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https://www.courtlistener.com/api/rest/v3/opinions/8471002/

SUMMARY ORDER Petitioner Mohammad Riyad Hasan, a native and citizen of Bangladesh, seeks review of an August 28, 2008 order of the BIA affirming the December 14, 2006 decision of Immigration Judge (“IJ”) Margaret McManus pretermitting his application for asylum and denying his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Mohammad Riyad Hasan, No. A96 423 815 (B.I.A. Aug. 28, 2008), aff'g No. A96 423 815 (Immig. Ct. New York, Dec. 14, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Where, as here, 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. 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). “We review de novo questions of law and the application of law to undis*662puted fact.” Salimatou Bah v. Mukasey, 529 F.3d 99,110 (2d Cir.2008). As an initial matter, Petitioner affirmatively waives any challenge to the agency’s pretermission of his untimely asylum application. See 8 U.S.C. § 1158(a)(2)(B). Accordingly, we consider only Petitioner’s withholding of removal and CAT claims. We find no error in the agency’s denial of Petitioner’s applications for withholding of removal and CAT relief. Petitioner contends that the IJ’s favorable credibility finding “gives rise to a presumption of a well-founded fear of persecution.” (Petr.’s Br. 15) That is incorrect. It is a finding of “past persecution,” not a finding that Petitioner is credible, that gives rise to a presumption of a well-founded fear of persecution. See 8 C.F.R. § 208.13(b)(1). Substantial evidence supports the agency’s finding that Petitioner failed to demonstrate that he suffered persecution in the past. While he may have received some indirect threats on occasions when his brother, the publisher, was being confronted by Islamist fundamentalists in Bangladesh, there is no evidence that Petitioner was ever arrested or harmed in any way. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir.2006). As Petitioner failed to establish past persecution, he was not entitled to any presumption of a likelihood of future persecution in Bangladesh. See 8 C.F.R. § 1208.16(b)(1). Substantial evidence also supports the agency’s finding that Petitioner failed to demonstrate a well-founded fear of future persecution. To establish eligibility based on a well-founded fear of future persecution alone, an applicant must show that he or she subjectively fears persecution and that this fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Petitioner’s brother and Petitioner were threatened by an Islamic extremist group for publishing books that advocated against the ideology of the group. However, as the agency noted, when Petitioner left the publishing house run by his brother to work for a manufacturing company, Petitioner was not threatened or harmed in any way. As Petitioner was able to avoid the harm he now claims to fear, and the record does not demonstrate that he would be compelled to work for his brother’s publishing house in Bangladesh, the agency reasonably found that he did not establish that it was more likely than not that he would be persecuted in the future. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005). Thus, it properly denied Petitioner’s application for withholding of removal. See 8 C.F.R. § 1208.16(b)(1). Likewise, the agency did not err in denying Petitioner’s CAT claim, where it was predicated upon the same facts as his asylum and withholding of removal claims and the agency properly found that he did not demonstrate a likelihood of persecution. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006) (stating that torture is “something more severe than the kind of treatment that would suffice to prove persecution”). Upon review, we find Petitioner’s remaining arguments without merit. For the foregoing reasons, the petition for review is DENIED.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471006/

SUMMARY ORDER Petitioner Yan Chen, a citizen of the People’s Republic of China, seeks review of a September 10, 2008 order of the BIA affirming the January 10, 2008 decision of Immigration Judge (“IJ”) Steven R. Abrams denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yan Chen, No. A200 126 072 (B.I.A. Sept. 10, 2008), aff'g No. A200 126 072 (Immig. Ct. N.Y. City, Jan. 10, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Where, as here, the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes par*666ticular aspects of that decision, we review both the BIA’s and IJ’s opinions — or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guau v. Gonzales, 432 F.3d 391, 394 (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 also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on the 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 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). As a preliminary matter, Chen fails to challenge the agency’s denial of her CAT claim. Therefore, we deem any such argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005). The agency’s adverse credibility finding was supported by substantial evidence. See Xiu Xia Lin, 534 F.3d at 167. Despite Chen’s argument that the finding was based on irrelevant inconsistencies, under the REAL ID Act, “an IJ may rely on any inconsistency or omission ... as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167 (emphasis in original). Moreover, we find no error in the agency’s conclusion that Chen was inconsistent as to the physical suffering she endured after her abortion and as to the date of her traditional marriage ceremony. Chen argues that the IJ erred in refusing to accept her explanation that the dates were inconsistent because her husband relied on the Chinese calendar; however, even if plausible, no reasonable factfinder would be compelled to accept this explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Chen also argues that the IJ’s adverse credibility determination was based on speculation and an incorrect analysis of her testimony regarding her practice of Falun Gong. However, a review of the transcript reveals that Chen’s testimony concerning her practice of Falun Gong was inconsistent and vague. Chen originally provided the names of all five Falun Gong exercises, yet she later stated that she did not know the names of the postures and was familiar with only the first and second exercises. However, contrary to this statement, she first identified a photograph of herself performing the fourth exercise, but later stated that she was performing the fifth exercise. Furthermoi'e, when asked about a photograph of herself handing out Falun Gong pamphlets, Chen was unable to recall from whom she received the pamphlets or what information was contained on the pamphlets, explaining that she just saw people on the street distributing fliers and decided to help them. The IJ found that testimony unconvincing. We are not compelled to disagree. In addition, despite Chen’s arguments, we defer to the IJ’s assessment of her demeanor. See 8 U.S.C. § 1158(b)(l)(B)(iii) (providing that “a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant”); Majidi, 430 F.3d at 81 n. 1; see also Shunfu Li v. Mukasey, 529 F.3d 141, 147 (2d Cir.2008). *667Because the IJ found Chen not credible for multiple reasons, it was not improper under the provisions of the REAL ID Act for him to rely additionally on the absence of available evidence which may have corroborated Chen’s alleged forced abortion and practice of Falun Gong. See 8 U.S.C. § 1158(b)(l)(B)(ii); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). The foregoing findings demonstrate that the agency’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin, 534 F.3d at 165-66. Accordingly, the agency’s denial of Chen’s application for asylum and withholding of removal was not improper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (holding that where the only evidence of a threat to the petitioner’s life or freedom depended upon the petitioner’s credibility, an adverse credibility determination necessarily precludes success on the claim for withholding of removal). 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/8471008/

SUMMARY ORDER Petitioner, a native and citizen of the People’s Republic of China, seeks review of the October 22, 2008 order of the BIA affirming the October 18, 2004 decision of Immigration Judge (“IJ”) Sandy K. Horn denying her motion to reopen. In re Yue Xing Zhun, No. A79 781 509 (B.I.A. Oct. 22, 2008), aff'g No. A 79 781 509 (Immig. Ct. N.Y. City Oct. 18, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case. As a preliminary matter, to the extent that Zhun challenges the IJ’s underlying adverse credibility determination, we need not consider her arguments because she failed to exhaust her administrative remedies by challenging the IJ’s adverse credibility determination. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.2001). We review the agency’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). The agency did not abuse its discretion in denying Zhun’s motion to reopen where the only document she submitted in support of her motion — a letter from her husband — was neither new nor previously unavailable. 8 C.F.R. § 1003.2(c)(1) (2005); see Norani v. Gonzales, 451 F.3d 292, 294 & n. 3 (2d Cir.2006). Under these circumstances, the BIA did not abuse its discretion in denying Zhun’s motion to reopen. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Moreover, the BIA does not abuse its discretion by denying a motion to reopen or rejecting the authenticity of an alien’s documentary evidence submitted in support of such a motion where the alien does not rebut an IJ’s underlying adverse credibility finding. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (per curiam); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007)(citing Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007)). Thus, in considering Zhun’s motion to reopen, the BIA did not abuse its discretion in concluding that she failed to establish prima facie eligibility for relief where she did not rebut the IJ’s adverse credibility *669determination and submitted only an uncorroborated affidavit in support of reopening. See Kaur, 413 F.3d at 234. 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/8471010/

SUMMARY ORDER Petitioner Ousmane Barry, a native and citizen of Guinea, seeks review of an October 22, 2008 order of the BIA affirming the October 25, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ousmane Bairy, No. A 099 930 739 (B.I.A. Oct. 22, 2008), aff'g No. A 099 930 739 (Immig. Ct. N.Y. City Oct. 25, 2007). 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 findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). Thus, we “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). Substantial evidence supports the IJ’s adverse credibility determination which was based on: (1) the inconsistencies within Barry’s testimony and between his testimony and the registration card he submitted regarding when, where, and how he obtained his Union for Progress and Renewal (“UPR”) membership card; (2) the omission from his asylum application of any assertion that he participated in between ten and twenty UPR protests; and (3) the omission from his testimony of any assertion that guards jumped on him during interrogations, which was included in his asylum application. Although Barry correctly notes that his asylum application indicates that he was involved in a strike, that does not explain the omission of any assertion that he participated in ten to twenty protests. Contrary to Barry’s assertion that the IJ did not identify the mistreatment omitted from his application, the IJ specifically examined his explanation for the omission of any assertion that guards jumped on him. No reasonable factfinder would have been compelled to credit that or any of Barry’s other explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Finally, while Barry appears to argue that the discrepancies the IJ identified were too minor to support a credibility determination, under the REAL ID Act, which applies to Barry’s application for relief, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167. Taken as a whole, the IJ’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ properly denied Barry’s applications for asylum, withholding of removal, and CAT relief where the only evidence that he would be persecuted *671or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471014/

SUMMARY ORDER Tan Lin, a native and citizen of the People’s Republic of China, seeks review *676of a November 6, 2008 order of the BIA, affirming the April 5, 2007 decision of Immigration Judge (“IJ”) Robert Weisel, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Tan Lin, No. A094 788 223 (B.I.A. Nov. 6, 2008), aff'g No. A094 788 223 (Im-mig. Ct. N.Y. City Apr. 5, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both the BIA’s and IJ’s opinions — or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Chian v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). We “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). Substantial evidence supports the agency’s adverse credibility determination. Indeed, the agency reasonably relied on Lin’s inconsistent statements regarding his motivation for joining the Catholic church and the discrepancies in his testimony regarding when he became a Catholic. See Xiu Xia Lin, 534 F.3d at 167. Furthermore, the agency reasonably declined to credit Lin’s explanations for these inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Although a credibility finding based on an applicant’s lack of doctrinal knowledge may be erroneous, we find that the IJ did not err in relying, in part, on the fact that Lin could not explain, to any extent, what it meant to be Roman Catholic despite having purportedly practiced that religion for more than five years. See Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.2006) (recognizing that there may be “instances in which the nature of an individual applicant’s account would render his lack of a certain degree of doctrinal knowledge suspect and could therefore provide substantial evidence in support of an adverse credibility finding”). Moreover, contrary to Lin’s argument, this is not a case where the IJ erred in failing to probe for additional details regarding his doctrinal knowledge. See You Hao Yang v. BIA, 440 F.3d 72, 74 (2d Cir.2006). Nor did the IJ err in relying on Lin’s failure to submit sufficient corroborating evidence to rehabilitate his testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Ultimately, because a reasonable fact-finder would not be compelled to conclude to the contrary, the IJ’s adverse credibility determination was supported by substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66. Thus, the agency properly denied Lin’s applications for asylum, withholding of removal, and CAT relief insofar as they were based on his religion. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Lin also argues that the agency erred in denying his application for CAT relief inso*677far as it was based on his illegal departure from China. We have held that an applicant cannot demonstrate that she is more likely than not to be tortured “based solely on the fact that she is part of the large class of persons who have left China illegally” and on generalized evidence indicating that torture occurs in Chinese prisons. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005); see also Pierre v. Gonzales, 502 F.3d 109,118-19 (2d Cir.2007). As Lin provided no basis for the IJ to conclude that he, or someone in his “particular alleged circumstances,” faces a risk of torture, substantial evidence supports the agency’s denial of his application for CAT relief based on his purported illegal departure from China. See Mu Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003). 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/8471016/

SUMMARY ORDER Petitioner Yun Gao, a native and citizen of the People’s Republic of China, seeks review of an October 30, 2008 order of the BIA affirming the November 13, 2007 decision of Immigration Judge (“IJ”) Noel A. Brennan denying Gao’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yun Gao, No. A095 688 094 (B.I.A. Oct. 30, 2008), cffg No. A095 688 094 (Immig. Ct. N.Y. City Nov. 13, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this 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, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). The Court reviews de novo questions of law and the application of law to undisputed fact. See, e.g., Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008). Substantial evidence supports the IJ’s determination that Gao was not credible. As the IJ properly found, while Gao testified that the police slapped her face and hit her back with a baton in October 2004, she omitted that assertion from her asylum application. This was a material omission, as it describes the only physical mistreatment that she had ever allegedly experienced at the hands of the Chinese government. See Cheng Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir.2006) (holding that an adverse credibility finding was properly based on an applicant’s failure to allege his wife’s forced sterilization where the basis for the applicant’s original asylum claim was his opposition to China’s family planning program). The IJ properly declined to credit Gao’s less-than-compelling explanation for her omission. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Additionally, the IJ properly found that Gao failed to submit corroborating evidence from her parents and from the schools that denied her admission. Gao’s failure to submit these documents rendered her unable to rehabilitate her doubtful testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Moreover, the IJ was not required to credit her explanations for this lack of corroboration. See Majidi, 430 F.3d at 80-81. The significant omission identified by the IJ, coupled with Gao’s failure to submit corroborating evidence, provides substantial evidence for the IJ’s adverse credibility determination. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163 (2d Cir.2008). Because Gao has not shown that a reasonable adjudicator would have been compelled to conclude contrary to the IJ’s findings, we *679cannot conclude that the IJ’s adverse credibility determination was erroneous. See 8 U.S.C. § 1252(b)(4)(B). Moreover, because the only evidence of a threat to Gao’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for asylum, withholding of removal, and CAT relief, where all of her claims were based on the same factual predicate. See Patd 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, 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/8471018/

SUMMARY ORDER Petitioner Ousmane Laouane, a native and citizen of Chad, seeks review of a March 4, 2008 order of the BIA affirming the December 1, 2003 decision of Immigration Judge (“IJ”) John B. Reid, pretermit-ting his asylum application and denying his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Ousmane Laouane, No. A97 303 819 (B.I.A. Mar. 4, 2008), aff'g No. A97 303 819 (Immig. Ct. Batavia Dec. 1, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of the 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) (internal quotation marks omitted). 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). As an initial matter, we decline to consider Laouane’s unexhausted challenge to the IJ’s pretermission of his asylum application as he failed to raise that challenge before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). While it was not without error, the agency’s adverse credibility determination was ultimately supported by substantial evidence. The IJ relied on material inconsistencies in Laouane’s testimony and between his testimony and the record evidence. For example, Laouane testified that his mother had been arrested three or four times, that she was questioned many times by government officials, and that the government had confiscated his home. He failed, however, to include those details in his asylum application. Moreover, although the arrest warrant that he submitted indicated that he was arrested in October 2001, he testified that he departed Chad in March 2001. Having called Laouane’s credibility into question, the IJ properly found that the documents that Laouane submitted were “questionable at best.” Cf. Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007) (finding that, in the context of a motion to reopen, the BIA reasonably rejected the petitioner’s evidence where the agency had previously found him not credible). Together, these discrepancies, and the absence of rehable corroborative evidence, served to undermine Laouane’s withholding of removal claim. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006); Secaida-Rosales v. I.N.S., 331 F.3d 297, 307 (2d Cir. 2003). Thus, while we find additional aspects of the IJ’s decision flawed, we are confident that remand would be futile. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,107 (2d Cir.2006). Because the only evidence of a threat to Laouane’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief where both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d *681Cir.2005). Accordingly, we need not reach the agency’s alternative finding that Laouane failed to meet his burden of proof even assuming his credibility. 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/8471020/

SUMMARY ORDER Carlos Antonio Vasquez and Sandra Elizabeth Marquez-Campos, natives and citizens of El Salvador, seek review of two February 29, 2008 orders of the BIA affirming the May 4, 2006 decision of Immigration Judge (“IJ”) Jeffrey S. Chase denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Carlos Antonio Vasquez/Sandra Elizabeth Marquez-Campos, Nos. A98 297 920/921 (B.I.A. Feb. 29, 2008), aff'g Nos. A98 297 920/921 (Immig. Ct. N.Y. City May 4, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case. I. Asylum and Withholding of Removal When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008). A. Particular Social Group We conclude that the IJ properly found that Vasquez failed to establish that he was persecuted, and fears persecution, on account of a protected ground.1 See 8 U.S.C. § 1101(a)(42). Vasquez argues that the IJ erred in making this finding because he is a member of the particular social group of “individuals who have been actively recruited by gangs, but who have refused to join because they oppose the gangs.” However, he fails to establish that this is a “particular social group” sufficient to render him eligible for asylum. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)®. In the Matter of A-M-E & J-G-U-, the BIA held that in order to constitute 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. 24 I. & N. Dec. 69, 74-76 (BIA 2007). We agreed with that holding in Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.2007). Applying that framework in Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), the BIA considered the cases of applicants from El Salvador who, like Vasquez, claimed eligibility for asylum based on their membership in the particular social group of Salvadoran youths who have resisted recruitment by the Mara Salvatruchas (“Maras” or “MS 13”). The BIA concluded that the proposed group did not satisfy the “particularity” and “so*683cial visibility” test set forth in Matter of A-M-E & J-G-U, in part because “victims of gang violence come from all segments of society, and it is difficult to conclude that any ‘group,’ as actually perceived by the criminal gangs, is much narrower than the general population of El Salvador.” Id. at 586-88; see also Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2008) (finding that the proposed group of “persons resistant to gang membership” in Honduras lacked the social visibility that would allow others to identify its members as part of the group). We accord the BIA’s precedential decisions Chevron deference, disturbing them only if “plainly erroneous or inconsistent with the regulation.” See Yuen Jin v. Mukasey, 538 F.3d 143, 150 (2d Cir.2008). Here, for many of the same reasons as in Ucelo-Gomez, we defer to the agency’s interpretation of the statute as announced in Matter of S-E-G- and Matter of E-AG-. Because those decisions are virtually indistinguishable from the instant case, we conclude that Vasquez’s social group claim must fail. B. Political Opinion We also conclude that the IJ did not err in finding that Vasquez failed to establish that the Maras targeted him on account of his political opinion. Specifically, Vasquez argues that his opposition to the gang lifestyle was itself a political opinion. This argument is unavailing. In Matter of S-E-G-, the BIA, relying on INS v. Elias-Zacanas, 502 U.S. 478, 482-83, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), rejected the appeal of asylum applicants claiming that resistance to gang recruitment constitutes political opinion because they did not present evidence, whether direct or circumstantial, that the gang imputed or would impute an anti-gang political opinion to them. 24 I. & N. Dec. at 589. Again, we find that the BIA’s decision in Matter of S-E-G- merits Chevron deference and thus precludes success on Vasquez’s political opinion claim. Like the applicants in Matter of S-E-G- Vasquez presented no evidence of the Maras’ motives. II. CAT Relief We decline to consider Vasquez’s CAT claim, as he failed to exhaust that claim in his appeal to the BIA. Under 8 U.S.C. § 1252(d)(1), we “may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.” This jurisdictional rule is absolute, and requires an individual to raise before the BIA each category of relief subsequently raised in this Court. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006). Accordingly, we are without jurisdiction to consider Vasquez’s CAT claim and dismiss the petition for review to that extent. See 8 U.S.C. § 1252(d)(1). For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. 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). . In our decision, we refer solely to Vasquez because he was the principal asylum applicant below.

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*886Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Montgomery appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Montgomery, No. 3:03-cr-00216-JRS-2 (E.D.Va. Jan. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

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Judgment PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

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SUMMARY ORDER Petitioner appeals the Board of Immigration Appeals’s affirmance of the Immigration Judge’s denial of his motion for a continuance. We assume the parties’ familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal. The BIA’s opinion states that it refused to overturn the IJ’s decision not to grant Petitioner a continuance “[ajlthough a petition filed on behalf of the respondent was pending” because Petitioner “was not denied a full and fair hearing.” [A.R. 2] Most recently, the BIA articulated nonexclusive factors that should be considered in determining motions for continuance of ongoing removal proceedings. In re Hashmi, 24 I. & N. Dec. 785 (2009). Remand of this case to the BIA for further consideration in light of Hashmi is, therefore, appropriate. Cf. Wu v. Holder, 571 F.3d 467 (5th Cir.2009) (remanding a pre-Hashmi IJ continuance denial for consideration of the Hashmi factors). We note, in passing, two other matters. First, the BIA appears to have described as “pending” the 1-130 petition of which Petitioner was the beneficiary, but the record and the IJ’s decision indicate that the 1-130 petition had been approved. Second, the IJ stated, as an alternative ground for his decision, that the above mentioned 1-130 petition had been automatically revoked. The BIA did not address this ground. We leave it to the BIA to decide what effect, if any, these facts have on the application of the Hashmi factors to this case. Alternatively, the BIA may prefer to remand this case to the IJ so that the IJ can apply Hashmi in the first instance. In light of our conclusions above, we need not address Petitioner’s claim that the BIA’s decision denied him due process. The petition for review is GRANTED, and the case is REMANDED for further consideration.

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SUMMARY ORDER Petitioner Jian Guo Zhang, a native and citizen of the People’s Republic of China, seeks review of the December 21, 2007 order of the BIA denying his motion to reopen. In re Jian Guo Zhang, No. A070 901 563 (B.I.A. Dec. 21, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). The Supreme Court has made clear that the agency may properly deny a motion to reopen in its discretion, irrespective of the movant’s eligibility for relief, where the underlying relief is discretionary. See INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Here, the BIA denied Petitioner’s motion as a matter of discretion based on: (1) his failure to address, much less overcome, the underlying adverse credibility determination made in his proceedings; and (2) his failure to comply with a voluntary departure order. Even construing Petitioner’s arguments broadly, see Weixel v. Board of Educ., 287 F.3d 138, 145-46 (2d Cir.2002), he has waived any challenge to the BIA’s discretionary denial of his motion to reopen. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005). Because the BIA’s exercise of discretion was alone a dispositive basis for the denial of Petitioner’s motion, Abudu, 485 U.S. at 105, 108 S.Ct. 904, we need not address its alternate finding that Petitioner was not prima facie eligible for relief. Nevertheless, we note that the BIA did not err in denying Petitioner’s motion where it questioned the evidence he submitted based on its prior finding that he was not credible. See Kaur, 413 F.3d at 234; see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148-49 (2d Cir.2007). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending mo*650tion 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).

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SUMMARY ORDER Kangyi Wen, a native and citizen of China, seeks review of a November 20, 2008 order of the BIA affirming the April 5, 2007 decision of Immigration Judge (“IJ”) George Chew, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Kangyi Wen, No. A094 889'153 (B.I.A. Nov. 20, 2008), aff'g No. A094 889 153 (Immig. Ct. N.Y. City Apr. 5, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. *651When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. '2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008).2 In making his adverse credibility determination, the IJ reasonably relied on discrepancies between the record of Wen’s asylum interview and his testimony. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.2006). In his asylum interview, Wen stated the following: Chinese officials demanded that he build public restrooms on land that he had leased, but when he had difficulty raising the money to build them, he was arrested. After he was released, the land where the restrooms were to be built was “closed by the police and court,” and it was “still sealed.” He feared future persecution in China “as a result of [his] failure to complete the construction.” Wen testified before the IJ, however, that he had built the restrooms. While the record of an asylum interview is more reliable when it describes the specific questions asked or records the interview verbatim, an interview record even without such assurances of reliability nevertheless meets the minimum standard, and it may be relied on as a basis for an adverse credibility determination as long as it contains a “meaningful, clear, and reliable summary of the statements made by [the applicant] at the interview.” See Maladho Djehe Diallo v. Gonzales, 445 F.3d 624, 631-33 (2d Cir.2006) (quoting Matter of S-S-, 21 I. & N. Dec. 121 (BIA 1995)) (internal quotations omitted). Here, as the record contains a meaningful, clear, and reliable summary of the statements Wen made at the asylum interview, the IJ did not err in relying on that record in making his adverse credibility determination. See id. Moreover, in making his adverse credibility determination the IJ properly relied on the discrepancies between the interview record and Wen’s testimony. See Xiu Xia Lin, 534 F.3d at 165. Ultimately, the agency’s adverse credibility determination and the resulting denial of Wen’s application for asylum were supported by substantial evidence. See id. Because Wen based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).3 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). . The asylum application in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Xiu Xia Lin, 534 F.3d at 165. . To the extent that Wen asserts in his brief that he is eligible for CAT relief based on his “attempt to stop a forced abortion,” we decline to review these specific arguments that were raised in this Court in the first instance. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1, 122 (2d Cir.2007).

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SUMMARY ORDER Petitioner Mohammad Riyad Hasan, a native and citizen of Bangladesh, seeks review of an August 28, 2008 order of the BIA affirming the December 14, 2006 decision of Immigration Judge (“IJ”) Margaret McManus pretermitting his application for asylum and denying his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Mohammad Riyad Hasan, No. A96 423 815 (B.I.A. Aug. 28, 2008), aff'g No. A96 423 815 (Immig. Ct. New York, Dec. 14, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Where, as here, 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. 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). “We review de novo questions of law and the application of law to undis*662puted fact.” Salimatou Bah v. Mukasey, 529 F.3d 99,110 (2d Cir.2008). As an initial matter, Petitioner affirmatively waives any challenge to the agency’s pretermission of his untimely asylum application. See 8 U.S.C. § 1158(a)(2)(B). Accordingly, we consider only Petitioner’s withholding of removal and CAT claims. We find no error in the agency’s denial of Petitioner’s applications for withholding of removal and CAT relief. Petitioner contends that the IJ’s favorable credibility finding “gives rise to a presumption of a well-founded fear of persecution.” (Petr.’s Br. 15) That is incorrect. It is a finding of “past persecution,” not a finding that Petitioner is credible, that gives rise to a presumption of a well-founded fear of persecution. See 8 C.F.R. § 208.13(b)(1). Substantial evidence supports the agency’s finding that Petitioner failed to demonstrate that he suffered persecution in the past. While he may have received some indirect threats on occasions when his brother, the publisher, was being confronted by Islamist fundamentalists in Bangladesh, there is no evidence that Petitioner was ever arrested or harmed in any way. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir.2006). As Petitioner failed to establish past persecution, he was not entitled to any presumption of a likelihood of future persecution in Bangladesh. See 8 C.F.R. § 1208.16(b)(1). Substantial evidence also supports the agency’s finding that Petitioner failed to demonstrate a well-founded fear of future persecution. To establish eligibility based on a well-founded fear of future persecution alone, an applicant must show that he or she subjectively fears persecution and that this fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Petitioner’s brother and Petitioner were threatened by an Islamic extremist group for publishing books that advocated against the ideology of the group. However, as the agency noted, when Petitioner left the publishing house run by his brother to work for a manufacturing company, Petitioner was not threatened or harmed in any way. As Petitioner was able to avoid the harm he now claims to fear, and the record does not demonstrate that he would be compelled to work for his brother’s publishing house in Bangladesh, the agency reasonably found that he did not establish that it was more likely than not that he would be persecuted in the future. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005). Thus, it properly denied Petitioner’s application for withholding of removal. See 8 C.F.R. § 1208.16(b)(1). Likewise, the agency did not err in denying Petitioner’s CAT claim, where it was predicated upon the same facts as his asylum and withholding of removal claims and the agency properly found that he did not demonstrate a likelihood of persecution. See Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006) (stating that torture is “something more severe than the kind of treatment that would suffice to prove persecution”). Upon review, we find Petitioner’s remaining arguments without merit. For the foregoing reasons, the petition for review is DENIED.

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SUMMARY ORDER Gloria Patricia Jaramillo, a native and citizen of Colombia, seeks review of a September 3, 2008 order of the BIA, affirming the March 2, 2007 decision of Immigration Judge (“IJ”) Javier Balasquide, which pre-termitted as untimely her application for asylum, and denied her request for withholding of removal and relief under the *664Convention Against Torture (“CAT”). In re Gloria Patricia Jaramillo, No. A097 852 551 (B.I.A. Sept. 3, 2008), aff'g No. A097 852 551 (Immig. Ct. N.Y. City Mar. 2, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. As an initial matter, because Jaramillo does not challenge the agency’s pretermission of her untimely application for asylum, we deem any such argument abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005). 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. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). 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). We find that the agency did not err in finding that, even considered cumulatively, the harassing phone calls that Jaramillo received did not constitute persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (explaining that in order to constitute persecution, the alleged harm must be sufficiently severe, rising above “mere harassment”). Moreover, we note that, contrary to her assertion here, Jaramillo did not testify that she ever received an actual death threat. Accordingly, the agency did not err in concluding that Jaramillo did not suffer past persecution and that she was not entitled to the presumption of a likelihood of future persecution. See 8 C.F.R. § 1208.13(b)(1). Likewise, the agency did not err in determining that Jaramillo failed to establish a likelihood of future persecution. Indeed, the agency reasonably relied on Jaramillo’s ability to live unharmed in Medellin, Colombia for more than five years after first being threatened and, contrary to her assertion, the record does not demonstrate that she lived in hiding during that time. See 8 C.F.R. § 1208.16(b)(3)©; see also Surinder Singh v. BIA, 435 F.3d 216, 219 (2d Cir. 2006) (recognizing that even a presumption of future persecution can be rebutted if the agency finds that an applicant can avoid persecution by relocating to another part of the proposed country of removal). Moreover, the 2003 incident involving her brother did not demonstrate that Jaramillo could not live unharmed in Medellin, where the guerillas only warned her brother that she should not return to Apartado. Ultimately, the agency did not err in finding that Jaramillo failed to establish past persecution or a likelihood of future persecution; accordingly, the agency reasonably denied her applications for withholding of removal and CAT relief. See 8 U.S.C. § 1252(b)(4)(B); see also Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); cf. Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006) (recognizing that “torture requires proof of something more severe than the kind of treatment that would suffice to prove persecution”). Because the agency did not err in denying Jaramil-lo’s application for withholding of removal, we need not consider her challenge to the agency’s alternative finding that she failed to demonstrate the requisite nexus to a protected ground. See 8 C.F.R. § 1208.16(b). For the foregoing reasons, the petition for review is DENIED. Petitioner’s pend*665ing motion for a stay of removal in this petition is DISMISSED as moot.

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SUMMARY ORDER Petitioner, a native and citizen of the People’s Republic of China, seeks review of the October 22, 2008 order of the BIA affirming the October 18, 2004 decision of Immigration Judge (“IJ”) Sandy K. Horn denying her motion to reopen. In re Yue Xing Zhun, No. A79 781 509 (B.I.A. Oct. 22, 2008), aff'g No. A 79 781 509 (Immig. Ct. N.Y. City Oct. 18, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case. As a preliminary matter, to the extent that Zhun challenges the IJ’s underlying adverse credibility determination, we need not consider her arguments because she failed to exhaust her administrative remedies by challenging the IJ’s adverse credibility determination. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.2001). We review the agency’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). The agency did not abuse its discretion in denying Zhun’s motion to reopen where the only document she submitted in support of her motion — a letter from her husband — was neither new nor previously unavailable. 8 C.F.R. § 1003.2(c)(1) (2005); see Norani v. Gonzales, 451 F.3d 292, 294 & n. 3 (2d Cir.2006). Under these circumstances, the BIA did not abuse its discretion in denying Zhun’s motion to reopen. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Moreover, the BIA does not abuse its discretion by denying a motion to reopen or rejecting the authenticity of an alien’s documentary evidence submitted in support of such a motion where the alien does not rebut an IJ’s underlying adverse credibility finding. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (per curiam); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007)(citing Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007)). Thus, in considering Zhun’s motion to reopen, the BIA did not abuse its discretion in concluding that she failed to establish prima facie eligibility for relief where she did not rebut the IJ’s adverse credibility *669determination and submitted only an uncorroborated affidavit in support of reopening. See Kaur, 413 F.3d at 234. 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).

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SUMMARY ORDER Petitioner Ousmane Barry, a native and citizen of Guinea, seeks review of an October 22, 2008 order of the BIA affirming the October 25, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ousmane Bairy, No. A 099 930 739 (B.I.A. Oct. 22, 2008), aff'g No. A 099 930 739 (Immig. Ct. N.Y. City Oct. 25, 2007). 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 findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). Thus, we “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). Substantial evidence supports the IJ’s adverse credibility determination which was based on: (1) the inconsistencies within Barry’s testimony and between his testimony and the registration card he submitted regarding when, where, and how he obtained his Union for Progress and Renewal (“UPR”) membership card; (2) the omission from his asylum application of any assertion that he participated in between ten and twenty UPR protests; and (3) the omission from his testimony of any assertion that guards jumped on him during interrogations, which was included in his asylum application. Although Barry correctly notes that his asylum application indicates that he was involved in a strike, that does not explain the omission of any assertion that he participated in ten to twenty protests. Contrary to Barry’s assertion that the IJ did not identify the mistreatment omitted from his application, the IJ specifically examined his explanation for the omission of any assertion that guards jumped on him. No reasonable factfinder would have been compelled to credit that or any of Barry’s other explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Finally, while Barry appears to argue that the discrepancies the IJ identified were too minor to support a credibility determination, under the REAL ID Act, which applies to Barry’s application for relief, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167. Taken as a whole, the IJ’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ properly denied Barry’s applications for asylum, withholding of removal, and CAT relief where the only evidence that he would be persecuted *671or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

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SUMMARY ORDER Plaintiffs sued defendants GlaxoSmithK-line PLC (“GSK”), Dr. Jean-Pierre Gamier, Julian Heslop, Simon Bicknell, and David Stout for securities fraud under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 for non-disclosure of alleged cardiovascular risks associated with the drug Avandia. They now appeal the dismissal of them complaint pursuant to Rule 12(b)(6), a ruling we review de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of plaintiffs. See Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008); accord Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). Alternatively, plaintiffs appeal the denial of leave to amend the complaint, which we review for abuse of discretion. See Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir.2008). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1. Grant of Defendants’ Motion to Dismiss Plaintiffs contend that the district court erred in concluding that (a) the potential risks of Avandia reported in two meta-analyses were not sufficiently conclusive to create a duty to disclose, and (b) the complaint failed to plead facts with the particularity necessary to support an inference of the requisite scienter. We address these challenges in turn. a. The Non-disclosed Meta-Analyses Reports or test results must yield reliable evidence of a drug’s adverse effect to give rise to a duty of manufacturers to disclose those results to potential investors. See In re Carter-Wallace, Inc. Sec. Litig., 150 F.3d 153, 157 (2d Cir.1998). While the complaint conclusory alleges that the results of the meta-analyses “showed an estimate” of an “increased risk of heart attack,” Compl. ¶¶ 25, 26, it pleads no facts indicating that the test results were even statistically significant. In fact, the complaint incorporates by reference the 2007 congressional testimony of Commissioner Andrew von Eschenbach, M.D., of the Food and Drug Administration stating that the meta-analyses here at issue “presented inconsistent data with regard to the potential cardiovascular risk” of *673Avandia and that “[i]n looking at all the studies to date ..., the data are inconsistent and conclusions are not clear.” Joint App. at 375; see Compl. ¶ 27; Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006). Because any alleged non-disclosure of such inconclusive results cannot be deemed misleading or material, the district court correctly concluded that plaintiffs could not pursue an action for failure to disclose. See Basic Inc. v. Levinson, 485 U.S. 224, 239 n. 17, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (“To be actionable, ... a statement must also be misleading. Silence, absent a duty to disclose, is not misleading under Rule 10b-5.”); Vacold LLC v. Cerami, 545 F.3d 114, 121 (2d Cir .2008). b. Scienter Plaintiffs concede that “no single allegation proves that during the Class Period defendants knew that their statements (and omissions) concerning Avandia were false or misleading.” Appellants’ Br. at 55. Nevertheless, they argue that the allegations in the complaint, when “viewed in combination, support a strong inference that defendants knew their statements and omissions were false and misleading.” Id. at 46. These allegations include the “myriad findings of statistical significance” in various studies conducted by GSK, id. at 48; the “sheer importance of Avandia to [GSK’s] bottom line,” id. at 50; the timing of the alleged misstatements with the disclosure in a March 2007 article written by an independent physician that Avandia posed cardiovascular risks; and seven GSK insiders’ sale of their shares during the class period. On a Rule 12(b)(6) motion, a court properly considers “whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (emphasis in original). “[T]he inference of scienter must be more than merely ‘reasonable’ or ‘permissible’— it must be cogent and compelling.” Id. at 324, 127 S.Ct. 2499; accord ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). Upon de novo review, we conclude that “all of the facts alleged” in the complaint are insufficient to raise a cogent and compelling inference of defendants’ “intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 7, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); see 15 U.S.C. § 78u-4(b)(2); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d at 99 n. 3. First, the allegations of insider trading do not show defendants’ motive to defraud. Cf. Kalnit v. Eichler, 264 F.3d 131, 138 (2d Cir.2001) (“A plaintiff can establish [fraudulent] intent ... by alleging facts to show that defendants had both motive and opportunity to commit fraud.” (internal quotation marks omitted)). While “unusual insider trading activity during the class period may permit an inference of bad faith and scienter,” Acito v. IMCERA Group, Inc., 47 F.3d 47, 54 (2d Cir.1995), the individual defendants’ trading activities were hardly unusual. Three of the four individual defendants increased their net holdings of GSK stock during the class period, and the fourth individual defendant did not sell any shares at all. This trading history cannot support a “cogent and compelling” inference of fraudulent intent; rather, defendants’ purchases of even more GSK stock during the relevant period signals only confidence in the future of their company and, by extension, in the commercial success of Avandia. See Tellabs, Inc., 551 U.S. at 324,127 S.Ct. 2499. Second, plaintiffs’ circumstantial pleadings, even when considered in the *674aggregate, do not permit an inference of defendants’ “conscious misbehavior or recklessness.” Kalnit v. Eichler, 264 F.3d at 142 (“Where motive is not apparent, it is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, though the strength of the circumstantial allegations must be correspondingly greater.” (internal quotation marks omitted)). In the face of contradictory studies, the fact that Avandia was one of GSK’s “key growth products,” Appellants’ Br. at 50, and the fact that only a few months separated the purportedly misleading statements and the 2007 article, are insufficient to plead defendants’ conscious or reckless neglect in not disclosing the results of the meta-analyses to investors.1 Indeed, like the district court, we conclude that GSK’s disclosure of the meta-analyses results to the FDA and its publication of this information on its website effectively refutes plaintiffs’ claim that the pleaded circumstances support the requisite scienter. See Borochoff v. GlaxoSmithKline PLC, 2008 WL 2073421, at :,:8 (S.D.N.Y. 2008). Accordingly, plaintiffs’ securities fraud claim was properly dismissed. 2. Denial of Plaintiffs’ Request to Amend Complaint Plaintiffs claim that the district court abused its discretion in denying leave to amend the complaint. Although the decision of whether to allow amendment “is left to the sound discretion of the district court, there must be good reason to deny the motion.” Acito v. IMCERA Group, Inc., 47 F.3d at 55. One such reason is futility. See id. Upon review of plaintiffs’ proposed supplemental pleadings, the district court determined that they would not cure the identified defects in the complaint. We agree. To satisfy the scienter requirement, plaintiffs proposed to amend their complaint to plead: (1) the results of meta-analyses conducted by GSK and another independent scientist; (2) additional evidence of economic loss; (3) defendants’ alleged 1999 intimidation of Dr. John Buse, an independent scientist, to prevent him from publicly speaking about his concerns with Avandia; and (4) a 2008 FDA warning letter citing GSK’s failure to provide a complete report of clinical data related to Avandia. The first two allegations add nothing to similar pleadings in the original complaint. As for the allegation pertaining to Dr. Buse, we cannot conclude that the district court abused its discretion in denying leave to amend to add this pleading in light of the doctor’s acknowledgment that GSK individuals “felt that they were trying to be forthright in presenting the data with regard to their drug,” which belies an intent to conceal information. Appellees’ Br. at 53 (citing Buse statement and testimony before Congress in 20072). Finally, the FDA warning letter — either on its own or considered with the other allegations — does not support an inference of the requisite scienter. The letter indicates that some of GSK’s reports to the *675agency were incomplete, but it acknowledges that several studies not included in the reports were otherwise disclosed in other notifications to the FDA. See FDA, Warning Letter to GlaxoSmithKline (Mar. 25, 2008), available at wwwida.gov (follow “Recalls & Alerts — -Warning Letters” hyperlink). While the letter does indicate reporting failures, it does not suggest that such lapses were motivated by an intent to deceive. See Acito v. IMCERA Group, Inc., 47 F.3d at 55 (holding that FDA’s warning of potential penalties if plant fails third inspection does not support inference of scienter as a matter of law because “mismanagement alone does not constitute fraud”). We have considered plaintiffs’ other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court. . Nor may plaintiffs rely on defendant David Stout’s statements in an investor conference call that test results for the drug "exceeded everyone’s expectations, in some cases even our own, where we beat metformin on performance and we tied them on the cardiovascular safety.” Compl. ¶ 60. While Stout may have had a duty to disclose the unfavorable meta-analyses "in order to make the statements made, in light of the circumstances under which they were made, not misleading,” 17 C.F.R. § 240.10b-5(b), that, by itself, is insufficient to support a strong inference of scienter. . Although the transcript of Dr. Buse’s statement and testimony are not attached to the proposed amended complaint, they may nevertheless be considered in ruling on a Rule 12(b)(6) motion as they are incorporated by reference. See Mangiafico v. Blumenthal, 471 F.3d at 398.

