did not abuse its discretion by dismissing the action after Givens failed to file a third amended complaint within thirty days, despite the court’s order directing him to do so and warning him that noncompliance could result in dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir.2002) (concluding that district court did not abuse its discretion by dismissing petitioner’s action for failure to comply timely with order to file an amended petition).
The district court did not abuse its discretion by denying Givens’s motions for a preliminary injunction because the district court did not have personal jurisdiction over the named entities. See Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.2004) (per curiam) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and subject *191matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”) (citation omitted).
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/8470846/ | MEMORANDUM **
William F. Horne appeals pro se from the district court’s order granting the government’s petition to enforce two summonses. We have jurisdiction under 28 U.S.C. § 1291. We review for clear error, United States v. Blackman, 72 F.3d 1418, 1422 (9th Cir.1995), and we affirm.
The district court did not clearly err by granting the petition because Horne failed to rebut the government’s showing that the summonses were issued in good faith. See Stewart v. United States, 511 F.3d 1251, 1254-55 (9th Cir.2008) (explaining taxpayer’s “heavy” burden to show an abuse of process or lack of good faith once government makes prima facie showing that the summons was issued in good faith).
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/8471132/ | OPINION
PER CURIAM.
Oscar Alexis Pacheco petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
Pacheco, a native and citizen of Honduras, entered the country in 1997 and remained beyond the time period authorized by the Immigration Service. On March 15, 2006, Pacheco was served with a notice to appear charging him with removability under INA § 237(a)(1)(B). Pacheco conceded removability as charged, but applied for withholding of removal, and protection under the Convention Against Torture (“CAT”), on the ground that he had suffered past persecution and feared future persecution because of his employment as a money transporter for a bank. Specifically, Pacheco alleged that while he worked for the bank he was the victim of crime, his co-workers were robbed and killed by criminals, and his uncle was murdered while transporting automobiles from Guatemala to Honduras.
On November 8, 2006, an Immigration Judge (“IJ”) rendered an oral decision and order denying Pacheco’s petitions for relief. The IJ determined that Pacheco was not a victim of past persecution due to his race, religion, political opinion, nationality or membership in a social group. Further, the IJ found that Pacheco did not show that he would likely be tortured if he were removed to Honduras. On appeal, the BIA affirmed the IJ’s decision. Pacheco then filed a timely petition for review of the BIA’s decision in this Court.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yuswpov v. Att’y Gen., 518 F.3d 185,197 (3d Cir.2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
To be eligible for withholding of removal, Pacheco must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Honduras based on his race, religion, nationality, membership in a particular social group or political opinion. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief under the CAT, Pacheco must demonstrate that it is more likely than not that he would be tortured if removed to Honduras. See 8 C.F.R. § 208.16(c)(2). The torturous acts must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
Pacheco argues that the BIA improperly determined that he was not a member of a particular social group for purposes of withholding of removal. We have held that:
membership in a “particular social group” can be attributed to either: 1) those who possess immutable characteristics such as race, gender or a prior position, status or condition; or 2) those who possess a characteristic that is capable of being changed but is of such fundamental importance that individuals *851should not be required to modify it, e.g., religion .... Past persecution itself does not define the group.
Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir.2005).
Pacheco’s job as a transporter for a bank is not an immutable characteristic nor is it of such fundamental importance that he should not be required to modify it. See Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985)(voluntary members in a taxi cab cooperative that refused to yield to a guerilla group were not part of a social group) overruled in paH as stated in Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Further, as the BIA found, there is no evidence that gangs would target former bank employees who transported checks.
Pacheco’s experience in Honduras, namely being robbed while transporting money, does not constitute past persecution. See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (citations omitted) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ”). Moreover, while the murder of Pacheco’s uncle is undoubtedly a tragic event, Pacheco has not shown how the murder is related to his withholding of removal claim. Finally, Pacheco has not presented any evidence that upon his return to Honduras he would be tortured by the government or that the government would acquiesce in any torture of him by third parties. Thus, Pacheco is not eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir.2008) (en banc).
For these reasons we will deny Pacheco’s petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471136/ | OPINION OF THE COURT
McKEE, Circuit Judge.
Rashee Grant appeals the judgment of conviction and sentence that was imposed following his guilty plea. Grant’s attorney has filed a motion to withdraw as counsel and has submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Grant was given notice of his right to file a pro se brief, but did not respond. For the reasons that follow, we will affirm.
I.
Because we write primarily for the parties, it is not necessary to recite the facts *856or history of this case except insofar as may be helpful to our brief discussion. Grant pled guilty to the following counts— (1) Racketeering in violation of 18 U.S.C. § 1962(c); (2) conspiracy to distribute a controlled substance within 100 feet of a school in violation of 21 U.S.C. § 860; and (3) distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). The plea agreement included a waiver of Grant’s right to appeal. On July 25, 2006, the district court sentenced Grant to 120 months imprisonment and upon release, twelve years of supervised release.