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SUMMARY ORDER Petitioner Ousmane Laouane, a native and citizen of Chad, seeks review of a March 4, 2008 order of the BIA affirming the December 1, 2003 decision of Immigration Judge (“IJ”) John B. Reid, pretermit-ting his asylum application and denying his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Ousmane Laouane, No. A97 303 819 (B.I.A. Mar. 4, 2008), aff'g No. A97 303 819 (Immig. Ct. Batavia Dec. 1, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of the 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) (internal quotation marks omitted). 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). As an initial matter, we decline to consider Laouane’s unexhausted challenge to the IJ’s pretermission of his asylum application as he failed to raise that challenge before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). While it was not without error, the agency’s adverse credibility determination was ultimately supported by substantial evidence. The IJ relied on material inconsistencies in Laouane’s testimony and between his testimony and the record evidence. For example, Laouane testified that his mother had been arrested three or four times, that she was questioned many times by government officials, and that the government had confiscated his home. He failed, however, to include those details in his asylum application. Moreover, although the arrest warrant that he submitted indicated that he was arrested in October 2001, he testified that he departed Chad in March 2001. Having called Laouane’s credibility into question, the IJ properly found that the documents that Laouane submitted were “questionable at best.” Cf. Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007) (finding that, in the context of a motion to reopen, the BIA reasonably rejected the petitioner’s evidence where the agency had previously found him not credible). Together, these discrepancies, and the absence of rehable corroborative evidence, served to undermine Laouane’s withholding of removal claim. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006); Secaida-Rosales v. I.N.S., 331 F.3d 297, 307 (2d Cir. 2003). Thus, while we find additional aspects of the IJ’s decision flawed, we are confident that remand would be futile. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,107 (2d Cir.2006). Because the only evidence of a threat to Laouane’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief where both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d *681Cir.2005). Accordingly, we need not reach the agency’s alternative finding that Laouane failed to meet his burden of proof even assuming his credibility. 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.

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*886Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Montgomery appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Montgomery, No. 3:03-cr-00216-JRS-2 (E.D.Va. Jan. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

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Judgment PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

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SUMMARY ORDER Plaintiff-appellant John Pleau appeals from a judgment of the district court, entered on September 25, 2008, granting defendant-appellee Centrix, Inc.’s motion to dismiss his claim of marital status discrimination under the Connecticut Fair Employment Practices Act (CFEPA), Conn. GemStat. § 46a-60 et seq., and granting defendant’s motion for summary judgment on his claims of age discrimination under the Age Disciimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and the CFEPA. We assume the parties’ familiarity with the facts of the case, its procedural history, and the issues on appeal. I. Plaintiffs Marital Status Discrimination Claim We review the grant of a motion to dismiss de novo, considering the legal sufficiency of the complaint, taking its factual allegations to be true, and drawing all reasonable inferences in the plaintiffs favor. City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1579, 173 L.Ed.2d 675 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — - U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The CFEPA prohibits employment discrimination “because of the individual’s ... marital status.” Conn. Gen.Stat. § 46a-60(a)(2). Where, as here, the plaintiff is a married individual bringing a marital status discrimination claim under the CFEPA, the parties agree that the plaintiff must show an adverse employment action was taken because the plaintiff is married, not because of the person to whom the plaintiff is married. Cf. McNamara v. Tournament Players Club of Conn., Inc., 270 Conn. 179, 189, 851 A.2d 1154 (2004) (noting that the plaintiff conceded “ ‘the general law on marital status ... talk[s] about ... if someone’s discriminated because they’re married ... it’s not because of who you’re married to’” (alteration in original)). Although defendant appears to have terminated plaintiff due to the specific identity of plaintiffs spouse, plaintiff argues that his claim survives as a marital status stereotyping claim because “[t]he reason advanced by the defendant for terminating the plaintiffs employment ... is tied to the defendant’s unfair presumption that a married individual would not be able *687to separate the termination of his spouse, who worked for the same employer, from his responsibilities to his employer.” Br. of Pl.-Appellant 23. There is no Connecticut case law that specifically addresses the viability of a marital status stereotyping claim. CFE-PA claims are evaluated using the same framework as Title VII claims. See Brittell v. Dep’t of Corr., 247 Conn. 148, 164, 717 A.2d 1254 (1998) (“Although the language of [Title VII] and that of [CFEPA] differ slightly, it is clear that the intent of the legislature ... was to make the Connecticut statute coextensive with the federal [statute].” (Quotation marks omitted) (last alteration in original)). Unlawful stereotyping can give rise to Title VII liability. See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 220-21 (2d Cir.2005) (recognizing that Title VII liability can result from an employer’s disparate treatment of a person on the basis of gender stereotyping). But even assuming a marital status stereotyping claim may be raised under the CFEPA, plaintiffs complaint would fail to state such a claim. Plaintiff alleges that he was treated differently from other employees, both married and unmarried, based on the personal relationship with his wife and the impact defendant anticipated that plaintiffs wife’s termination would have on his future work performance. Though the soundness of defendant’s conclusion that plaintiff would no longer be able to perform effectively after his wife’s termination may be questionable, it does not imply an unlawful stereotype about married individuals as compared with those who are single, divorced, or widowed. Accordingly, plaintiffs marital status discrimination claim is without merit. II. Plaintiffs Age Discrimination Claim We review a grant of summary judgment de novo and affirm only if the record, viewed in the light most favorable to the non-moving party and drawing all reasonable inferences in favor of the non-moving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56©; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Oilman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). We have found that the framework for evaluating employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), also applies to ADEA claims. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001). We agree with the district court that plaintiff met his “minimal” burden of proving a prima facie case of age discrimination. Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir.2001). There is no dispute that defendant offered a legitimate, non-discriminatory reason by stating that plaintiff was terminated because of defendant’s concern that plaintiff would no longer perform effectively after the termination of his wife. The question then is whether “the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 156 (2d Cir.2000). The Supreme Court has held that “a prima facie case and sufficient evidence to reject the employer’s explanation may permit a finding of liability,” and that it is error to “proceed[ ] from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097,147 L.Ed.2d 105 (2000); see also Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001) (“[Evidence showing that a proffered explanation was pretextual is neither always *688to be deemed sufficient, nor always to be deemed insufficient.” (citation omitted)). The record in this case is insufficient to support the conclusion that plaintiffs termination was motivated by age discrimination. Statistics may provide circumstantial evidence of age discrimination, see Stratton v. Dep’t for the Aging, 132 F.3d 869, 877 (2d Cir.1997), and plaintiff presents evidence showing a reduction in the number of employees over 40 years old from a total of 76 in January 2005, when plaintiff was terminated, to 68 employees in August 2005. But apart from the terminations of plaintiff, his wife, and a third employee named Jezierny, there is no evidence in the record regarding the circumstances under which the remaining five employees over 40 years old that left defendant’s employ between January and August 2005. We have “cautioned against attributing much if any significance to the fact that another member of the protected class was discharged along with the plaintiff.” Zimmermann, 251 F.3d at 382. Accordingly, the statistical evidence that plaintiff presents has little probative value. In an effort to show defendant’s reason was pretextual, plaintiff contends that defendant offered inconsistent explanations for the termination. See Carlton v. Mystic Tramp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (stating that inconsistent explanations for a termination decision may suggest discriminatory motive). Defendant wrote on plaintiffs Termination Report that the reason for termination was the concern that plaintiff would not perform effectively after his wife’s termination, but wrote in the Unemployment Notice that the termination was made due to “professional differences.” Even assuming, ar-guendo, that these explanations are inconsistent, our examination of the record as a whole leads us to conclude that plaintiff could not “satisfy his ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.’ ” Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000) (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097). Plaintiff also contends that the evaluation of his work performance contained in his Termination Report was falsified, that the alleged falsification is apparent because he had received a positive performance evaluation of his work performance nine months earlier, and this alleged falsification undermines the Termination Report in its entirety. These allegations are irrelevant to our pretext inquiry, however, because defendant has not cited plaintiff’s job performance as a basis for termination. Plaintiffs attacks on the Termination Report, therefore, are not enough to enable plaintiff to carry his “ultimate burden” of providing “evidence upon which a reasonable trier of fact could base the conclusion that age was a determinative factor in defendants’ decision to fire him.” Id. at 91. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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SUMMARY ORDER Defendant-Appellant Joseph Mermel-stein appeals from a June 11, 2008 judgment of the district court convicting him, upon his plea of guilty, of conspiring to make false records in relation to health care matters, in violation of 18 U.S.C. § 371, and sentencing him, principally, to a term of 60 months’ incarceration. Mer-melstein argues that the district court (1) erred in crediting the testimony of his coconspirator that he blackmailed her into engaging in sex; (2) failed to consider the required factors under 18 U.S.C. § 3553(a), rendering his sentence procedurally unreasonable; and (3) gave undue weight to his alleged sexual abuse of his coconspirator and insufficient consideration to his cardiac condition, with the result that his sentence is substantively unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. We review a sentence under an abuse-of-discretion standard, considering both procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). To determine whether a sentence is procedurally unreasonable, we consider “such factors as whether the district court properly ... considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006), abrogation on other grounds recognized by United States v. Cavera, 550 F.3d 180 (2d Cir.2008) (en banc). To assess substantive reasonableness, “we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a).” Id. We review the district court’s findings of fact for clear error. Id. Mermelstein argues that his coconspirator’s testimony was so inconsistent and implausible as to preclude the district court’s reliance on it even under the preponderance standard applicable to sentencing proceedings. See United States v. having, 554 F.3d 64, 72 (2d Cir.2009). We afford the trial court’s factfinding based on credibility determinations “[pjarticularly strong deference.” United States v. Gaines, 457 F.3d 238, 243 (2d Cir.2006); see also Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“[Wjhen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”). Applying this standard, we have considered Mermelstein’s arguments, and we find them — individually and as a whole — insufficient to manifest clear error. Mermelstein also argues that the district court committed procedural error by failing to consider the 18 U.S.C. § 3553(a) factors or explain the sentence adequately. Although Mermelstein concedes that the district court analyzed the *691Section 3553(a) factors at the May 23, 2008 hearing, he argues that the court was distracted by the issue of the coerced sexual “affair,” and failed to give those factors fair consideration prior to imposing sentence on June 3, 2008. While the district judge did not restate his analysis of the sentencing factors from the May 23 hearing at the June 3 hearing, he was not required to do so, and the record demonstrates that he did not disregard the “broad array of relevant information here when it comes to the appropriate sentence.” Mermelstein next argues that the sentence the district court imposed — -the maximum permitted by the relevant statute, and a significant departure from the Guidelines range — was substantively unreasonable because it was greater than neeessary to accomplish the goals of sentencing. See United, States v. Sindima, 488 F.3d 81, 84-88 (2d Cir.2007). The district court concluded that Mermelstein’s cardiac condition was “at some level ... a serious condition,” but it could be treated as effectively in prison as out of prison. This is a fair assessment of the medical opinions in the record, which do not support Mermelstein’s exaggerated claim that incarceration would increase his risk of sudden cardiac death to a degree significantly greater than it would for any other member of the general population. Finally, we detect no clear error in the district court’s finding that the sexual abuse and the fraud were integrally interwoven, because Mermelstein used the threat of disclosure of the “affair” to coerce his co-conspirator both into engaging in sex and perpetrating the fraud. Mermelstein’s conduct, which the district court accurately described as “beyond the pale,” “bear[s] the weight assigned to it under the totality of circumstances in the case.” Cavern, 550 F.3d at 191. We also note that Mermelstein’s offense involved an egregious fifteen-year fraudulent scheme that placed the health of patients at risk. We have considered Mermelstein’s remaining contentions on appeal and conclude that they are without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. The government’s remaining motions are denied as moot.

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SUMMARY ORDER Marianie Noze Jones, a native and citizen of Haiti, seeks review of an April 23, 2008 order of the BIA denying her motion to reopen. In re Marianie Noze Jones, No. A20 421 613 (B.I.A. Apr. 23, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case. Because Jones is removable by reason of having committed a criminal offense covered by 8 U.S.C. § 1182(a)(2) (relating to convictions of crimes of moral turpitude), we lack jurisdiction to review the agency’s factual findings and discretionary determinations. See 8 U.S.C. § 1252(a)(2)(C). Although we retain jurisdiction to review constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Jones’s challenge to the BIA’s determination that her motion to reopen was untimely filed and that she failed to establish eligibility for an exception to the timeliness requirement raises no such argument. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir.2006). Moreover, because the BIA’s untimeliness finding as to Jones’s motion to reopen is dispositive of her successive applications for asylum, withholding of removal, and CAT relief, this Court need not consider her arguments that she is a member of a particular social group or that she is entitled to protection under CAT. See Yuen Jin v. Mukasey, 538 F.3d 143, 153, 155-56 (2d Cir.2008) (holding that an applicant filing a successive application must show changed country conditions if the application is filed after the entry of a final order of removal and beyond the 90-day deadline for a motion to reopen). For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

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SUMMARY ORDER Petitioner De Sheng Zhu, a native and citizen of the People’s Republic of China, seeks review of the December 13, 2007 order of the BIA affirming the February 22, 2006 decision of Immigration Judge (“IJ”) Terry Bain denying his application for relief under the Convention Against Torture (“CAT”). In re De Sheng Zhu, No. A96 207 933 (B.I.A. Dec. 13, 2007), aff'g No. A96 207 933 (Immig. Ct. N.Y. City Feb. 22, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA affirms the IJ’s decision in some respects but not others, we review the IJ’s decision, minus those arguments for denying relief that were rejected by the BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). In addition, where the BIA does not adopt or defer to the IJ’s findings on credibility, we may not rest our holding on the IJ’s credibility findings. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, the BIA declined to reach the IJ’s finding that Zhu was not credible, but *694affirmed the IJ’s conclusion that Zhu failed to meet his burden of proving that it was more likely than not that he would be tortured if he returned to China. Thus, we review the IJ’s decision as supplemented and modified by the BIA, minus the IJ’s finding that Zhu was not credible. See Xue Hong Yang, 426 F.3d at 522; Yan Chen, 417 F.3d at 271. Zhu’s CAT claim was premised on his allegations that: 1) a “bully” induced Zhu’s father to sign a fraudulent contract; 2) Zhu filed a lawsuit against the bully; and 3) “gangsters” in league with the bully beat Zhu in retaliation for filing the lawsuit. We conclude that the BIA did not err in determining that Zhu failed to satisfy his burden of proving a nexus between the gangsters’ actions and the Chinese government. See 8 C.F.R. § 1208.18(a)(1). We cannot say that his testimony alone, even if credible, compels the conclusion that upon returning to China he would more likely than not be tortured “by or at the instigation of or with the consent and acquiescence of a public official or other person acting in an official capacity.” See 8 U.S.C. § 1252(b)(4)(B) (“[Ajdministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.”) 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).

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471032/

SUMMARY ORDER Muhammad Salman, a native and citizen of Pakistan, seeks review of an October 31, 2008, order of the BIA, affirming the July 17, 2007, decision of Immigration Judge (“U”) rp}10mas j Mulligan, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Muhammad Salman, No. A095 961 989 (B.I.A. Oct. 31, 2008), aff'g No. A095 961 989 (Immig. Ct. N.Y. City Jul. 17, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. With respect to asylum, 8 U.S.C. § 1158(a)(3) provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under § 1158(a)(2)(D). Notwithstanding that provision, however, this Court retains jurisdiction to review “constitutional claims” and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). Because Salman has not made a constitutional claim or asserted a question of law, we lack jurisdiction to review any challenge to the agency’s denial of his application for asylum. Id. We thus proceed to review Salman’s challenge to the agency’s denial of his application for withholding of removal and CAT relief. When the BIA affirms the IJ’s decision in all respects but one, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (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 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). Substantial evidence supports the agency’s adverse credibility determination. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (finding that “[e]ven where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential by the fact-finder” (citation omitted) (internal quotation marks omitted)). The IJ properly relied on Salman’s hesitant demeanor, inconsistencies in his testimony, an omission in his asylum application, and the implausible nature of his testimony in denying his application for relief. These findings are supported by the record and form the proper basis for an adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir.2006) (per *696curiam); Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007). Further, a reasonable fact-finder would not be compelled to credit Salman’s explanations for his inconsistent testimony. See Majidi v. Gonzales, 430 F.3d 77, 79-80 (2d Cir.2005). Because the agency’s adverse credibility finding was supported by substantial evidence, the agency properly denied CAT relief as well, where that claim was based on the same factual predicate. See Xue Hong Yang, 426 F.3d at 523. For the foregoing reasons, the petition for review is DENIED, in part, and DISMISSED, in part. As we have completed our review, and the pending motion for a stay of removal in this petition is DENIED as moot.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471034/

SUMMARY ORDER Petitioner, Hassana Diallo, a native and citizen of Guinea, seeks review of an October 23, 2008 order of the BIA affirming the January 8, 2007 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying Diallo’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Diallo, No. A96 241 913 (B.I.A. Oct. 23, 2008), aff'g No. A96 241 913 (Immig. Ct. N.Y. City Jan. 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA adopts the decision of the IJ and supplements 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). This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Substantial evidence supports the agency’s adverse credibility determination. See Corovic, 519 F.3d at 95. Diallo does not challenge before this Court the IJ’s findings that: (1) his testimony was inconsistent regarding his actions following the 1998 election results; (2) his repeatedly unresponsive testimony undermined his credibility; and (3) his failure to provide corroborating evidence from his father was prejudicial to his credibility. Therefore, we deem any challenge to those findings waived, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005), and they stand as valid bases for the IJ’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). Additionally, the IJ properly relied on the credibility findings that Diallo does challenge. As the IJ found, while Diallo testified that he was only beaten once during his first detention on the day that he was arrested, his application indicates that he “was tortured on ... many occasions” and on “many occasions kicked by officers.” Similarly, while Diallo testified that police tied him up, hung him upside down, and beat him at his home before taking him to jail when they arrested him a second time, his asylum application indicates that this mistreatment occurred at the prison. Contrary to Diallo’s assertion that this discrepancy is too minor to undermine his credibility, it calls into question whether the second arrest and related mistreatment occurred at all. Cf. Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000). The IJ also properly relied on the omission from Diallo’s wife’s letter of any mention of his second arrest because it involved a central element of his claim. See Singh v. BIA, 438 F.3d 145, 148 (2d Cir.2006) (per curiam); cf. Secaida-Rosales v. INS, 331 F.3d 297, 307-09 (2d Cir.2003) (concluding that even where an omission is material, the “failure to mention one aspect of the story [of a specific event] cannot suffice to render [the petitioner’s] testimony as a whole incredible”).2 The IJ also found implausible Diallo’s testimony that after he escaped from prison, he hid at home. Contrary to Diallo’s argument, no evidence of coordination be*698tween prison officials and local police was required for the IJ to conclude that it was implausible that Diallo, who claimed to be fleeing persecution, would place himself in a situation where officials might seek him again — hiding in the same location where police had twice arrested him. See Wensheng Yan v. Mukasey, 509 F.3d 63, 68 n. 2 (2d Cir.2007); see also Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007) (ruling that “[t]he speculation that inheres in inference is not ‘bald’ if the inference is made available to the factfinder by record facts, or even a single fact, viewed in the light of common sense and ordinary experience”). Because substantial evidence supports the IJ’s adverse credibility determination, success is necessarily precluded on Diallo’s claims for asylum and withholding of removal because the only evidence that he was likely to be persecuted depended upon his credibility. See Paul v. Gonzales, 444 F.3d 148,156 (2d Cir.2006). Because Dial-lo failed to challenge the IJ’s denial of CAT relief either before the BIA or this Court, we deem any such challenge abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir.2007). For the foregoing reasons, the petition for review is DENIED. . The REAL ID Act of 2005 abrogated this Court's holding in Secaida-Rosales that a discrepancy must be "substantial” when measured against the record as a whole. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). However, the credibility provisions of the REAL ID Act apply only to asylum applications filed after May 11, 2005. Diallo filed his application prior to that date.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471041/

SUMMARY ORDER Defendant-Appellant Alexander Salvag-no appeals from a judgment of conviction in the United States District Court for the Northern District of New York (Munson, J.) following a jury verdict finding Salvag-no guilty of (1) conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, (2) conspiracy to violate the Clean Air Act and the Toxic Substances Control Act, 18 U.S.C. § 371; 42 U.S.C. § 7401, (3) violations of the Clean Air Act, 42 U.S.C. § 7413, and (4) income tax evasion, 26 U.S.C. § 7206(1). The district court sentenced Salvagno to 300 months imprisonment and ordered him to pay $2,033,457.70 in forfeiture and $23,039,607.30 in restitution. We assume the parties’ familiarity with the case’s underlying facts, its procedural history, the overwhelming evidence of Salvagno’s guilt, and the many issues on appeal. Salvagno argues that his Sixth Amendment rights were violated by a con*704flict of interest with his trial counsel Bern-feld. Specifically, Salvagno alleges that he and Bernfeld had conflicted interests concerning certain documents improperly withheld during discovery, because Bern-feld sought to avoid being implicated for them non-production. Salvagno suggests that this impacted Bernfeld’s trial strategy, in addition to preventing Bernfeld from providing advice on issues related to the documents’ production. On the record before us, Salvagno’s claim is too speculative to succeed. See Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (explaining that an actual conflict of interest must be more than “a mere theoretical division of loyalties”). The record contains no direct evidence of Bernfeld’s culpability for the non-production of the documents. Moreover, we note that Bernfeld successfully resisted the government’s trial subpoenas requesting the documents, which appears to us consistent with, and not opposed to, Salvagno’s interests. A more developed record could shed additional light on the documents’ history, however, and perhaps lend support to Salvagno’s contentions. Accordingly, we dismiss Sal-vagno’s claim, but we leave open the possibility that Salvagno could advance his claim in a 28 U.S.C. § 2255 motion, wherein a district court could supplement the record if necessary. See Armienti v. United States, 313 F.3d 807, 809-10 (2d Cir.2002) (explaining that a deficient record on direct appeal concerning a conflict of interest may be remedied in a habeas proceeding). Salvagno also argues that his Sixth Amendment rights were violated by a conflict of interest at his sentencing. Specifically, he objects to two lawyers from the same law firm representing both him and his co-defendant father Raul Salvagno at sentencing, on the basis that an argument for leniency for a lesser role for one defendant would undermine a similar argument for the other. Both defendants were also represented by separate counsel that were unconflicted. Salvagno concedes that the district court asked the unconflicted attorneys, with the defendants present, whether the conflict was a problem and received a negative response, but he argues that the district court erred by never specifically asking him if he understood and waived the conflict. Whenever a district court discovers that a defendant’s attorney suffers from a conflict or potential conflict, “such that a rational defendant could knowingly and intelligently desire the conflicted lawyer’s representation!,] the court should follow the procedures set out in [United States v. Curcio, 680 F.2d 881, 888-90 (2d Cir. 1982),] in order to obtain directly from the defendant a valid waiver of his right to a non-conflicted lawyer.” United States v. Levy, 25 F.3d 146, 153 (2d Cir.1994). Under the Curdo procedures, “the trial court should: (i) advise the defendant of the dangers arising from the particular conflict; (ii) determine through questions that are likely to be answered in narrative form whether the defendant understands those risks and freely chooses to run them; and (iii) give the defendant time to digest and contemplate the risks after encouraging him or her to seek advice from independent counsel.” United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir.1986). Whether a resulting waiver is “knowing and intelligent depends on the circumstances of each individual case as well as the background and experience of the accused.” United States v. Blau, 159 F.3d 68, 74 (2d Cir.1998). Here, the district court’s Curdo hearing, while not exemplary, was adequate. A Curdo hearing aims to ensure that the defendant understands the risks of utilizing conflicted counsel, so that the defen*705dant can knowingly and intelligently waive his Sixth Amendment right to conflict-free counsel. An otherwise well-conducted hearing can be undermined if the record does not reflect the ultimate waiver as coming from the defendant himself. In this case, however, despite the absence of a direct waiver from Salvagno himself, there was no constitutional violation, because Salvagno’s waiver came from uncon-flicted counsel, with Salvagno present and evidently in agreement. See United States v. Leslie, 103 F.3d 1093, 1098 (2d Cir. 1997); Williams v. Meachum, 948 F.2d 863, 867 (2d Cir.1991) (“In reviewing a defendant’s waiver, ... we are ultimately concerned less with exact words used by the trial judge than with whether the facts and circumstances of the case indicate that the defendant fully appreciated his situation and made a properly informed decision.”). The government stated on the record that, “although the record won’t reflect it, it was clear and we were able to see that [Salvagno was] in agreement, unless [he has] any objection that [he] would like to put on the record right now.” We have thoroughly considered all of Salvagno’s other challenges to his conviction and to his sentence, including his co-defendant’s arguments adopted by reference, and we find them to be without merit. For the foregoing reasons, the district court’s judgment is AFFIRMED.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471045/

SUMMARY ORDER Petitioner Han He, a native and citizen of the People’s Republic of China, seeks review of a February 11, 2008 order of the BIA affirming the June 9, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Han He, No. A 78 867 731 (B.I.A. Feb. 11, 2008), aff'g No. A 78 867 731 (Immig. Ct. N.Y. City June 9, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.1 “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (citations, internal quotation marks, and alteration omitted). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, which requires that we treat them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir .2008). We conclude that the agency’s adverse credibility determination was supported by substantial evidence. Fúst, the IJ properly found that while He testified that his mother had been “taken away” by the family planning authorities in December 1995, his asylum application asserted only that his mother had been threatened with arrest. This was a significant discrepancy, as He’s mother’s arrest was purportedly the reason why He and his wife emerged from hiding and why He’s wife was eventually sterilized. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (noting that an IJ’s reasons for rejecting an applicant’s testimony must “bear a legitimate nexus to the finding”), abrogated by Real ID Act, 8 U.S.C. § 1158(b)(l)(B)(iii).2 The IJ also properly found that while He testified that he was accosted by family planning officials when he went to the hospital, he did not include this incident in his asylum application. To explain this omission, He asserted that he was unaware that he was required to provide *709such details in his asylum application. However, although we have found that asylum applicants are not required to list every incident of persecution on their application statements where such statements are written in general terms, see Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), we have no such concern here, as He’s statement includes more minor details about his claim while omitting the significant “detail” identified by the IJ. Thus, the IJ was not required to credit He’s explanation in this case. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Additionally, the IJ found He’s demean- or suspect, observing that “[wjhenever asked to provide details, the respondent merely reverted back to his earlier statements as though he was attempting to stay within a prescribed script, rather than testify about traumatic and life[-]altering experiences.” We accord particular deference to such assessments of an applicant’s demeanor. See id. at 81 n. 1. Having called He’s testimony into question, the IJ turned to He’s documentary submissions but “gave no weight” to them, noting that He failed “to establish a credible chain of custody.” This finding was proper, as the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the IJ’s discretion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). While the IJ’s decision is not without error,3 remand would be futile in this case, because we can confidently predict that the IJ would reach the same conclusion absent the erroneous finding. See id. at 338-39. The BIA properly found that the discrepancies the IJ identified go to the heart of He’s claim. See Secaida-Rosales, 331 F.3d at 307. Moreover, the IJ was entitled to rely on the cumulative effect of these discrepancies, together with his demeanor finding, to support his adverse credibility determination. See Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 107 (2d Cir.2006). Because He has presented no arguments that would compel a reasonable factfinder to conclude otherwise, we cannot find that the IJ erred in finding that He was not credible. See 8 U.S.C. § 1252(b)(4)(B).4 Because the only evidence of a threat to He’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief, for all three claims were based on the same factual predicate. See Paid 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, 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). . We deem He's Falun Gong claim abandoned, as he fails to raise that claim in his brief to this Court. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005). . Because He's application was submitted before May 11, 2005, the Real ID Act does not apply to it. . We find insufficient support in the record for the IJ’s finding that He's testimony was inconsistent with the household registers that he submitted. As He argues, he consistently testified that in December 1995, he was living at his father's home, and that he and his wife were part of his father’s household registration until 1998. We do not find that testimony inconsistent with the evidence he submitted. Accordingly, the IJ's finding was flawed in this respect. . Because the adverse credibility determination is dispositive of He’s petition, we do not consider his argument that he demonstrated "other resistance” to the coercive population control program.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471046/

SUMMARY ORDER Petitioner Liders Porras, a native and citizen of Bolivia, petitions for review of a March 24, 2008, BIA decision, No. A74-911-641, denying Porras’s motion to remand, and affirming the decision of an IJ dated September 26, 2006, denying his application for cancellation of removal under section 241(b)(1) of the Immigration and Nationality Act, (“INA”) 8 U.S.C. § 1229b(b)(l) and his request for a continuance in order to pursue adjustment of his status under section 245 of the INA, 8 U.S.C. § 1255. We assume the parties’ familiarity with the facts and procedural history of this case, and the issues presented by this petition. We have held that “[obtaining either adjustment of status or cancellation of removal is a two-step process. First, an alien must prove eligibility showing that he meets the statutory eligibility requirements. Second, assuming an alien satisfies the statutory requirements, the Attorney General in his discretion decides whether to grant or deny relief.” Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006) (per curiam) (citations omitted). We have no jurisdiction to review an IJ’s discretionary determination regarding either cancellation of removal or adjustment of status. See 8 U.S.C. § 1252(a)(2)(B); see also Rodriguez, 451 F.3d at 62; Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005). In order to demonstrate eligibility for cancellation of removal, an alien must show, inter alia, that his “removal would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States....” 8 U.S.C. § 1229b(b)(l)(D). We have held that the determination of whether exceptional and extremely unusual hardship is present for the purpose of cancellation of removal is committed to the discretion of the Attorney General, and that, accordingly, we have no jurisdiction to review such a determination. Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-40 (2d Cir.2008); see also De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir.2006). The IJ denied Porras’s application for cancellation of removal because he determined that Porras’s United States-citizen children would not suffer the requisite exceptional and extremely unusual hardship to grant him cancellation of removal. Because this is a discretionary decision, we have no jurisdiction to review it. See Bar-co-Sandoval, 516 F.3d at 38-40. Even if we viewed Porras’s petition as presenting a question of law, we would still lack jurisdiction as Porras’s contention is frivolous. See id. at 40. Porras argues that the IJ applied an incorrect legal standard by relying on the BIA’s analysis in In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), which he argues has been replaced with a less stringent standard in In re Gonzalez Recinas, 23 I. & N. Dee. 467 (BIA 2002). But the IJ’s finding was consistent with both Reciñas and Monreal in finding that Porras has failed to show adequate hardship. See Barco-Sandoval, 516 F.3d at 40-41 (rejecting as “not even reaching] the level of being colorable” the assertion that Gonzalez Reciñas constituted a departure from, rather than an application of, Monreal-Aguinaga). The IJ also denied Porras’s motion for a continuance in order to apply for adjustment of status. The IJ stated that he would deny the application for adjustment of status, inter alia, in the exercise of his discretion, apparently based on views the IJ had about the potentially fraudulent nature of Porras’s first marriage. He therefore denied the motion for *712a continuance. We have found “no basis for obligating the agency to grant continuances pending adjudication of an immigrant visa petition when there is a reliable basis to conclude that the visa petition or the adjustment of status will ultimately be denied.” Pedreros v. Keisler, 503 F.3d 162, 166 (2d Cir.2007). Because the IJ would have denied the application for adjustment of status even if the continuance had been granted, the BIA did not err in upholding the IJ’s denial of the motion for a continuance. Similarly, the BIA was not required to grant the motion to remand to the IJ based on Porras’s attaining a viable visa priority date in support of his application for adjustment of status. The IJ made it clear that he would have denied the application for adjustment of status on the basis of his discretion in any event. Porras argues that the IJ erred by finding — without the full record needed to make a proper determination' — that Porras engaged in marriage fraud. But the IJ did not err in relying on his understandable doubts about the nature of Porras’s first marriage in deciding that he would not exercise his discretion to grant Por-ras’s adjustment of status. Because the denial of cancellation of removal was based on a finding that there was no exceptional or extremely unusual hardship, we have no jurisdiction to review this finding, and dismiss the petition, in relevant part. Because the denial of the motion for a continuance was based on the IJ’s determination that if the continuance were granted, the application for adjustment of status would be denied in the exercise of discretion, we deny the petition for review, in relevant part. Similarly, because the BIA did not err in declining to grant a motion to remand the case to the IJ to determine adjustment of status, because the IJ would have denied the application, we deny the petition, in relevant part. For the foregoing reasons, the petition for review of the order of the BIA is hereby DISMISSED in part, and DENIED in part. Having completed our review, the petitioner’s pending motion for a stay of removal is DISMISSED as moot.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471050/

SUMMARY ORDER We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. Rodriguez-Nieves brings six challenges in this appeal. He argues that the district court erred by: (1) Failing to conduct an evidentiary hearing on his motion to suppress; (2) Concluding that his arrest was based on probable cause; (3) Failing to suppress (as fruit of the poisonous tree) evidence seized following the unlawful arrest; (4) Violating the ban on double jeopardy; (5) Finding the evidence sufficient as to Count Four; and *716(6) Denying him due process by allowing the government to introduce evidence of narcotics violations not mentioned in the indictment in support of the continuing criminal enterprise charge. [1] Rodriguez-Nieves argues that, without a suppression hearing, he was unable to test the “reliability, accuracy and staleness” of the affidavit information which formed the basis of his arrest. The Court reviews a denial of a request for a suppression hearing for abuse of discretion. See United States v. Levy, 377 F.3d 259, 264 (2d Cir.2004). An evidentia-ry hearing on a motion to suppress is ordinarily required “if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992) (internal quotation marks omitted). The district court’s ruling was well within its discretion. Rodriguez-Nieves never clearly asked for such a hearing and argued instead that suppression was warranted because the uncontested facts in the relevant affidavit did not support probable cause to justify a warrantless arrest (a legal question, not a factual one). And Rodriguez-Nieves never submitted a sworn affidavit contesting any facts in the government’s affidavit. [2] Rodriguez-Nieves argues that his arrest was effected without probable cause. We review the district court’s determination of probable cause de novo, but we must “take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts” by the district judge and law enforcement officers. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause exists “if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.” United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990). We review the totality of the circumstances. United States v. Delossantos, 536 F.3d 155, 161 (2d Cir.2008). In that review, “[t]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause.” United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985). In this case, the district court concluded (as follows) that, on the basis of the totality of the circumstances, the police had probable cause to arrest Rodriguez-Nieves: We have the identification of Mr. Rodriguez as responsible for distributing great quantities of drugs picked up in Queens and delivered to various locations around the Bronx from several sources. We know that there were undercover purchases from members of Mr. Rodriguez’s group in the Bronx. We know that there were undercover law enforcement buys. The officer saw Mr. Rodriguez driving toward Queens; saw him later in the Bronx with an individual who came out of the building with an object in his hands, got into the ear, and as the officers approached they observed Mr. Rodriguez attempting to discard his cell phone. We agree that these facts were sufficient to establish probable cause. Rodriguez-Nieves argues that, notwithstanding those circumstances, the officers observed nothing but innocent conduct at the time of his arrest. But probable cause for arrest was established in the course of *717the officers’ prior investigatory work. “Good police practice often requires postponing an arrest, even after probable cause has been established....” United States v. Watson, 428 U.S. 411, 481, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (Powell, J., concurring); see also Fama, 758 F.2d at 838 (“Although the search warrant was issued thirty-five days after the ... incident, it was sought at the culmination of a major investigation into ongoing, long-term criminal activity. Such a time lag under these circumstances will generally not affect probable cause.”). [3] Rodriguez-Nieves argues that evidence seized from his person and vehicle at the time of his arrest, along with evidence obtained from search warrants derived from the fruits of that arrest and search, must be suppressed under the exclusionary rule because the arrest was not supported by probable cause. Because the arrest and search were supported by probable cause, there was no unconstitutional police conduct and the exclusionary rule does not apply. [4] Rodriguez-Nieves argues that pursuant to the Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), he cannot properly be convicted of being the principal administrator of both a continuing criminal enterprise under § 848 (Count Three) and of the lesser included offenses: (i) conspiracy to distribute narcotics under § 846 (Count One), and (ii) basic administration of the same continuing criminal enterprise under § 848 (Count Two). In Rutledge, 517 U.S. at 294, 116 S.Ct. 1241, the Supreme Court considered whether a defendant had been properly convicted of both participating in a conspiracy to distribute controlled substances (21 U.S.C. § 846) and of conducting a continuing criminal enterprise (21 U.S.C. § 848), notwithstanding that both counts were based on the same agreement and organization. Id. at 294, 116 S.Ct. 1241. The Supreme Court held that “[a] guilty verdict on [the] § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846; conspiracy is therefore a lesser included offense of [continuing criminal enterprise] ... [and] we adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, one of petitioner’s convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense and must be vacated.” Id. at 307, 116 S.Ct. 1241 (internal quotation marks and brackets omitted). Here, the government concedes that it should have moved to dismiss the lesser included offenses of Counts One and Two at Rodriguez-Nieves’s sentencing proceeding and requests that the Court dismiss Counts One and Two of the indictment and reduce the mandatory special assessment to $200. We agree that Rodriguez-Nieves’s judgment and conviction must be amended in light of Rutledge, and we remand to the district court with instructions to vacate and amend the judgment accordingly. [5] Rodriguez-Nieves challenges the sufficiency of the evidence with respect to his conviction under Count Four for distribution and possession with intent to distribute one or more kilograms of heroin stored in January 2005 at apartment 512, 81-10 135th Street, Queens, New York, in violation of § 841(b)(1)(A). “We review de novo a challenge to the sufficiency of the evidence and affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt.” United States v. Yannotti, 541 F.3d 112, 120 (2d Cir.2008) (internal quotation marks omit*718ted). A defendant challenging the sufficiency of the evidence “bears a heavy burden.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003) (internal quotation marks omitted). In evaluating a sufficiency of the evidence claim, the court must view “all of the evidence in the light most favorable to the government,” United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir.2002), must “resolve all issues of credibility in favor of the jury’s verdict,” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002) (internal quotation marks omitted), and must “credit[] every inference that the jury might have drawn in favor of the government,” United States v. Morrison, 153 F.3d 34, 49 (2d Cir.1998) (internal quotation marks omitted). But the court will not disturb a conviction unless no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Bruno, 383 F.3d 65, 82 (2d Cir.2004) (internal quotation marks omitted). Here, the government’s evidence included the testimony of cooperating witnesses, physical evidence seized by law enforcement, and Rodriguez-Nieves’s own recorded conversations. Viewing the evidence “in the light most favorable to the government,” Aleskerova, 300 F.3d at 292, and “crediting every inference that the jury might have drawn in favor of the government,” Morrison, 153 F.3d at 49 (internal quotation marks omitted), the jury was free to conclude that Rodriguez-Nieves operated part of his drug ring from the location in question, that police seized over six kilograms of heroin from that location in January 2005, and that Rodriguez-Nieves received and distributed several kilograms of heroin that same month. There was ample evidence in the record to support the jury’s verdict on Count Four. [6] Rodriguez-Nieves argues that the district judge erred when she instructed the jury that the law did not require the government to specify the predicate acts of the continuing criminal enterprise charge in the indictment. Rodriguez-Nieves did not object to the jury charge, so the charge is reviewed for plain error. See United States v. Weintraub, 273 F.3d 139, 145 (2d Cir.2001). “We will reverse only if there has been (1) error, (2) that is plain, (3) that affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks and alterations omitted). Given the overwhelming evidence, including physical evidence, cooperator testimony, and wiretap recordings featuring Rodriguez-Nieves, we cannot conclude that the defendant’s substantial rights were affected. We reject the challenge to the jury instruction. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part (insofar as it relates to the defendant’s conviction pursuant to 21 U.S.C. § 848(a), 848(b), and 848(c) (Count 3) and 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) (Count 4)), VACATED in part (insofar as it relates to the defendant’s conviction pursuant to 21 U.S.C. § 846 (Count 1) and 21 U.S.C. § 841(a) and 841(c) (Count 2)), and REMANDED for entry of an amended judgment consistent with this summary order.

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SUMMARY ORDER Plaintiff-Appellant David Valentine appeals from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.) imposing a sentence of ten months’ imprisonment for a violation of the terms of supervised release. Valentine’s term of imprisonment has concluded: he was released from custody on December 12, 2006. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. “Article III, Section 2 of the United States Constitution limits the subject matter jurisdiction of the federal courts to those cases that present a ‘case or controversy.’ ” United States v. Probber, 170 F.3d 345, 347 (2d Cir.1999) (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, *724140 L.Ed.2d 43 (1998)). We lack jurisdiction unless Valentine has “ ‘suffered, or be[en] threatened with, an actual injury-traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Id. at 348 (quoting Spencer, 523 U.S. at 7,118 S.Ct. 978). “[A]n individual challenging the revocation of his parole — and whose term of re-incarceration has expired — bears the burden of demonstrating that some concrete and continuing injury continues to flow from the fact of the revocation.” Id. at 348. Jurisdiction will not lie where the alleged “injur[y is] too speculative to satisfy the case-or-controversy requirement of Article III.” Id. at 349; see also United States v. Blackburn, 461 F.3d 259, 262 (2d Cir.2006) (dismissing appeal where appellant had completed term of imprisonment and potential benefit of resentencing was too speculative to confer jurisdiction). At Valentine’s sentencing, the trial court treated Attempted Larceny in the Fourth Degree (in violation of New York Penal Law § 155.30) as a felony punishable by a term of imprisonment of more than one year. This was error; the crime was in fact a misdemeanor. Because of this error — which Valentine’s counsel failed to point out — the district court calculated a guidelines range of 21 to 27 months, as opposed to the correct range of 8 to 14 months. But the district court departed downward significantly from the probation department’s recommend sentence of 24 months, and imposed a sentence within the correct guidelines range. Valentine argues that he continues to suffer collateral consequences from the erroneous guidelines calculation, because absent a judgment from this Court holding that his sentence was invalid, he is unable to pursue a civil remedy for false imprisonment. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (“[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a ... plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”). Valentine assumes that with a favorable decision from this Court, he could [i] obtain a lower sentence from the district court, and [ii] file suit (against unnamed actors under an unspecified cause of action) for “false imprisonment” resulting from the district court’s error. These assumptions are too speculative to satisfy Article Ill’s case-or-controversy requirement. As to obtaining a lower sentence, the record shows a careful determination by the district court, based on extensive fact-finding. It is doubtful that the district court would impose a lesser sentence even if presented with a lower guidelines range. More importantly, the error at sentencing was the result of an innocent misunderstanding shared by all parties involved in the proceeding, including Valentine and his attorney. Valentine argues that this misunderstanding could fuel a lawsuit; but the district court, prosecutors, and probation officers are all entitled to absolute immunity for their actions at Valentine’s sentencing. See Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir.1996) (“[P]rosecutor[ ]s [enjoy] absolute immunity from claims for damages arising out of prosecutorial duties that are ‘intimately associated with the judicial phase of the criminal process.’ ”); Hili v. Sciarotta, 140 F.3d 210, 213 (2d Cir.1998) (“Judges performing judicial functions within their jurisdictions are granted absolute immunity.”); Dorman v. Higgins, 821 F.2d 133, 136-37 (2d Cir. *7251987) (holding that “federal probation officers preparing and furnishing presentence reports to the court” are entitled to absolute immunity). In light of the immunity bar (and for other reasons), Valentine cannot show “ ‘an actual injury ... likely to be redressed by a favorable ... decision.’ ” Probber, 170 F.3d at 348 (quoting Spencer, 523 U.S. at 7, 118 S.Ct. 978). Valentine’s sentence having expired, his appeal must be dismissed as moot. We have considered Valentine’s remaining arguments and find them to be without merit. For the foregoing reasons, the case is dismissed as moot.

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SUMMARY ORDER Petitioner Anura Rathnasiri Yagama, an ethnic Sinhala and native and citizen of Sri Lanka, seeks review of an October 27, 2008 order of the BIA affirming the April 10, 2007 decision of Immigration Judge (“IJ”) Brigitte LaForest denying his applications for asylum and withholding of removal. In re Anura Rathnasiri Yagama, No. A94 824 932 (B.I.A. Oct. 27, 2008), aff'g No. A94 824 932 (Immig. Ct. N.Y. City Apr. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA adopts the decision of the IJ and supplements 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 under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland See., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99,110 (2d Cir.2008). We conclude that the agency did not err in finding that Yagama failed to establish that any past harm he suffered bore a nexus to a protected ground. 8 U.S.C. § 1101(a)(42). As amended by the REAL ID Act, Title 8, Section 1158(b)(l)(B)(i) of the U.S.Code provides that an asylum “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” Here, the agency reasonably determined that Yagama failed to establish he was persecuted on account of his political opinion, or that he was a member of a particular social group. First, Yagama argues that the agency erred by failing to conclude that his interrogation by Sri Lankan police was motivated by their mistaken impression that he supported the Liberation Tigers of Tamil Eelam (“LTTE”). Although we have recognized that an imputed political opinion can constitute a protected ground, see Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d Cir.2007) (citing Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir.2005)), the agency reasonably found that, contrary to Yagama’s arguments, his mistreatment by police arose not from their belief that he was an LTTE supporter, but rather because they erroneously believed he was involved in drug smuggling. Moreover, Yagama’s mistreatment, though deplorable, comported with documented reports of abuse and torture by the Sri Lankan police of persons suspected of drug smuggling, and, as the agency concluded, it bore no nexus to his political beliefs. See INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (applicant must show persecutor’s motive to persecute arises from applicant’s political belief). Second, Yagama asserts that the agency erred in finding that his mistreatment by the LTTE was not on account of his political opinion. However, that Yagama assisted the police in the arrest of LTTE members — and that the LTTE targeted him in response — did not constitute conduct evi*729dencing Yagama’s political beliefs. See Matter of Fuentes, 19 I. & N. Dec. 658, 661 (BIA 1988) (“Dangers faced by policeman as a result of that status alone are not ones faced on account of [a protected ground].”). Rather, as the agency reasonably concluded, Yagama’s responsibilities as a policeman obligated him to perform this exact activity, and, regardless of his moral opposition to drug smuggling, the record makes clear that the LTTE’s motivation in threatening him was to prevent him from continuing to act as an informant. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005)(observing that the persecutor’s motive to persecute must arise from the applicant’s political belief); see also Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1047 (10th Cir.2004)(former police major who provided security to judges sitting on terrorist cases failed to show that terrorists threatened him because of an imputed political opinion rather than his status as a police officer). Third, Yagama argues that the agency erred by rejecting his claim of membership in a particular social group consisting of “people connected with the drug trade and whose cases are difficult to prove.” The BIA has long interpreted the term “particular social group” to mean “a group of persons all of whom share a common immutable characteristics”; something members “either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); see Koudriachova, 490 F.3d at 262 (declaring Acosta definition reasonable). Moreover, the BIA has stressed that a social group should be both socially visible and sufficiently particular. See In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (BIA 2007). Here, the agency reasonably concluded that the social group Yagama identified failed to meet either of these requirements. Contrary to Yagama’s arguments, there was no evidence that the underground police or Sri Lankan society recognized him or others as comprising a discrete group, nor was there anything particular about them, as a group, dictating their inclusion on a “hit list” prepared by the underground police. Rather, that list simply contained the names of persons who, because of their individual and distinct actions, the police had targeted for persecution. Accordingly, because Yagama was unable to establish eligibility for asylum, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). We have considered all of Yagama’s remaining claims and found them to be without merit. 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).

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SUMMARY ORDER Petitioners, natives and citizens of Guyana, seek review of an October 28, 2008 order of the BIA, denying their motion to *731remand and affirming the October 10, 2007 decision of Immigration Judge (“IJ”) Philip L. Morace, which pretermitted the applications for asylum of petitioners Raha-mat and Ally, and denied their applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Zaimoon Rahamat, Nos. A097 516 815/812/816/817 (B.I.A. Oct. 28, 2008), aff'g Nos. A097 516 815/812/816/817 (Immig. Ct. N.Y. City Oct. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. When the BIA does not adopt the decision of the IJ to any extent, this Court reviews only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings for substantial evidence. 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. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). I.Asylum According to 8 U.S.C. § 1158(a)(3), no court shall have jurisdiction to review, inter alia, an agency finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B) or that neither changed nor extraordinary circumstances excused the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D). While Petitioners raise one potential “question of law” before this Court — whether the BIA improperly engaged in factfinding — we have recognized that we “lack jurisdiction to review any legal argument that is so insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction.” See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (citing Arbaugh v.Y & H Corp., 546 U.S. 500, 513 n. 10, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). Petitioners’ argument is patently frivolous because the BIA did not find any new facts, but rather merely applied facts found by the IJ with regard to Rahamat’s entry date and legal status. Therefore, to the extent that Petitioners challenge the agency’s pretermission of their asylum applications, we dismiss the petition for review. II. CAT Relief We also lack jurisdiction, as the Government correctly argues, over Petitioners’ CAT claims because, as the BIA specifically noted, they did not challenge the IJ’s denial of such claims in their brief to the BIA. Under 8 U.S.C. § 1252(d), this Court “may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.” This jurisdictional rule is absolute with respect to the requirements that an alien appeal to the BIA before filing a petition for review, see Theodoropoulos v. INS, 358 F.3d 162, 165-69, 174 (2d Cir.2004), and that in his appeal to the BIA, he raise each category of relief he subsequently raises in this Court, see Karaj v. Gonzales, 462 F.3d 113, 119 & n. 2 (2d Cir.2006). Here, as the BIA correctly noted, Petitioners failed to raise any challenge to the denial of CAT relief before the BIA. Accordingly, we dismiss Petitioners’ claims for CAT relief. See id. III. Motion to Remand Petitioners also argue that the BIA erred in failing to remand their proceedings to the IJ for consideration of evidence that they were suffering from severe depression, which allegedly pi'evented them from timely filing their asylum applications. We review the BIA’s denial of a motion to remand for abuse of discretion. See Li Yong Cao v. U.S. Dep’t of Justice, *732421 F.3d 149, 157 (2d Cir.2005). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the [BIA] has acted in an arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.2005) (per curiam); see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001). Here, the BIA did not abuse its discretion in finding that the Petitioners failed to present material evidence that would warrant remand. The BIA reasonably found Petitioners’ evidence — their own self-serving affidavits — to be insufficient to carry them heavy burden on them motion. See Sanusi v. Gonzales, 445 F.3d 193, 201 (2d Cir.2006) (per curiam) (“[T]he [BIA] ordinarily will not consider a discretionai*y grant of a motion to remand unless the moving party meets a ‘heavy burden’ and presents evidence of such a nature that the [BIA] is satisfied that if proceedings before the immigration judge were reopened ... the new evidence offered would likely change the result in the case.” (first alteration in original) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 473 (1992))). While Petitioners appear to be correct that the BIA misapprehended the claimed cause of Ally’s depression, this error does not require us to vacate the BIA’s decision as it remains the case that Petitioners have submitted only their own self-serving affidavits in support of their motion. We are therefore confident that the BIA would reach the same conclusion absent the error. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401-02 (2d Cir.2005). Accordingly, the BIA did not abuse its discretion in denying Petitioners’ motion to remand. IV. Withholding of Removal Finally, the Government also contends that we lack jurisdiction over Petitioners’ withholding of removal claims because they failed to raise them in their brief to the BIA, and the BIA specifically noted this failure in its decision. However, Petitioners did, as they correctly contend, make “a detailed argument with respect to withholding of removal” in their brief to the BIA addressing the grounds for the IJ’s denial of their withholding of removal claims. Pet. Br. at 18. The BIA therefore erred in finding that Petitioners had not challenged the denial of their claims for withholding of removal and in failing to consider Petitioners’ arguments. While we need not remand if it can be predicted with confidence that the agency would reach the same conclusion even absent the error, see Cao He Lin, 428 F.3d at 401-02, such a prediction cannot confidently be made here. Rahamat and Ally were found to be credible, and the IJ noted that he “would be satisfied if the standard was a well-founded fear,” rather than the clear probability of persecution required for a claim for withholding of removal. IJ Op. at 17. In this situation, we cannot confidently predict that, had the BIA properly considered Petitioners’ arguments, it would have arrived at the same conclusion. Accordingly, we remand for the BIA to consider these arguments in the first instance. For the foregoing reasons, the petition for review is DISMISSED in part, DENIED in part, and GRANTED in part. The case is remanded to the agency for further proceedings consistent with this order.

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SUMMARY ORDER Petitioner Long Chun You, a native and citizen of the People’s Republic of China, seeks review of a November 29, 2007 order of the BIA denying his motion to reopen his deportation proceedings. In re Long Chun You, No. A029 785 944 (B.I.A. Nov. 29, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the agency’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). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or eonclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir .2001)). You’s motion to reopen, which was filed more than five years after his 2001 final order of deportation, was properly denied as untimely. See 8 C.F.R. § 1003.2(c)(2). In some circumstances the time limitation may be equitably tolled to accommodate claims of ineffective assistance of counsel, provided that the movant has substantially *734complied with the requirements set forth in Matter of Lozada and exercised “due diligence.” See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). You argues that he was only required to demonstrate that his diligence between the time that he discovered his former counsel’s ineffective assistance and the filing of his motion. However, as we held in Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008), “an alien must demonstrate that he or she has exercised due diligence during the entire period he or she seeks to toll,” which “includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed.” You has failed to demonstrate what steps he took between his deportation order in 2001 and “late 2006 and early 2007,” when he filed his FOIA request. Accordingly, the BIA did not abuse its discretion in finding that You failed to exercise due diligence in pursuing his case. 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).

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SUMMARY ORDER Petitioner Shi-Lin Zhao, a native and citizen of China, seeks review of a December 30, 2008 order of the BIA affirming the November 15, 2006 decision of Immigration Judge (“IJ”) Douglas B. Schoppert denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Shi-Lin Zhao, No. A095 716 421 (B.I.A. Dec. 30, 2008), aff'g No. A095 716 421 (Immig. Ct. N.Y. City Nov. 15, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. When the BIA issues an opinion affirming the IJ’s decision, in part, and modifying it, in part, we review the IJ’s decision as modified by the BIA, confining our review to the rationale of the IJ on which the BIA relied. Dong Gao v. BIA, 482 F.3d 122, 125 (2d Cir.2007). Thus, because the BIA assumed Zhao’s credibility, we will do the same. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). “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). 1. Forced Marriage Claim In challenging the agency’s rejection of her forced marriage claim, Zhao argues only that the IJ’s adverse credibility determination was erroneous. However, the BIA did not affirm that determination, concluding instead that Zhao failed to meet her burden because the mistreatment she suffered did not rise to the level of persecution. Even broadly construed, Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir.2002), Zhao’s pro se brief does not challenge the BIA’s finding that she failed to meet her burden of proof. Indeed, Zhao does not even assert that she was persecuted in the past. Thus, we will not disturb the BIA’s burden of proof finding with respect to Zhao’s forced marriage claim. See 8 U.S.C. § 1252(b)(4)(B). *7362. Religious Persecution Claim The agency also reasonably found that Zhao failed to meet her burden in establishing an objectively reasonable fear of persecution based on her newly-adopted religion. To establish asylum eligibility based on a fear of future persecution, an applicant must show that he or she subjectively fears persecution and that this fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). A fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.” Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). Here, the IJ found that Zhao’s claim was too speculative to merit relief because she had not shown that she would continue to practice her religion, much less practice it in an illegal manner which would potentially subject her to mistreatment. Despite Zhao’s arguments, the IJ reasonably found that her fear was imper-missibly speculative given that: (1) she testified that she had only been practicing her religion since March 2006, after she entered the United States; (2) she testified that she was aware that government-sanctioned churches exist in China; and (3) she never demonstrated that the Chinese government was or would become aware of her religious practice. Thus, in the absence of “solid support” for Zhao’s assertion that she will be subjected to persecution, the agency reasonably found that her fear was too speculative to merit relief. See Jian Xing Huang, 421 F.3d at 129. Accordingly, the agency reasonably denied Zhao’s asylum application. As Zhao’s application for withholding of removal and CAT relief was based on the same factual predicate as her application for asylum, the agency properly denied those claims as well.2 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, 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). . To the extent that Zhao raises illegal departure and family planning claims for the first time in this Court, we decline to consider those unexhausted arguments. Lin Zhong v. U.S. Dep’t. of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).

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Judgment PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.

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SUMMARY ORDER Plaintiff-appellant John Pleau appeals from a judgment of the district court, entered on September 25, 2008, granting defendant-appellee Centrix, Inc.’s motion to dismiss his claim of marital status discrimination under the Connecticut Fair Employment Practices Act (CFEPA), Conn. GemStat. § 46a-60 et seq., and granting defendant’s motion for summary judgment on his claims of age discrimination under the Age Disciimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and the CFEPA. We assume the parties’ familiarity with the facts of the case, its procedural history, and the issues on appeal. I. Plaintiffs Marital Status Discrimination Claim We review the grant of a motion to dismiss de novo, considering the legal sufficiency of the complaint, taking its factual allegations to be true, and drawing all reasonable inferences in the plaintiffs favor. City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1579, 173 L.Ed.2d 675 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — - U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The CFEPA prohibits employment discrimination “because of the individual’s ... marital status.” Conn. Gen.Stat. § 46a-60(a)(2). Where, as here, the plaintiff is a married individual bringing a marital status discrimination claim under the CFEPA, the parties agree that the plaintiff must show an adverse employment action was taken because the plaintiff is married, not because of the person to whom the plaintiff is married. Cf. McNamara v. Tournament Players Club of Conn., Inc., 270 Conn. 179, 189, 851 A.2d 1154 (2004) (noting that the plaintiff conceded “ ‘the general law on marital status ... talk[s] about ... if someone’s discriminated because they’re married ... it’s not because of who you’re married to’” (alteration in original)). Although defendant appears to have terminated plaintiff due to the specific identity of plaintiffs spouse, plaintiff argues that his claim survives as a marital status stereotyping claim because “[t]he reason advanced by the defendant for terminating the plaintiffs employment ... is tied to the defendant’s unfair presumption that a married individual would not be able *687to separate the termination of his spouse, who worked for the same employer, from his responsibilities to his employer.” Br. of Pl.-Appellant 23. There is no Connecticut case law that specifically addresses the viability of a marital status stereotyping claim. CFE-PA claims are evaluated using the same framework as Title VII claims. See Brittell v. Dep’t of Corr., 247 Conn. 148, 164, 717 A.2d 1254 (1998) (“Although the language of [Title VII] and that of [CFEPA] differ slightly, it is clear that the intent of the legislature ... was to make the Connecticut statute coextensive with the federal [statute].” (Quotation marks omitted) (last alteration in original)). Unlawful stereotyping can give rise to Title VII liability. See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211, 220-21 (2d Cir.2005) (recognizing that Title VII liability can result from an employer’s disparate treatment of a person on the basis of gender stereotyping). But even assuming a marital status stereotyping claim may be raised under the CFEPA, plaintiffs complaint would fail to state such a claim. Plaintiff alleges that he was treated differently from other employees, both married and unmarried, based on the personal relationship with his wife and the impact defendant anticipated that plaintiffs wife’s termination would have on his future work performance. Though the soundness of defendant’s conclusion that plaintiff would no longer be able to perform effectively after his wife’s termination may be questionable, it does not imply an unlawful stereotype about married individuals as compared with those who are single, divorced, or widowed. Accordingly, plaintiffs marital status discrimination claim is without merit. II. Plaintiffs Age Discrimination Claim We review a grant of summary judgment de novo and affirm only if the record, viewed in the light most favorable to the non-moving party and drawing all reasonable inferences in favor of the non-moving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56©; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Oilman v. Special Bd. of Adjustment No. 1063, 527 F.3d 239, 245 (2d Cir.2008). We have found that the framework for evaluating employment discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), also applies to ADEA claims. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001). We agree with the district court that plaintiff met his “minimal” burden of proving a prima facie case of age discrimination. Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir.2001). There is no dispute that defendant offered a legitimate, non-discriminatory reason by stating that plaintiff was terminated because of defendant’s concern that plaintiff would no longer perform effectively after the termination of his wife. The question then is whether “the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 156 (2d Cir.2000). The Supreme Court has held that “a prima facie case and sufficient evidence to reject the employer’s explanation may permit a finding of liability,” and that it is error to “proceed[ ] from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097,147 L.Ed.2d 105 (2000); see also Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001) (“[Evidence showing that a proffered explanation was pretextual is neither always *688to be deemed sufficient, nor always to be deemed insufficient.” (citation omitted)). The record in this case is insufficient to support the conclusion that plaintiffs termination was motivated by age discrimination. Statistics may provide circumstantial evidence of age discrimination, see Stratton v. Dep’t for the Aging, 132 F.3d 869, 877 (2d Cir.1997), and plaintiff presents evidence showing a reduction in the number of employees over 40 years old from a total of 76 in January 2005, when plaintiff was terminated, to 68 employees in August 2005. But apart from the terminations of plaintiff, his wife, and a third employee named Jezierny, there is no evidence in the record regarding the circumstances under which the remaining five employees over 40 years old that left defendant’s employ between January and August 2005. We have “cautioned against attributing much if any significance to the fact that another member of the protected class was discharged along with the plaintiff.” Zimmermann, 251 F.3d at 382. Accordingly, the statistical evidence that plaintiff presents has little probative value. In an effort to show defendant’s reason was pretextual, plaintiff contends that defendant offered inconsistent explanations for the termination. See Carlton v. Mystic Tramp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (stating that inconsistent explanations for a termination decision may suggest discriminatory motive). Defendant wrote on plaintiffs Termination Report that the reason for termination was the concern that plaintiff would not perform effectively after his wife’s termination, but wrote in the Unemployment Notice that the termination was made due to “professional differences.” Even assuming, ar-guendo, that these explanations are inconsistent, our examination of the record as a whole leads us to conclude that plaintiff could not “satisfy his ‘ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.’ ” Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000) (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097). Plaintiff also contends that the evaluation of his work performance contained in his Termination Report was falsified, that the alleged falsification is apparent because he had received a positive performance evaluation of his work performance nine months earlier, and this alleged falsification undermines the Termination Report in its entirety. These allegations are irrelevant to our pretext inquiry, however, because defendant has not cited plaintiff’s job performance as a basis for termination. Plaintiffs attacks on the Termination Report, therefore, are not enough to enable plaintiff to carry his “ultimate burden” of providing “evidence upon which a reasonable trier of fact could base the conclusion that age was a determinative factor in defendants’ decision to fire him.” Id. at 91. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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https://www.courtlistener.com/api/rest/v3/opinions/8471027/

SUMMARY ORDER Defendant-Appellant Joseph Mermel-stein appeals from a June 11, 2008 judgment of the district court convicting him, upon his plea of guilty, of conspiring to make false records in relation to health care matters, in violation of 18 U.S.C. § 371, and sentencing him, principally, to a term of 60 months’ incarceration. Mer-melstein argues that the district court (1) erred in crediting the testimony of his coconspirator that he blackmailed her into engaging in sex; (2) failed to consider the required factors under 18 U.S.C. § 3553(a), rendering his sentence procedurally unreasonable; and (3) gave undue weight to his alleged sexual abuse of his coconspirator and insufficient consideration to his cardiac condition, with the result that his sentence is substantively unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. We review a sentence under an abuse-of-discretion standard, considering both procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). To determine whether a sentence is procedurally unreasonable, we consider “such factors as whether the district court properly ... considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006), abrogation on other grounds recognized by United States v. Cavera, 550 F.3d 180 (2d Cir.2008) (en banc). To assess substantive reasonableness, “we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a).” Id. We review the district court’s findings of fact for clear error. Id. Mermelstein argues that his coconspirator’s testimony was so inconsistent and implausible as to preclude the district court’s reliance on it even under the preponderance standard applicable to sentencing proceedings. See United States v. having, 554 F.3d 64, 72 (2d Cir.2009). We afford the trial court’s factfinding based on credibility determinations “[pjarticularly strong deference.” United States v. Gaines, 457 F.3d 238, 243 (2d Cir.2006); see also Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“[Wjhen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”). Applying this standard, we have considered Mermelstein’s arguments, and we find them — individually and as a whole — insufficient to manifest clear error. Mermelstein also argues that the district court committed procedural error by failing to consider the 18 U.S.C. § 3553(a) factors or explain the sentence adequately. Although Mermelstein concedes that the district court analyzed the *691Section 3553(a) factors at the May 23, 2008 hearing, he argues that the court was distracted by the issue of the coerced sexual “affair,” and failed to give those factors fair consideration prior to imposing sentence on June 3, 2008. While the district judge did not restate his analysis of the sentencing factors from the May 23 hearing at the June 3 hearing, he was not required to do so, and the record demonstrates that he did not disregard the “broad array of relevant information here when it comes to the appropriate sentence.” Mermelstein next argues that the sentence the district court imposed — -the maximum permitted by the relevant statute, and a significant departure from the Guidelines range — was substantively unreasonable because it was greater than neeessary to accomplish the goals of sentencing. See United, States v. Sindima, 488 F.3d 81, 84-88 (2d Cir.2007). The district court concluded that Mermelstein’s cardiac condition was “at some level ... a serious condition,” but it could be treated as effectively in prison as out of prison. This is a fair assessment of the medical opinions in the record, which do not support Mermelstein’s exaggerated claim that incarceration would increase his risk of sudden cardiac death to a degree significantly greater than it would for any other member of the general population. Finally, we detect no clear error in the district court’s finding that the sexual abuse and the fraud were integrally interwoven, because Mermelstein used the threat of disclosure of the “affair” to coerce his co-conspirator both into engaging in sex and perpetrating the fraud. Mermelstein’s conduct, which the district court accurately described as “beyond the pale,” “bear[s] the weight assigned to it under the totality of circumstances in the case.” Cavern, 550 F.3d at 191. We also note that Mermelstein’s offense involved an egregious fifteen-year fraudulent scheme that placed the health of patients at risk. We have considered Mermelstein’s remaining contentions on appeal and conclude that they are without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. The government’s remaining motions are denied as moot.

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471029/

SUMMARY ORDER Marianie Noze Jones, a native and citizen of Haiti, seeks review of an April 23, 2008 order of the BIA denying her motion to reopen. In re Marianie Noze Jones, No. A20 421 613 (B.I.A. Apr. 23, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case. Because Jones is removable by reason of having committed a criminal offense covered by 8 U.S.C. § 1182(a)(2) (relating to convictions of crimes of moral turpitude), we lack jurisdiction to review the agency’s factual findings and discretionary determinations. See 8 U.S.C. § 1252(a)(2)(C). Although we retain jurisdiction to review constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D), Jones’s challenge to the BIA’s determination that her motion to reopen was untimely filed and that she failed to establish eligibility for an exception to the timeliness requirement raises no such argument. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-30 (2d Cir.2006). Moreover, because the BIA’s untimeliness finding as to Jones’s motion to reopen is dispositive of her successive applications for asylum, withholding of removal, and CAT relief, this Court need not consider her arguments that she is a member of a particular social group or that she is entitled to protection under CAT. See Yuen Jin v. Mukasey, 538 F.3d 143, 153, 155-56 (2d Cir.2008) (holding that an applicant filing a successive application must show changed country conditions if the application is filed after the entry of a final order of removal and beyond the 90-day deadline for a motion to reopen). For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471031/

SUMMARY ORDER Petitioner De Sheng Zhu, a native and citizen of the People’s Republic of China, seeks review of the December 13, 2007 order of the BIA affirming the February 22, 2006 decision of Immigration Judge (“IJ”) Terry Bain denying his application for relief under the Convention Against Torture (“CAT”). In re De Sheng Zhu, No. A96 207 933 (B.I.A. Dec. 13, 2007), aff'g No. A96 207 933 (Immig. Ct. N.Y. City Feb. 22, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA affirms the IJ’s decision in some respects but not others, we review the IJ’s decision, minus those arguments for denying relief that were rejected by the BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). In addition, where the BIA does not adopt or defer to the IJ’s findings on credibility, we may not rest our holding on the IJ’s credibility findings. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, the BIA declined to reach the IJ’s finding that Zhu was not credible, but *694affirmed the IJ’s conclusion that Zhu failed to meet his burden of proving that it was more likely than not that he would be tortured if he returned to China. Thus, we review the IJ’s decision as supplemented and modified by the BIA, minus the IJ’s finding that Zhu was not credible. See Xue Hong Yang, 426 F.3d at 522; Yan Chen, 417 F.3d at 271. Zhu’s CAT claim was premised on his allegations that: 1) a “bully” induced Zhu’s father to sign a fraudulent contract; 2) Zhu filed a lawsuit against the bully; and 3) “gangsters” in league with the bully beat Zhu in retaliation for filing the lawsuit. We conclude that the BIA did not err in determining that Zhu failed to satisfy his burden of proving a nexus between the gangsters’ actions and the Chinese government. See 8 C.F.R. § 1208.18(a)(1). We cannot say that his testimony alone, even if credible, compels the conclusion that upon returning to China he would more likely than not be tortured “by or at the instigation of or with the consent and acquiescence of a public official or other person acting in an official capacity.” See 8 U.S.C. § 1252(b)(4)(B) (“[Ajdministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.”) 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).

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471038/

SUMMARY ORDER Julian Yesid Rodriguez Martinez and his wife Deana Cortez Bernal petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming a final order of removal entered by Immigration Judge (“IJ”) Michael W. Straus. Petitioners entered the United States in 2000 and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) in 2002. The IJ preter-mitted their asylum claim as untimely, and denied their withholding and CAT claims on the merits. The BIA adopted and affirmed the IJ’s opinion. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 1. Asylum. We lack jurisdiction to review the agency’s determination that the petitioners’ application was untimely and that extraordinary circumstances are lacking to justify the delay. 8 U.S.C. § 1158(a)(2-3). And while we retain jurisdiction to review constitutional claims and questions of law, such questions are not implicated if (as here) “the petition for review essentially disputes the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion.” Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-32 (2d Cir. 2006). 2. CAT Relief. The petition for review does not challenge the agency’s determina*702tion that petitioners are not entitled to CAT relief. Any such argument is waived. Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005). 3. Withholding. We review denial of a claim for withholding of removal for substantial evidence with regard to the agency’s factual findings and de novo with regard to questions of law and the application of law to undisputed fact, see Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008); see also 8 U.S.C. § 1252(b)(4)(B). An applicant for withholding of removal must show that it is more likely than not that his or her life or freedom would be threatened in the country of removal on account of his or her race, religion, nationality, membership in a particular social group, or political opinion. 8 C.F.R. § 1208.16(b). A showing of past persecution gives rise to a rebuttable presumption that the applicant’s life or freedom would be threatened in the future. 8 C.F.R § 1208.16(b)(1). Petitioners alleged persecution in the past on account of their membership in a social group defined as landowners. We need not decide whether landowners constitute a cognizable social group under Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir.2007), and the BIA’s decision in Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A.2007), because the IJ found that petitioners did not own land themselves. A reasonable adjudicator would not be compelled to conclude to the contrary, and the agency’s finding is therefore supported by substantial evidence. 8 U.S.C. § 1252(b)(4)(B). The petition for review must therefore be denied with regard to petitioners’ withholding of removal claim. For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot.

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471043/

SUMMARY ORDER Petitioner Wen Ting Liu, a native and citizen of the People’s Republic of China, seeks review of the January 15, 2008 order of the BIA affirming the May 5, 2006 decision of Immigration Judge (“IJ”) Annette S. Elstein, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Wen Ting Liu, No. A97 331 644 (B.I.A. Jan. 15, 2008), aff'g No. A97 331 644 (Immig. Ct. N.Y. City May 5, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Where, as here, the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect the Court’s ultimate conclusion. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). 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 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). As to the Petitioner’s asylum and withholding of removal claims, we find that the agency’s adverse credibility determination was supported by substantial evidence. As the agency observed, the Petitioner stated in her airport and credible fear interviews that she was an investigator in the family planning office and, as such, was responsible for monitoring marriages and pregnancies. In her asylum application and her testimony before the IJ, however, Liu claimed that she actually worked as a cleaner in the family planning office. We find no support for the Petitioner’s argument that the records of her airport and credible fear interviews were unreliable, because: (1) the records appear to provide verbatim accounts of the interviews; (2) the questions posed to the Petitioner were designed to elicit the details of her asylum claim; (3) the Petitioner did not appear reluctant to reveal information to the interviewing officers; and (4) Petitioner’s answers did not suggest that she did not understand the translations provided by the interpreter. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir. 2004). Moreover, because Petitioner’s testimony was not otherwise credible, it was not *707improper for the IJ to rely on the absence of evidence corroborating the central aspects of her claim — her employment, her two hospital visits, the confiscation of her parents’ home, and her release on bail. 8 U.S.C. § 1158(b)(l)(B)(ii); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). .Although the Petitioner offered explanations for the lack of such corroborative evidence, a reasonable fact-finder would not have been compelled to accept them. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005). Accordingly, the agency’s denial of Liu’s application for asylum was not improper. Likewise, to the extent that Liu challenges the agency’s denial of her application for withholding of removal, that challenge also fails because the only evidence that the Petitioner would be persecuted depended on her credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Finally, because the Petitioner failed to raise before this Court any challenge to the agency’s denial of her CAT claim, we deem any such argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (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.

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11-05-2022

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SUMMARY ORDER Petitioner Han He, a native and citizen of the People’s Republic of China, seeks review of a February 11, 2008 order of the BIA affirming the June 9, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Han He, No. A 78 867 731 (B.I.A. Feb. 11, 2008), aff'g No. A 78 867 731 (Immig. Ct. N.Y. City June 9, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.1 “When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so, we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (citations, internal quotation marks, and alteration omitted). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, which requires that we treat them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir .2008). We conclude that the agency’s adverse credibility determination was supported by substantial evidence. Fúst, the IJ properly found that while He testified that his mother had been “taken away” by the family planning authorities in December 1995, his asylum application asserted only that his mother had been threatened with arrest. This was a significant discrepancy, as He’s mother’s arrest was purportedly the reason why He and his wife emerged from hiding and why He’s wife was eventually sterilized. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (noting that an IJ’s reasons for rejecting an applicant’s testimony must “bear a legitimate nexus to the finding”), abrogated by Real ID Act, 8 U.S.C. § 1158(b)(l)(B)(iii).2 The IJ also properly found that while He testified that he was accosted by family planning officials when he went to the hospital, he did not include this incident in his asylum application. To explain this omission, He asserted that he was unaware that he was required to provide *709such details in his asylum application. However, although we have found that asylum applicants are not required to list every incident of persecution on their application statements where such statements are written in general terms, see Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), we have no such concern here, as He’s statement includes more minor details about his claim while omitting the significant “detail” identified by the IJ. Thus, the IJ was not required to credit He’s explanation in this case. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Additionally, the IJ found He’s demean- or suspect, observing that “[wjhenever asked to provide details, the respondent merely reverted back to his earlier statements as though he was attempting to stay within a prescribed script, rather than testify about traumatic and life[-]altering experiences.” We accord particular deference to such assessments of an applicant’s demeanor. See id. at 81 n. 1. Having called He’s testimony into question, the IJ turned to He’s documentary submissions but “gave no weight” to them, noting that He failed “to establish a credible chain of custody.” This finding was proper, as the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the IJ’s discretion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). While the IJ’s decision is not without error,3 remand would be futile in this case, because we can confidently predict that the IJ would reach the same conclusion absent the erroneous finding. See id. at 338-39. The BIA properly found that the discrepancies the IJ identified go to the heart of He’s claim. See Secaida-Rosales, 331 F.3d at 307. Moreover, the IJ was entitled to rely on the cumulative effect of these discrepancies, together with his demeanor finding, to support his adverse credibility determination. See Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 107 (2d Cir.2006). Because He has presented no arguments that would compel a reasonable factfinder to conclude otherwise, we cannot find that the IJ erred in finding that He was not credible. See 8 U.S.C. § 1252(b)(4)(B).4 Because the only evidence of a threat to He’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief, for all three claims were based on the same factual predicate. See Paid 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, 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). . We deem He's Falun Gong claim abandoned, as he fails to raise that claim in his brief to this Court. See, e.g., Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005). . Because He's application was submitted before May 11, 2005, the Real ID Act does not apply to it. . We find insufficient support in the record for the IJ’s finding that He's testimony was inconsistent with the household registers that he submitted. As He argues, he consistently testified that in December 1995, he was living at his father's home, and that he and his wife were part of his father’s household registration until 1998. We do not find that testimony inconsistent with the evidence he submitted. Accordingly, the IJ's finding was flawed in this respect. . Because the adverse credibility determination is dispositive of He’s petition, we do not consider his argument that he demonstrated "other resistance” to the coercive population control program.

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471047/

SUMMARY ORDER Petitioner Liders Porras, a native and citizen of Bolivia, petitions for review of a March 24, 2008, BIA decision, No. A74-911-641, denying Porras’s motion to remand, and affirming the decision of an IJ dated September 26, 2006, denying his application for cancellation of removal under section 241(b)(1) of the Immigration and Nationality Act, (“INA”) 8 U.S.C. § 1229b(b)(l) and his request for a continuance in order to pursue adjustment of his status under section 245 of the INA, 8 U.S.C. § 1255. We assume the parties’ familiarity with the facts and procedural history of this case, and the issues presented by this petition. We have held that “[obtaining either adjustment of status or cancellation of removal is a two-step process. First, an alien must prove eligibility showing that he meets the statutory eligibility requirements. Second, assuming an alien satisfies the statutory requirements, the Attorney General in his discretion decides whether to grant or deny relief.” Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006) (per curiam) (citations omitted). We have no jurisdiction to review an IJ’s discretionary determination regarding either cancellation of removal or adjustment of status. See 8 U.S.C. § 1252(a)(2)(B); see also Rodriguez, 451 F.3d at 62; Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005). In order to demonstrate eligibility for cancellation of removal, an alien must show, inter alia, that his “removal would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States....” 8 U.S.C. § 1229b(b)(l)(D). We have held that the determination of whether exceptional and extremely unusual hardship is present for the purpose of cancellation of removal is committed to the discretion of the Attorney General, and that, accordingly, we have no jurisdiction to review such a determination. Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-40 (2d Cir.2008); see also De La Vega v. Gonzales, 436 F.3d 141, 144 (2d Cir.2006). The IJ denied Porras’s application for cancellation of removal because he determined that Porras’s United States-citizen children would not suffer the requisite exceptional and extremely unusual hardship to grant him cancellation of removal. Because this is a discretionary decision, we have no jurisdiction to review it. See Bar-co-Sandoval, 516 F.3d at 38-40. Even if we viewed Porras’s petition as presenting a question of law, we would still lack jurisdiction as Porras’s contention is frivolous. See id. at 40. Porras argues that the IJ applied an incorrect legal standard by relying on the BIA’s analysis in In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), which he argues has been replaced with a less stringent standard in In re Gonzalez Recinas, 23 I. & N. Dee. 467 (BIA 2002). But the IJ’s finding was consistent with both Reciñas and Monreal in finding that Porras has failed to show adequate hardship. See Barco-Sandoval, 516 F.3d at 40-41 (rejecting as “not even reaching] the level of being colorable” the assertion that Gonzalez Reciñas constituted a departure from, rather than an application of, Monreal-Aguinaga). The IJ also denied Porras’s motion for a continuance in order to apply for adjustment of status. The IJ stated that he would deny the application for adjustment of status, inter alia, in the exercise of his discretion, apparently based on views the IJ had about the potentially fraudulent nature of Porras’s first marriage. He therefore denied the motion for *712a continuance. We have found “no basis for obligating the agency to grant continuances pending adjudication of an immigrant visa petition when there is a reliable basis to conclude that the visa petition or the adjustment of status will ultimately be denied.” Pedreros v. Keisler, 503 F.3d 162, 166 (2d Cir.2007). Because the IJ would have denied the application for adjustment of status even if the continuance had been granted, the BIA did not err in upholding the IJ’s denial of the motion for a continuance. Similarly, the BIA was not required to grant the motion to remand to the IJ based on Porras’s attaining a viable visa priority date in support of his application for adjustment of status. The IJ made it clear that he would have denied the application for adjustment of status on the basis of his discretion in any event. Porras argues that the IJ erred by finding — without the full record needed to make a proper determination' — that Porras engaged in marriage fraud. But the IJ did not err in relying on his understandable doubts about the nature of Porras’s first marriage in deciding that he would not exercise his discretion to grant Por-ras’s adjustment of status. Because the denial of cancellation of removal was based on a finding that there was no exceptional or extremely unusual hardship, we have no jurisdiction to review this finding, and dismiss the petition, in relevant part. Because the denial of the motion for a continuance was based on the IJ’s determination that if the continuance were granted, the application for adjustment of status would be denied in the exercise of discretion, we deny the petition for review, in relevant part. Similarly, because the BIA did not err in declining to grant a motion to remand the case to the IJ to determine adjustment of status, because the IJ would have denied the application, we deny the petition, in relevant part. For the foregoing reasons, the petition for review of the order of the BIA is hereby DISMISSED in part, and DENIED in part. Having completed our review, the petitioner’s pending motion for a stay of removal is DISMISSED as moot.

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SUMMARY ORDER Plaintiff Sharon Green appeals from a judgment of the district court (Crotty, J.) entered January 18, 2008. Green alleges that she was employed by defendant New York City Health and Hospitals Corporation (“HHC”) from 1989 to 1997. On June 29, 2004, Green filed suit against HHC, alleging discrimination on the basis of disability, gender, and pregnancy. The lawsuit was defended by the New York City Law Department, Office of Corporation Counsel. On August 10, 2005, Green filed a motion for recusal on the basis that Judge Crotty had previously served as New York City Corporation Counsel from 1994-1997. It is from the denial of this motion that Green appeals. We review a district judge’s denial of a recusal motion for abuse of discretion. United States v. Thompson, 76 F.3d 442, 451 (2d Cir.1996). Pursuant to 28 U.S.C. § 455(a), a federal judge is required to recuse himself “in any proceeding in which his impartiality might reasonably be questioned.”2 The purpose of § 455(a) “is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). The ultimate question under § 455(a) is whether “a reasonable person, knowing all the facts, [would] conclude that the trial *714judge’s impartiality could reasonably be questioned.” United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992). In this case a reasonable person could not conclude that Judge Crotty’s impartiality could reasonably be questioned merely because plaintiffs lawsuit was defended by the Office of Corporation Counsel, and Judge Crotty served as Corporation Counsel seven years before the case was filed. Therefore, the judgment of the district court is AFFIRMED. . Under 28 U.S.C. § 455(b)(3), recusal is required where a federal judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.’’ Green does not rely on this provision on appeal, and for good reason. Judge Crotty served as Corporation Counsel until 1997, seven years before Green filed her complaint. There is no suggestion that Judge Crotty participated in defending Green's case. Therefore, § 455(b)(3) does not apply. C.f Thompson, 76 F.3d at 450 (“A judge who has served as United States Attorney is not considered ‘counsel’ with respect to a criminal case if the investigation that led to the indictment began after he left the office of United States Attorney.”)