Counsel has filed a motion to withdraw and an Anders brief stating that he is unable to identify any non-frivolous issue for review. Third Circuit Local Appellate Rule 109.2(a) provides that “where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief.” Upon submission of an Anders brief, our inquiry is “(1) whether counsel adequately fulfilled the rule’s requirements, and (2) whether an independent review of the record presents any non-frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
II.
In his Anders brief, counsel concludes that Grant’s plea was entered pursuant to a cooperation agreement that included a knowing, intelligent, and voluntary waiver of the right to appeal. Grant was represented by counsel at all stages of the proceeding. Counsel identifies three potential issues for appeal, but concludes that all three are ultimately frivolous. The three issues are: (1) a claim that the court lacked jurisdiction to accept the plea; (2) a claim that the plea is invalid as judged by applicable constitutional or statutory standards; and (3) a claim that the sentence is illegal.
The district court clearly had jurisdiction pursuant to 18 U.S.C. § 3231, because Grant was charged with a federal crime, and any challenge to jurisdiction would clearly be frivolous. The same is true of an argument that the plea was somehow invalid because of an applicable constitutional or statutory standard. Guilty pleas are governed by standards set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Federal Rule of Criminal Procedure 11. Under Boykin, and Rule 11, a guilty plea is invalid unless it is the result of a knowing and voluntary waiver of constitutional rights. Id. This record does not support any such argument. The trial court clearly complied with Boykin and conducted a thorough change of plea colloquy. There is nothing to suggest that any of Grant’s responses during that colloquy were involuntary.
Finally, we find that a challenge to the legality of Grant’s sentence would be frivolous. The 120 month sentence that the court imposed was below the mandatory minimum pursuant to 18 U.S.C. § 1962(c) and § 3553(e); and 21 U.S.C. §§ 841, and 860. Moreover, it is clear that the district court gave meaningful consideration of all of the applicable 18 U.S.C. 3553(a) factors. We therefore conclude that the district court’s sentence is reasonable and a challenge to the legality of Grant’s sentence would be frivolous.
III.
For the above reasons, we will affirm the conviction and judgement of sentence. Defense counsel’s motion to withdraw will be granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470843/ | MEMORANDUM **
Francois Poitier Givens, a California state prisoner, appeals pro se from the district court’s judgment dismissing his action for failure to comply with a court order to file an amended complaint. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992), and we affirm.
The district court did not abuse its discretion by dismissing the action after Givens failed to file a third amended complaint within thirty days, despite the court’s order directing him to do so and warning him that noncompliance could result in dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir.2002) (concluding that district court did not abuse its discretion by dismissing petitioner’s action for failure to comply timely with order to file an amended petition).
The district court did not abuse its discretion by denying Givens’s motions for a preliminary injunction because the district court did not have personal jurisdiction over the named entities. See Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.2004) (per curiam) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and subject *191matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”) (citation omitted).
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/8470847/ | MEMORANDUM **
William F. Horne appeals pro se from the district court’s order granting the government’s petition to enforce two summonses. We have jurisdiction under 28 U.S.C. § 1291. We review for clear error, United States v. Blackman, 72 F.3d 1418, 1422 (9th Cir.1995), and we affirm.
The district court did not clearly err by granting the petition because Horne failed to rebut the government’s showing that the summonses were issued in good faith. See Stewart v. United States, 511 F.3d 1251, 1254-55 (9th Cir.2008) (explaining taxpayer’s “heavy” burden to show an abuse of process or lack of good faith once government makes prima facie showing that the summons was issued in good faith).
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/8470849/ | MEMORANDUM **
Piedad Barajas-Avalos appeals from the two concurrent 210-month sentences imposed upon resentencing following his jury-trial conviction for conspiracy to manufacture a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(viii), and 846, and manufacturing and attempt to manufacture methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(viii). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Barajas-Avalos’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 76, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is 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/8470851/ | MEMORANDUM **
In these consolidated appeals, Adam Troy Baker appeals from the 57-month sentence imposed following his guilty-plea conviction for firearm offenses; and the 8-month consecutive sentence imposed following the revocation of the supervised release term he was serving for a prior guilty-plea conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Baker contends that the sentence imposed was unreasonable because the district court failed to adequately address his request for a below-Guidelines sentence due to his mental impairment, based its sentencing decision on clearly erroneous facts, and failed to account for the fact that the Probation Office has never been required to monitor his mental health treatment. The record reflects that the district court considered all of the mitigating arguments Baker raised before concluding that a below-Guidelines sentence was not warranted under the circumstances. Furthermore, the district court was within its discretion to conclude that incarceration was the only way to protect the community. Finally, the record reflects that the district court carefully considered Baker’s arguments and weighed all available options before concluding that a sentence of 65 months incarceration, rather than placement into a residential re-entry center or enhanced monitoring by probation, was appropriate. The district court did not procedurally err, and the sentence imposed is substantively reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc).