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SUMMARY ORDER We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. Rodriguez-Nieves brings six challenges in this appeal. He argues that the district court erred by: (1) Failing to conduct an evidentiary hearing on his motion to suppress; (2) Concluding that his arrest was based on probable cause; (3) Failing to suppress (as fruit of the poisonous tree) evidence seized following the unlawful arrest; (4) Violating the ban on double jeopardy; (5) Finding the evidence sufficient as to Count Four; and *716(6) Denying him due process by allowing the government to introduce evidence of narcotics violations not mentioned in the indictment in support of the continuing criminal enterprise charge. [1] Rodriguez-Nieves argues that, without a suppression hearing, he was unable to test the “reliability, accuracy and staleness” of the affidavit information which formed the basis of his arrest. The Court reviews a denial of a request for a suppression hearing for abuse of discretion. See United States v. Levy, 377 F.3d 259, 264 (2d Cir.2004). An evidentia-ry hearing on a motion to suppress is ordinarily required “if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992) (internal quotation marks omitted). The district court’s ruling was well within its discretion. Rodriguez-Nieves never clearly asked for such a hearing and argued instead that suppression was warranted because the uncontested facts in the relevant affidavit did not support probable cause to justify a warrantless arrest (a legal question, not a factual one). And Rodriguez-Nieves never submitted a sworn affidavit contesting any facts in the government’s affidavit. [2] Rodriguez-Nieves argues that his arrest was effected without probable cause. We review the district court’s determination of probable cause de novo, but we must “take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts” by the district judge and law enforcement officers. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause exists “if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested.” United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990). We review the totality of the circumstances. United States v. Delossantos, 536 F.3d 155, 161 (2d Cir.2008). In that review, “[t]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause.” United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985). In this case, the district court concluded (as follows) that, on the basis of the totality of the circumstances, the police had probable cause to arrest Rodriguez-Nieves: We have the identification of Mr. Rodriguez as responsible for distributing great quantities of drugs picked up in Queens and delivered to various locations around the Bronx from several sources. We know that there were undercover purchases from members of Mr. Rodriguez’s group in the Bronx. We know that there were undercover law enforcement buys. The officer saw Mr. Rodriguez driving toward Queens; saw him later in the Bronx with an individual who came out of the building with an object in his hands, got into the ear, and as the officers approached they observed Mr. Rodriguez attempting to discard his cell phone. We agree that these facts were sufficient to establish probable cause. Rodriguez-Nieves argues that, notwithstanding those circumstances, the officers observed nothing but innocent conduct at the time of his arrest. But probable cause for arrest was established in the course of *717the officers’ prior investigatory work. “Good police practice often requires postponing an arrest, even after probable cause has been established....” United States v. Watson, 428 U.S. 411, 481, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (Powell, J., concurring); see also Fama, 758 F.2d at 838 (“Although the search warrant was issued thirty-five days after the ... incident, it was sought at the culmination of a major investigation into ongoing, long-term criminal activity. Such a time lag under these circumstances will generally not affect probable cause.”). [3] Rodriguez-Nieves argues that evidence seized from his person and vehicle at the time of his arrest, along with evidence obtained from search warrants derived from the fruits of that arrest and search, must be suppressed under the exclusionary rule because the arrest was not supported by probable cause. Because the arrest and search were supported by probable cause, there was no unconstitutional police conduct and the exclusionary rule does not apply. [4] Rodriguez-Nieves argues that pursuant to the Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), he cannot properly be convicted of being the principal administrator of both a continuing criminal enterprise under § 848 (Count Three) and of the lesser included offenses: (i) conspiracy to distribute narcotics under § 846 (Count One), and (ii) basic administration of the same continuing criminal enterprise under § 848 (Count Two). In Rutledge, 517 U.S. at 294, 116 S.Ct. 1241, the Supreme Court considered whether a defendant had been properly convicted of both participating in a conspiracy to distribute controlled substances (21 U.S.C. § 846) and of conducting a continuing criminal enterprise (21 U.S.C. § 848), notwithstanding that both counts were based on the same agreement and organization. Id. at 294, 116 S.Ct. 1241. The Supreme Court held that “[a] guilty verdict on [the] § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846; conspiracy is therefore a lesser included offense of [continuing criminal enterprise] ... [and] we adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, one of petitioner’s convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense and must be vacated.” Id. at 307, 116 S.Ct. 1241 (internal quotation marks and brackets omitted). Here, the government concedes that it should have moved to dismiss the lesser included offenses of Counts One and Two at Rodriguez-Nieves’s sentencing proceeding and requests that the Court dismiss Counts One and Two of the indictment and reduce the mandatory special assessment to $200. We agree that Rodriguez-Nieves’s judgment and conviction must be amended in light of Rutledge, and we remand to the district court with instructions to vacate and amend the judgment accordingly. [5] Rodriguez-Nieves challenges the sufficiency of the evidence with respect to his conviction under Count Four for distribution and possession with intent to distribute one or more kilograms of heroin stored in January 2005 at apartment 512, 81-10 135th Street, Queens, New York, in violation of § 841(b)(1)(A). “We review de novo a challenge to the sufficiency of the evidence and affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt.” United States v. Yannotti, 541 F.3d 112, 120 (2d Cir.2008) (internal quotation marks omit*718ted). A defendant challenging the sufficiency of the evidence “bears a heavy burden.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003) (internal quotation marks omitted). In evaluating a sufficiency of the evidence claim, the court must view “all of the evidence in the light most favorable to the government,” United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir.2002), must “resolve all issues of credibility in favor of the jury’s verdict,” United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002) (internal quotation marks omitted), and must “credit[] every inference that the jury might have drawn in favor of the government,” United States v. Morrison, 153 F.3d 34, 49 (2d Cir.1998) (internal quotation marks omitted). But the court will not disturb a conviction unless no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Bruno, 383 F.3d 65, 82 (2d Cir.2004) (internal quotation marks omitted). Here, the government’s evidence included the testimony of cooperating witnesses, physical evidence seized by law enforcement, and Rodriguez-Nieves’s own recorded conversations. Viewing the evidence “in the light most favorable to the government,” Aleskerova, 300 F.3d at 292, and “crediting every inference that the jury might have drawn in favor of the government,” Morrison, 153 F.3d at 49 (internal quotation marks omitted), the jury was free to conclude that Rodriguez-Nieves operated part of his drug ring from the location in question, that police seized over six kilograms of heroin from that location in January 2005, and that Rodriguez-Nieves received and distributed several kilograms of heroin that same month. There was ample evidence in the record to support the jury’s verdict on Count Four. [6] Rodriguez-Nieves argues that the district judge erred when she instructed the jury that the law did not require the government to specify the predicate acts of the continuing criminal enterprise charge in the indictment. Rodriguez-Nieves did not object to the jury charge, so the charge is reviewed for plain error. See United States v. Weintraub, 273 F.3d 139, 145 (2d Cir.2001). “We will reverse only if there has been (1) error, (2) that is plain, (3) that affects substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks and alterations omitted). Given the overwhelming evidence, including physical evidence, cooperator testimony, and wiretap recordings featuring Rodriguez-Nieves, we cannot conclude that the defendant’s substantial rights were affected. We reject the challenge to the jury instruction. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part (insofar as it relates to the defendant’s conviction pursuant to 21 U.S.C. § 848(a), 848(b), and 848(c) (Count 3) and 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) (Count 4)), VACATED in part (insofar as it relates to the defendant’s conviction pursuant to 21 U.S.C. § 846 (Count 1) and 21 U.S.C. § 841(a) and 841(c) (Count 2)), and REMANDED for entry of an amended judgment consistent with this summary order.

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SUMMARY ORDER Plaintiff-Appellant David Valentine appeals from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.) imposing a sentence of ten months’ imprisonment for a violation of the terms of supervised release. Valentine’s term of imprisonment has concluded: he was released from custody on December 12, 2006. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. “Article III, Section 2 of the United States Constitution limits the subject matter jurisdiction of the federal courts to those cases that present a ‘case or controversy.’ ” United States v. Probber, 170 F.3d 345, 347 (2d Cir.1999) (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, *724140 L.Ed.2d 43 (1998)). We lack jurisdiction unless Valentine has “ ‘suffered, or be[en] threatened with, an actual injury-traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Id. at 348 (quoting Spencer, 523 U.S. at 7,118 S.Ct. 978). “[A]n individual challenging the revocation of his parole — and whose term of re-incarceration has expired — bears the burden of demonstrating that some concrete and continuing injury continues to flow from the fact of the revocation.” Id. at 348. Jurisdiction will not lie where the alleged “injur[y is] too speculative to satisfy the case-or-controversy requirement of Article III.” Id. at 349; see also United States v. Blackburn, 461 F.3d 259, 262 (2d Cir.2006) (dismissing appeal where appellant had completed term of imprisonment and potential benefit of resentencing was too speculative to confer jurisdiction). At Valentine’s sentencing, the trial court treated Attempted Larceny in the Fourth Degree (in violation of New York Penal Law § 155.30) as a felony punishable by a term of imprisonment of more than one year. This was error; the crime was in fact a misdemeanor. Because of this error — which Valentine’s counsel failed to point out — the district court calculated a guidelines range of 21 to 27 months, as opposed to the correct range of 8 to 14 months. But the district court departed downward significantly from the probation department’s recommend sentence of 24 months, and imposed a sentence within the correct guidelines range. Valentine argues that he continues to suffer collateral consequences from the erroneous guidelines calculation, because absent a judgment from this Court holding that his sentence was invalid, he is unable to pursue a civil remedy for false imprisonment. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (“[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a ... plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”). Valentine assumes that with a favorable decision from this Court, he could [i] obtain a lower sentence from the district court, and [ii] file suit (against unnamed actors under an unspecified cause of action) for “false imprisonment” resulting from the district court’s error. These assumptions are too speculative to satisfy Article Ill’s case-or-controversy requirement. As to obtaining a lower sentence, the record shows a careful determination by the district court, based on extensive fact-finding. It is doubtful that the district court would impose a lesser sentence even if presented with a lower guidelines range. More importantly, the error at sentencing was the result of an innocent misunderstanding shared by all parties involved in the proceeding, including Valentine and his attorney. Valentine argues that this misunderstanding could fuel a lawsuit; but the district court, prosecutors, and probation officers are all entitled to absolute immunity for their actions at Valentine’s sentencing. See Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir.1996) (“[P]rosecutor[ ]s [enjoy] absolute immunity from claims for damages arising out of prosecutorial duties that are ‘intimately associated with the judicial phase of the criminal process.’ ”); Hili v. Sciarotta, 140 F.3d 210, 213 (2d Cir.1998) (“Judges performing judicial functions within their jurisdictions are granted absolute immunity.”); Dorman v. Higgins, 821 F.2d 133, 136-37 (2d Cir. *7251987) (holding that “federal probation officers preparing and furnishing presentence reports to the court” are entitled to absolute immunity). In light of the immunity bar (and for other reasons), Valentine cannot show “ ‘an actual injury ... likely to be redressed by a favorable ... decision.’ ” Probber, 170 F.3d at 348 (quoting Spencer, 523 U.S. at 7, 118 S.Ct. 978). Valentine’s sentence having expired, his appeal must be dismissed as moot. We have considered Valentine’s remaining arguments and find them to be without merit. For the foregoing reasons, the case is dismissed as moot.

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SUMMARY ORDER Sukhdev Singh Gill, a native and citizen of India, seeks review of a December 4, 2008, order of the BIA denying his motion to reopen proceedings. In re Sukhdev Singh Gill, No. A073 628 066 (B.I.A. Dec. 4, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). We conclude that the agency did not abuse its discretion in denying Gill’s motion to reopen. The Immigration and Nationality Act (“INA”) and its implementing *726regulations provide that an individual may-only file one motion to reopen, and must do so within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). These limitations, however, do not apply when the motion to reopen is filed in order to apply for asylum or withholding of removal based on changed circumstances arising in his country of nationality, if the evidence submitted is material and was unavailable and undiscoverable at the time of his hearing before the IJ. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(e)(3)(ii). Here, Gill’s second motion to reopen was untimely, as it was filed with the immigration court more than eight years after the BIA issued his final order of removal. In his brief to this Court, Gill does not sufficiently address the BIA’s conclusion that he failed to provide sufficient evidence that the recent harm he alleged was on account of a protected ground. See I.N.S. v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (finding that a mov-ant’s failure to establish a prima facie case for asylum is a proper basis to deny a motion to reopen). He claims that the death of his father in June 2006 and the police’s violent actions against his family in March 2008 constituted changed circumstances in India. However, Gill submitted no evidence indicating that the police’s alleged beating of his father was related in any way to Gill or his political activities. As for his claim that the police raided his family’s home in June 2008, the affidavits he submitted do not indicate the reasons for the police’s actions. While the affidavits state that the police demanded his return and surrender, they indicate neither the reasons they sought Gill, nor the treatment that he faces upon his return. Without more, Gill cannot demonstrate that he has a well-founded fear of persecution, as he is unable to demonstrate that the Punjabi authorities have a continuing interest in him for his political activities, or for any other reason that is protected under the INA. See Abudu, 485 U.S. at 104, 108 S.Ct. 904; 8 U.S.C. § 1101(a)(42). Accordingly, we cannot conclude that the BIA abused its discretion in finding that he “has not provided sufficient evidence that the alleged harm suffered by family members was on account of a protected ground.” See Abudu, 485 U.S. at 104, 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).

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SUMMARY ORDER Petitioner Anura Rathnasiri Yagama, an ethnic Sinhala and native and citizen of Sri Lanka, seeks review of an October 27, 2008 order of the BIA affirming the April 10, 2007 decision of Immigration Judge (“IJ”) Brigitte LaForest denying his applications for asylum and withholding of removal. In re Anura Rathnasiri Yagama, No. A94 824 932 (B.I.A. Oct. 27, 2008), aff'g No. A94 824 932 (Immig. Ct. N.Y. City Apr. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA adopts the decision of the IJ and supplements 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 under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland See., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99,110 (2d Cir.2008). We conclude that the agency did not err in finding that Yagama failed to establish that any past harm he suffered bore a nexus to a protected ground. 8 U.S.C. § 1101(a)(42). As amended by the REAL ID Act, Title 8, Section 1158(b)(l)(B)(i) of the U.S.Code provides that an asylum “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” Here, the agency reasonably determined that Yagama failed to establish he was persecuted on account of his political opinion, or that he was a member of a particular social group. First, Yagama argues that the agency erred by failing to conclude that his interrogation by Sri Lankan police was motivated by their mistaken impression that he supported the Liberation Tigers of Tamil Eelam (“LTTE”). Although we have recognized that an imputed political opinion can constitute a protected ground, see Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d Cir.2007) (citing Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir.2005)), the agency reasonably found that, contrary to Yagama’s arguments, his mistreatment by police arose not from their belief that he was an LTTE supporter, but rather because they erroneously believed he was involved in drug smuggling. Moreover, Yagama’s mistreatment, though deplorable, comported with documented reports of abuse and torture by the Sri Lankan police of persons suspected of drug smuggling, and, as the agency concluded, it bore no nexus to his political beliefs. See INS v. Elias-Zacarias, 502 U.S. 478, 482, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (applicant must show persecutor’s motive to persecute arises from applicant’s political belief). Second, Yagama asserts that the agency erred in finding that his mistreatment by the LTTE was not on account of his political opinion. However, that Yagama assisted the police in the arrest of LTTE members — and that the LTTE targeted him in response — did not constitute conduct evi*729dencing Yagama’s political beliefs. See Matter of Fuentes, 19 I. & N. Dec. 658, 661 (BIA 1988) (“Dangers faced by policeman as a result of that status alone are not ones faced on account of [a protected ground].”). Rather, as the agency reasonably concluded, Yagama’s responsibilities as a policeman obligated him to perform this exact activity, and, regardless of his moral opposition to drug smuggling, the record makes clear that the LTTE’s motivation in threatening him was to prevent him from continuing to act as an informant. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005)(observing that the persecutor’s motive to persecute must arise from the applicant’s political belief); see also Estrada-Escobar v. Ashcroft, 376 F.3d 1042, 1047 (10th Cir.2004)(former police major who provided security to judges sitting on terrorist cases failed to show that terrorists threatened him because of an imputed political opinion rather than his status as a police officer). Third, Yagama argues that the agency erred by rejecting his claim of membership in a particular social group consisting of “people connected with the drug trade and whose cases are difficult to prove.” The BIA has long interpreted the term “particular social group” to mean “a group of persons all of whom share a common immutable characteristics”; something members “either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985); see Koudriachova, 490 F.3d at 262 (declaring Acosta definition reasonable). Moreover, the BIA has stressed that a social group should be both socially visible and sufficiently particular. See In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (BIA 2007). Here, the agency reasonably concluded that the social group Yagama identified failed to meet either of these requirements. Contrary to Yagama’s arguments, there was no evidence that the underground police or Sri Lankan society recognized him or others as comprising a discrete group, nor was there anything particular about them, as a group, dictating their inclusion on a “hit list” prepared by the underground police. Rather, that list simply contained the names of persons who, because of their individual and distinct actions, the police had targeted for persecution. Accordingly, because Yagama was unable to establish eligibility for asylum, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). We have considered all of Yagama’s remaining claims and found them to be without merit. 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).

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https://www.courtlistener.com/api/rest/v3/opinions/8471062/

SUMMARY ORDER Petitioner Long Chun You, a native and citizen of the People’s Republic of China, seeks review of a November 29, 2007 order of the BIA denying his motion to reopen his deportation proceedings. In re Long Chun You, No. A029 785 944 (B.I.A. Nov. 29, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the agency’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). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or eonclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir .2001)). You’s motion to reopen, which was filed more than five years after his 2001 final order of deportation, was properly denied as untimely. See 8 C.F.R. § 1003.2(c)(2). In some circumstances the time limitation may be equitably tolled to accommodate claims of ineffective assistance of counsel, provided that the movant has substantially *734complied with the requirements set forth in Matter of Lozada and exercised “due diligence.” See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). You argues that he was only required to demonstrate that his diligence between the time that he discovered his former counsel’s ineffective assistance and the filing of his motion. However, as we held in Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008), “an alien must demonstrate that he or she has exercised due diligence during the entire period he or she seeks to toll,” which “includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed.” You has failed to demonstrate what steps he took between his deportation order in 2001 and “late 2006 and early 2007,” when he filed his FOIA request. Accordingly, the BIA did not abuse its discretion in finding that You failed to exercise due diligence in pursuing his case. 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/8471066/

SUMMARY ORDER Defendant AWB (USA) Ltd. appeals from the judgment of the United States District Court for the Southern District of New York (Hellerstein, J.) in favor of Plaintiff Standard Chartered Bank in the amount of $23,859,775.70, plus additional prejudgment interest, and costs. The court imposed liability based on its finding that the defendant “breached its duty of cooperation and caused Standard Chartered to be deprived of its reasonable expectation to enjoy both the CCC guarantee for 65 percent of the price and ANZ Bank’s 35 percent guarantee of the balance.” Standard Chartered Bank v. AWB (USA) Ltd., 05 Civ.2013(AKH), 2008 WL 144698, at *12, 2008 U.S. Dist. Lexis 2875, *35 (S.D.N.Y. Jan. 14, 2008). We find ourselves unable to review the correctness of the district court’s judgment because its opinion fails to furnish explanatory information and findings we think are essential to appellate review. In accordance with the procedures set forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994), we therefore remand for reconsideration and clarification. The issues we request the district court to address are as follows: (1) What exactly are the actions or omissions of the defendant and/or its Geneva affiliate which form the basis of the court’s finding of breach of contractual obligations to Standard Chartered? If the court finds that the defendant or its affiliate misrepresented, concealed, or withheld information, exactly what was the information misrepresented concealed, or withheld? Specify, if possible, what exactly were the communications that misrepresented, concealed, or withheld the information. (2) Was the information misrepresented, concealed, or withheld factual information about details of the transaction and the guarantee or information about rules of law, such as the legal rules governing the CCC’s right of recoupment of its guarantee payments? If the information misrepresented, concealed or withheld was of the governing rules of law, do a contracting party’s obligations of good faith and fair dealing under the circumstances of this case include an *738obligation to advise one’s counter-party about the relevant rules of law, or to correct the counterparty’s mistaken beliefs about the rules of law, of which the contracting party is aware? (3) Was the defendant or its affiliate aware that Standard Chartered had a mistaken belief about the facts of, or the rules governing, the transaction? How did it become aware of Standard Chartered’s mistaken beliefs? (4) Would the furnishing of that additional information, which the court finds was wrongfully misrepresented, concealed or withheld, have altered Standard Chartered’s decision to enter into the contract? (5) What findings, if any, does the district court make regarding the testimony of Mr. Rihs and of Mr. Brotherton, and any inconsistencies between them, about the information communicated to Standard Chartered during the contract negotiations, especially with regard to Standard Chartered’s knowledge of AWB (Geneva)’s receipt of collateral from the importers? See, e.g., J.A. 470-76, 516-18 (Rihs testimony); J.A. 577-79, 652 (Brotherton testimony). (6) If the contract negotiations were exclusively between Standard Chartered and the defendant’s Geneva affiliate, without participation by the defendant, clarify the basis for imposing liability on the defendant. By seeking these further explanations and findings, this court implies nothing one way or the other as to the correctness of the judgment entered by the district court. The district court should feel free to confer with counsel in deciding how to respond, and to engage in any additional fact finding or taking of evidence which it deems helpful in answering the questions. The district court is free upon reconsideration either to adhere to its previous judgment, furnishing the additional explanations and findings requested above (together with any further discussion the court finds helpful), or to change its ruling. If the court adheres to its prior ruling, it would be helpful in this complex case for the court to produce a complete revised opinion setting forth its Findings and Conclusions incorporating the additional matter, rather than a supplemental document to be read in conjunction with the previous opinion, which might cause confusion. This court would welcome an answer within ninety days of this order. If, however, the district court requires additional time, it should feel free to take additional time, notifying this court of its decision to do so. In the event the district court adheres to its prior judgment, and the defendant wishes to restore its appeal to this court’s active calendar, the defendant must so advise the Clerk of this court in writing, within 60 days of the entry of the district court’s revised ruling. The parties should consult with the clerk as to whether new briefs will be filed, or whether the previously filed briefs will be supplemented by new letter briefs, together with a new appendix containing at least the district court’s revised Findings and Conclusions and any new appropriate material not contained in the Joint Appendix. In the event the district court amends its judgment, and either party wishes to take appeal from the amended judgment, the appealing party must file a new notice of appeal from the amended judgment and proceed as it would in a new appeal. The two volumes of Joint Appendices already filed will continue to serve in the new appeal, but should be supplemented by an *739additional appendix including the district court’s new judgment and Findings and Conclusions, plus any additional appropriate material. Regardless of whether a new appeal is filed from a new judgment or this appeal from the existing judgment is restored to this court’s active calendar, the appeal will be referred to this panel. The party initiating the restored or new proceedings in the Court of Appeals is directed to advise the Clerk in writing of this order that the appeal be referred to this panel. For the reasons set forth above, the matter is remanded to the district court for further proceedings consistent with this order.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8475602/

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is *425ORDERED and ADJUDGED that the judgment of the District Court be affirmed. Defendants were convicted of conspiracy to possess with intent to distribute heroin. In 2004, both defendants received sentences of life imprisonment. In United States v. Henry, 472 F.3d 910 (D.C.Cir. 2007), this Court vacated those sentences and remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On remand, the District Court resentenced both defendants to life imprisonment. During resentencing, the District Court painstakingly complied with the procedural requirements of Booker. See United States v. Gardellini, 545 F.3d 1089, 1092 n. 2 (D.C.Cir.2008). Defendants claim, however, that the life sentences the District Court imposed were substantively unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We disagree. To begin with, defendants’ life sentences were within the Guidelines range, which in this case was 30 years to life. We afford a presumption of substantive reasonableness to within-Guidelines sentences such as these. See United States v. Dorcely, 454 F.3d 366, 376 (D.C.Cir.2006). Indeed, this Court has not as yet reversed any within-Guidelines sentence as substantively unreasonable. In light of our deferential standard of review and the very serious facts and circumstances relating to the offenses and the defendants, which the District Court addressed at some length at the sentencing hearing, we cannot say that these within-Guidelines sentences were substantively unreasonable. See Gardelli-ni, 545 F.3d at 1093. Defendants advance a variety of other sentencing-related arguments, none of which is persuasive. First, defendants assert that application of the Booker remedial opinion results in a “de facto Sixth Amendment violation” because federal courts in practice have continued to treat the Guidelines as mandatory. That claim fails because the District Court in this case did not treat the Guidelines as mandatory. Second, defendants suggest that the Booker remedial opinion is incorrect. As a lower court, we of course are bound to follow Booker. Third, defendants argue that due process requires that sentences be based on facts proved to a jury beyond a reasonable doubt. That contention is unavailing because a sentence may be based on facts determined by the sentencing judge by a preponderance of the evidence, as long as the sentence is not greater than the statutory maximum. See United States v. Bras, 483 F.3d 103, 108 (D.C.Cir.2007); Dorcely, 454 F.3d at 371-73. Fourth, defendants contend that sentencing them under Booker for their pr e-Booker offenses violates ex post facto principles. That claim fails because this Court has held that application of Booker to a pr e-Booker offense does not violate ex post facto principles, at least so long as the sentence does not exceed the applicable Guidelines range, which it did not in this case. See United States v. Alston-Graves, 435 F.3d 331, 343-44 (D.C.Cir.2006). Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. CIR. R. 41(b).

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471068/

SUMMARY ORDER Jose Mejia-Carrasco, a native and citizen of Peru, seeks review of an August 7, 2008 order of the BIA, affirming the August 3, 2006 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which preter-mitted his application for asylum as untimely and denied his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Jose Mejia-Carrasco, No. A095 936 853 (B.I.A. Aug. 7, 2008), aff'g No. A095 936 853 (Immig. Ct. N.Y. City Aug. 3, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Mejia-Carrasco concedes that he was ineligible for asylum. He further waives any challenge to the agency’s adverse credibility determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Indeed, Mejia-Carrasco’s only mention of the IJ’s credibility determination is his somewhat baffling assertion that the IJ’s credibility determination was not sufficiently explained because the IJ’s oral decision was not initially included in the record. He does not assert that the absence of the oral decision from the record prevented him from challenging the IJ’s credibility determination or that he lacks a copy of that decision.* Moreover, once the government provided an amended certified administrative record that included the IJ’s decision, Mejia-Car-rasco made no effort to submit a revised brief addressing the IJ’s explicit adverse credibility determination. That adverse credibility determination thus stands as a valid basis for the agency’s denial of his applications for withholding of removal and CAT relief where those applications were based on the same factual predicate. 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, 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). Petitioner's counsel was also the counsel of record before the BIA. He did not claim on appeal that he lacked a copy of the transcript of the IJ’s oral decision.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471070/

Plaintiff Priscilla Boyer appeals from a judgment of the district court granting-summary judgment in favor of defendants Riverhead Central School District (“RCSD”), Charles Venezia, David Lod-dengaard, Phillip Kent, and Marguerite Volonts. The complaint alleged, inter alia, that RCSD failed to hire Boyer because of her age. We assume the parties’ familiarity with the facts and procedural history of the case. We affirm the grant of summary judgment to the defendants on Boyer’s claim that RCSD failed to hire her for either middle school teacher position because of her age, because Boyer has failed to make out a prima fade case of age discrimination. See Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir.2001) (describing the elements of a prima facie case under the ADEA). Although the burden of establishing a prima fade case is minimal, Boyer can point to no evidence suggesting that the circumstances of *742RCSD’s failure to hire her for a middle school teacher position give rise to an inference of discrimination. We conclude further that the district court properly granted summary judgment to the defendants on Boyer’s claim that RCSD failed to hire her for the elementary school teacher position because of her age. Assuming arguendo that Boyer has made out a prima facie case on this claim, RCSD has articulated a non-discriminatory explanation for its hiring decision' — 'that is, that the successful applicant performed better at her interview. See id. at 105-07 (concluding that the employer’s explanation that it made its hiring decision based on interview performances is sufficient to shift burden to plaintiff to show that the explanation is a pretext). Boyer’s evidence that this non-discriminatory explanation for its hiring decision was a pretext, however, is not sufficient to permit a rational finder of fact to infer that RCSD unlawfully discriminated against her. Cfi id. (finding sufficient evidence to create a genuine issue of material fact regarding whether the employer’s non-discriminatory explanation was credible). We have considered, and are not persuaded by, Boyer’s remaining arguments. Accordingly, the judgment of the district court is hereby AFFIRMED.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471072/

OPINION PER CURIAM. Kathleen Beety-Monticelli, proceeding pro se, appeals from the District Court decision affirming the Commissioner’s denial of her applications for Social Security benefits. She also appeals from the denial of her motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). I The District Court’s December 2008 letter opinion explains in detail the relevant factual background of this case. Briefly, Beety-Monticelli is a 31-year-old woman who suffers from Factor V Leiden gene mutation (“Factor V Leiden”), a genetic disorder that causes excessive bleeding and clotting. She first experienced problems from the disorder in 1995 — although she was not diagnosed with Factor V Leiden until later — when she was diagnosed with a deep vein thrombosis (“DVT”), a condition causing severe leg pain and swelling. Recurring leg and pulmonary discomfort over the years, including a pulmonary embolus, caused her to seek treatment for her condition, and doctors have managed the clotting disorder with a regimen of anticoagulant drugs. Notwithstanding her doctors’ present ability to manage her clotting disorder, Beety experienced, and still experiences, severe discomfort that limits her ability to perform physical labor or stand or sit for prolonged periods of time. As a result, Beety-Monticelli claims that she has been disabled since May 9, 1996. She worked from 1998 to 1995 as a daycare worker. She last worked in 2000 as a fast food restaurant cashier. In 2002, Beety-Monticelli filed for Social Security Disability Insurance Benefits (“DIB”). She later applied for Social Security Child’s Insurance Benefits (“CIB”). Both claims were denied initially and upon reconsideration. Beety-Monticelli, represented by counsel, requested an administrative hearing. Beety-Monticelli presented the following evidence to the ALJ: medical records from 1999 documenting an elevated prothrombin time; testimony about her discomfort and limited ability to move and perform common tasks; medical records from two occasions in 1999 documenting the absence of a leg thrombosis or pulmonary embolus1; and voluminous records — dated 2000 and after — from three doctors, documenting her anticoagulant treatments, their effectiveness in managing her clotting disorder, and her overall physical condition. Following the hearing, the ALJ found that Beety-Monticelli was not disabled during the relevant time periods. That decision became final when the Appeals Council denied review in October 2006. See Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.2001). *745Beety-Monticelli, acting pro se, sought review in the District Court. In support of her claim, Beety-Monticelli submitted additional medical records not considered by the ALJ.2 She contended that those records, which related to her 1995 DVT diagnosis and treatment, provided a basis for the District Court to remand her case to the ALJ for further consideration. In a letter opinion, the District Court affirmed the Commissioner’s decision, reasoning that the ALJ’s determination was supported by substantial evidence. The District Court also reasoned that the newly submitted medical records provided no basis for remand. Beety-Monticelli sought reconsideration, which was also denied. She now appeals from those decisions. II In reviewing the District Court’s decision affirming the ALJ, the role of this Court is identical to that of the District Court: that is, to determine whether substantial evidence supports the Commissioner’s decision. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Our review of the District Court decision is plenary, but we are bound by the ALJ’s factual findings if they are supported by substantial evidence. See 42 U.S.C. § 405(g); Bums v. Barnhart, 312 F.3d 113, 118 (3d Cir.2002). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate.” Burns, 312 F.3d at 118 (internal citations and internal quotation marks omitted). Further, “we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder.” Id. To demonstrate entitlement to DIB benefits, a claimant must show that she became disabled before the expiration of her insured status under the program.3 See 42 U.S.C. § 423(a)(1)(A) and (c)(1); Kane v. Heckler, 776 F.2d 1130, 1131 n. 1 (3d Cir.1985); 20 C.F.R. § 404.320. Entitlement to CIB benefits requires that a claimant show, inter alia, that she became disabled before her twenty-second birthday.4 See 42 U.S.C. § 402(d). To establish a disability under the Social Security Act, a claimant must demonstrate there is some “medically determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful activity’ for a statutory twelve-month period.” Rangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987) (citing 42 U.S.C. § 423(d)(1)). The Commissioner follows a five-step analysis in evaluating disability claims. See 20 C.F.R. § 404.1520. If a finding of disability or non-disability may be made at any stage in the analysis, the Commissioner does not proceed with the remaining steps. § 404.1520(a)(4). In the first step, the Commissioner considers whether a claimant is engaging in substantial gainful activity. § 404.1520(b). If not, the Commissioner determines whether the claimant suffers from a severe impairment. § 404.1520(c). If the claimant suffers from a severe impairment, that impairment must meet or equal the severity of a qualified impairment identified in the regulations. § 404.1520(d). If the claimant’s impairment does not meet or equal a listed impairment, the Commissioner must determine whether the claimant retains a residual functional capacity (“RFC”) to perform past relevant work, as defined by 20 *746C.F.R. § 404.1560(b). § 404.1520(e). If the claimant is capable of performing past relevant work, she is not considered disabled under the Social Security regulations. § 404.1520(f). Applying this framework, the ALJ determined that Beety-Monticelli was not engaged in “substantial gainful activity” after the alleged onset date, and that she suffered from a severe impairment. Neither conclusion is in dispute here. The ALJ also found that Beety-Monticelli’s impairments did not meet or equal the criteria for qualifying impairments because the medical records presented by Beety-Mon-ticelli did not contain the specific medical findings required to satisfy the regulations. As the District Court correctly noted, only one listed impairment — found at Listing 4.11 of 20 C.F.R. Part 404, Subpart P, Appendix I — is analogous to Beety-Monticelli’s Factor V Leiden condition, and she does not claim to suffer from the specific conditions articulated therein. Next, we turn to the ALJ’s determination that Beety-Monticelli retained sufficient RFC to prevent her from working at her past job as a fast food restaurant cashier. The ALJ first noted the absence of evidence, save for records of a minor problem in March 1997,5 that Beety-Monticelli was disabled during the relevant periods. He also noted that Beety-Monticelli’s post-2000 medical records demonstrate an absence of persistent or frequent severe complications related to Factor V Leiden. The ALJ considered Beety-Monticelli’s subjective complaints, but noted that no credible evidence of a disabling medical condition existed. The only additional evidence Beety-Monticelli offered in support of her disability claim was the statements of two doctors, Dr. Schwartz and Dr. Plauka. Dr. Schwartz opined that Beety-Monticelli had been unable to engage in prolonged sitting, standing, or walking since 1995. However, the ALJ justifiably determined that the doctor’s opinion lacked credibility, as he had treated Beety-Monticelli only since 2002 and thus lacked firsthand knowledge of her earlier condition. Moreover, Dr. Schwartz’s opinion was contradicted by the medical reports of Beety-Monticelli’s other treating physicians, who noted that her anticoagulant therapy was helping her condition. Likewise, the ALJ reasonably found that Dr. Plauka’s conclusion in 2003 that Beety-Monticelli was limited from prolonged standing and walking lacked probative value. Dr. Plauka’s statement shed no light on Beety-Monticelli’s condition prior to June 1998 or November 1999. Based on the available evidence, the ALJ concluded that Beety-Monticelli failed to demonstrate that her medical problems precluded her from working before the expiration of her insured status or before her twenty-second birthday. Specifically, the ALJ determined that although Beety-Monticelli’s clotting disorder limited her ability to lift heavy objects, thereby precluding her from performing daycare jobs, her RFC permitted her to work as a cashier, which merely required Beety-Monticelli to stand and walk for long periods of time. Considering the ALJ’s thorough analysis of the record, we agree with the District Court that the *747ALJ’s determination was supported by substantial evidence. Ill Construing her pro se filings liberally, we read Beety-Monticelli’s appeal to include a challenge to the District Court’s decision not to remand based on newly submitted evidence.6 The sixth sentence of 42 U.S.C. § 405(g) (“sentence six”) permits a reviewing court to remand a case when new evidence becomes available, “but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” § 405(g). Thus, the proffered evidence must be both “new” and “material.” See Szubak v. Sec’y of Health and Human Sews., 745 F.2d 831, 833 (3d Cir.1984). To be material, there “must be a reasonable probability that the new evidence would have changed the outcome” of the Commissioner’s decision. Id. Finally, the claimant must show good cause for her failure to submit the evidence in an earlier proceeding. See id. Beety-Monticelli presented to the District Court numerous records documenting her treatment in 1995 for DVT, as well as records from follow-up visits. The District Court determined that remand under sentence six was not warranted because Beety-Monticelli’s submissions merely supported evidence already in the record — i.e., she suffered from a DVT before her alleged date of disability and was diagnosed with Factor V Leiden. As such, the evidence was not material because there was not a reasonable probability that it would have changed the ALJ’s disability determination. We agree. IV Finally, we turn to the denial of Beety-Monticelli’s motion for reconsideration. To prevail on a motion for reconsideration, a litigant must demonstrate: “(1) an intervening change in the controlling law; (2) the availability of new evidence ...; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). We review the denial of a motion to reconsider for abuse of discretion. See Caver v. Trenton, 420 F.3d 243, 258 (3d Cir.2005). In her motion for reconsideration, Beety-Monticelli argued that she had provided sufficient medical records to support her claim for relief.7 Specifically, she noted that she provided evidence that she suffered from a pulmonary embolus in 1997, and contended that because the ALJ did not mention those records in his opinion, he must not have considered them. We disagree. Although an ALJ must provide a logical connection between the evidence considered and the conclusion that the claimant is not disabled, he need not mention every piece of evidence in the record. See Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.2008). The District Court reasoned that Beety-Monticelli’s 1997 pulmonary embolus— which was treated and did not recur — was significant in that it supported the ALJ’s conclusion that she suffered a severe impairment. However, the existence of the *748condition, viewed in light of the other medical evidence, did not undermine the ALJ’s determination that she retained sufficient RFC to perform her job as a cashier. In short, the District Court reasoned, Beety-Monticelli failed to satisfy the standard for reconsideration. Beety-Monticelli provides no good reason to question that assessment. Accordingly, we will affirm the decision of the District Court. Beety-Monticelli’s motion to supplement the record is denied. . It is evident from the medical records that the test for a pulmonary embolus was conducted in part because Beety-Monticelli suffered a pulmonary embolus in 1997. .Beety-Monticelli actually submitted these records to the U.S. Attorney’s Office in July 2008, while the District Court action was pending. As a courtesy, the Defendant-Ap-pellee submitted those records to the District Court. . Beety-Monticelli's insured status expired on June 30, 1998. . Beety-Monticelli turned 22 on November 18, 1999. . The minor problem referred to by the ALJ was Beety-Monticelli's treatment for elevated prothrombin times. However, as Beety-Mon-ticelli argued in her motion to reconsider, she also presented evidence that she suffered a pulmonary embolus in March 2007. Nevertheless, for the reasons discussed in section IV, below, we do not think the fact that the ALJ did not specifically mention Beety-Monti-celli's pulmonary embolus undermines the determination that Beety-Monticelli was not disabled. . As the Appellee correctly notes, we have not issued a precedential decision announcing what standard of review we apply to a District Court’s decision not to remand under sentence six of 42 U.S.C. § 405(g). We need not decide that issue in this case, as the District Court's reasoning was appropriate under any conceivably applicable standard. . Beety-Monticelli also sought to correct factual errors, such as her last date of employment, which were misprinted in the District Court’s letter opinion. The District Court appropriately noted its mistakes. Clearly, none of these alleged errors impacts the validity of the District Court’s decision.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471074/

OPINION PER CURIAM. Victor Rojas appeals the District Court’s denial of his motion filed pursuant to Fed. R.Civ.P. 60(b)(4). For the below reasons, we will summarily affirm the District Court’s order. In July 2006, Victor Rojas pleaded guilty to conspiring to distribute one kilogram or more of heroin. He was subsequently sentenced to 54 months in prison. In February 2009, Rojas filed his Rule 60(b) motion in which he argued that the criminal judgment against him was void because he was not indicted nor was an information filed within thirty days of his arrest. The District Court denied the motion, and Rojas filed a timely notice of appeal. A motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure is not an appropriate vehicle for challenging a criminal conviction. Moreover, his motion is without merit. Rojas raised these same claims in a § 2255 motion filed in July *7492007. The District Court denied the motion, and we denied a certificate of appeal-ability. See No. 08-1910. Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.