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/8471135/ | OPINION OF THE COURT
McKEE, Circuit Judge.
Rashee Grant appeals the judgment of conviction and sentence that was imposed following his guilty plea. Grant’s attorney has filed a motion to withdraw as counsel and has submitted a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Grant was given notice of his right to file a pro se brief, but did not respond. For the reasons that follow, we will affirm.
I.
Because we write primarily for the parties, it is not necessary to recite the facts *856or history of this case except insofar as may be helpful to our brief discussion. Grant pled guilty to the following counts— (1) Racketeering in violation of 18 U.S.C. § 1962(c); (2) conspiracy to distribute a controlled substance within 100 feet of a school in violation of 21 U.S.C. § 860; and (3) distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). The plea agreement included a waiver of Grant’s right to appeal. On July 25, 2006, the district court sentenced Grant to 120 months imprisonment and upon release, twelve years of supervised release.
Counsel has filed a motion to withdraw and an Anders brief stating that he is unable to identify any non-frivolous issue for review. Third Circuit Local Appellate Rule 109.2(a) provides that “where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief.” Upon submission of an Anders brief, our inquiry is “(1) whether counsel adequately fulfilled the rule’s requirements, and (2) whether an independent review of the record presents any non-frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
II.
In his Anders brief, counsel concludes that Grant’s plea was entered pursuant to a cooperation agreement that included a knowing, intelligent, and voluntary waiver of the right to appeal. Grant was represented by counsel at all stages of the proceeding. Counsel identifies three potential issues for appeal, but concludes that all three are ultimately frivolous. The three issues are: (1) a claim that the court lacked jurisdiction to accept the plea; (2) a claim that the plea is invalid as judged by applicable constitutional or statutory standards; and (3) a claim that the sentence is illegal.
The district court clearly had jurisdiction pursuant to 18 U.S.C. § 3231, because Grant was charged with a federal crime, and any challenge to jurisdiction would clearly be frivolous. The same is true of an argument that the plea was somehow invalid because of an applicable constitutional or statutory standard. Guilty pleas are governed by standards set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Federal Rule of Criminal Procedure 11. Under Boykin, and Rule 11, a guilty plea is invalid unless it is the result of a knowing and voluntary waiver of constitutional rights. Id. This record does not support any such argument. The trial court clearly complied with Boykin and conducted a thorough change of plea colloquy. There is nothing to suggest that any of Grant’s responses during that colloquy were involuntary.
Finally, we find that a challenge to the legality of Grant’s sentence would be frivolous. The 120 month sentence that the court imposed was below the mandatory minimum pursuant to 18 U.S.C. § 1962(c) and § 3553(e); and 21 U.S.C. §§ 841, and 860. Moreover, it is clear that the district court gave meaningful consideration of all of the applicable 18 U.S.C. 3553(a) factors. We therefore conclude that the district court’s sentence is reasonable and a challenge to the legality of Grant’s sentence would be frivolous.
III.
For the above reasons, we will affirm the conviction and judgement of sentence. Defense counsel’s motion to withdraw will be granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470852/ | MEMORANDUM **
Kenneth G. Williams appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations under the Eighth and Fourteenth Amendments. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state a claim, Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per cu-riam), its summary judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004), and its dismissal for failure to exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and review for clear error its factual determinations, id. We affirm in part, vacate in part, and remand.
The district court properly dismissed Williams’s conspiracy and equal protection claims against defendants Inland Cardiology and Nadar for failure to state a claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982) (“Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”).
The district court properly granted summary judgment for Inland Cardiology and Nadar on Williams’s Eighth Amendment claims because Williams failed to raise a triable issue as to whether the treatment provided was “medically unacceptable under the circumstances” and that defendants “chose this course in conscious disregard of an excessive risk to his health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.1996).
The district court properly dismissed Williams’s claims against the prison defendants because he did not complete the prison grievance process prior to filing suit. See Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997e(a) is mandatory and requires adherence to administrative procedural rules); see also McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002) (per curiam) (requiring inmates to exhaust administrative remedies prior to filing suit in federal court). However, we vacate the judgment with respect to these claims and remand for dismissal without prejudice. See Wyatt, 315 F.3d at 1120 (providing that the proper remedy for non-exhaustion is dismissal without prejudice).
We grant the prison defendants’ request for judicial notice.
The parties shall bear their own costs on appeal.
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. | 01-04-2023 | 11-05-2022 |
Subsets and Splits