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https://www.courtlistener.com/api/rest/v3/opinions/8471076/

FUENTES, Circuit Judge. On April 4, 2005, the District Court declined to review Darren Johnson’s habeas petition on the grounds that he had defaulted his claims in state court pursuant to an independent and adequate state procedural rule. The basis for this alleged default is petitioner’s violation of Pennsylvania’s “previously litigated” rule, which bars a petitioner from seeking review under Pennsylvania’s Post-Conviction Relief Act (“PCRA”) unless he/she can show that the allegation of error “has not been previously litigated or waived.” 42 Pa. Cons. Stat. Ann. § 9544(a). For the reasons laid out in our en banc decision in Boyd v. Warden, the ‘previously litigated’ rule insulates state courts from duplicative efforts, but does not preclude federal habeas review. Boyd v. Warden, 579 F.3d 330, 370-71 (3d Cir.2009) (Hardiman, J., dissenting) (en banc).1 Accordingly, we re*750verse and remand for further consideration. . Although Judge Hardiman dissented in Boyd, the portion of his dissent discussing the previously litigated rule was joined by a majority of the court.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471078/

OPINION OF THE COURT PER CURIAM. A'ben Skendaj, a native and citizen of Abania, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal and affirming the Immigration Judge’s (“U”) denial of his *751applications for relief. We will deny the petition. Skendaj entered the United States in February 2005, joining his wife and son, who were already in this country pursuing asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Skendaj’s wife claimed that she was persecuted on account of the political opinion of her father, a high-ranking member of the Albanian Democratic Party. Following a hearing in June 2005, at which Skendaj testified on behalf of his wife and son, the IJ denied their applications for relief. The BIA affirmed the IJ’s decision, and we denied their petition for review. See Skendaj v. Att’y Gen., 275 Fed.Appx. 126, 128-30 (3d Cir.2008) (non prece-dential). Meanwhile, in December 2005, Skendaj filed a separate application for asylum and withholding of removal. Rather than testify again, Skendaj elected to rely on the testimony he had provided at the hearing involving his wife and son, a transcript of which was made part of the record. Updated background information on Albania was the only new evidence presented. The IJ concluded that, in the absence of any new facts, he was bound by the decision of the IJ in the case of Skendaj’s wife and son. Consequently, the IJ denied Sken-daj’s applications for relief. The BIA dismissed Skendaj’s appeal, concluding that his experiences did not rise to the level of persecution and that the record rebutted any presumption that his life or freedom would be threatened in the future.1 Sken-daj filed a timely petition for review. We exercise jurisdiction to review the BIA’s final order of removal under Immigration and Nationality Act (“INA”) § 242(a) [8 U.S.C. § 1252(a) ]. Because the BIA provided its own analysis, we review the decision of the BIA. See Lukwago v. Ashcroft, 329 F.3d 157, 166 (3d Cir.2003). We use a substantial evidence standard to review factual findings, Tairaivally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003), including findings concerning an applicant’s past persecution or “well-founded fear of future persecution,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Under the substantial evidence standard, findings are upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). We review the BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007). An applicant may demonstrate eligibility for asylum by showing either 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. See INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]. Significantly, “persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. *752As evidence of persecution, Skendaj pointed to anonymous telephone threats and an attempted kidnapping of his son. “It is established ... that threats standing alone ... constitute persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’ ” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005) (internal citations and quotations omitted). Unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution. Id. In this case, the anonymous threats were directed at Skendaj, his wife, and his mother. Fearing for them lives, Skendaj and his wife moved to Greece. There is no indication, however, that the callers ever attempted to carry out the threats. Furthermore, Skendaj specifically stated that his mother, who remained in Albania, was never harmed. Therefore, we agree that these incidents do not rise to the level of persecution. Substantial evidence also supports the BIA’s conclusion that the attempted kidnapping did not constitute past persecution on account of a protected ground.2 The attempted kidnapping occurred during a trip to visit Skendaj’s father-in-law. While the family was riding in a taxi, two motorcyclists, wearing helmets and dark clothing, approached the car. One motorcycle went to the right of the taxi, one went to the left, and one cyclist called to the other, “grab the kid, the window’s open.” One cyclist put his hand by the window as if to grab Skendaj’s son, but the taxi driver was able to speed away. While no doubt frightening, this incident does not constitute persecution on account of a protected ground. Neither Skendaj nor his wife were able to identify the kidnappers, the kidnappers did not make any reference to the Skendajs’ political opinion, the Skendaj s did not report the incident to the police, and they did not experience further threats or confrontations. Therefore, we conclude that Skendaj has not shown that the record compels a finding that he suffered past persecution. Absent a showing of past persecution, an applicant may still establish a well-founded fear of future persecution by demonstrating that his fear is “subjective and objectively reasonable.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 346 (3d Cir.2008). An applicant can meet the objective prong either by showing that he would be individually singled out for persecution upon his return or that a pattern and practice of such persecution exists. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005). In adjudicating the case of Skendaj’s wife and son, we were “not compelled to conclude that there is a pattern or practice in Albania of persecuting a protected group of which the petitioners are members.” Skendaj, 275 Fed.Appx. at 130. Our decision was based in part on the 2004 United States Department of State “Profile of Asylum Claims and Country Conditions” for Albania. Id. Skendaj submitted the 2006 version of that Profile, along with the *7532006 State Department Country Report on Human Rights Practices in Albania. These documents indicate that the Democratic Party took power following elections in 2005, that there were “no indications of systematic political persecution,” and that “neither the Government nor the major political parties engage[d] in policies of abuse or coercion against their political opponents.” Nothing in the Profile or Report compels the conclusion that Skendaj established a well-founded fear of future persecution. See Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir.2008) (holding that reliance on country reports was sufficient to rebut presumption of well-founded fear of future persecution based on support for Democratic Party in Albania). Because Skendaj has not meet his burden of proof for asylum, he necessarily failed to meet the higher burden required for withholding of removal. See Lukwago, 329 F.3d at 182. Finally, substantial evidence supports the BIA’s conclusion that Skendaj failed to demonstrate that it is more likely than not that he would be tortured by the Albanian government, or that the government would consent or acquiesce to his torture. For the foregoing reasons, we will deny the petition for review. . The BIA also rejected Skendaj’s claim that he did not receive a full and fair hearing before the IJ. In particular, the BIA noted that Skendaj was represented by counsel, agreed to rest on the testimony provided at the hearing involving his wife and son, received a review that included reports regarding current country conditions, and failed to identify any prejudice. Skendaj has not challenged this determination on appeal. 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). . Skendaj complains that the BIA failed to address whether "the kinship ties created by [his] marriage constituted a particular social group.” The BIA did not specifically refer to Skendaj's allegation that he was part of a particular social group consisting of his family. But the BIA did state that it "concur[red] with the [IJ’s] decision finding that the alleged events do not rise to the level of persecution on account of a protected ground.” The IJ, in turn, endorsed the finding — made in connection with the asylum application of Skendaj’s wife and son — that "the evidence does not establish a social group comprised of the family of" Skendaj’s father-in-law. Under these circumstances, we conclude that the BIA adequately considered Skendaj’s social group claim and maintain that substantial evidence supports the conclusion that Sken-daj was not persecuted on account of membership in a social group.

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OPINION OF THE COURT DITTER, District Judge. This is an appeal from the order of the District Court dismissing for lack of subject matter jurisdiction an alien’s petition for a writ of habeas corpus that challenged an order for his removal. Even though the matter might better have come to us by a transfer from the District Court, we conclude that we also have no jurisdiction and that the removal order must stand. Accordingly, we affirm the decision of the District Court. FACTUAL AND PROCEDURAL HISTORY Appellant Mahmoud Sallah Abunasser is a Palestinian who entered the United States on September 30, 2005, with a Palestinian Authority passport. Abunasser was admitted to the United States as a nonimmigrant visitor with authorization to remain in the country until March 29, 2006. He is married and has three children — one child was born in the United States. He was arrested on April 26, 2006, by Immigration and Customs Enforcement (“ICE”) for overstaying his visa and for being employed without the proper authorization. Removal proceedings were initiated and Abunasser was released from custody on bond in the amount of $25,000. On June 14, 2006, a hearing was held before an immigration judge. Abunasser *758was represented by counsel and an Arabic interpreter assisted Abunasser throughout the proceedings. Abunasser informed the court that he would be applying for voluntary departure. The case was continued to August 16, 2006, to provide counsel and Abunasser the opportunity to discuss what country he would designate for removal. At the August 16, 2006 hearing, Abunas-ser, with the assistance of an interpreter and repi-esented by counsel, again indicated that he had no applications to file and would voluntarily leave the United States and return to Israel. After an extensive inquiry, the immigration judge determined that Abunasser was voluntarily giving up the opportunity to present a claim for protection, the x’ight to appeal, and wanted only an opportunity to depart voluntarily. Abunasser was ordered to depart by December 14, 2006. An alternative order of removal was entered in the event he failed to leave the country. He did not appeal this order of removal. On November 14, 2006, represented by new counsel, Abunasser filed a motion to reopen his removal proceedings claiming the ineffective assistance of prior counsel. This was his only option as the time for appeal of the order of removal had elapsed (and appellate review had been waived). Now, in contrast with his testimony at the August hearing, Abunasser sought political asylum citing his fear of returning to the West Bank where he claims he was a victim of past persecution. In suppox't of his claim he provided medical evidence of treatment for a gunshot wound and a supporting affidavit. Also contrary to his earlier testimony, Abunasser claims he did not advise the immigration judge of his fears at the prior hearings because counsel told him that a Palestinian would not be granted political asylum. On November 29, 2006, the immigration judge denied the motion to x’eopen finding that Abunasser had failed to establish ineffective assistance of counsel as required by Matter of Lozada, 19 I. & N. Dec. 687 (B.I.A.1988), and had failed to present any new facts as a basis to reopen as required by 8 C.F.R. § 1003.23(b)(3). On January 4, 2007, the immigration judge denied Abunasser’s motion to x*econ-sider her November 29, 2006 order, and the Board of Immigration Appeals (“BIA”) dismissed Abunassex*’s appeal and affirmed the decision of the immigration judge on November 14, 2007. Having violated the August 26, 2006 order granting voluntai'y departure by failing to depart by December 14, 2006, Abunasser has been detained pending his removal. On September 13, 2007, Abu-nasser filed a motion to x’equest release under bond. The immigration judge held that he was not eligible for bond because he did not voluntarily depart as required by his ox'der of removal and did not file a timely appeal of that order. 8 C.F.R. § 1236.1(d)(1). Abunasser remains in custody. Seeking judicial review of the denial of his motion to reconsider and reopen, and asking for release and a stay of his deportation and removal order, on December 11, 2007, Abunasser filed a petition for a writ of habeas corpus in the District of New Jersey. Abunasser claims that the immi-gx'ation judge and the BIA violated his due process rights by denying without a hearing and without considex-ation of his evidence of persecution his motion to reopen and his motion to reconsider. The District Court issued a rule to show cause why this petition should not be dismissed. After a hearing, Abunasser’s habeas petition was denied and dismissed on January 25, 2008, for lack of subject matter jurisdiction. His i'equest for release pending review of the petition was denied but a stay of removal was granted. *759This appeal followed. It is based entirely upon the immigration judge’s alleged failure to grant Petitioner a hearing on his claim of persecution.2 DISCUSSION The REAL ID Act (“the Act”), which became effective on May 11, 2005, eliminated district court jurisdiction over orders of removal and vested exclusive jurisdiction in the courts of appeals. 8 U.S.C. § 1252(a)(5) (“a petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal”). The District Court correctly recognized it had no subject matter jurisdiction and dismissed the writ of habeas corpus. However, the District Court did not transfer the matter to this court nor provide a statement that it was not in the interest of justice to do so. 28 U.S.C. § 1631.3 Nonetheless, the task of examining the administrative proceedings is now before us, albeit by an appeal rather than by lower-court transfer. Section 242(a)(2)(B)(ii) of the Act, 8 U.S.C. § 1252(a)(2)(B)(ii), provides that no court shall have jurisdiction to review discretionary decisions of immigration officials. In addition, the courts of appeal shall decide the petitions for the review of an order of removal only on the administrative record, and the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(A) and (B). These provisions do not preclude a review of constitutional claims or questions of law that may be raised by the proceedings. 8 U.S.C. § 1252(a)(2)(D). Before us is the BIA’s discretionary decision 4 that the immigration judge correctly ruled when she found Abunasser had waived all relief except voluntary departure, refused to reopen the removal proceedings, and then refused to reconsider that decision. By the plain wording of the Act, we have no jurisdiction unless there is merit to Abunasser’s claim that he was denied due process when the immigration judge refused to permit him to present evidence of persecution. Stating the obvious: not every contention, request, or reason becomes a constitutional matter just because it is labeled due process. A denial of relief that is purely discretionary, by definition, does not involve a constitutional right and is therefore not protected by the due process *760clause. Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004) (finding no due process violation because “the failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest.”) And finally, if there has been a knowing, intelligent, and voluntary waiver of the right to seek the relief in question, due process does not require further consideration.5 Here there was no denial of due process because there was no process due. Petitioner had knowingly and intelligently waived whatever claims he might have otherwise had, and having done so, had no constitutional right to further proceedings. The record shows that Abunasser was represented by counsel at his hearings and was fully advised of the consequences of agreeing to voluntary departure by the immigration judge. An interpreter assisted Abunasser at both hearings. Abunas-ser said he understood what he was being-told and what he was doing. The colloquy on June 14, 2006, makes clear that the immigration judge was sensitive to the situation of a Palestinian in Israel and specifically required that Abu-nasser come forward with any request for protection at the next hearing. (A.R. 123.) This is what she said: JUDGE TO MR. ABUNASSER: Sir, your attorney has admitted that you’re removable as charged. She has denied you are a citizen of Israel, as alleged by the Government; but did admit that you were born in the country of Israel. At this time she understands that you just wish to seek a period of time to voluntarily depart the United States at your own expense, but she’s asked for some time to be sure if that is indeed your preference. I would ask you to please make sure that you explain to her everything about your situation in your home area and in America so that she can advise you as to your options before the Court because I will require at the next hearing that you file any appropriate applications for other options, including asylum, if you intend to exercise them. Q. Do you understand? A. Yes. Q. Are you sure? A. Yes. Q. Do you understand that if you’re afraid to go back you have to tell her and she’s going to have to help you and file an application for asylum at the next hearing? Do you understand that? A. I understand. (A.R. 125.) The immigration judge went out of her way to ensure Abunasser understood the options available to him and how he needed to work with counsel before the next hearing. Abunasser then said — and now does not suggest otherwise — that he understood. On August 16, 2006, Abunasser again advised the immigration judge that he wanted to proceed with voluntary departure. Only after a thorough colloquy that included Abunasser being asked if he had any questions “about the consequences of giving up the chance to seek protection *761based on any fear of harm in Israel or any other country,” did the immigration judge find that Abunasser was knowingly and voluntarily deciding not to make a claim for protection and wanted only voluntary departure. (A.R. 138-34.)6 The BIA also found that Abunasser had given up his right to seek asylum: [T]he Immigration Judge found that the respondent stated he knew that by filing for voluntary departure, he was abandoning any other claims for relief.... The Immigration Judge specifically asked the respondent if he understood by failing to make a claim for protection in the United States he was giving up the opportunity to make such a claim. The respondent stated he understood and was doing so voluntarily.... Accordingly we find the Immigration Judge did not err in denying the respondent’s motion to reconsider. (A.R. 2). In summary, (1) On August 16, 2006, the immigration judge made a factual finding that Abunas-ser had waived any right he might have to seek protection and wanted only voluntary departure. This finding was fully supported by the record, is unchallenged, and is binding upon us. (2) On November 29, 2006, the immigration judge made a factual finding that Abu-nasser had not established the predicates for a motion to reopen based upon ineffective assistance of counsel or provided any new facts that would establish a basis for reopening. This finding was fully supported by the record, is unchallenged, and is binding upon us. (3) On November 14, 2007, the Board of Immigration Appeals made a factual finding that the Petitioner said that he understood that by filing for voluntary departure he was abandoning any other claims for relief, and therefore, that the immigration judge did not err in denying Petitioner’s motion to reconsider the removal order. This finding was fully supported by the record and is binding upon us. (4) In addition, on November 14, 2007, the Board of Immigration Appeals in the exercise of its discretion, dismissed Abu-nasser’s appeal from the decisions of the immigration judge. This decision is binding upon us. Abunasser was not denied due process. Abunasser has not raised a constitutional claim. For these reasons, we lack subject matter jurisdiction to consider Abunasser’s claims and the District Court’s decision that it lacked subject matter jurisdiction must be affirmed. One matter remains. The District Court stayed the immigration court’s order of removal. We shall remand to the District Court so that the stay can be lifted. An appropriate order follows. . Petitioner's brief advanced three legal arguments: I. A MOTION TO REOPEN REMOVAL PROCEEDINGS MUST COMPLY WITH DUE PROCESS OF LAW... II. THE DUE PROCESS CLAUSE WAS NOT APPLIED TO ABUNASSER IN HIS REQUEST TO REOPEN REMOVAL PROCEEDINGS... III. WHERE AN IMMIGRATION JUDGE SUMMARILY DENIES RELIEF TO AN ALIEN WITHOUT PROVIDING A HEARING TO ARGUE THE PRAYER FOR RELIEF, THIS WOULD BE UNCONSTITUTIONAL. (Petr.’s Br. i) . Where a district court itself lacks jurisdiction over a case, it shall transfer the matter to a court that has jurisdiction, unless, after an examination of the record, the district court determines that it would not be in the interest of justice to do so. Britell v. United States, 318 F.3d 70 (1st Cir.2003). Although we conclude that Abunasser’s claims lack merit and therefore a transfer would not have been in the interest of justice, the procedure required by 28 U.S.C. § 1631 should have been followed. .The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board [of Immigration Appeals]. The Board 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). . Federal regulations specify that: A motion to reopen proceedings shall not be granted unless it appears to the Board [of Immigration Appeals] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purposes of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing. ... 8 C.F.R. § 1003.2(c). . At the August 16, 2006 hearing: Q. [IMMIGRATION JUDGE] Okay. I’m persuaded sir that you’ve knowingly and voluntarily decided not to make a claim for protection and that you only want the voluntary departure.... Sir, I will grant your request for the voluntary departure.... Do you understand that that is my decision in your case? A. Yes. Q. [IMMIGRATION JUDGE] Your attorney and the Government are willing to accept that as a final decision. That means there would be no appeal to a higher Court and you would not be able to challenge or change the decision later. Do you also wish the decision to be final? A. Yes. (A.R. 133-34.)

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OPINION OF THE COURT McKEE, Circuit Judge. Mohammad Ghaziaskar petitions for review of a final order of removal entered by *763the Board of Immigration Appeals based on the Immigration Judge’s determination that a prior criminal conviction made Gha-ziaskar statutorily ineligible for withholding of removal to Iran. Ghaziaskar also challenges the BIA’s denial of his motion to defer removal under the Convention Against Torture (“CAT”). For the reasons that follow, we will dismiss the petition as to his challenge to the BIA’s denial of eligibility for withholding based on his criminal conviction, but grant the petition and remand to the BIA for further proceedings pertinent to his CAT claim. I. Because we write primarily for the parties, it is not necessary to recite the facts or history of this case except as may be helpful to our brief discussion. Ghaziaskar first challenges the BIA’s final order of removal affirming the IJ’s ruling that he is ineligible for withholding of removal because of his criminal conviction for drug trafficking. Ghaziaskar was convicted of the use of a telephone to facilitate distribution of opium, in violation of 21 U.S.C. § 843(b).1 Ghaziaskar argues that his conviction was not a “particularly serious crime” and therefore did not disqualify him for withholding of removal. Ghazias-kar also argues that the BIA erred by concluding that he is not likely to be tortured if returned to Iran based upon his past political opposition to the Iranian revolutionary government, his drug-related criminal convictions, and his conversion to Christianity. II. Ghaziaskar argues that he should not be disqualified for a grant of withholding of removal to Iran because of his drug-related conviction. The Immigration Judge disagreed and concluded that Ghazi-askar was not eligible for asylum because he had been convicted of use of a telephone to facilitate distribution of opium in violation of 21 U.S.C. § 843(b). To be eligible for a grant of withholding of removal, an alien must show that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Aliens are disqualified from receiving such withholding of removal, however, if they have been convicted of a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(h). An alien who was convicted of an “aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.” 8 U.S.C. § 1231(b)(3). Where an alien is convicted of a crime with a lesser sentence, the Attorney General is not precluded from determining that the crime is nonetheless a particularly serious crime. Id. Ghaziaskar was convicted of using a telephone to facilitate the distribution of opium, a crime with a maximum sentence of four years. 21 U.S.C. § 846 (1983). He was also convicted of an aggravated felony involving fraud or deceit, but its maximum sentence did not reach the five year threshold in 8 U.S.C. § 1231(b)(3)(iv). We must therefore determine if the BIA erred in affirming the IJ’s ruling that Ghazias-kar’s conviction is particularly serious. In resolving that issue, we remain mindful that any drug trafficking crime is presumed to be a particularly serious offense. Matter of Y-L, 23 I. & N. Dec. 270, 276-77 (BIA 2002). While we presume that a drug trafficking crime is a “particularly *764serious crime,” an alien may overcome this presumption by satisfying the six criteria set forth in Matter of Y-L, 28 I. & N. Dee. at 276-77. These criteria are: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles. Id. Here, the government represents without contradiction that Ghaziaskar’s offense involved use of a telephone as part of his participation in a drug transaction involving a $60,000 purchase of illegal narcotics. Respondent Br. at 26. That in no way undermines the presumption he must overcome. Ghaziaskar’s task of overcoming that presumption is also not advanced by his failure to address five out of the six YL criteria. Rather, he merely argues that his involvement was peripheral. Even assuming arguendo that it was, peripheral involvement in what certainly appears to be a particularly serious crime does not address any of the remaining Y-L factors. Ghaziaskar argues that the IJ improperly looked beyond the specific crime he plead guilty to and focused instead on the more serious crimes he was indicted for. Petitioner Br. at 22. It is clear that the IJ relied partially on charges in the indictment in concluding that Ghaziaskar’s involvement in the drug transaction was “more than peripheral; he was an active participant in the scheme.” App. at 241. However, given Ghaziaskar’s failure to address the Y-L factors, we need not decide whether the IJ’s reliance on facts beyond Ghaziaskar’s plea agreement warrants relief. On this record, we conclude that the BIA did not err in affirming the IJ’s decision that Ghaziaskar is disqualified from receiving the benefit of withholding of removal. III. Ghaziaskar’s challenge to the BIA’s denial of his motion to defer removal under CAT, is more troublesome. He argues that he established that it is more likely than not that he would be tortured by the Iranian government (or its agents) if he is removed to his home country. CAT prohibits the removal of an alien who establishes that “it is more likely than not” that he will be tortured by or at the instigation of the government if removed to his home country. 8 C.F.R. § 208.18(a)(1); Francois v. Gonzales, 448 F.3d 645, 649 (3d Cir.2006). Torture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment.” 8 C.F.R. § 208.18(a)(2). CAT requires decision-makers to consider all relevant evidence, including (i) evidence of past torture inflicted upon the applicant; (ii) evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; (iii) evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and (iv) other relevant information regarding conditions in the country of removal. 8 C.F.R. § 208.18(c)(3). An IJ’s adverse credibility determination is “reviewed for substantial evidence.” Benshaj v. Ashcroft, 378 F.3d 314, 322-23 (3d Cir.2004). We uphold an adverse credibility determination unless “any reasonable adjudicator would be compelled to *765conclude to the contrary.” Cao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). An “alien’s credibility, by itself may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003). Here, the IJ concluded that there were “enormous gaps in the respondent’s credibility.” App. at 28a. The IJ did not believe that Ghaziaskar’s participation in the radio program, the “Persian Hour,” was anti-Khomeini and anti-government because the broadcast occurred after the revolution. Additionally, the IJ discredited Ghaziaskar’s explanation of why he has two passports. App. at 29a. However, focusing on any discrepancy regarding the passport ignores the seriousness of his claim and the potential for harm that may await him in Iran if Ghaziaskar’s involvement with the radio program is viewed with disfavor by the Iranian regime. To his credit, the IJ conceded that Ghazias-kar’s involvement with the Persian Hour “may in fact have been what he said it was.” App. at 31a. However, the IJ also dismissed the seriousness of Ghaziaskar’s involvement with the radio program because it occurred before the overthrow of the Shah’s regime. Ghaziaskar argues that his conversion to Christianity could also subject him to torture. He testified that he attended Catholic services and took communion along with his wife and children. The IJ disputed his “sudden conversion to Christianity,” because the IJ believed that Ghaziaskar would not have been able to take communion without being a member of the church. App. at 31a. However, that conclusion is clearly based upon the IJ’s understanding of practices of Christian churches he is familiar with. There is nothing in the record to suggest that Christian churches in Iran adhere to the strict protocols that exist in some churches in the United States. The IJ was also concerned that Ghaziaskar could not provide the name of pastors or churches that he attended. Id. However, we believe that the IJ’s apparent belief that Ghaziaskar would not have been able to take communion in a Catholic church was erroneous. Although a non-Catholic is not supposed to take communion in the Catholic Church, Ghaziaskar certainly could have received communion in any number of Catholic churches, even though he is not Catholic, not because it is acceptable but, because the priest did not know he was not Catholic. Ghaziaskar argues that the IJ and the BIA both “failed to consider the country conditions in Iran.” Pet. Br. at 29. Specifically, Ghaziaskar points to “overwhelming evidence regarding the prevalence of torture in Iran contained in the 2002 Country Reports” that the BIA did not adequately consider. Id. The 2002 Country Reports point to (1) “systematic abuses” of human rights in Iran including summary executions and the widespread use of torture, J.A. 304a-05a; (2) Iranians returning from abroad are subject to searches and extensive questioning for evidence of anti-government activities abroad, J.A. 319a; (3) Iran’s judiciary is “subject to government and religious influence resulting in lack of due process and fair trials, J.A. 309-a-10a; and (4) there are “numerous credible reports that security forces and prison personnel continue to torture detainees and prisoners, J.A. 307a. This record does not establish that the IJ or BIA adequately considered conditions in Iran before reaching its conclusion that Ghaziaskar failed to establish that it was more likely than not that he would be tortured upon his return to Iran. We also think it appropriate to take judicial notice of the fact that current tensions in Iran would only exacerbate what this record establishes as an already shameful record of respecting human rights. We think that this case can best be resolved by *766allowing the BIA an opportunity to more closely consider relevant Country Reports in assessing Ghaziaskar’s claim. We also think that the BIA should give consideration to the possibility that it would be more likely than not that his involvement in the radio program, his return from the United States, and his claimed conversion to Christianity could well subject him to the kind of intentional mistreatment that the CAT was intended to protect against. We therefore remand for the BIA’s reconsideration of Ghaziaskar’s petition for relief under the CAT. IV. For the aforementioned reasons, we will dismiss Ghaziaskar’s petition in part, and remand it in part for further proceedings consistent with this opinion. . This is an aggravated felony involving fraud or deceit where the loss to the victim exceeded $10,000.

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11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471088/

OPINION POLLAK, District Judge: Appellant Sergeant David Schottanes appeals the District Court’s grant of summary judgment, disposing of his claims against his employer, the Borough of North Haledon, and his supervisor, Police Chief Joseph Ferrante. The District Court found that Schottanes’s claims were untimely and dismissed them as barred by the statute of limitations. Because we agree that Schottanes’s complaint was filed more than two years after the completion of appellees’ allegedly wrongful conduct, we will affirm. I. Because the parties are familiar with the facts and the record, we need not discuss them in detail. This matter was resolved on a motion for summary judgment, so we view the facts, as did the District Court, in the light most favorable to Schottanes. Schottanes is employed as a police officer with the Borough of North Haledon; he has held the rank of sergeant since 2001. In mid-2004, another officer complained that Schottanes sexually harassed her. As a result, Police Chief Ferrante initiated an investigation. Ferrante also issued a no-contact order between Schottanes and the complainant and transferred Schottanes to the night shift to effectuate the order. In August 2004, prior to the close of the initial investigation (which, it is uncontested, ended in October 2004 at the latest), Ferrante formally filed disciplinary charges against Schottanes. Disciplinary hearings began on October 25, 2004, and, in part because Schottanes waived his right to have the hearing held within 30 days of the charges being filed, lasted through the end of 2005. While the charges were pending, the mayor — in conversations Schottanes secretly tape-recorded — informed Schottanes that it was widely known that the charges had been fabricated to derail Schottanes’s career, and the mayor promised to promote Schottanes as soon as the investigation concluded. The Borough Council is in charge of promotions, and the mayor only votes if the Council is deadlocked. The Borough Council subsequently exonerated Schottanes on February 1, 2006, but he was never promoted. On November 26, 2006, plaintiff filed a complaint against the police chief and the Borough. He brought claims under 42 *773U.S.C. § 1983 alleging violations of his federal civil rights, and he also pled claims under state law. Specifically, plaintiff alleged 1) a violation of his substantive and procedural due process rights, 2) negligent infliction of emotional distress, 3) hostile work environment, 4) negligence, and 5) civil conspiracy. The gravamen of Schot-tanes’s complaint is that Ferrante brought formal charges before the close of the investigation and used the investigation to derail Schottanes’s job prospects, all the while subjecting Schottanes to emotional distress and a hostile workplace. Schot-tanes alleged that his failure to receive a promotion resulted from the improper investigation. The District Court determined that Schottanes’s claims were barred by the statute of limitations, because the wrongful conduct “was complete as of August 2004 at the latest,” and Schottanes had failed to proffer evidence of wrongful conduct after that date. App’x 3. Schottanes timely appealed. II. Our review of a District Court’s grant of summary judgment is plenary. See Eichenlaub v. Township of Indiana, 385 F.3d 274, 279 (3d Cir.2004). Summary judgment is proper if the moving party demonstrates “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); Eichenlaub, 385 F.3d at 279. III. The counts in Schottanes’s complaint are premised on his claims that the conduct of the Borough and Ferrantes either violated his civil rights (actionable through 42 U.S.C. § 1983) or constituted tortious activity; as a result, the applicable statute of limitations period for all claims in the complaint is two years. Montgomery v. De Simone, 159 F.3d 120, 126 n. 4 (3d Cir. 1998); N.J.S.A § 2A14-2. A cause of action accrues, and the statute of limitations period begins to run, “when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.1998). The District Court concluded that Schottanes knew or should have known of his injury by August 2004, when the disciplinary complaint was filed against him. Schottanes argues that he could not have discovered his injury until the disciplinary charges against him were dismissed and he was not promoted, and so his claim did not accrue until February 1, 2006. He premises this argument on the repeated promises by the mayor that once the charges were dropped a promotion would follow. However, the injury actually complained of in the complaint was the investigation itself and the changed work conditions stemming from that investigation; the failure to obtain a promotion is characterized as stemming from the initial harm of the investigation. See Complaint ¶¶ 15-16. Even if Schottanes’s complaint could be fairly read to allege that the Borough’s refusal to promote him constituted an independent injury, the discovery rule would not apply here. Schottanes knew in August 2004 that he had been the subject of disciplinary charges and transferred to the night shift, and thus knew he had been injured. Moreover, he knew at that time that he had not been promoted. He cites Miller v. Beneficial Mgmt. Corp., 977 F.2d 834 (3d Cir.1992), as “precisely the situation that presents itself here” — where a plaintiff seeks, but has not obtained, a promotion that could be granted at any time. Appellant’s Br. at 16. In Miller, the plaintiff, who had not been subject to any disciplinary proceeding or other employment injury, was “repeatedly assured ... that she *774deserved and would receive a promotion” from decision-makers with the ability to promote her. In contrast, Schottanes, who undisputedly knew he was injured by the filing of the disciplinary charge, presents, in support of his failure-to-promote claim, only the statements of the mayor, who could recommend but not promote him and who had not even recommended him. The District Court correctly concluded that Schottanes should have known that he was injured at the filing of the disciplinary chai'ge in August 2004.1 In the alternative, plaintiff argues that his claims can be saved by a) the continuing violations doctrine or b) the doctrine of equitable tolling. With regard to the continuing violations doctrine, Schottanes now argues that the Borough’s failure to promote him constituted a continuing violation. However, Schottanes argued to the District Court that the ongoing investigation, rather than the failure to promote, constituted an ongoing violation (an argument the District Court rejected). Even if we were to consider this argument properly presented, it remains the case that the failure to promote was the consequence of the earlier wrongful act, i. e. the improper charges and flawed investigation. The failure to promote does not constitute a series of “continual unlawful acts” but rather the “continual ill effects from [the] original violation,” which is insufficient to create a continuing violation. See Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d Cir.2001) (citing Ocean Acres Ltd. v. Dare Cty. Bd. of Health, 707 F.2d 103, 106 (4th Cir.1983)). Finally, Schottanes seeks equitable tolling, arguing that the mayor’s promises of promotion gave him the false expectation that he would be promoted eventually and thus encouraged him to delay filing his complaint. This argument was not raised below and is waived. Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir.1983). This case does not present any exceptional circumstances that would prompt this court to consider the issue. IV. For the reasons set forth, we will affirm the judgment of the District Court. . Even if we were to construe Schottanes’s complaint as stating a timely claim for failure to promote, it is difficult to see any grounds on which Schottanes could base a prima facie case, as he is not a member of a protected class and does not allege that the adverse employment actions against him were moti-valed by anything other than Chief Ferrante’s intent to derail Schottanes’s career because of Ferrante's preference that another officer be promoted. See Complaint ¶ 6-10, App'x 12. The District Court did not reach this issue, and we similarly express no view, as we find the claim time-barred.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471090/

OPINION OF THE COURT CHAGARES, Circuit Judge. Mei Qin Xie (“Xie”) petitions for review of an order denying her asylum, arguing that the Board of Immigration Appeals (“BIA”) improperly applied the clearly erroneous standard of review to the Immigration Judge’s (“IJ’s”) factual findings and that the BIA abused its discretion in denying her asylum. We will grant her petition for review and remand, e solely for the benefit of the parties, who are familiar with the factual context and legal history of this case, and will therefore set forth only those facts necessary to our analysis. Xie is a citizen and native of China. She entered the United States in November 1994 and applied for asylum in December 1994. Xie originally claimed that she had a fear of persecution based on her religion and involvement with a student protest. Between 1994, when Xie first applied for asylum, and 2002, when she had her asylum interview, she married Qi Guan, a naturalized Canadian citizen. Between 1998 and 2005, she gave birth to four children. In March 2002, an Asylum Officer (“AO”) denied her application. The AO then referred Xie’s case to immigration court in New York City and initiated removal proceedings on March 22, 2002 by filing a Notice to Appear in Removal Proceedings. At the removal proceedings, the Department of Homeland Security (“DHS”) charged Xie with deportability because she did not have valid entry documents when she came to the United States in 1994. Xie conceded the charge of de-portability, but contended that she was eligible for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (“CAT”). The IJ heard the case on September 14, 2004. At the hearing, Xie informed the IJ that she was changing the basis for her claim. She withdrew her claims about persecution based on the protest and reli*776gion and based her claim solely on her fear of future persecution for violating China’s “one child” policy. In an off the record conversation, she admitted to the IJ that her claims about the student group were not true and that she no longer feared persecution because of her religious beliefs. The IJ granted Xie’s asylum application on October 12, 2004, but denied her application for withholding of removal and deferral of removal under the CAT. DHS appealed, and on March 21, 2006 the BIA reversed the IJ’s asylum decision and ordered Xie’s removal to China. The BIA also denied Xie’s withholding of removal and CAT claims, and as well as her request for voluntary departure. Xie then appealed to this Court, arguing that the BIA had improperly applied a de novo standard of review to the IJ’s fact finding instead of the proper clearly erroneous standard. This Court then remanded the case back to the BIA. On May 18, 2007, the BIA issued a new decision, again reversing the IJ’s decision to grant Xie asylum, finding that the IJ’s factual findings were clearly erroneous. It also determined that, in the exercise of its discretion, Xie did not merit asylum or voluntary departure. I. The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b). This Court has jurisdiction under the Immigration and Nationality Act. 8 U.S.C. § 1252; Wong v. Attorney General, 539 F.3d 225, 230 (3d Cir. 2008). We review de novo whether the BIA properly applied the clear error standard to the IJ’s factual and credibility findings. Kabba v. Mukasey, 530 F.3d 1239, 1245 (10th Cir.2008). II. The applicable regulations provide that the BIA should review the IJ’s factual determinations under a “clearly erroneous” standard, and that the BIA should not itself engage in factfinding: (i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous .... (iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service. 8 C.F.R. § 1003.1(d)(3)® and (iv). However, “[t]he Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.” 8 C.F.R. § 1003.1(d)(3)(ii). The BIA may also exercise de novo review when it analyzes “the application of a particular standard of law to [the] facts,” including whether the harm alleged rises to the level of a well-founded fear of persecution. Matter of A-S-B-, 24 I. & N. Dec. 493, 496-97 (2008); Matter of V-K-, 24 I. & N. Dec. 500, 501 (2008) (citation omitted) (“[T]here was no intent to apply the restrictive ‘clearly erroneous’ test to mixed questions of fact and law where the so-called ‘fact’ consists of a finding as to the degree of possibility of a result occurring that is necessary to sustain a statutory basis for eligibility (e.g., the extent of hardship or the chance of *777persecution or torture if the alien is removed.).”); The Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54878, 54890 (Aug. 26, 2002). We hold that the BIA improperly applied the clearly erroneous standard when it rejected the IJ’s factual findings.2 The IJ found that Xie had “established a reasonable possibility that if she were to return to China with her children ... she could suffer significant financial harm and be subject to a forced abortion or sterilization with respect to her current pregnancy.” Appendix (App.) 13. This is a factual finding which the BIA should have reviewed for clear error. Cf Wong, 539 F.3d at 230 (citation and quotation marks omitted) (“[t]he BIA’s conclusions regarding evidence of ... the well-founded fear of persecution are findings of fact....”). Rather than apply the correct standard, however, the BIA appears to have engaged in a de novo review of the record. For instance, purporting to apply the proper, clearly erroneous standard, the BIA found that the IJ committed clear error when she concluded that Xie could “ ‘suffer significant financial harm’ ” and that “ ‘social compensation fees can be sufficiently exorbitant enough to accomplish the same end as physical force, i.e., coercion’ ” because the IJ did not provide a citation to a particular part of the Country Condition reports in making this finding. App. 5. The BIA alternatively cited an example of a woman who had to pay only about $60 per child in fines. App. 5-6. Xie, however, points to information contained in the Country Condition reports to support the IJ’s finding. The U.S. State Department Report from 2003, for example, states that the threat of economic sanctions for violating the child planning laws “sometimes left women with little practical choice but to undergo abortion or sterilization.” App. 188. The same report states that, while fees varied, they were “generally extremely high” and “ranged from one-half to eight times the average worker’s annual disposable income.” Id. A 2004 report makes similar statements. See App. 234-37. This example illustrates that the BIA appeared to conduct a de novo review of the evidence rather than analyze whether the IJ’s findings were “permissible” interpretations. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).3 This was improper, and this Court will remand to the BIA conduct a proper analysis. The second issue is whether the BIA erred when it declined to grant Xie’s request for asylum. In deciding not to grant Xie’s request, the BIA found that Xie was not credible. Just as with the first issue, this Court reviews, de novo, whether the *778BIA applied the proper standard of review to the IJ’s decision. Kabba, 530 F.3d at 1245. The BIA should review the IJ’s credibility findings under a clearly erroneous standard. 8 C.F.R. § 1003.1(d)(3)(i). Here, the IJ found that Xie’s explanations were credible. She explained: Despite [Xie’s] failure at her March 7, 2002, asylum interview to disavow her alleged student political activities as written in her 1994 1-589, the Court finds that she credibly explained during this hearing that at the time of that interview, she did as she was directed by her attorney and repeated the claim as it appeared in her 1-589. A comparison of the March 7, 2002, Assessment to Refer (Exhibit 5) and the 1-589 bears this out. App. 13-14. The IJ continued: [Xie] also credibly explained why she had included the political activity as a basis for her original claim. She testified how she simply signed her name to an application, as she was directed, in order to get a Social Security card. Thus, the Court finds these discrepancies, which [Xie] has credibly explained and rehabilitated, were previous wrong allegations. App. 14. The IJ, then, found that Appellant had credibly explained why she had lied at her asylum interview. It was only then that the IJ exercised her discretion to find that Appellant merited asylum. Id. The BIA gave no reasons as to why it rejected the IJ’s determination that Xie had credibly explained, at least, the discrepancies between her initial application and her current one and/or why she gave false testimony at her asylum hearing. Indeed, the BIA did not cite to the clearly erroneous standard in this section of its opinion at all. Therefore, this Court will remand this matter to the BIA in order for the BIA to apply properly the clearly erroneous standard of review to the IJ’s credibility determinations. Ramirez-Peyro v. Gonzales, 477 F.3d 637, 641 (8th Cir.2007). III. For the foregoing reasons, Xie’s petition for review will be granted, and this cause will be remanded to the BIA for further consideration consistent with this opinion. . In Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), the Supreme Court explained that "the foremost” of the principles guiding a clearly erroneous analysis is that "[a] finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” 470 U.S. at 573, 105 S.Ct. 1504 (citations and internal quotation marks omitted, brackets in original). The Court went on to state that ”[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous." Id. at 574, 105 S.Ct. 1504 (citations omitted). . The BIA is permitted to engage in factual finding when it takes administrative notice of official documents such as State Department reports. 8 C.F.R. § 1003.1 (d)(3)(iv); Shao v. Mukasey, 546 F.3d 138, 166 (2d Cir.2008). Because the IJ’s findings with regard to this issue were based solely on the country condition reports, the BIA could have properly engaged in a de novo review of those reports to come to a different conclusion from the IJ. However, the BIA purported to review the evidence for clear error, and so we remand.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471092/

OPINION OF THE COURT FISHER, Circuit Judge. Darrin Robinson appeals from the Magistrate Judge’s order granting summary judgment in favor of defendants Martin Horn and Phillip Johnson. We will reverse the Magistrate Judge’s order and remand the case for further proceedings consistent with this opinion. 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 June 2002, Darrin Robinson was an inmate in the Restricted Housing Unit (RHU) at the State Correctional Institution at Pittsburgh, Pennsylvania (SCI-Pittsburgh). At the time, policies in force at SCI-Pittsburgh mandated that prisoners housed in the RHU were periodically to be taken outside for exercise, where they were to be placed in special “cages” designed for that purpose. Under prison procedures, corrections officers were to place two handcuffed prisoners in an exercise cage at one time and then, while standing outside the cage, reach through a slot to remove each prisoner’s handcuffs. *780On June 26, 2002, Corrections Officer Robert Onstott, following this procedure, handcuffed Robinson’s hands behind his back and put him in an outdoor exercise cage with another inmate from the RHU, Troy Cooper. Cooper’s handcuffs were removed first. As soon as Cooper’s hands were free, he attacked Robinson, whose hands were still bound, stabbing him repeatedly in the face and neck with an improvised knife fashioned from a plastic food tray, before ultimately being subdued. On June 28, 2002, Robinson filed a grievance concerning the incident under Pennsylvania’s Inmate Grievance System Policy, DC-AJDM 804, in which he wrote that he was taken to the cage “as per procedure,” recounted his injuries, and requested that “disciplinary actions be taken against those responsible for this neglect, a change in procedures that allow for protection, and money to compensate for [his] injuries and any future and present medical care.” App. 39. Robinson’s grievance went through all three stages of review within Pennsylvania’s Inmate Grievance System and was denied at each stage. Robinson then filed this civil rights complaint under 42 U.S.C. § 1983 against Horn, the then-Secretary of the Pennsylvania Department of Corrections; Johnson, the then-Superintendent of SCI-Pittsburgh; Corrections Officer Onstott; and three other prison guards. In his complaint, Robinson alleged that the defendants failed to protect him from being attacked by Cooper, in violation of the Eighth Amendment. The parties consented to adjudication by a Magistrate Judge, and the defendants moved for summary judgment. Ultimately, the Magistrate Judge granted summary judgment in favor of all defendants. As relevant here, the Magistrate Judge granted summary judgment in favor of Horn and Johnson because, she concluded, Robinson procedurally defaulted his claims against them by failing to identify them by name in his grievance. This timely appeal followed. II. The Magistrate Judge presided by consent under 28 U.S.C. § 636(c) and had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. See Skretvedt v. E.I. DuPont de Nemours, 372 F.3d 193, 200 & n. 7 (3d Cir.2004). We have jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291. See Skretvedt, 372 F.3d at 200 n. 7 (citing Abrams v. Lightolier Inc., 50 F.3d 1204, 1209 n. 1 (3d Cir.1995)). We exercise plenary review over a district court’s decision to grant summary judgment, applying the same standard the district court should apply. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009); Williams v. Beard, 482 F.3d 637, 639 (3d Cir.2007). 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). III. Under the Prison Litigation Reform Act of 1995 (PLRA), a prisoner may not bring a § 1983 suit with respect to prison conditions — such as this suit — -“until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement contains a procedural default component; in other words, exhaustion under § 1997e(a) is “‘proper exhaustion,’ meaning that the prisoner must comply with all the administrative *781requirements and not merely wait until there are no administrative remedies ‘available.’ ” Williams, 482 F.3d at 639 (quoting Woodford v. Ngo, 548 U.S. 81, 92-103, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)); accord Spruill v. Gillis, 372 F.3d 218, 227-30 (3d Cir.2004). ‘“[P]rison grievance procedures supply the yardstick’ for determining what steps are required for exhaustion [under § 1997e(a) ].” Williams, 482 F.3d at 639 (quoting Spruill, 372 F.3d at 231); see Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). Here, Horn and Johnson do not contest that Robinson “exhausted his administi'ative remedies in the literal sense”; he pursued his grievance through Pennsylvania’s Inmate Grievance System until there were no “further avenues of relief ... available to him” within that system. Spruill, 372 F.3d at 232. This dispute centers instead on the procedural default component of the PLRA’s exhaustion requirement. Specifically, the defendants assert that Robinson procedurally defaulted his claims against them by failing to identify them by name in his grievance. In this regard, they point to a passage from Pennsylvania’s Inmate Grievance System Policy, which provides in relevant part: “The inmate shall include a statement of the facts relevant to the claim.... The inmate should identify any persons who may have information that could be helpful in resolving the grievance. The inmate should also include information on attempts to resolve the matter informally. The inmate may also specifically state any claims he/she wishes to make concerning violations of Department directives, regulations, court orders, or other law.” App. 47-48 (DC-ADM 804, Part VI.A.l.g). In Spruill, we interpreted an earlier— but in all material respects identical — version of this paragraph. 372 F.3d at 232-35. In doing so, we explained that “[t]he verbs in this paragraph establish three tiers of grievance components: items that are mandatory (‘shall’); items that are required to the extent practicable (‘should’); and items that are optional (‘may’).” Id. at 233. Here, then, under Spruill, if the identities of Horn and Johnson were “facts relevant to the claim” then it was mandatory for Robinson to name them in his grievance; if they were “persons who may have information” or with whom Robinson made “attempts to resolve the matter informally” then Robinson was required to identify them if practicable; and if they did not fall into any of these categories then Robinson was not required to identify them at all. See Spruill, 372 F.3d at 234. We are unconvinced by our review of the record that the defendants’ names were facts relevant to Robinson’s grievance or that Robinson made attempts to resolve the matter informally with them. And while the defendants surely had information that could have been helpful in resolving Robinson’s grievance, we are skeptical that they have met their burden of demonstrating that it was “practicable” for Robinson to identify them as the relevant policymakers; the evidence in the record tends to show that prisoners at SCI-Pittsburgh did not have access to the policies and procedures governing the administration of security in the RHU, much less the identities of the prison officials responsible for formulating and implementing those policies and procedures. Indeed, during discovery, Johnson objected to Robinson’s request for production of the relevant procedures manual on the ground that it was *782“privileged and confidential” and that “[producing this documents [sic] could pose ... a security risk for inmates, staff and/or the institution.” S.App. 61. On this record, we do not believe that Robinson procedurally defaulted his claims against Horn and Johnson. In any event, even if Robinson had procedurally defaulted his claims against Horn and Johnson by failing to identify them in his grievance, the prison’s grievance process excused those procedural defaults. The Initial Review Response (IRR) to Robinson’s grievance — the first-level determination of his grievance under the Inmate Grievance System Policy — noted that “[t]he yard procedures for R.H.U. inmates has been modified.” App. 40; see App. 48-50 (DC-ADM 804, Part VLB); of. Spruill, 372 F.3d at 232 (discussing the “three stages of review within Pennsylvania’s Grievance System”). And Johnson personally denied Robinson’s “Appeal to Facility Manager” — the second stage of review under the Inmate Grievance System Policy, see App. 50-51 (DC-ADM 804, Part VI.C) — indicating in his written response: “It is unfortunate that this assault happened to you at SCI-Pittsburgh, but RHU yard procedures have been modified to prevent something like this from happening again.” App. 42. “ ‘The primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.’ ” Williams, 482 F.3d at 640 (quoting Jones, 549 U.S. at 219, 127 S.Ct. 910). These documents indicate that Robinson’s grievance succeeded in this purpose, “evidencing] knowledge on the part of prison officials ... that there was a problem,” id., and acknowledging that the relevant policymakers, Horn and Johnson, were “fairly within the compass” of Robinson’s grievance, Spruill, 372 F.3d at 234. IV. For the foregoing reasons, we will reverse the Magistrate Judge’s order granting summary judgment in favor of Horn and Johnson and remand this action to the Magistrate Judge for further proceedings consistent with this opinion.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471094/

OPINION OF THE COURT SCIRICA, Chief Judge. Derrick H. Bell pleaded guilty to distribution and possession with intent to distribute cocaine base, under a written plea agreement. PSR ¶ 73. Initially, on January 28, 2005, Bell was sentenced to serve a 170 month term of incarceration. Id. In July, 2006, the Government moved for a twelve-month reduction in Bell’s sentence under the Federal Rules of Criminal Procedure Rule 35(b) because of his substantial assistance to law enforcement. The District Court granted this motion and reduced Bell’s term of imprisonment to 158 months. Subsequently Bell filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c) based on the amendments to the Sentencing Guidelines for cocaine base offenses. On August 28, 2008, the District Court denied this motion and issued a Pronouncement of Ineligibility.1 Bell appealed this judgment. We will affirm.2 At the initial sentencing hearing, the District Court fully adopted the Pre-Sen-tence Report (PSR) which calculated Bell’s base offense level of 32 based upon the weight of the cocaine base (at least 50, but less than 150, grams), U.S.S.G. § 2D1.1, and a criminal history of VI as a result of several criminal convictions. His guidelines range, according to the PSR, was 210 to 240 months, reduced from 210 to 262 months because there was also a statutorily authorized maximum sentence of 20 years. PSR ¶ 71; see also 21 U.S.C. § 841(b)(1)(c). The PSR recited that Bell was a career offender, under U.S.S.G. § 4B1.1, because he was 18 years or older at the time of the commission of the instant offense, the offense was a felony involving a controlled substance, and he had at least two prior felony convictions for controlled substances. PSR ¶ 21. His career offender guideline range was the same as his drug-weight-based range: 210 to 240 months. Based upon a recommendation from the government, the District Court also granted Bell a two-point downward departure for acceptance of responsibility under *784U.S.S.G. § 3E1.1. A-29. Accordingly, Bell’s offense level was 30, and his new guideline range was 168 to 210. While the District Court did not explicitly reference the career offender guideline during the sentencing hearing, it adopted in full the PSR, which had found Bell to be a career offender. A-29. At no time did Bell ever contest the PSR designation that he qualified as a career offender under the U.S.S.G. As noted, the District Court initially sentenced Bell to term of 170 months which was subsequently reduced to a term of 158 months. “In November 2007, the Sentencing Commission amended the crack cocaine guidelines [Amendment 706] by revising a portion of the drug quantity table at § 2Dl.l(e). Generally, Amendment 706 reducing the base offense levels for crack cocaine offenses under § 2D1.1(c) by two levels.” United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). The Commission declared the amendment to be retroactive. Id. Upon motion, a district court may reduce the sentence 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.” 18 U.S.C. § 3582(c)(2). The District Court found Bell ineligible for further sentence reduction under Amendment 706 because he was sentenced as a career offender.3 As noted, the District Court adopted the PSR in toto which designated Bell as a career offender. Bell never lodged an objection that he was not a career offender. This designation is a bar to eligibility for a reduction under 18 U.S.C. § 3582(c). “The applicable policy statement instructs that any reduction in sentence is ... not authorized by 18 U.S.C. § 3582(c) if an amendment does not have the effect of lowering the defendant’s applicable guideline range.” Mateo, 560 F.3d at 154 (quoting U.S.S.G. § lB1.10(a)(2)(B)). The guidelines provide that “if the offense level for a career offender ... is greater than the offense level otherwise applicable, the [criminal offender] offense level ... shall apply.” U.S.S.G. § 4B1.1. Therefore, even if Bell were to receive the amendment reduction, it would not change the applicable guideline range because the higher offense level for a career offender under the guidelines would apply. Because Bell would be still be sentenced under the same guideline range under U.S.S.G. § 4B1.1, regardless of the amendment, he does not qualify to have his sentence reduced pursuant to 18 U.S.C. § 3582(c). We will affirm the judgment of conviction and sentence. . Bell initially attempted to file this motion pro se, but the Federal Public Defender's office had already been appointed to represent him. Thus, the District Court entered an order striking the pro se motion without prejudice because he was now represented by counsel. Bell made a motion to reinstate his pro se motion and this was denied. He then appealed this denial to the Third Circuit but the appeal was dismissed upon agreement of the parties. Bell, with counsel, filed another motion for a reduction of his sentence on July 8, 2008 which was denied. This denial is before us today. . The District Court had jurisdiction under 18 U.S.C. § 3231 and 3582(c)(2). We have jurisdiction under 28 U.S.C. § 1291. . We review the District Court's interpretation of the sentencing guidelines de novo; however, we review the court’s decision to "deny a defendant's motion to reduce sentence under § 3582(c) for abuse of discretion." Mateo, 560 F.3d at 154.

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OPINION OF THE COURT PER CURIAM. Weng Qing Fen, a twenty-one-year old native and citizen of the People’s Republic of China, petitions for review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition. Fen unlawfully entered the United States in 2006, conceded his removability in proceedings before the Immigration Judge (“U”), and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Fen asserted that he suffered past persecution and has a well-founded fear of future persecution on the basis of his involvement in China with an unregistered Christian church. Fen testified before the IJ that he began regularly attending the chui*ch with his mother in July 2004, at age sixteen. The police purportedly arrested Fen and his mother at a church meeting on December 31, 2004, and pressured Fen to divulge the names of church attendees who had evaded arrest. Fen claimed that he refused to provide any names, was detained for a week, and was mistreated during his detention, including being hit in the face. Fen also testified that the police forced him to sign a letter promising that he would cease attending the church. Fen’s mother was detained for one month. Fen allegedly was arrested a second time, on March 13, 2005, this time at the home of the church pastor, with the police detaining Fen for two weeks before transferring him to a juvenile labor camp, where he was held for one month. Fen claimed that he was forced to perform menial labor, made to attend “brainwashing sessions,” and occasionally beaten. Although his parents and brother remain in China, Fen arranged to be smuggled into the United States, via a handful of other *786countries, at the age of eighteen. Fen currently attends a church in New York City, where he was baptized in April 2007. The IJ denied Feris application, finding that Fen failed to support his testimony with needed corroborating evidence, including from individuals in China and his church in New York. The BIA agreed and dismissed Fen’s appeal, finding no clear error in the IJ’s findings of fact as well as insufficient evidence to support the asylum claim. The BIA noted that Fen failed to provide corroborating evidence to support the crux of his claim, including evidence of his membership in the unregistered church and his participation in the church in New York. An unsworn letter purportedly from Feris mother was deemed insufficient. The BIA further held that it was reasonable to expect Fen to produce corroborating evidence, and that his explanations for failing to do so were unavailing. The BIA added that Feris alleged fear of future persecution is undermined by the fact that his parents and brother, all Christians, continue to reside safely in China. The BIA also rejected the claims for withholding of removal and CAT relief. Fen timely filed a petition for review in this Court. We have jurisdiction under 8 U.S.C. § 1252(a). “Where, as here, the BIA issues a decision on the merits and not simply a summary affirmance, we review the BIA’s, and not the IJ’s, decision.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). “The BIA’s determination will not be disturbed unless any reasonable adjudicator would be compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.2008) (quotation marks omitted). Feris principal contention on appeal appears to be that the BIA erred because it never expressly rejected the credibility of his testimony, and therefore it unreasonably required corroboration to support his claim. We find no merit in this contention. The BIA observed that the IJ had “questioned [Fenj’s credibility, [but] did not make an explicit adverse credibility finding.” But “notwithstanding doubts about [Fen]’s credibility,” the BIA rejected Feris claim solely on the ground that he had failed to sustain his burden of proof by not providing sufficient corroborating evidence. We have held that “[a]n alien’s testimony, if credible, may be sufficient to sustain the burden of proof without corroboration.” Kamara v. Att’y Gen., 420 F.3d 202, 213 (3d Cir.2005) (quotation marks omitted). But it by no means follows that credible testimony never requires corroborating evidence. See, e.g., Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009) (“[C]redible testimony alone is not always sufficient to meet the burden of proof.”). The REAL ID Act of 2005, which the BIA correctly noted is applicable here given that Fen filed his application after May 11, 2005, expressly provides that “[t]he testimony of the applicant may be sufficient ... without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(l)(B)(ii) (emphases added). Further, “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Id. § 1158(b)(l)(B)(ii).1 Additionally, with re*787spect to judicial review of a finding as to the availability of corroborating evidence, “[n]o court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B) ... unless the court finds ... that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4)(D). The BIA concluded that Fen’s testimony alone, even if credible, was insufficiently persuasive to establish refugee status. The BIA thus held that it was appropriate to expect Fen to corroborate the “critical elements of his claim,” including membership in the unregistered church and participation in the New York church. But as the IJ observed, Fen failed to submit an affidavit from his pastor or from church members in China, or indeed any evidence (other than an unsworn letter from his mother) to substantiate his alleged underground church activities and arrests. Fen also provided no affidavit or evidence from his New York pastor, who is also from Fujian Province and could be expected to support Fen’s story in some manner and verify Fen’s current church activities. Fen also provided no evidence from any fellow church member in New York. “It is reasonable to expect corroboration where the facts are central to the applicant’s claim and easily subject to verification.” Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir.2007). Fen’s church-related activities are at the heart of his claim. Fen testified that he had no evidence from his New York pastor because the pastor was “busy,” and that fellow church members would not want to get involved in his asylum case due to the “sensitive issues.” The BIA did not err in rejecting of these explanations. Fen testified vaguely about his knowledge of Christianity, provided inadequate documentary evidence of his activities in China, and other than submitting a photograph of his baptism, failed to corroborate his church affiliation. Substantial evidence supports the BIA’s finding that Fen failed to sustain his burden of proof. Because Fen failed to meet his burden of proof on asylum, the BIA did not err in holding thát he necessarily failed to meet the higher standard required for withholding of removal. See Gomez-Zuluaga, v. Att’y Gen., 527 F.3d 330, 348-49 (3d Cir. 2008). Fen also argues, in conclusory fashion, that he will be subjected to torture if returned to China, but he points to nothing specific in the record, and we have found no evidence, to suggest that the BIA erred in denying his claim for CAT relief. For these reasons, we will deny the petition for review. . As the government notes in its brief, § i 158(b)(l)(B)(ii) essentially codifies the standard for corroboration that the BIA had adopted in Matter of 21 I. & N. Dec. 722 (BIA 1997). The S-M-J- rule requires a three-part inquiry: (1) an identification of the facts for which it is reasonable to expect cor*787roboration; (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, (3) an analysis of whether the applicant has adequately explained his or her failure to do so. See Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (holding that the S-M-J-rule is not per se invalid and therefore "the BIA may sometimes require otherwise-credible applicants to supply corroborating evidence in order to meet their burden of proof”).

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OPINION PER CURIAM: Xiurong Liu petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny her petition. Liu, a native and citizen of China, arrived at the United States-Mexico border in September 2004 without a valid visa or other travel document. She was placed into removal proceedings, and thereafter sought asylum, withholding of removal, and relief under the Convention Against Torture. Following a hearing on November 22, 2006, the IJ denied relief. The BIA dismissed the appeal and issued a final order of removal on May 7, 2008. Liu filed a petition for review. The IJ based his denial of Liu’s request for relief on his conclusion that she was not a credible witness. This finding was based on the numerous inconsistencies both between Liu’s credible fear interview and her testimony at the hearing and within her hearing testimony, her admission that she lied during her credible fear interview, and her reliance on supporting documentation that appeared to the IJ to be fabricated. At her credible fear interview, Liu stated that she was married, that she had given birth to one child, and that her second pregnancy was forcibly aborted. *789In a supplemental statement submitted with her asylum application, she admitted that these statements had all been untrue and that she had made them at the direction of the smugglers, who threatened her and her family if she did not. She explained that she was rescinding those statements because the smugglers had been captured and she was no longer afraid of them. In her asylum application and at the hearing, Liu claimed that she was seeking relief from removal because she had been married before the legal age in China and therefore her marriage was illegal.1 She claimed that when the family planning officials learned of the illegal marriage, they threatened her with fines and with the insertion of an IUD. She and her husband went into hiding until she left for the United States. She claimed that she did not want to be implanted with an IUD because she wanted to have three children, and she could not afford to pay the fines. Notably, her testimony at the hearing was that she would have been fined in the amount of 25,000 RMB and that she paid over 500,000 RMB to come to the United States. Liu maintained that if she was returned to China, she would be jailed and fined. In support of her application, she submitted letters from her parents and her in-laws. The IJ observed that the language in each of these letters was strikingly similar to the others and to her supplemental statement and that he therefore believed that they had been fabricated. Based on his adverse credibility determination, the IJ denied all forms of relief and ordered Liu removed to China. In dismissing her appeal, the BIA concluded that Liu was unable to demonstrate on appeal that the IJ’s adverse credibility finding was clearly erroneous. The BIA further held that, even if it were to accept her testimony as true, she failed to establish past persecution or a well-founded fear of future persecution upon return to China. The BIA reasoned that Liu was never arrested, detained or physically mistreated, she never paid the fine that was allegedly imposed for her illegal marriage or refusal to have an IUD implanted, and she was unable to show that the fine in her case would result in such a substantial economic deprivation that it would constitute persecution. With respect to her family planning claim, the BIA found that the threat of the forced insertion of an IUD alone does not per se constitute persecution. Because she is now of legal age, the BIA concluded that she could legally marry and have a child in China. Finally, the BIA held that Liu’s claim that she would jailed based on her illegal departure from China was speculative at best and could not support her claim for relief. We have jurisdiction over this petition for review under 8 U.S.C. § 1252. To be granted asylum as a refugee, an applicant must establish that she is unable or unwilling to return to her homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To be entitled to withholding of removal, an applicant must prove that her “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). It is well-recognized that an alien who is unable to establish refugee status for the purpose of asylum will be unable to establish the right to withholding of removal. See Zubeda v. *790Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). Au applicant for either form of relief must offer “credible, direct and specific evidence” in support of her claim. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004); Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir.1998). The IJ denied relief because he found that Liu was not credible. Because the BIA’s decision clearly incorporated the adverse credibility findings made by the IJ, we review both determinations at this time. See Chen, 376 F.3d at 222; Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). The adverse credibility determination is a factual finding subject to review under the substantial evidence standard. See Kaita v. Attorney General, 522 F.3d 288, 296 (3d Cir.2008). “Under this deferential standard of review, we must uphold the credibility determination of the BIA or IJ unless ‘any reasonable adjudicator would be compelled to conclude to the contrary.’” Chen, 376 F.3d at 222 (quoting 8 U.S.C. § 1252(b)(4)(B)). However, an adverse credibility finding based on inconsistencies in the record must be based on matters that go to the heart of the asylum claim.2 See Kaita, 522 F.3d at 296. Based on a thorough review of the record, we conclude that the adverse credibility finding is supported by substantial evidence. Liu does not address the IJ’s finding that her testimony was not credible due to discrepancies between her representations during her credible fear interview and in her written application for relief and her testimony before the IJ. Those discrepancies were significant and we defer to the IJ’s conclusion that Liu failed to rehabilitate her credibility after admitting to lying during her credible fear interview. See Chen v. Gonzales, 434 F.3d 212, 220-21 (3d Cir.2005) (noting that “an IJ is normally in the best position to make credibility determinations as he is uniquely qualified to decide whether an alien’s testimony has about it the ring of truth”). The only aspect of the IJ’s adverse credibility determination that Liu does address in her brief is the IJ’s comment regarding the similarities between Liu’s written statement and the letters from her relatives. Liu argues that these similarities can be explained largely by the translation process and the fact that people from the same village tend to use similar terminology. The question on review is whether Liu has demonstrated that “the evidence not only supports a contrary conclusion, but compels it.” See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). We cannot say that it does.3 *791Based on the foregoing, we will deny the petition for review. . Liu claimed that she was married at age eighteen, but that she did not seek permission for the marriage because she was below the legal age of twenty-one. At the time of the hearing, Liu was over twenty-one years of age. . In enacting the Real ID Act of 2005, Congress changed the credibility determination 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, this new provision only applies to applications for relief filed after May 11, 2005, the effective date of the Act. See id. As the Government concedes, these changes are not applicable to the instant petition, as Liu filed her application for relief prior to that date. See Chukwu v. Attorney General, 484 F.3d 185, 189 (3d Cir.2007). . Liu also challenges the BIA's alternative holding that, even if it were to accept her testimony as true, she failed to establish past persecution or a well-founded fear of future persecution upon return to China. Liu argues that she fled China out of fear of forcible insertion of an IUD, as well as the possibility of being jailed and fined, and that this alone qualifies as a well-founded fear of future persecution. In light of our holding regarding the IJ’s credibility determination, we need not reach the merits of this claim. We note, however, that Liu fails to cite to, nor are we aware of, any precedent holding that the threat of insertion of an IUD alone qualifies as persecution. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as "threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom”).

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OPINION PER CURIAM. Li Qin Zhou, a native and citizen of China, entered the United States in April 2002. She appeared before an Immigration Judge (“IJ”) and conceded that she was removable for entering without a valid *792entry document. See Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I) ]. Zhou applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), on the ground that she suffered persecution in China as a Falun Gong practitioner. In particular, Zhou claimed that she practiced Falun Gong for one month — attending one or two meetings and handing out fliers — before the practice was officially banned. Fearing arrest, Zhou went to live with a friend in another town. The authorities came to her parents’ home and, because they were unable to locate Zhou, detained and “mistreated” her father for four months. The IJ denied relief, finding Zhou’s allegations not credible because of implausibilities and inconsistencies in her airport statement, her credible fear interview, her asylum affidavit, and her testimony. The IJ also concluded that Zhou could safely relocate in China and faulted her for failing to provide corroborating evidence. The Board of Immigration Appeals (“BIA”) affirmed without opinion. Zhou filed a petition for review in the United States Court of Appeals for the Second Circuit. By order entered November 27, 2007, the Second Circuit transferred the petition for review to this Court. We have jurisdiction under INA § 242 [8 U.S.C. § 1252]. Because the BIA affirmed the decision of the IJ without opinion, we examine the decision of the IJ. See Partylca v. Att’y Gen., 417 F.3d 408, 411 (3d Cir.2005). We review the factual findings of the IJ, including adverse credibility findings, for substantial evidence. See Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005). Under this standard, the IJ’s determinations will be upheld if they are supported by “reasonable, substantial and probative evidence on the record considered as a whole.” Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003) (quotations omitted). Adverse credibility determinations based on speculation or conjecture are not upheld. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). In general, “minor inconsistencies and minor admissions” are not an adequate basis for an adverse credibility finding. Id. Any discrepancies must involve the heart of the claim.1 Id. Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.” INA § 242(b)(4) [8 U.S.C. § 1252(b)(4) ]; see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009). The IJ concluded that Zhou was not credible because she “testified that there were between 10 and 20 people present [at the Falun Gong meetings she attended] ... [t]hen ... almost immediately changed the testimony, and stated that there were between 20 and 30 people present.” The IJ also found it “quite incredible” that Zhou could not recall the name of the person who led the meetings. Furthermore, Zhou testified that she lived with a friend in the town of Zhi Cheng for two years before coming to the United States, but her asylum application and airport statement listed Changle City as her last address in China. The IJ rejected Zhou’s explanation that she provided her parents’ permanent address in Changle City because the questions were not clear. The IJ also faulted Zhou for alleging in her credible fear interview that Chinese authorities had destroyed her house, omitting that claim from her asylum applica*793tion, and then explaining that it was the fence that was destroyed and that she did not include it in her application because “that’s not major.” Finally, without citing any evidence, the IJ saw “no reason why the police ... in China would be so interested in the respondent inasmuch as she only practiced Falun Gong for a month or less.” We believe that these adverse credibility determinations are not supported by substantial evidence. Nevertheless, we conclude that the IJ reasonably required Zhou to provide corroboration for her claims. See Abdtilai v. Ashcroft, 239 F.3d 542, 551-54 (3d Cir.2001) (observing that even where an applicant is credible, corroboration may be required if the applicant is to meet his burden of proof). In denying relief based on a lack of corroboration, the IJ must conduct the following three-part inquiry: (1) an identification of facts for which it is reasonable to expect corroboration; (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if she has not, (3) an analysis of whether the applicant has adequately explained her failure to do so. See Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006). Zhou provided no corroborating evidence of her practice of Falun Gong. The IJ noted that Zhou could have submitted letters from friends or family in China, books that she read in the United States, or the testimony of her uncle, who lived with her at the time of the hearing. Although Zhou stated that her family “do[es] not have much education,” she did not adequately explain why she did not produce the Falun Gong literature or arrange for her uncle to testify. Under these circumstances, we conclude that substantial evidence supports the IJ’s determination that Zhou failed to meet her burden of showing that she is eligible for asylum and withholding of removal. The IJ also correctly determined that Zhou did not meet the criteria for relief under the CAT because she failed to establish that it was more likely than not that she would be tortured if removed to China. See 8 C.F.R. §§ 208.16, 208.18. For the foregoing reasons, we will deny the petition for review. . The provisions of the Real ID Act of 2005 that address the Court's review of an adverse credibility finding do not apply in this case because Zhou applied for relief before the Act's effective date. See Chukwu v. Att'y Gen., 484 F.3d 185, 189 (3d Cir.2007).

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OPINION AMBRO, Circuit Judge. Beasley Acquisition Corp. and Beasley Broadcast Group, Inc. (collectively “Beasley”) appeal from a jury verdict in favor of plaintiff Charles Tisa on his claims for breach of contract and violation of the Pennsylvania Wage Payment and Collection Law, 42 Pa.C.S.A. § 260.1, et seq. Beasley contests the District Court’s rulings regarding the ambiguity of Tisa’s employment agreement and the admission of certain testimony and evidence at trial. Those contentions do not persuade us, and thus we affirm. I. Because we write for the parties, our recitation of the facts is abbreviated. We review “the facts in the light most favorable to the verdict” winner, Tisa. United States v. Jimenez, 513 F.3d 62, 69 (8d Cir .2008). Beasley hired Tisa in 2001 to serve as the program director for its owned and operated radio station, WRDR (96.5). In 2003, Beasley issued a warning to Tisa based on the sexual harassment complaint of a station employee. Despite this warning, Beasley renewed Tisa’s employment agreement in 2004. David Donahue, the station manager, negotiated with Tisa the terms of his new agreement. Among other things, Donahue agreed to increase the amount of severance money Tisa could receive for termination without cause from three months’ to six months’ pay. Tisa and Donahue memorialized this increase on a copy of Tisa’s old agreement, jointly initialing the change. Bruce Beasley, the president of the station, approved Tisa’s agreement in its final form and signed the document on its behalf. Donahue left the station shortly after negotiating Tisa’s renewed agreement. Lynn Bruder took his place. As station manager, she worked with Jerry Clifton, a long-time consultant to the station, to develop a new “rhythmic format” and improve programming, imaging, and on-air talent hiring. In the course of these efforts, Bruder told Clifton that she was displeased with Tisa’s performance. Bruce Beasley also told Clifton that he disliked Tisa. Clifton shared these remarks with Tisa. Bruder fired Tisa in 2005. She did so at a meeting attended by Tisa and Alice Eti-enne, a representative from Beasley’s human resources department. At the meeting, Bruder first stated that she was firing Tisa because of his “poor ratings.” But when Tisa informed her that, according to his employment agreement, termination for poor ratings secured him six months of severance pay, she also attributed his firing to insubordination. Bruder then told Tisa that he would receive only two weeks severance. Tisa sued. He claimed that he was fired without cause and deserved the severance agreed to in his employment contract. Beasley responded that it fired Tisa for cause and, in any event, owed him only three months severance pay. In arguing the latter point, Beasley emphasized that Bruce Beasley had not initialed the severance pay change to Tisa’s employment agreement at the time he approved it. Following discovery, Beasley also added an “after acquired evidence” defense based on the new claim of a station intern who alleged that Tisa had touched him inappropriately and propositioned him for oral sex in 2003. Beasley claimed that, had it *796known about this incident in 2003, it would have fired Tisa for cause. Before trial, Beasley filed a motion in limine asking the District Court to find that Tisa’s employment agreement unambiguously required Bruce Beasley to have initialed the severance pay change in order to make it enforceable. The Court denied this motion. It also determined that Beasley would have to prove at trial that Tisa’s agreement permitted Beasley to terminate him “for cause” based on conduct that occurred prior to the agreement’s approval in 2004. At trial, the Court asked the jury to determine whether Beasley fired Tisa for cause, considering the “after acquired evidence” only if it found that the agreement authorized Beasley to take it into account. The Court also requested the jury to decide whether the increased severance pay provision of Tisa’s agreement was valid, assuming that it was as if Bruce Beasley signed it after Tisa and Donahue agreed to and initialed the provision. To help the jury make these decisions, the Court admitted hearsay evidence of the remarks Clifton said to Tisa, and allowed Tisa’s attorney to read from Etienne’s deposition transcript during closing arguments. The jury found in Tisa’s favor and awarded him $154,816.24. Beasley now appeals.1 II. Beasley argues that the District Court erred by: (1) denying its motion to declare Tisa’s severance increase unambiguously invalid absent Bruce Beasley’s initialing of it; (2) determining that Tisa’s agreement was ambiguous as to what constituted a “for cause” termination; (3) admitting hearsay testimony of Clifton’s statements to Tisa; and (4) allowing Tisa’s attorney to quote from Etienne’s discovery transcript during closing argument. We disagree with each of these arguments. A. Beasley’s claim regarding the validity of the altered severance clause in Tisa’s agreement is grounded in the authorizing provision of the agreement. The provision states: “This AGREEMENT will not be considered to be binding, nor will any modification become effective, until signed by Charles Tisa, David Donahue, and Bruce Beasley.” According to Beasley, the provision “defined the process by which the parties could modify the agreement” and required that Bruce Beasley initial the severance increase in order to make it effective. Thus, Beasley claims, the Court was wrong to deny that the severance provision was unambiguously invalid and acted “inconsistently” in later ruling that the clause was unambiguously valid if Bruce Beasley signed the agreement after Tisa and Donahue changed that provision. We exercise plenary review over the District Court’s determinations regarding the ambiguity of Tisa’s employment agreement. See Allegheny Int’l, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1424 (3d Cir.1994). Under Pennsylvania law, which applies to this case, “[contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). Applying this standard, we conclude that the Court did not err in making either of the rulings about which Beasley complains. First, the Court properly denied Beasley’s assertion that Tisa’s agreement clearly required Bruce Beasley to initial the changed severance provision to give it *797effect. The authorizing provision of the agreement requires only that Bruce Beasley sign the agreement to enact or modify it. No provision states that Bruce Beasley, or any party, was required to initial any changes written into the agreement. Second, the District Court did not rule inconsistently in determining that the increased severance unambiguously was valid if Bruce Beasley, along with Tisa and Donahue, signed the agreement after they changed the severance provision’s terms. Beasley contends this is incorrect because it claims that, in denying its in limine motion, the Court ruled that the agreement was ambiguous and then changed its mind, in violation of what Beasley understands as the “law of the case” doctrine, to rule that the agreement was unambiguous. This contention is misguided. Based on our reading of the case, the District Court did not change its mind regarding the meaning of the authorizing provision in the agreement. Instead, it consistently ruled that the provision clearly validated the increased severance so long as Tisa and Donahue agreed to it before Bruce Beasley signed the employment agreement. The Court, of course, did not state this ruling in detail until after the trial began. But it was not required to do otherwise. Even if the Court had changed its mind about the ambiguity of the authorizing provision, the law of the case doctrine would not demand that we vacate the jury’s verdict. That doctrine “embodies the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of a matter.” Commw. v. Starr, 541 Pa. 564, 664 A.2d 1326, 1831 (1995). It “does not preclude a trial judge from clarifying or correcting an earlier ambiguous ruling,” Fagan v. City of Vineland, 22 F.3d 1283, 1290 (3d Cir.1994), nor does it strip a “trial judge [of] the discretion to reconsider an issue,” Swietlowich v. County of Bucks, 610 F.2d 1157, 1164 (3d Cir.1979). See also Micciche v. Eastern Elevator Co., 435 Pa.Super. 219, 645 A.2d 278, 280 (1994). B. Beasley also fails to convince us that the Court erred in determining that Tisa’s agreement was ambiguous as to what constituted a “for cause” termination. Specifically, we are not persuaded that the District Court was wrong to find that the agreement, which (to repeat) was drafted in 2004, was unclear on whether the accusation of Tisa’s inappropriate sexual advances to the station intern in 2003 was an acceptable “for cause” reason to justify firing him. The termination provision of Tisa’s renewed employment agreement states in part: EMPLOYER shall have the right to terminate EMPLOYEE’S employment and all rights and obligations hereunder at any time “for cause” ..., [which] shall include, but not be limited to: —conduct which reflects adversely upon and detracts from EMPLOYEE’S value as Program Director or the STATION’S or EMPLOYER’S public image or reputation; —gross or willful misconduct or negligence • — insubordination App. at 107-08. It is not clear to us that this provision clearly covers conduct occurring before the agreement’s effective date in 2004. We therefore will not disturb the District Court’s decision to let the jury interpret the provision’s meaning. *798C. Beasley next complains about the admission of hearsay testimony regarding Clifton’s statements to Tisa. It asserts that Clifton was not an agent of the radio station and thus his remarks were inadmissible as “statement[s] by a party’s agent concerning a matter within the scope of the agent’s employment.” Marra v. Phila. Housing Auth., 497 F.3d 286, 297 (3d Cir. 2007). We review the District Court’s decision to admit or exclude evidence for abuse of discretion. Hechinger Inv. Co. of Del. v. Universal Forest Prods., 489 F.3d 568, 574 (3d Cir.2007). Under Federal Rule of Evidence 801(d)(2)(D), “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,” is admissible hearsay. “[WJhere a supervisor is authorized to speak with subordinates about the employer’s employment practices, a subordinate’s account of an explanation of the supervisor’s understanding regarding the criteria utilized by management in making decisions on hiring, firing, compensation, and the like is admissible against the employer,’ regardless whether the declarant has any involvement in the challenged employment action.” Marra, 497 F.3d at 298 (quoting Abrams v. Lightolier Inc., 50 F.3d 1204, 1216 (3d Cir.1995)). In this case, Clifton was an “agent independent contractor,” see American Tel. & Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1434-39 (3d Cir. 1994), who had a “heavy hand in operations” at the station on “pretty much a daily basis.” App. at 170-72. He provided controlling advice on programming, imaging, and hiring of on-air talent, and he conferred at times with Bruder and Bruce Beasley about Tisa’s job performance. In fact, Clifton’s remarks to Tisa about Bru-der and Bruce Beasley’s dislike of him stemmed directly from Clifton’s involvement in a station management meeting at which Tisa’s employment was discussed. See id. at 204-05. Accordingly, the District Court did not err in determining that Clifton was an agent of Beasley whose relevant remarks to Tisa were admissible hearsay. D. Lastly, Beasley contends that the Court improperly permitted Tisa’s attorney to read from Etienne’s deposition transcript during his closing arguments. Beasley asserts that the Court incorrectly concluded that the proffered transcript passage merely reiterated a point which Etienne had made when testifying. We do not read the record to support such an assertion. See id. at 188-89, 409-07. But even assuming that the reading of the transcript did improperly introduce new evidence, such an error was harmless. Cf. Dawson v. Chrysler Corp., 630 F.2d 950, 961 (3d Cir.1980) (holding that the admission and use by the jury of an inadmissible diagram was harmless where there was testimony regarding the contents of the diagram). * ‡ * * * * Beasley fired Tisa without first considering the increased severance terms of his employment agreement. Now, after a jury in a federal trial rejected its pretextual excuses for terminating Tisa, Beasley makes arguments that fall far short of convincing us that we should overturn the jury’s verdict. We thus affirm the judgment in favor of Tisa. . We have jurisdiction to hear this appeal under 28 U.S.C. § 1291.

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OPINION PER CURIAM. Muhammad J. Khan petitions for review of an order of the Board of Immigration Appeals (“BIA”), affirming an Immigration Judge’s (“IJ’s”) order denying his motion to reopen. We will deny the petition for review. Khan is a native and citizen of Pakistan. On or about January 11, 2006, Khan was chai'ged as a removable alien. An 1-140 petition for alien worker was filed on his behalf. Represented by counsel, Khan appeared for a master hearing before Immigration Judge Yeargin on July 20, 2006. According to Khan, “he was [then] persuaded to seek voluntary departure after undersigned counsel was informed [off-the-record] by government counsel that the Immigration Service had evidence concerning certain ‘discrepancies’ between his pending immigrant petition and earlier statements that the Petitioner made to the government in connection with a prior application for adjustment of status.” (Petition for Review at 2.) The IJ therefore issued an order on July 20, 2006, granting voluntary departure in lieu of removal and expressly requiring Khan to depart on or before November 17, 2006. On or about November 6, 2006, Khan filed a motion to reopen his removal proceedings pursuant to 8 C.F.R. § 1003.23. He requested permission to seek adjustment of his status, emphasizing that he was now a beneficiary of a labor certifica*800tion approved after the IJ’s voluntary departure order and that his sponsor had filed an 1-140 petition based on the certification. He noted that if he were forced to comply with the voluntary departure order, he would “be barred from obtaining an immigrant visa for ten (10) years due to the unlawful presence bar which is applicable to individuals who have been granted voluntary departure.” A.R. 63. On December 19, 2006, Immigration Judge Fer-lise denied the motion to reopen, finding that it was untimely under the 90-day time period established by § 1003.23(b). Khan appealed to the BIA. Khan argued that government counsel had failed to respond to his request for information regarding the alleged discrepancies discussed at the status hearing and that the continuing failure to furnish the requested information prevented him from filing the motion to reopen in a timely fashion. In turn, the Government moved for summary affirmance. On January 9, 2008, the BIA dismissed Khan’s appeal. According to the BIA, “[i]t is unclear how the [Government’s] failure to provide the respondent with information caused the delay in filing the motion to reopen, as the motion was eventually filed without the information.” A.R. 2. It further found that Khan’s “argument does not provide a basis for granting an untimely motion to reopen.” Id. Khan filed a timely petition for review as well as a motion for stay of removal. In response, the government moved for summary affir-mance. A panel of this Court denied the motion for a stay of removal and the motion for summary affirmance on May 15, 2008, and the matter proceeded to briefing. Khan argues in his brief that the IJ erred in denying his motion to reopen, because the delay causing him to file an untimely motion to reopen was attributable to the Government’s failure to provide him with discovery. He also argues that the Government’s failure to provide him the requested evidence resulted in a violation of his right to due process. The Government argues that the BIA did not abuse its discretion in affirming the denial of Khan’s motion to reopen, and that the Government’s alleged failure to provide Khan with evidence did not violate his right to due process. This Court reviews the denial of a motion to reopen under an abuse of discretion standard. See, e.g., Barrios v. Attorney General, 399 F.3d 272, 274 (3d Cir.2005). Khan does not dispute that his motion to reopen was untimely under the applicable 90-day deadline, nor does he argue that his motion met one of the regulatory exceptions for timeliness. 8 C.F.R. § 1003.23(b)(1), 8 C.F.R. § 1003.23(b)(4). Instead, he argues that the time limitation should be tolled or otherwise excused because of the government counsel’s alleged failure to honor his request for information. We cannot find that either the IJ or the BIA abused its discretion in failing to reopen in these circumstances. Although an IJ may sua sponte reopen a decision “at any time,” see 8 C.F.R. § 1003.23(b)(1), Khan did not acknowledge the untimeliness of his motion to reopen in that motion, nor even mention that he was awaiting evidence from the Government. The IJ clearly was given no reason to consider the untimely motion. Khan did explain why he believed he could not file a timely motion in his appeal to the BIA, see A.R.10-14, but we agree with the BIA that Khan’s excuse for the untimely filing did “not provide a basis for granting an untimely motion to reopen.” A.R. 2. Khan himself cites to no specific evidence to support his allegation of a causal link between the alleged failure to disclose and his delay in filing. As noted, the motion to reopen filed by Khan did not refer to the *801discrepancy issue or any problems with obtaining information from the government. Khan does not explain why he could not have filed an identical motion to reopen within the allowed time period when he realized the evidence he expected from the Government was not forthcoming. Because Khan was not prevented from filing a timely motion to reopen, we further hold that the Government did not violate any due process right he might have to file a motion to reopen. For the foregoing reasons, the petition for review will be denied.

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SUMMARY ORDER Jose Mejia-Carrasco, a native and citizen of Peru, seeks review of an August 7, 2008 order of the BIA, affirming the August 3, 2006 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which preter-mitted his application for asylum as untimely and denied his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Jose Mejia-Carrasco, No. A095 936 853 (B.I.A. Aug. 7, 2008), aff'g No. A095 936 853 (Immig. Ct. N.Y. City Aug. 3, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Mejia-Carrasco concedes that he was ineligible for asylum. He further waives any challenge to the agency’s adverse credibility determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Indeed, Mejia-Carrasco’s only mention of the IJ’s credibility determination is his somewhat baffling assertion that the IJ’s credibility determination was not sufficiently explained because the IJ’s oral decision was not initially included in the record. He does not assert that the absence of the oral decision from the record prevented him from challenging the IJ’s credibility determination or that he lacks a copy of that decision.* Moreover, once the government provided an amended certified administrative record that included the IJ’s decision, Mejia-Car-rasco made no effort to submit a revised brief addressing the IJ’s explicit adverse credibility determination. That adverse credibility determination thus stands as a valid basis for the agency’s denial of his applications for withholding of removal and CAT relief where those applications were based on the same factual predicate. 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, 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). Petitioner's counsel was also the counsel of record before the BIA. He did not claim on appeal that he lacked a copy of the transcript of the IJ’s oral decision.

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Plaintiff Priscilla Boyer appeals from a judgment of the district court granting-summary judgment in favor of defendants Riverhead Central School District (“RCSD”), Charles Venezia, David Lod-dengaard, Phillip Kent, and Marguerite Volonts. The complaint alleged, inter alia, that RCSD failed to hire Boyer because of her age. We assume the parties’ familiarity with the facts and procedural history of the case. We affirm the grant of summary judgment to the defendants on Boyer’s claim that RCSD failed to hire her for either middle school teacher position because of her age, because Boyer has failed to make out a prima fade case of age discrimination. See Byrnie v. Town of Cromwell, 243 F.3d 93, 101 (2d Cir.2001) (describing the elements of a prima facie case under the ADEA). Although the burden of establishing a prima fade case is minimal, Boyer can point to no evidence suggesting that the circumstances of *742RCSD’s failure to hire her for a middle school teacher position give rise to an inference of discrimination. We conclude further that the district court properly granted summary judgment to the defendants on Boyer’s claim that RCSD failed to hire her for the elementary school teacher position because of her age. Assuming arguendo that Boyer has made out a prima facie case on this claim, RCSD has articulated a non-discriminatory explanation for its hiring decision' — 'that is, that the successful applicant performed better at her interview. See id. at 105-07 (concluding that the employer’s explanation that it made its hiring decision based on interview performances is sufficient to shift burden to plaintiff to show that the explanation is a pretext). Boyer’s evidence that this non-discriminatory explanation for its hiring decision was a pretext, however, is not sufficient to permit a rational finder of fact to infer that RCSD unlawfully discriminated against her. Cfi id. (finding sufficient evidence to create a genuine issue of material fact regarding whether the employer’s non-discriminatory explanation was credible). We have considered, and are not persuaded by, Boyer’s remaining arguments. Accordingly, the judgment of the district court is hereby AFFIRMED.

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OPINION PER CURIAM. Kathleen Beety-Monticelli, proceeding pro se, appeals from the District Court decision affirming the Commissioner’s denial of her applications for Social Security benefits. She also appeals from the denial of her motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). I The District Court’s December 2008 letter opinion explains in detail the relevant factual background of this case. Briefly, Beety-Monticelli is a 31-year-old woman who suffers from Factor V Leiden gene mutation (“Factor V Leiden”), a genetic disorder that causes excessive bleeding and clotting. She first experienced problems from the disorder in 1995 — although she was not diagnosed with Factor V Leiden until later — when she was diagnosed with a deep vein thrombosis (“DVT”), a condition causing severe leg pain and swelling. Recurring leg and pulmonary discomfort over the years, including a pulmonary embolus, caused her to seek treatment for her condition, and doctors have managed the clotting disorder with a regimen of anticoagulant drugs. Notwithstanding her doctors’ present ability to manage her clotting disorder, Beety experienced, and still experiences, severe discomfort that limits her ability to perform physical labor or stand or sit for prolonged periods of time. As a result, Beety-Monticelli claims that she has been disabled since May 9, 1996. She worked from 1998 to 1995 as a daycare worker. She last worked in 2000 as a fast food restaurant cashier. In 2002, Beety-Monticelli filed for Social Security Disability Insurance Benefits (“DIB”). She later applied for Social Security Child’s Insurance Benefits (“CIB”). Both claims were denied initially and upon reconsideration. Beety-Monticelli, represented by counsel, requested an administrative hearing. Beety-Monticelli presented the following evidence to the ALJ: medical records from 1999 documenting an elevated prothrombin time; testimony about her discomfort and limited ability to move and perform common tasks; medical records from two occasions in 1999 documenting the absence of a leg thrombosis or pulmonary embolus1; and voluminous records — dated 2000 and after — from three doctors, documenting her anticoagulant treatments, their effectiveness in managing her clotting disorder, and her overall physical condition. Following the hearing, the ALJ found that Beety-Monticelli was not disabled during the relevant time periods. That decision became final when the Appeals Council denied review in October 2006. See Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.2001). *745Beety-Monticelli, acting pro se, sought review in the District Court. In support of her claim, Beety-Monticelli submitted additional medical records not considered by the ALJ.2 She contended that those records, which related to her 1995 DVT diagnosis and treatment, provided a basis for the District Court to remand her case to the ALJ for further consideration. In a letter opinion, the District Court affirmed the Commissioner’s decision, reasoning that the ALJ’s determination was supported by substantial evidence. The District Court also reasoned that the newly submitted medical records provided no basis for remand. Beety-Monticelli sought reconsideration, which was also denied. She now appeals from those decisions. II In reviewing the District Court’s decision affirming the ALJ, the role of this Court is identical to that of the District Court: that is, to determine whether substantial evidence supports the Commissioner’s decision. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Our review of the District Court decision is plenary, but we are bound by the ALJ’s factual findings if they are supported by substantial evidence. See 42 U.S.C. § 405(g); Bums v. Barnhart, 312 F.3d 113, 118 (3d Cir.2002). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate.” Burns, 312 F.3d at 118 (internal citations and internal quotation marks omitted). Further, “we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder.” Id. To demonstrate entitlement to DIB benefits, a claimant must show that she became disabled before the expiration of her insured status under the program.3 See 42 U.S.C. § 423(a)(1)(A) and (c)(1); Kane v. Heckler, 776 F.2d 1130, 1131 n. 1 (3d Cir.1985); 20 C.F.R. § 404.320. Entitlement to CIB benefits requires that a claimant show, inter alia, that she became disabled before her twenty-second birthday.4 See 42 U.S.C. § 402(d). To establish a disability under the Social Security Act, a claimant must demonstrate there is some “medically determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful activity’ for a statutory twelve-month period.” Rangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987) (citing 42 U.S.C. § 423(d)(1)). The Commissioner follows a five-step analysis in evaluating disability claims. See 20 C.F.R. § 404.1520. If a finding of disability or non-disability may be made at any stage in the analysis, the Commissioner does not proceed with the remaining steps. § 404.1520(a)(4). In the first step, the Commissioner considers whether a claimant is engaging in substantial gainful activity. § 404.1520(b). If not, the Commissioner determines whether the claimant suffers from a severe impairment. § 404.1520(c). If the claimant suffers from a severe impairment, that impairment must meet or equal the severity of a qualified impairment identified in the regulations. § 404.1520(d). If the claimant’s impairment does not meet or equal a listed impairment, the Commissioner must determine whether the claimant retains a residual functional capacity (“RFC”) to perform past relevant work, as defined by 20 *746C.F.R. § 404.1560(b). § 404.1520(e). If the claimant is capable of performing past relevant work, she is not considered disabled under the Social Security regulations. § 404.1520(f). Applying this framework, the ALJ determined that Beety-Monticelli was not engaged in “substantial gainful activity” after the alleged onset date, and that she suffered from a severe impairment. Neither conclusion is in dispute here. The ALJ also found that Beety-Monticelli’s impairments did not meet or equal the criteria for qualifying impairments because the medical records presented by Beety-Mon-ticelli did not contain the specific medical findings required to satisfy the regulations. As the District Court correctly noted, only one listed impairment — found at Listing 4.11 of 20 C.F.R. Part 404, Subpart P, Appendix I — is analogous to Beety-Monticelli’s Factor V Leiden condition, and she does not claim to suffer from the specific conditions articulated therein. Next, we turn to the ALJ’s determination that Beety-Monticelli retained sufficient RFC to prevent her from working at her past job as a fast food restaurant cashier. The ALJ first noted the absence of evidence, save for records of a minor problem in March 1997,5 that Beety-Monticelli was disabled during the relevant periods. He also noted that Beety-Monticelli’s post-2000 medical records demonstrate an absence of persistent or frequent severe complications related to Factor V Leiden. The ALJ considered Beety-Monticelli’s subjective complaints, but noted that no credible evidence of a disabling medical condition existed. The only additional evidence Beety-Monticelli offered in support of her disability claim was the statements of two doctors, Dr. Schwartz and Dr. Plauka. Dr. Schwartz opined that Beety-Monticelli had been unable to engage in prolonged sitting, standing, or walking since 1995. However, the ALJ justifiably determined that the doctor’s opinion lacked credibility, as he had treated Beety-Monticelli only since 2002 and thus lacked firsthand knowledge of her earlier condition. Moreover, Dr. Schwartz’s opinion was contradicted by the medical reports of Beety-Monticelli’s other treating physicians, who noted that her anticoagulant therapy was helping her condition. Likewise, the ALJ reasonably found that Dr. Plauka’s conclusion in 2003 that Beety-Monticelli was limited from prolonged standing and walking lacked probative value. Dr. Plauka’s statement shed no light on Beety-Monticelli’s condition prior to June 1998 or November 1999. Based on the available evidence, the ALJ concluded that Beety-Monticelli failed to demonstrate that her medical problems precluded her from working before the expiration of her insured status or before her twenty-second birthday. Specifically, the ALJ determined that although Beety-Monticelli’s clotting disorder limited her ability to lift heavy objects, thereby precluding her from performing daycare jobs, her RFC permitted her to work as a cashier, which merely required Beety-Monticelli to stand and walk for long periods of time. Considering the ALJ’s thorough analysis of the record, we agree with the District Court that the *747ALJ’s determination was supported by substantial evidence. Ill Construing her pro se filings liberally, we read Beety-Monticelli’s appeal to include a challenge to the District Court’s decision not to remand based on newly submitted evidence.6 The sixth sentence of 42 U.S.C. § 405(g) (“sentence six”) permits a reviewing court to remand a case when new evidence becomes available, “but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” § 405(g). Thus, the proffered evidence must be both “new” and “material.” See Szubak v. Sec’y of Health and Human Sews., 745 F.2d 831, 833 (3d Cir.1984). To be material, there “must be a reasonable probability that the new evidence would have changed the outcome” of the Commissioner’s decision. Id. Finally, the claimant must show good cause for her failure to submit the evidence in an earlier proceeding. See id. Beety-Monticelli presented to the District Court numerous records documenting her treatment in 1995 for DVT, as well as records from follow-up visits. The District Court determined that remand under sentence six was not warranted because Beety-Monticelli’s submissions merely supported evidence already in the record — i.e., she suffered from a DVT before her alleged date of disability and was diagnosed with Factor V Leiden. As such, the evidence was not material because there was not a reasonable probability that it would have changed the ALJ’s disability determination. We agree. IV Finally, we turn to the denial of Beety-Monticelli’s motion for reconsideration. To prevail on a motion for reconsideration, a litigant must demonstrate: “(1) an intervening change in the controlling law; (2) the availability of new evidence ...; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). We review the denial of a motion to reconsider for abuse of discretion. See Caver v. Trenton, 420 F.3d 243, 258 (3d Cir.2005). In her motion for reconsideration, Beety-Monticelli argued that she had provided sufficient medical records to support her claim for relief.7 Specifically, she noted that she provided evidence that she suffered from a pulmonary embolus in 1997, and contended that because the ALJ did not mention those records in his opinion, he must not have considered them. We disagree. Although an ALJ must provide a logical connection between the evidence considered and the conclusion that the claimant is not disabled, he need not mention every piece of evidence in the record. See Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.2008). The District Court reasoned that Beety-Monticelli’s 1997 pulmonary embolus— which was treated and did not recur — was significant in that it supported the ALJ’s conclusion that she suffered a severe impairment. However, the existence of the *748condition, viewed in light of the other medical evidence, did not undermine the ALJ’s determination that she retained sufficient RFC to perform her job as a cashier. In short, the District Court reasoned, Beety-Monticelli failed to satisfy the standard for reconsideration. Beety-Monticelli provides no good reason to question that assessment. Accordingly, we will affirm the decision of the District Court. Beety-Monticelli’s motion to supplement the record is denied. . It is evident from the medical records that the test for a pulmonary embolus was conducted in part because Beety-Monticelli suffered a pulmonary embolus in 1997. .Beety-Monticelli actually submitted these records to the U.S. Attorney’s Office in July 2008, while the District Court action was pending. As a courtesy, the Defendant-Ap-pellee submitted those records to the District Court. . Beety-Monticelli's insured status expired on June 30, 1998. . Beety-Monticelli turned 22 on November 18, 1999. . The minor problem referred to by the ALJ was Beety-Monticelli's treatment for elevated prothrombin times. However, as Beety-Mon-ticelli argued in her motion to reconsider, she also presented evidence that she suffered a pulmonary embolus in March 2007. Nevertheless, for the reasons discussed in section IV, below, we do not think the fact that the ALJ did not specifically mention Beety-Monti-celli's pulmonary embolus undermines the determination that Beety-Monticelli was not disabled. . As the Appellee correctly notes, we have not issued a precedential decision announcing what standard of review we apply to a District Court’s decision not to remand under sentence six of 42 U.S.C. § 405(g). We need not decide that issue in this case, as the District Court's reasoning was appropriate under any conceivably applicable standard. . Beety-Monticelli also sought to correct factual errors, such as her last date of employment, which were misprinted in the District Court’s letter opinion. The District Court appropriately noted its mistakes. Clearly, none of these alleged errors impacts the validity of the District Court’s decision.

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OPINION PER CURIAM. Victor Rojas appeals the District Court’s denial of his motion filed pursuant to Fed. R.Civ.P. 60(b)(4). For the below reasons, we will summarily affirm the District Court’s order. In July 2006, Victor Rojas pleaded guilty to conspiring to distribute one kilogram or more of heroin. He was subsequently sentenced to 54 months in prison. In February 2009, Rojas filed his Rule 60(b) motion in which he argued that the criminal judgment against him was void because he was not indicted nor was an information filed within thirty days of his arrest. The District Court denied the motion, and Rojas filed a timely notice of appeal. A motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure is not an appropriate vehicle for challenging a criminal conviction. Moreover, his motion is without merit. Rojas raised these same claims in a § 2255 motion filed in July *7492007. The District Court denied the motion, and we denied a certificate of appeal-ability. See No. 08-1910. Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.

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FUENTES, Circuit Judge. On April 4, 2005, the District Court declined to review Darren Johnson’s habeas petition on the grounds that he had defaulted his claims in state court pursuant to an independent and adequate state procedural rule. The basis for this alleged default is petitioner’s violation of Pennsylvania’s “previously litigated” rule, which bars a petitioner from seeking review under Pennsylvania’s Post-Conviction Relief Act (“PCRA”) unless he/she can show that the allegation of error “has not been previously litigated or waived.” 42 Pa. Cons. Stat. Ann. § 9544(a). For the reasons laid out in our en banc decision in Boyd v. Warden, the ‘previously litigated’ rule insulates state courts from duplicative efforts, but does not preclude federal habeas review. Boyd v. Warden, 579 F.3d 330, 370-71 (3d Cir.2009) (Hardiman, J., dissenting) (en banc).1 Accordingly, we re*750verse and remand for further consideration. . Although Judge Hardiman dissented in Boyd, the portion of his dissent discussing the previously litigated rule was joined by a majority of the court.

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OPINION OF THE COURT PER CURIAM. A'ben Skendaj, a native and citizen of Abania, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal and affirming the Immigration Judge’s (“U”) denial of his *751applications for relief. We will deny the petition. Skendaj entered the United States in February 2005, joining his wife and son, who were already in this country pursuing asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Skendaj’s wife claimed that she was persecuted on account of the political opinion of her father, a high-ranking member of the Albanian Democratic Party. Following a hearing in June 2005, at which Skendaj testified on behalf of his wife and son, the IJ denied their applications for relief. The BIA affirmed the IJ’s decision, and we denied their petition for review. See Skendaj v. Att’y Gen., 275 Fed.Appx. 126, 128-30 (3d Cir.2008) (non prece-dential). Meanwhile, in December 2005, Skendaj filed a separate application for asylum and withholding of removal. Rather than testify again, Skendaj elected to rely on the testimony he had provided at the hearing involving his wife and son, a transcript of which was made part of the record. Updated background information on Albania was the only new evidence presented. The IJ concluded that, in the absence of any new facts, he was bound by the decision of the IJ in the case of Skendaj’s wife and son. Consequently, the IJ denied Sken-daj’s applications for relief. The BIA dismissed Skendaj’s appeal, concluding that his experiences did not rise to the level of persecution and that the record rebutted any presumption that his life or freedom would be threatened in the future.1 Sken-daj filed a timely petition for review. We exercise jurisdiction to review the BIA’s final order of removal under Immigration and Nationality Act (“INA”) § 242(a) [8 U.S.C. § 1252(a) ]. Because the BIA provided its own analysis, we review the decision of the BIA. See Lukwago v. Ashcroft, 329 F.3d 157, 166 (3d Cir.2003). We use a substantial evidence standard to review factual findings, Tairaivally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003), including findings concerning an applicant’s past persecution or “well-founded fear of future persecution,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Under the substantial evidence standard, findings are upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). We review the BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007). An applicant may demonstrate eligibility for asylum by showing either 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. See INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]. Significantly, “persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. *752As evidence of persecution, Skendaj pointed to anonymous telephone threats and an attempted kidnapping of his son. “It is established ... that threats standing alone ... constitute persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’ ” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005) (internal citations and quotations omitted). Unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution. Id. In this case, the anonymous threats were directed at Skendaj, his wife, and his mother. Fearing for them lives, Skendaj and his wife moved to Greece. There is no indication, however, that the callers ever attempted to carry out the threats. Furthermore, Skendaj specifically stated that his mother, who remained in Albania, was never harmed. Therefore, we agree that these incidents do not rise to the level of persecution. Substantial evidence also supports the BIA’s conclusion that the attempted kidnapping did not constitute past persecution on account of a protected ground.2 The attempted kidnapping occurred during a trip to visit Skendaj’s father-in-law. While the family was riding in a taxi, two motorcyclists, wearing helmets and dark clothing, approached the car. One motorcycle went to the right of the taxi, one went to the left, and one cyclist called to the other, “grab the kid, the window’s open.” One cyclist put his hand by the window as if to grab Skendaj’s son, but the taxi driver was able to speed away. While no doubt frightening, this incident does not constitute persecution on account of a protected ground. Neither Skendaj nor his wife were able to identify the kidnappers, the kidnappers did not make any reference to the Skendajs’ political opinion, the Skendaj s did not report the incident to the police, and they did not experience further threats or confrontations. Therefore, we conclude that Skendaj has not shown that the record compels a finding that he suffered past persecution. Absent a showing of past persecution, an applicant may still establish a well-founded fear of future persecution by demonstrating that his fear is “subjective and objectively reasonable.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 346 (3d Cir.2008). An applicant can meet the objective prong either by showing that he would be individually singled out for persecution upon his return or that a pattern and practice of such persecution exists. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005). In adjudicating the case of Skendaj’s wife and son, we were “not compelled to conclude that there is a pattern or practice in Albania of persecuting a protected group of which the petitioners are members.” Skendaj, 275 Fed.Appx. at 130. Our decision was based in part on the 2004 United States Department of State “Profile of Asylum Claims and Country Conditions” for Albania. Id. Skendaj submitted the 2006 version of that Profile, along with the *7532006 State Department Country Report on Human Rights Practices in Albania. These documents indicate that the Democratic Party took power following elections in 2005, that there were “no indications of systematic political persecution,” and that “neither the Government nor the major political parties engage[d] in policies of abuse or coercion against their political opponents.” Nothing in the Profile or Report compels the conclusion that Skendaj established a well-founded fear of future persecution. See Cuko v. Mukasey, 522 F.3d 32, 40 (1st Cir.2008) (holding that reliance on country reports was sufficient to rebut presumption of well-founded fear of future persecution based on support for Democratic Party in Albania). Because Skendaj has not meet his burden of proof for asylum, he necessarily failed to meet the higher burden required for withholding of removal. See Lukwago, 329 F.3d at 182. Finally, substantial evidence supports the BIA’s conclusion that Skendaj failed to demonstrate that it is more likely than not that he would be tortured by the Albanian government, or that the government would consent or acquiesce to his torture. For the foregoing reasons, we will deny the petition for review. . The BIA also rejected Skendaj’s claim that he did not receive a full and fair hearing before the IJ. In particular, the BIA noted that Skendaj was represented by counsel, agreed to rest on the testimony provided at the hearing involving his wife and son, received a review that included reports regarding current country conditions, and failed to identify any prejudice. Skendaj has not challenged this determination on appeal. 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). . Skendaj complains that the BIA failed to address whether "the kinship ties created by [his] marriage constituted a particular social group.” The BIA did not specifically refer to Skendaj's allegation that he was part of a particular social group consisting of his family. But the BIA did state that it "concur[red] with the [IJ’s] decision finding that the alleged events do not rise to the level of persecution on account of a protected ground.” The IJ, in turn, endorsed the finding — made in connection with the asylum application of Skendaj’s wife and son — that "the evidence does not establish a social group comprised of the family of" Skendaj’s father-in-law. Under these circumstances, we conclude that the BIA adequately considered Skendaj’s social group claim and maintain that substantial evidence supports the conclusion that Sken-daj was not persecuted on account of membership in a social group.

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OPINION OF THE COURT CHAGARES, Circuit Judge. Joseph and Linda Taylor (the “debtors”) appeal from the District Court’s order denying a motion for reconsideration. We hold that the District Court lacked jurisdiction, and we will therefore dismiss the appeal. I. Because we write solely for the benefit of the parties, we will only briefly recite the essential facts. On March 3, 2006, the Bankruptcy Court entered a default judgment against the debtors. On August 15, 2006, the debtors filed a motion to set aside that judgment. On August 18, 2006, the Bankruptcy Court entered an order denying the motion. On August 28, 2006, the debtors filed a motion for reconsideration of the August 18, 2006 order. On October 6, 2006, the Bankruptcy Court entered an order denying the motion; On October 16, 2006, the debtors filed a motion for reconsideration of the October 6, 2006 order. In that motion, the debtors made arguments substantially similar to the ones made in their first motion for reconsideration (filed on August 28, 2006). Compare Appendix (“App.”) 176-80 with App. 133-34. On December 20, 2006, 357 B.R. 360, the Bankruptcy Court entered an order denying the motion. On December 29, 2006, the debtors filed a notice of appeal of the December 20, 2006 order. The District Court heard the appeal on the merits and affirmed. The debtors then appealed the District Court’s order to this Court. II. We have an independent obligation to ensure that the District Court had jurisdic*755tion to review the matter presently on appeal. United States v. Higgs, 504 F.3d 456, 457 (3d Cir.2007) (“This court has an obligation to inquire sua sponte ... into the jurisdiction of the District Court to enter the order on appeal.”). To this end, we must take it upon ourselves to evaluate the timeliness of the debtors’ notice of appeal from the order denying their second motion for reconsideration, because “[t]he failure to file a timely notice of appeal [from a Bankruptcy Court order] creates a jurisdictional defect barring appellate review.” Shareholders v. Sound Radio, Inc., 109 F.3d 873, 879 (3d Cir.1997).1 To be timely, a notice of appeal from a Bankruptcy Court order must be filed no later than 10 days after the order is entered. Fed. R. Bankr.P. 8002(a). But, filing a motion to amend or alter judgment under Fed.R.Civ.P. 59 re-starts the 10-day clock: the 10-day period begins to run from the denial of the motion to amend or alter judgment. Fed. R. Bankr.P. 8002(b)(2). A motion for reconsideration is generally treated as a motion to amend or alter judgment under Fed.R.Civ.P. 59. See Turner v. Evers, 726 F.2d 112, 114 (3d Cir.1984) (citing cases). We have never squarely ruled upon whether, if the Bankruptcy Court denies a motion for reconsideration, and if the party who lost that motion files and loses a second motion for reconsideration — a motion to reconsider the order denying the first motion — the 10-day period “re-starts” and runs from the denial of that second motion. We have, however, considered a highly analogous situation. A notice of appeal of a District Court order must be filed in the District Court no later than 30 days after the District Court enters the order. Fed. R.App. P. 4(a)(1)(A). Filing a motion to amend or alter judgment under Fed.R.Civ.P. 59, however, re-starts the 30-day clock: the *75630-day period begins to run from the denial of the motion for reconsideration. Fed. R.App. P. 4(a)(4)(A)(iv). In Turner, we held that, if a district court denies a motion for reconsideration, and if the party who lost that motion files and loses a second motion for reconsideration, the 30-day clock does not re-start if “the factual and legal issues surrounding the [first] motion and the [second] motion are roughly similar....” 726 F.2d 112, 114 (3d Cir.1984). We perceive no reason — and, in response to our request to file supplemental briefing on the timeliness issue, the debtors have not provided one — to treat the Bankruptcy Court context any differently. We must dismiss the debtors’ appeal if the second motion for reconsideration did not re-start the 10-day appeal period. This is because, if the second motion did not restart the 10-day appeal period, the debtors’ notice of appeal was untimely2, and if the notice of appeal was untimely, the District Court lacked jurisdiction and we must dismiss the appeal. See, e.g., Okereke v. United States, 307 F.3d 117, 121 (3d Cir.2002) (dismissing appeal after holding the district court lacked jurisdiction); In re White Beauty View, Inc., 841 F.2d 524, 524 (3d Cir.1988) (same). The issue, then, is whether “the factual and legal issues surrounding the [first] motion and the [second] motion are roughly similar.... ” Turner, 726 F.2d at 114. We hold that they are. The debtors in the second motion sought essentially to re-argue the claims they made in the first motion. They added only one new claim, which was based upon the alleged incompetence of the attorney handling the first motion. Compare App. 176-80 with App. 133-34. The second motion for reconsideration, therefore, did not re-start the 10-day appeal period. Thus, the debtors’ notice of appeal was untimely, and, as a result, the District Court lacked jurisdiction, so we must dismiss the appeal. III. For the foregoing reasons, we will dismiss the appeal. . The creditors did not raise the timeliness of the debtors' notice of appeal from the Bankruptcy Court's order denying the second motion for reconsideration in any submissions to the District Court. In several decisions issued after our opinion in Shareholders, the Supreme Court held that certain Federal Rules which purport to prescribe mandatory filing conditions are not ‘jurisdictional” and that defenses based upon failure to comply with them can be waived. See Bowles v. Russell, 551 U.S. 205, 209-13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007); Eberhart v. United States, 546 U.S. 12, 17-18, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); Kontrick v. Ryan, 540 U.S. 443, 452-56, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Shareholders, however, remains good law. We note that none of those Supreme Court cases considered Fed. R. Bankr.P. 8002(a). We also note that, unlike the rules held non-jurisdictional in those cases, Fed. R. Bankr.P. 8002(a)'s time limit has its roots in a congres-sionally-enacted statute, see Fed. R. Bankr.P. 8002 advisory committee’s note (stating that Fed. R. Bankr.P. 8002 is an "adaptation” of Fed. R.App. P. 4(a)); Bowles, 551 U.S. at 213 [127 S.Ct. 2360] (explaining that Fed. R.App. P. 4(a)(l)(A)’s time limit for filing a notice of appeal from a District Court order is set forth in 21 U.S.C. § 2107) — a factor that the Supreme Court stated counsels in favor of holding the rule to be jurisdictional, see Bowles, 551 U.S. at 212-13 [127 S.Ct. 2360], Therefore, Shareholders remains controlling precedent in this Circuit. In addition, every court of appeals to have addressed the jurisdictional status of Fed. R. Bankr.P. § 8002(a) in the wake of one or more cases from the Bowles-Eberhart-Kontrick trio has held that the rule is indeed jurisdictional. See Wiersma v. Bank of the West, 483 F.3d 933, 938 (9th Cir.2007); In re Salem, 465 F.3d 767, 774 (7th Cir.2006); Siemon v. Emigrant Savs. Bank, 421 F.3d 167, 169 (2d Cir.2005). Finally, it should be noted that, when we directed the parties to file supplemental briefing on the issue of timeliness, including whether an untimely notice of appeal precludes appellate review, the debtors did not argue that Fed. R. Bankr.P. 8002(a) is not jurisdictional. They simply argued that the notice of appeal was timely under that rule. See Debtors Supp. Br. 1-3. . If the second motion did not re-start the 10-day appeal period, the debtors' notice of appeal was untimely because the 10-day appeal period would not have begun to run until October 6, 2006, and the notice of appeal was filed more than a month later, on December 29, 2006.

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OPINION OF THE COURT DITTER, District Judge. This is an appeal from the order of the District Court dismissing for lack of subject matter jurisdiction an alien’s petition for a writ of habeas corpus that challenged an order for his removal. Even though the matter might better have come to us by a transfer from the District Court, we conclude that we also have no jurisdiction and that the removal order must stand. Accordingly, we affirm the decision of the District Court. FACTUAL AND PROCEDURAL HISTORY Appellant Mahmoud Sallah Abunasser is a Palestinian who entered the United States on September 30, 2005, with a Palestinian Authority passport. Abunasser was admitted to the United States as a nonimmigrant visitor with authorization to remain in the country until March 29, 2006. He is married and has three children — one child was born in the United States. He was arrested on April 26, 2006, by Immigration and Customs Enforcement (“ICE”) for overstaying his visa and for being employed without the proper authorization. Removal proceedings were initiated and Abunasser was released from custody on bond in the amount of $25,000. On June 14, 2006, a hearing was held before an immigration judge. Abunasser *758was represented by counsel and an Arabic interpreter assisted Abunasser throughout the proceedings. Abunasser informed the court that he would be applying for voluntary departure. The case was continued to August 16, 2006, to provide counsel and Abunasser the opportunity to discuss what country he would designate for removal. At the August 16, 2006 hearing, Abunas-ser, with the assistance of an interpreter and repi-esented by counsel, again indicated that he had no applications to file and would voluntarily leave the United States and return to Israel. After an extensive inquiry, the immigration judge determined that Abunasser was voluntarily giving up the opportunity to present a claim for protection, the x’ight to appeal, and wanted only an opportunity to depart voluntarily. Abunasser was ordered to depart by December 14, 2006. An alternative order of removal was entered in the event he failed to leave the country. He did not appeal this order of removal. On November 14, 2006, represented by new counsel, Abunasser filed a motion to reopen his removal proceedings claiming the ineffective assistance of prior counsel. This was his only option as the time for appeal of the order of removal had elapsed (and appellate review had been waived). Now, in contrast with his testimony at the August hearing, Abunasser sought political asylum citing his fear of returning to the West Bank where he claims he was a victim of past persecution. In suppox't of his claim he provided medical evidence of treatment for a gunshot wound and a supporting affidavit. Also contrary to his earlier testimony, Abunasser claims he did not advise the immigration judge of his fears at the prior hearings because counsel told him that a Palestinian would not be granted political asylum. On November 29, 2006, the immigration judge denied the motion to x’eopen finding that Abunasser had failed to establish ineffective assistance of counsel as required by Matter of Lozada, 19 I. & N. Dec. 687 (B.I.A.1988), and had failed to present any new facts as a basis to reopen as required by 8 C.F.R. § 1003.23(b)(3). On January 4, 2007, the immigration judge denied Abunasser’s motion to x*econ-sider her November 29, 2006 order, and the Board of Immigration Appeals (“BIA”) dismissed Abunassex*’s appeal and affirmed the decision of the immigration judge on November 14, 2007. Having violated the August 26, 2006 order granting voluntai'y departure by failing to depart by December 14, 2006, Abunasser has been detained pending his removal. On September 13, 2007, Abu-nasser filed a motion to x’equest release under bond. The immigration judge held that he was not eligible for bond because he did not voluntarily depart as required by his ox'der of removal and did not file a timely appeal of that order. 8 C.F.R. § 1236.1(d)(1). Abunasser remains in custody. Seeking judicial review of the denial of his motion to reconsider and reopen, and asking for release and a stay of his deportation and removal order, on December 11, 2007, Abunasser filed a petition for a writ of habeas corpus in the District of New Jersey. Abunasser claims that the immi-gx'ation judge and the BIA violated his due process rights by denying without a hearing and without considex-ation of his evidence of persecution his motion to reopen and his motion to reconsider. The District Court issued a rule to show cause why this petition should not be dismissed. After a hearing, Abunasser’s habeas petition was denied and dismissed on January 25, 2008, for lack of subject matter jurisdiction. His i'equest for release pending review of the petition was denied but a stay of removal was granted. *759This appeal followed. It is based entirely upon the immigration judge’s alleged failure to grant Petitioner a hearing on his claim of persecution.2 DISCUSSION The REAL ID Act (“the Act”), which became effective on May 11, 2005, eliminated district court jurisdiction over orders of removal and vested exclusive jurisdiction in the courts of appeals. 8 U.S.C. § 1252(a)(5) (“a petition for review filed with an appropriate court of appeals ... shall be the sole and exclusive means for judicial review of an order of removal”). The District Court correctly recognized it had no subject matter jurisdiction and dismissed the writ of habeas corpus. However, the District Court did not transfer the matter to this court nor provide a statement that it was not in the interest of justice to do so. 28 U.S.C. § 1631.3 Nonetheless, the task of examining the administrative proceedings is now before us, albeit by an appeal rather than by lower-court transfer. Section 242(a)(2)(B)(ii) of the Act, 8 U.S.C. § 1252(a)(2)(B)(ii), provides that no court shall have jurisdiction to review discretionary decisions of immigration officials. In addition, the courts of appeal shall decide the petitions for the review of an order of removal only on the administrative record, and the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(A) and (B). These provisions do not preclude a review of constitutional claims or questions of law that may be raised by the proceedings. 8 U.S.C. § 1252(a)(2)(D). Before us is the BIA’s discretionary decision 4 that the immigration judge correctly ruled when she found Abunasser had waived all relief except voluntary departure, refused to reopen the removal proceedings, and then refused to reconsider that decision. By the plain wording of the Act, we have no jurisdiction unless there is merit to Abunasser’s claim that he was denied due process when the immigration judge refused to permit him to present evidence of persecution. Stating the obvious: not every contention, request, or reason becomes a constitutional matter just because it is labeled due process. A denial of relief that is purely discretionary, by definition, does not involve a constitutional right and is therefore not protected by the due process *760clause. Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004) (finding no due process violation because “the failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest.”) And finally, if there has been a knowing, intelligent, and voluntary waiver of the right to seek the relief in question, due process does not require further consideration.5 Here there was no denial of due process because there was no process due. Petitioner had knowingly and intelligently waived whatever claims he might have otherwise had, and having done so, had no constitutional right to further proceedings. The record shows that Abunasser was represented by counsel at his hearings and was fully advised of the consequences of agreeing to voluntary departure by the immigration judge. An interpreter assisted Abunasser at both hearings. Abunas-ser said he understood what he was being-told and what he was doing. The colloquy on June 14, 2006, makes clear that the immigration judge was sensitive to the situation of a Palestinian in Israel and specifically required that Abu-nasser come forward with any request for protection at the next hearing. (A.R. 123.) This is what she said: JUDGE TO MR. ABUNASSER: Sir, your attorney has admitted that you’re removable as charged. She has denied you are a citizen of Israel, as alleged by the Government; but did admit that you were born in the country of Israel. At this time she understands that you just wish to seek a period of time to voluntarily depart the United States at your own expense, but she’s asked for some time to be sure if that is indeed your preference. I would ask you to please make sure that you explain to her everything about your situation in your home area and in America so that she can advise you as to your options before the Court because I will require at the next hearing that you file any appropriate applications for other options, including asylum, if you intend to exercise them. Q. Do you understand? A. Yes. Q. Are you sure? A. Yes. Q. Do you understand that if you’re afraid to go back you have to tell her and she’s going to have to help you and file an application for asylum at the next hearing? Do you understand that? A. I understand. (A.R. 125.) The immigration judge went out of her way to ensure Abunasser understood the options available to him and how he needed to work with counsel before the next hearing. Abunasser then said — and now does not suggest otherwise — that he understood. On August 16, 2006, Abunasser again advised the immigration judge that he wanted to proceed with voluntary departure. Only after a thorough colloquy that included Abunasser being asked if he had any questions “about the consequences of giving up the chance to seek protection *761based on any fear of harm in Israel or any other country,” did the immigration judge find that Abunasser was knowingly and voluntarily deciding not to make a claim for protection and wanted only voluntary departure. (A.R. 138-34.)6 The BIA also found that Abunasser had given up his right to seek asylum: [T]he Immigration Judge found that the respondent stated he knew that by filing for voluntary departure, he was abandoning any other claims for relief.... The Immigration Judge specifically asked the respondent if he understood by failing to make a claim for protection in the United States he was giving up the opportunity to make such a claim. The respondent stated he understood and was doing so voluntarily.... Accordingly we find the Immigration Judge did not err in denying the respondent’s motion to reconsider. (A.R. 2). In summary, (1) On August 16, 2006, the immigration judge made a factual finding that Abunas-ser had waived any right he might have to seek protection and wanted only voluntary departure. This finding was fully supported by the record, is unchallenged, and is binding upon us. (2) On November 29, 2006, the immigration judge made a factual finding that Abu-nasser had not established the predicates for a motion to reopen based upon ineffective assistance of counsel or provided any new facts that would establish a basis for reopening. This finding was fully supported by the record, is unchallenged, and is binding upon us. (3) On November 14, 2007, the Board of Immigration Appeals made a factual finding that the Petitioner said that he understood that by filing for voluntary departure he was abandoning any other claims for relief, and therefore, that the immigration judge did not err in denying Petitioner’s motion to reconsider the removal order. This finding was fully supported by the record and is binding upon us. (4) In addition, on November 14, 2007, the Board of Immigration Appeals in the exercise of its discretion, dismissed Abu-nasser’s appeal from the decisions of the immigration judge. This decision is binding upon us. Abunasser was not denied due process. Abunasser has not raised a constitutional claim. For these reasons, we lack subject matter jurisdiction to consider Abunasser’s claims and the District Court’s decision that it lacked subject matter jurisdiction must be affirmed. One matter remains. The District Court stayed the immigration court’s order of removal. We shall remand to the District Court so that the stay can be lifted. An appropriate order follows. . Petitioner's brief advanced three legal arguments: I. A MOTION TO REOPEN REMOVAL PROCEEDINGS MUST COMPLY WITH DUE PROCESS OF LAW... II. THE DUE PROCESS CLAUSE WAS NOT APPLIED TO ABUNASSER IN HIS REQUEST TO REOPEN REMOVAL PROCEEDINGS... III. WHERE AN IMMIGRATION JUDGE SUMMARILY DENIES RELIEF TO AN ALIEN WITHOUT PROVIDING A HEARING TO ARGUE THE PRAYER FOR RELIEF, THIS WOULD BE UNCONSTITUTIONAL. (Petr.’s Br. i) . Where a district court itself lacks jurisdiction over a case, it shall transfer the matter to a court that has jurisdiction, unless, after an examination of the record, the district court determines that it would not be in the interest of justice to do so. Britell v. United States, 318 F.3d 70 (1st Cir.2003). Although we conclude that Abunasser’s claims lack merit and therefore a transfer would not have been in the interest of justice, the procedure required by 28 U.S.C. § 1631 should have been followed. .The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board [of Immigration Appeals]. The Board 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). . Federal regulations specify that: A motion to reopen proceedings shall not be granted unless it appears to the Board [of Immigration Appeals] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purposes of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing. ... 8 C.F.R. § 1003.2(c). . At the August 16, 2006 hearing: Q. [IMMIGRATION JUDGE] Okay. I’m persuaded sir that you’ve knowingly and voluntarily decided not to make a claim for protection and that you only want the voluntary departure.... Sir, I will grant your request for the voluntary departure.... Do you understand that that is my decision in your case? A. Yes. Q. [IMMIGRATION JUDGE] Your attorney and the Government are willing to accept that as a final decision. That means there would be no appeal to a higher Court and you would not be able to challenge or change the decision later. Do you also wish the decision to be final? A. Yes. (A.R. 133-34.)

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OPINION OF THE COURT McKEE, Circuit Judge. Mohammad Ghaziaskar petitions for review of a final order of removal entered by *763the Board of Immigration Appeals based on the Immigration Judge’s determination that a prior criminal conviction made Gha-ziaskar statutorily ineligible for withholding of removal to Iran. Ghaziaskar also challenges the BIA’s denial of his motion to defer removal under the Convention Against Torture (“CAT”). For the reasons that follow, we will dismiss the petition as to his challenge to the BIA’s denial of eligibility for withholding based on his criminal conviction, but grant the petition and remand to the BIA for further proceedings pertinent to his CAT claim. I. Because we write primarily for the parties, it is not necessary to recite the facts or history of this case except as may be helpful to our brief discussion. Ghaziaskar first challenges the BIA’s final order of removal affirming the IJ’s ruling that he is ineligible for withholding of removal because of his criminal conviction for drug trafficking. Ghaziaskar was convicted of the use of a telephone to facilitate distribution of opium, in violation of 21 U.S.C. § 843(b).1 Ghaziaskar argues that his conviction was not a “particularly serious crime” and therefore did not disqualify him for withholding of removal. Ghazias-kar also argues that the BIA erred by concluding that he is not likely to be tortured if returned to Iran based upon his past political opposition to the Iranian revolutionary government, his drug-related criminal convictions, and his conversion to Christianity. II. Ghaziaskar argues that he should not be disqualified for a grant of withholding of removal to Iran because of his drug-related conviction. The Immigration Judge disagreed and concluded that Ghazi-askar was not eligible for asylum because he had been convicted of use of a telephone to facilitate distribution of opium in violation of 21 U.S.C. § 843(b). To be eligible for a grant of withholding of removal, an alien must show that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Aliens are disqualified from receiving such withholding of removal, however, if they have been convicted of a “particularly serious crime.” 8 U.S.C. § 1231(b)(3)(h). An alien who was convicted of an “aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.” 8 U.S.C. § 1231(b)(3). Where an alien is convicted of a crime with a lesser sentence, the Attorney General is not precluded from determining that the crime is nonetheless a particularly serious crime. Id. Ghaziaskar was convicted of using a telephone to facilitate the distribution of opium, a crime with a maximum sentence of four years. 21 U.S.C. § 846 (1983). He was also convicted of an aggravated felony involving fraud or deceit, but its maximum sentence did not reach the five year threshold in 8 U.S.C. § 1231(b)(3)(iv). We must therefore determine if the BIA erred in affirming the IJ’s ruling that Ghazias-kar’s conviction is particularly serious. In resolving that issue, we remain mindful that any drug trafficking crime is presumed to be a particularly serious offense. Matter of Y-L, 23 I. & N. Dec. 270, 276-77 (BIA 2002). While we presume that a drug trafficking crime is a “particularly *764serious crime,” an alien may overcome this presumption by satisfying the six criteria set forth in Matter of Y-L, 28 I. & N. Dee. at 276-77. These criteria are: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles. Id. Here, the government represents without contradiction that Ghaziaskar’s offense involved use of a telephone as part of his participation in a drug transaction involving a $60,000 purchase of illegal narcotics. Respondent Br. at 26. That in no way undermines the presumption he must overcome. Ghaziaskar’s task of overcoming that presumption is also not advanced by his failure to address five out of the six YL criteria. Rather, he merely argues that his involvement was peripheral. Even assuming arguendo that it was, peripheral involvement in what certainly appears to be a particularly serious crime does not address any of the remaining Y-L factors. Ghaziaskar argues that the IJ improperly looked beyond the specific crime he plead guilty to and focused instead on the more serious crimes he was indicted for. Petitioner Br. at 22. It is clear that the IJ relied partially on charges in the indictment in concluding that Ghaziaskar’s involvement in the drug transaction was “more than peripheral; he was an active participant in the scheme.” App. at 241. However, given Ghaziaskar’s failure to address the Y-L factors, we need not decide whether the IJ’s reliance on facts beyond Ghaziaskar’s plea agreement warrants relief. On this record, we conclude that the BIA did not err in affirming the IJ’s decision that Ghaziaskar is disqualified from receiving the benefit of withholding of removal. III. Ghaziaskar’s challenge to the BIA’s denial of his motion to defer removal under CAT, is more troublesome. He argues that he established that it is more likely than not that he would be tortured by the Iranian government (or its agents) if he is removed to his home country. CAT prohibits the removal of an alien who establishes that “it is more likely than not” that he will be tortured by or at the instigation of the government if removed to his home country. 8 C.F.R. § 208.18(a)(1); Francois v. Gonzales, 448 F.3d 645, 649 (3d Cir.2006). Torture is defined as “an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment.” 8 C.F.R. § 208.18(a)(2). CAT requires decision-makers to consider all relevant evidence, including (i) evidence of past torture inflicted upon the applicant; (ii) evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; (iii) evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and (iv) other relevant information regarding conditions in the country of removal. 8 C.F.R. § 208.18(c)(3). An IJ’s adverse credibility determination is “reviewed for substantial evidence.” Benshaj v. Ashcroft, 378 F.3d 314, 322-23 (3d Cir.2004). We uphold an adverse credibility determination unless “any reasonable adjudicator would be compelled to *765conclude to the contrary.” Cao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). An “alien’s credibility, by itself may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003). Here, the IJ concluded that there were “enormous gaps in the respondent’s credibility.” App. at 28a. The IJ did not believe that Ghaziaskar’s participation in the radio program, the “Persian Hour,” was anti-Khomeini and anti-government because the broadcast occurred after the revolution. Additionally, the IJ discredited Ghaziaskar’s explanation of why he has two passports. App. at 29a. However, focusing on any discrepancy regarding the passport ignores the seriousness of his claim and the potential for harm that may await him in Iran if Ghaziaskar’s involvement with the radio program is viewed with disfavor by the Iranian regime. To his credit, the IJ conceded that Ghazias-kar’s involvement with the Persian Hour “may in fact have been what he said it was.” App. at 31a. However, the IJ also dismissed the seriousness of Ghaziaskar’s involvement with the radio program because it occurred before the overthrow of the Shah’s regime. Ghaziaskar argues that his conversion to Christianity could also subject him to torture. He testified that he attended Catholic services and took communion along with his wife and children. The IJ disputed his “sudden conversion to Christianity,” because the IJ believed that Ghaziaskar would not have been able to take communion without being a member of the church. App. at 31a. However, that conclusion is clearly based upon the IJ’s understanding of practices of Christian churches he is familiar with. There is nothing in the record to suggest that Christian churches in Iran adhere to the strict protocols that exist in some churches in the United States. The IJ was also concerned that Ghaziaskar could not provide the name of pastors or churches that he attended. Id. However, we believe that the IJ’s apparent belief that Ghaziaskar would not have been able to take communion in a Catholic church was erroneous. Although a non-Catholic is not supposed to take communion in the Catholic Church, Ghaziaskar certainly could have received communion in any number of Catholic churches, even though he is not Catholic, not because it is acceptable but, because the priest did not know he was not Catholic. Ghaziaskar argues that the IJ and the BIA both “failed to consider the country conditions in Iran.” Pet. Br. at 29. Specifically, Ghaziaskar points to “overwhelming evidence regarding the prevalence of torture in Iran contained in the 2002 Country Reports” that the BIA did not adequately consider. Id. The 2002 Country Reports point to (1) “systematic abuses” of human rights in Iran including summary executions and the widespread use of torture, J.A. 304a-05a; (2) Iranians returning from abroad are subject to searches and extensive questioning for evidence of anti-government activities abroad, J.A. 319a; (3) Iran’s judiciary is “subject to government and religious influence resulting in lack of due process and fair trials, J.A. 309-a-10a; and (4) there are “numerous credible reports that security forces and prison personnel continue to torture detainees and prisoners, J.A. 307a. This record does not establish that the IJ or BIA adequately considered conditions in Iran before reaching its conclusion that Ghaziaskar failed to establish that it was more likely than not that he would be tortured upon his return to Iran. We also think it appropriate to take judicial notice of the fact that current tensions in Iran would only exacerbate what this record establishes as an already shameful record of respecting human rights. We think that this case can best be resolved by *766allowing the BIA an opportunity to more closely consider relevant Country Reports in assessing Ghaziaskar’s claim. We also think that the BIA should give consideration to the possibility that it would be more likely than not that his involvement in the radio program, his return from the United States, and his claimed conversion to Christianity could well subject him to the kind of intentional mistreatment that the CAT was intended to protect against. We therefore remand for the BIA’s reconsideration of Ghaziaskar’s petition for relief under the CAT. IV. For the aforementioned reasons, we will dismiss Ghaziaskar’s petition in part, and remand it in part for further proceedings consistent with this opinion. . This is an aggravated felony involving fraud or deceit where the loss to the victim exceeded $10,000.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471087/

*767OPINION POLLAK, District Judge. I. Ryan J. Craig (“Craig”) has filed a pro se brief in this appeal from his conviction of two counts of wire fraud in violation of 18 U.S.C. § 1341 and one count of failure to appear at trial in violation of 18 U.S.C. § 3146. His current counsel has moved for permission to withdraw from representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967). We conclude that counsel has fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a) and that an independent review of Craig’s pro se brief as well as the record has failed to reveal any additional non-frivolous issues. We accordingly will grant defense counsel’s motion to withdraw and will affirm the District Court’s judgment. II. We write primarily 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. The government presented evidence showing that Craig sold non-existent merchandise through e-Bay, an internet auction website that serves as a clearinghouse for individual sellers to list items for sale.1 Craig used his grandmother’s personal identification information to establish a seller’s account on e-Bay. Craig, with the help of accomplices, then sold items using this account, keeping the proceeds from the completed sales — which were paid to him by way of Western Union money orders — without delivering the goods promised to their respective buyers. David Carlson, a fraud investigation supervisor employed by e-Bay, testified for the government that in order to set up an account on the e-Bay website, a user must provide a street address, a phone number, and an e-mail address. (App.132-33.) Carlson also testified that Craig supplied e-Bay with two credit card numbers, registered to his grandmother, which could be used to bill the user account for service charges associated with using e-Bay. (App. 139-140.) At the time of Craig’s arrest, police recovered from Craig a blank Western Union form and a piece of paper containing his grandmother’s name, date of birth, social security number, credit card numbers, and bank account information. Following the jury’s verdict, the Probation Office prepared a Pre-Sentence Investigation Report (“PSR”) proposing a recommended Sentencing Guidelines range of 100-125 months of incarceration, reflecting a total offense level of 24 and a criminal history category of VI.2 To arrive at that total offense level, the PSR applied the following guidelines adjustments: an eight-level enhancement for a loss amount exceeding $70,000 but not more than $120,000, pursuant to U.S.S.G. § 2Bl.l(b)(l)(E); a four-level enhancement for 50 or more victims, pursuant to § 2B1.1(b)(2)(B); a two-level enhancement for unauthorized use of any means of identification to produce another means of identification, pursuant to § 2Bl.l(b)(9)(C)(i); and a two-level enhancement for role as leader, pursuant to § 3B1.1. *768Craig objected to the sentencing enhancements. The District Court sustained Craig’s objections in part, determining that the number of victims should be reduced to 14 (reducing the applicable sentencing enhancement from four points to two points) and that the loss amount should be reduced to more than $10,000 but less than $30,000 (reducing the applicable sentencing enhancement from eight points to four points). The District Court overruled Craig’s other objections and thus found a total offense level of 18 with a criminal history category of VI, resulting in a guidelines range of 57-71 months of incarceration. The District Court sentenced Craig to 71 months: fifty-nine months for each wire fraud conviction, to be served concurrently, and 12 months for the failure to appear conviction, to be served consecutively to the wire fraud sentences. III. Appellant’s counsel has moved this Court for leave to withdraw because, in counsel’s view, appellant appears to lack any issue of arguable merit. See Local Appellate Rule 109.2; Anders,3 Appellant, meanwhile, has filed a separate brief pro se in support of his appeal. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). If a criminal defendant wishes to appeal but counsel, after thorough review of the record, cannot find any appealable issue, counsel may file what is known as an Anders brief. Local Appellate Rule 109.2(a) reflects the Third Circuit’s implementation of Anders: 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 pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 ¿.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. In assessing an Anders brief, we must determine: “(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) (explaining L.A.R. 109.2(a)) (citations omitted). We first examine whether counsel fulfilled the requirements of Rule 109.2(a) and then turn to the issue of our independent review. As Rule 109.2(a) reflects, “[t]he duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.” Youla, 241 F.3d at 300. Counsel’s Anders brief satisfies both of these requirements. “Counsel need not raise and reject every possible claim” but need only satisfy the “conscientious examination” standard set forth in Anders. Id. We are satisfied that *769counsel has met this standard. Counsel diligently searched the record for any potentially appealable issues and, in fourteen pages of careful analysis, supported his claims of frivolousness with citations to relevant ease law. Gf id. (holding that counsel did not adequately explain the frivolity of appealable claims where “counsel’s analysis of the merits of the potential appealable issues constituted two pages” and cited “no case law”).4 Thus, the Anders inquiry proceeds to our independent review of the record. When an Anders brief appears adequate on its face, our own examination is to be guided by the Anders brief itself. Id. at 301. Counsel raises four possible issues for review in his Anders brief: (1) the sufficiency of the evidence relied upon by the jury; (2) the District Court’s handling of the jury, who were deadlocked before reaching a verdict; (3) the District Court’s articulation of its consideration of the relevant sentencing factors outlined at 18 U.S.C. § 3553(a); and (4) the District Court’s calculation of the proper guidelines sentence, specifically the District Court’s application of the role-as-leader and unauthorized-use-of-means-of-identification enhancements. On the basis of our review, we agree that all of these issues are without merit. Counsel invites us to consider whether his “criteria for frivolousness [are] too strict” as to two issues: (1) whether the jury had sufficient evidence to support the wire fraud conviction, and (2) whether the court properly applied the sentencing enhancement for means of identification. See Appellant’s Br. at n. 24; note 3, supra. We will briefly address each of these issues. First, Counsel suggests that a sufficiency of the evidence claim might ground a non-frivolous appeal because a jury convicted Craig of wire fraud despite the fact that it deadlocked on the charge of mail fraud. Because mail fraud and wire fraud are crimes with different elements, however, deadlock as to one has no bearing on the sufficiency of the evidence for the other. An appellate court’s determination of whether a jury’s verdict was supported by sufficient evidence “should be independent of the jury’s determination that evidence on another count was insufficient.” United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). The District Court explained to Craig’s jury that an element of mail fraud is that the defendant “used the mails or caused the mails to be used.” (App.774.) Because the jury had a sufficient amount of evidence to convict on the wire fraud charges — which have nothing to do with mail usage — the jury’s deadlock on the mail fraud counts cannot transform an otherwise frivolous sufficiency of the evidence argument into a non-frivolous one. This is especially true where, as here, the appellate court’s review is for plain error because the defendant did not challenge the sufficiency of the evidence by moving for a motion of acquittal during or after trial. Counsel also expresses “disquiet” as to whether our decision in United States v. Hawes, 523 F.3d 245 (3d Cir.2008), calls into question the District Court’s application of the means-of-identification enhancement, U.S.S.G. § 2Bl.l(b)(9)(C)(i). Hawes held that a financial adviser who defrauded his clients by changing their addresses (so that he, and not they, could obtain mailings of their financial statements and then mail the clients fabricated financial statements instead) did not qualify for the enhancement because a mailing address, *770standing alone, is not a “means of identification” as defined by the Guidelines. See Hawes, 523 F.3d at 252. Section 2Bl.l(b)(9)(C)(i)5 applies whenever the defendant has committed “the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification.” The application note to § 2B1.1 (b)(9) (C) (i) instructs that “ ‘[m]eans of identification’ has the meaning given that term in 18 U.S.C. § 1028(d)(4).” That section (now codified at 18 U.S.C. § 1028(d)(7)) provides: [T]he term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any— (A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (C) unique electronic identification number, address, or routing code; or (D) telecommunication identifying information or access device (as defined in section 1029(e)); As we noted in Hawes, this statutory definition of “means of identification” contains both general terms (“any name or number that may be used ... to identify a specific individual”) and specific terms (a list of examples of means of identification, which does not include a mailing address). 523 F.3d at 250. Hawes concluded that § 2Bl.l(b)(9)(C)(i) targets “breeding a new means of identification” that involves “unique means of identification, primarily numbers” rather than “merely an attribute of one’s identity.” Id. at 251-52. Thus, it held, mailing addresses — which are not specifically listed or referred to by § 1028(d)(4) — do not fall under the meaning of the guideline. Both credit card numbers and e-Bay accounts, in contrast, are means of identification specifically identified by § 1028(d)(4), as both constitute “access devices” within the meaning of § 1028(d)(4)(D). Pursuant to § 1028(d)(4)(D), an access device is defined by reference to 18 U.S.C. § 1029(e). That definition of “access device” provides: the term “access device” means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument)[.] 18 U.S.C. § 1029(e)(1) (emphasis added). A credit card falls under the definition of “access device” because it is a “card ... that can be used ... to obtain money, goods, services, or any other thing of value.” An e-Bay account, meanwhile, is a “means of account access that can be used ... in conjunction with another access device”- — -namely a credit card — “to obtain money, goods, services, or any other thing of value.” Credit cards and e-Bay accounts are therefore means of identification for the purposes of applying the sentencing enhancement from *771§ 2Bl.l(b)(9)(C)(i). Accordingly, Craig’s conduct is “easily categorized as the breeding of means of identification,” Hawes, 528 F.3d at 250, because Craig used one means of identification (his grandmother’s credit card) to spawn another (a newly created eBay account in her name). IV. For the foregoing reasons, we will grant counsel’s motion to withdraw and affirm the judgment of the District Court. . "E-bay is a global online marketplace, essentially a newspaper classified ad that brings buyers and sellers together allowing basically anyone on earth to buy and sell basically almost everything.” (App. 131.) . The PSR used, and the District Court applied, the 2002 edition of the Federal Sentencing Guidelines Manual. . Counsel for appellant does note, however, that he is conflicted as to whether there is arguable merit with respect to two issues: whether the jury had sufficient evidence to support its wire fraud verdict, and whether the court properly applied the sentencing enhancement for "means of identification.’ See Appellant's Br. at nn. 24 & 35. . That counsel notes two claims with respect to which he is somewhat conflicted about his own conclusion of frivolity serves to confirm the care he has taken in briefing this appeal. See note 3, supra. . Hawes, like the instant matter, involved the 2002 edition of the guidelines manual. The means-of-identificalion enhancement is now at § 2Bl.l(b)(10)(C)(i).

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471089/

OPINION POLLAK, District Judge: Appellant Sergeant David Schottanes appeals the District Court’s grant of summary judgment, disposing of his claims against his employer, the Borough of North Haledon, and his supervisor, Police Chief Joseph Ferrante. The District Court found that Schottanes’s claims were untimely and dismissed them as barred by the statute of limitations. Because we agree that Schottanes’s complaint was filed more than two years after the completion of appellees’ allegedly wrongful conduct, we will affirm. I. Because the parties are familiar with the facts and the record, we need not discuss them in detail. This matter was resolved on a motion for summary judgment, so we view the facts, as did the District Court, in the light most favorable to Schottanes. Schottanes is employed as a police officer with the Borough of North Haledon; he has held the rank of sergeant since 2001. In mid-2004, another officer complained that Schottanes sexually harassed her. As a result, Police Chief Ferrante initiated an investigation. Ferrante also issued a no-contact order between Schottanes and the complainant and transferred Schottanes to the night shift to effectuate the order. In August 2004, prior to the close of the initial investigation (which, it is uncontested, ended in October 2004 at the latest), Ferrante formally filed disciplinary charges against Schottanes. Disciplinary hearings began on October 25, 2004, and, in part because Schottanes waived his right to have the hearing held within 30 days of the charges being filed, lasted through the end of 2005. While the charges were pending, the mayor — in conversations Schottanes secretly tape-recorded — informed Schottanes that it was widely known that the charges had been fabricated to derail Schottanes’s career, and the mayor promised to promote Schottanes as soon as the investigation concluded. The Borough Council is in charge of promotions, and the mayor only votes if the Council is deadlocked. The Borough Council subsequently exonerated Schottanes on February 1, 2006, but he was never promoted. On November 26, 2006, plaintiff filed a complaint against the police chief and the Borough. He brought claims under 42 *773U.S.C. § 1983 alleging violations of his federal civil rights, and he also pled claims under state law. Specifically, plaintiff alleged 1) a violation of his substantive and procedural due process rights, 2) negligent infliction of emotional distress, 3) hostile work environment, 4) negligence, and 5) civil conspiracy. The gravamen of Schot-tanes’s complaint is that Ferrante brought formal charges before the close of the investigation and used the investigation to derail Schottanes’s job prospects, all the while subjecting Schottanes to emotional distress and a hostile workplace. Schot-tanes alleged that his failure to receive a promotion resulted from the improper investigation. The District Court determined that Schottanes’s claims were barred by the statute of limitations, because the wrongful conduct “was complete as of August 2004 at the latest,” and Schottanes had failed to proffer evidence of wrongful conduct after that date. App’x 3. Schottanes timely appealed. II. Our review of a District Court’s grant of summary judgment is plenary. See Eichenlaub v. Township of Indiana, 385 F.3d 274, 279 (3d Cir.2004). Summary judgment is proper if the moving party demonstrates “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); Eichenlaub, 385 F.3d at 279. III. The counts in Schottanes’s complaint are premised on his claims that the conduct of the Borough and Ferrantes either violated his civil rights (actionable through 42 U.S.C. § 1983) or constituted tortious activity; as a result, the applicable statute of limitations period for all claims in the complaint is two years. Montgomery v. De Simone, 159 F.3d 120, 126 n. 4 (3d Cir. 1998); N.J.S.A § 2A14-2. A cause of action accrues, and the statute of limitations period begins to run, “when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.1998). The District Court concluded that Schottanes knew or should have known of his injury by August 2004, when the disciplinary complaint was filed against him. Schottanes argues that he could not have discovered his injury until the disciplinary charges against him were dismissed and he was not promoted, and so his claim did not accrue until February 1, 2006. He premises this argument on the repeated promises by the mayor that once the charges were dropped a promotion would follow. However, the injury actually complained of in the complaint was the investigation itself and the changed work conditions stemming from that investigation; the failure to obtain a promotion is characterized as stemming from the initial harm of the investigation. See Complaint ¶¶ 15-16. Even if Schottanes’s complaint could be fairly read to allege that the Borough’s refusal to promote him constituted an independent injury, the discovery rule would not apply here. Schottanes knew in August 2004 that he had been the subject of disciplinary charges and transferred to the night shift, and thus knew he had been injured. Moreover, he knew at that time that he had not been promoted. He cites Miller v. Beneficial Mgmt. Corp., 977 F.2d 834 (3d Cir.1992), as “precisely the situation that presents itself here” — where a plaintiff seeks, but has not obtained, a promotion that could be granted at any time. Appellant’s Br. at 16. In Miller, the plaintiff, who had not been subject to any disciplinary proceeding or other employment injury, was “repeatedly assured ... that she *774deserved and would receive a promotion” from decision-makers with the ability to promote her. In contrast, Schottanes, who undisputedly knew he was injured by the filing of the disciplinary charge, presents, in support of his failure-to-promote claim, only the statements of the mayor, who could recommend but not promote him and who had not even recommended him. The District Court correctly concluded that Schottanes should have known that he was injured at the filing of the disciplinary chai'ge in August 2004.1 In the alternative, plaintiff argues that his claims can be saved by a) the continuing violations doctrine or b) the doctrine of equitable tolling. With regard to the continuing violations doctrine, Schottanes now argues that the Borough’s failure to promote him constituted a continuing violation. However, Schottanes argued to the District Court that the ongoing investigation, rather than the failure to promote, constituted an ongoing violation (an argument the District Court rejected). Even if we were to consider this argument properly presented, it remains the case that the failure to promote was the consequence of the earlier wrongful act, i. e. the improper charges and flawed investigation. The failure to promote does not constitute a series of “continual unlawful acts” but rather the “continual ill effects from [the] original violation,” which is insufficient to create a continuing violation. See Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d Cir.2001) (citing Ocean Acres Ltd. v. Dare Cty. Bd. of Health, 707 F.2d 103, 106 (4th Cir.1983)). Finally, Schottanes seeks equitable tolling, arguing that the mayor’s promises of promotion gave him the false expectation that he would be promoted eventually and thus encouraged him to delay filing his complaint. This argument was not raised below and is waived. Selected Risks Ins. Co. v. Bruno, 718 F.2d 67, 69 (3d Cir.1983). This case does not present any exceptional circumstances that would prompt this court to consider the issue. IV. For the reasons set forth, we will affirm the judgment of the District Court. . Even if we were to construe Schottanes’s complaint as stating a timely claim for failure to promote, it is difficult to see any grounds on which Schottanes could base a prima facie case, as he is not a member of a protected class and does not allege that the adverse employment actions against him were moti-valed by anything other than Chief Ferrante’s intent to derail Schottanes’s career because of Ferrante's preference that another officer be promoted. See Complaint ¶ 6-10, App'x 12. The District Court did not reach this issue, and we similarly express no view, as we find the claim time-barred.

01-04-2023

11-05-2022

https://www.courtlistener.com/api/rest/v3/opinions/8471093/

OPINION OF THE COURT FISHER, Circuit Judge. Darrin Robinson appeals from the Magistrate Judge’s order granting summary judgment in favor of defendants Martin Horn and Phillip Johnson. We will reverse the Magistrate Judge’s order and remand the case for further proceedings consistent with this opinion. 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 June 2002, Darrin Robinson was an inmate in the Restricted Housing Unit (RHU) at the State Correctional Institution at Pittsburgh, Pennsylvania (SCI-Pittsburgh). At the time, policies in force at SCI-Pittsburgh mandated that prisoners housed in the RHU were periodically to be taken outside for exercise, where they were to be placed in special “cages” designed for that purpose. Under prison procedures, corrections officers were to place two handcuffed prisoners in an exercise cage at one time and then, while standing outside the cage, reach through a slot to remove each prisoner’s handcuffs. *780On June 26, 2002, Corrections Officer Robert Onstott, following this procedure, handcuffed Robinson’s hands behind his back and put him in an outdoor exercise cage with another inmate from the RHU, Troy Cooper. Cooper’s handcuffs were removed first. As soon as Cooper’s hands were free, he attacked Robinson, whose hands were still bound, stabbing him repeatedly in the face and neck with an improvised knife fashioned from a plastic food tray, before ultimately being subdued. On June 28, 2002, Robinson filed a grievance concerning the incident under Pennsylvania’s Inmate Grievance System Policy, DC-AJDM 804, in which he wrote that he was taken to the cage “as per procedure,” recounted his injuries, and requested that “disciplinary actions be taken against those responsible for this neglect, a change in procedures that allow for protection, and money to compensate for [his] injuries and any future and present medical care.” App. 39. Robinson’s grievance went through all three stages of review within Pennsylvania’s Inmate Grievance System and was denied at each stage. Robinson then filed this civil rights complaint under 42 U.S.C. § 1983 against Horn, the then-Secretary of the Pennsylvania Department of Corrections; Johnson, the then-Superintendent of SCI-Pittsburgh; Corrections Officer Onstott; and three other prison guards. In his complaint, Robinson alleged that the defendants failed to protect him from being attacked by Cooper, in violation of the Eighth Amendment. The parties consented to adjudication by a Magistrate Judge, and the defendants moved for summary judgment. Ultimately, the Magistrate Judge granted summary judgment in favor of all defendants. As relevant here, the Magistrate Judge granted summary judgment in favor of Horn and Johnson because, she concluded, Robinson procedurally defaulted his claims against them by failing to identify them by name in his grievance. This timely appeal followed. II. The Magistrate Judge presided by consent under 28 U.S.C. § 636(c) and had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. See Skretvedt v. E.I. DuPont de Nemours, 372 F.3d 193, 200 & n. 7 (3d Cir.2004). We have jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291. See Skretvedt, 372 F.3d at 200 n. 7 (citing Abrams v. Lightolier Inc., 50 F.3d 1204, 1209 n. 1 (3d Cir.1995)). We exercise plenary review over a district court’s decision to grant summary judgment, applying the same standard the district court should apply. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009); Williams v. Beard, 482 F.3d 637, 639 (3d Cir.2007). 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). III. Under the Prison Litigation Reform Act of 1995 (PLRA), a prisoner may not bring a § 1983 suit with respect to prison conditions — such as this suit — -“until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement contains a procedural default component; in other words, exhaustion under § 1997e(a) is “‘proper exhaustion,’ meaning that the prisoner must comply with all the administrative *781requirements and not merely wait until there are no administrative remedies ‘available.’ ” Williams, 482 F.3d at 639 (quoting Woodford v. Ngo, 548 U.S. 81, 92-103, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)); accord Spruill v. Gillis, 372 F.3d 218, 227-30 (3d Cir.2004). ‘“[P]rison grievance procedures supply the yardstick’ for determining what steps are required for exhaustion [under § 1997e(a) ].” Williams, 482 F.3d at 639 (quoting Spruill, 372 F.3d at 231); see Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). Here, Horn and Johnson do not contest that Robinson “exhausted his administi'ative remedies in the literal sense”; he pursued his grievance through Pennsylvania’s Inmate Grievance System until there were no “further avenues of relief ... available to him” within that system. Spruill, 372 F.3d at 232. This dispute centers instead on the procedural default component of the PLRA’s exhaustion requirement. Specifically, the defendants assert that Robinson procedurally defaulted his claims against them by failing to identify them by name in his grievance. In this regard, they point to a passage from Pennsylvania’s Inmate Grievance System Policy, which provides in relevant part: “The inmate shall include a statement of the facts relevant to the claim.... The inmate should identify any persons who may have information that could be helpful in resolving the grievance. The inmate should also include information on attempts to resolve the matter informally. The inmate may also specifically state any claims he/she wishes to make concerning violations of Department directives, regulations, court orders, or other law.” App. 47-48 (DC-ADM 804, Part VI.A.l.g). In Spruill, we interpreted an earlier— but in all material respects identical — version of this paragraph. 372 F.3d at 232-35. In doing so, we explained that “[t]he verbs in this paragraph establish three tiers of grievance components: items that are mandatory (‘shall’); items that are required to the extent practicable (‘should’); and items that are optional (‘may’).” Id. at 233. Here, then, under Spruill, if the identities of Horn and Johnson were “facts relevant to the claim” then it was mandatory for Robinson to name them in his grievance; if they were “persons who may have information” or with whom Robinson made “attempts to resolve the matter informally” then Robinson was required to identify them if practicable; and if they did not fall into any of these categories then Robinson was not required to identify them at all. See Spruill, 372 F.3d at 234. We are unconvinced by our review of the record that the defendants’ names were facts relevant to Robinson’s grievance or that Robinson made attempts to resolve the matter informally with them. And while the defendants surely had information that could have been helpful in resolving Robinson’s grievance, we are skeptical that they have met their burden of demonstrating that it was “practicable” for Robinson to identify them as the relevant policymakers; the evidence in the record tends to show that prisoners at SCI-Pittsburgh did not have access to the policies and procedures governing the administration of security in the RHU, much less the identities of the prison officials responsible for formulating and implementing those policies and procedures. Indeed, during discovery, Johnson objected to Robinson’s request for production of the relevant procedures manual on the ground that it was *782“privileged and confidential” and that “[producing this documents [sic] could pose ... a security risk for inmates, staff and/or the institution.” S.App. 61. On this record, we do not believe that Robinson procedurally defaulted his claims against Horn and Johnson. In any event, even if Robinson had procedurally defaulted his claims against Horn and Johnson by failing to identify them in his grievance, the prison’s grievance process excused those procedural defaults. The Initial Review Response (IRR) to Robinson’s grievance — the first-level determination of his grievance under the Inmate Grievance System Policy — noted that “[t]he yard procedures for R.H.U. inmates has been modified.” App. 40; see App. 48-50 (DC-ADM 804, Part VLB); of. Spruill, 372 F.3d at 232 (discussing the “three stages of review within Pennsylvania’s Grievance System”). And Johnson personally denied Robinson’s “Appeal to Facility Manager” — the second stage of review under the Inmate Grievance System Policy, see App. 50-51 (DC-ADM 804, Part VI.C) — indicating in his written response: “It is unfortunate that this assault happened to you at SCI-Pittsburgh, but RHU yard procedures have been modified to prevent something like this from happening again.” App. 42. “ ‘The primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.’ ” Williams, 482 F.3d at 640 (quoting Jones, 549 U.S. at 219, 127 S.Ct. 910). These documents indicate that Robinson’s grievance succeeded in this purpose, “evidencing] knowledge on the part of prison officials ... that there was a problem,” id., and acknowledging that the relevant policymakers, Horn and Johnson, were “fairly within the compass” of Robinson’s grievance, Spruill, 372 F.3d at 234. IV. For the foregoing reasons, we will reverse the Magistrate Judge’s order granting summary judgment in favor of Horn and Johnson and remand this action to the Magistrate Judge for further proceedings consistent with this opinion.

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OPINION OF THE COURT SCIRICA, Chief Judge. Derrick H. Bell pleaded guilty to distribution and possession with intent to distribute cocaine base, under a written plea agreement. PSR ¶ 73. Initially, on January 28, 2005, Bell was sentenced to serve a 170 month term of incarceration. Id. In July, 2006, the Government moved for a twelve-month reduction in Bell’s sentence under the Federal Rules of Criminal Procedure Rule 35(b) because of his substantial assistance to law enforcement. The District Court granted this motion and reduced Bell’s term of imprisonment to 158 months. Subsequently Bell filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c) based on the amendments to the Sentencing Guidelines for cocaine base offenses. On August 28, 2008, the District Court denied this motion and issued a Pronouncement of Ineligibility.1 Bell appealed this judgment. We will affirm.2 At the initial sentencing hearing, the District Court fully adopted the Pre-Sen-tence Report (PSR) which calculated Bell’s base offense level of 32 based upon the weight of the cocaine base (at least 50, but less than 150, grams), U.S.S.G. § 2D1.1, and a criminal history of VI as a result of several criminal convictions. His guidelines range, according to the PSR, was 210 to 240 months, reduced from 210 to 262 months because there was also a statutorily authorized maximum sentence of 20 years. PSR ¶ 71; see also 21 U.S.C. § 841(b)(1)(c). The PSR recited that Bell was a career offender, under U.S.S.G. § 4B1.1, because he was 18 years or older at the time of the commission of the instant offense, the offense was a felony involving a controlled substance, and he had at least two prior felony convictions for controlled substances. PSR ¶ 21. His career offender guideline range was the same as his drug-weight-based range: 210 to 240 months. Based upon a recommendation from the government, the District Court also granted Bell a two-point downward departure for acceptance of responsibility under *784U.S.S.G. § 3E1.1. A-29. Accordingly, Bell’s offense level was 30, and his new guideline range was 168 to 210. While the District Court did not explicitly reference the career offender guideline during the sentencing hearing, it adopted in full the PSR, which had found Bell to be a career offender. A-29. At no time did Bell ever contest the PSR designation that he qualified as a career offender under the U.S.S.G. As noted, the District Court initially sentenced Bell to term of 170 months which was subsequently reduced to a term of 158 months. “In November 2007, the Sentencing Commission amended the crack cocaine guidelines [Amendment 706] by revising a portion of the drug quantity table at § 2Dl.l(e). Generally, Amendment 706 reducing the base offense levels for crack cocaine offenses under § 2D1.1(c) by two levels.” United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). The Commission declared the amendment to be retroactive. Id. Upon motion, a district court may reduce the sentence 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.” 18 U.S.C. § 3582(c)(2). The District Court found Bell ineligible for further sentence reduction under Amendment 706 because he was sentenced as a career offender.3 As noted, the District Court adopted the PSR in toto which designated Bell as a career offender. Bell never lodged an objection that he was not a career offender. This designation is a bar to eligibility for a reduction under 18 U.S.C. § 3582(c). “The applicable policy statement instructs that any reduction in sentence is ... not authorized by 18 U.S.C. § 3582(c) if an amendment does not have the effect of lowering the defendant’s applicable guideline range.” Mateo, 560 F.3d at 154 (quoting U.S.S.G. § lB1.10(a)(2)(B)). The guidelines provide that “if the offense level for a career offender ... is greater than the offense level otherwise applicable, the [criminal offender] offense level ... shall apply.” U.S.S.G. § 4B1.1. Therefore, even if Bell were to receive the amendment reduction, it would not change the applicable guideline range because the higher offense level for a career offender under the guidelines would apply. Because Bell would be still be sentenced under the same guideline range under U.S.S.G. § 4B1.1, regardless of the amendment, he does not qualify to have his sentence reduced pursuant to 18 U.S.C. § 3582(c). We will affirm the judgment of conviction and sentence. . Bell initially attempted to file this motion pro se, but the Federal Public Defender's office had already been appointed to represent him. Thus, the District Court entered an order striking the pro se motion without prejudice because he was now represented by counsel. Bell made a motion to reinstate his pro se motion and this was denied. He then appealed this denial to the Third Circuit but the appeal was dismissed upon agreement of the parties. Bell, with counsel, filed another motion for a reduction of his sentence on July 8, 2008 which was denied. This denial is before us today. . The District Court had jurisdiction under 18 U.S.C. § 3231 and 3582(c)(2). We have jurisdiction under 28 U.S.C. § 1291. . We review the District Court's interpretation of the sentencing guidelines de novo; however, we review the court’s decision to "deny a defendant's motion to reduce sentence under § 3582(c) for abuse of discretion." Mateo, 560 F.3d at 154.

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OPINION PER CURIAM: Xiurong Liu petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny her petition. Liu, a native and citizen of China, arrived at the United States-Mexico border in September 2004 without a valid visa or other travel document. She was placed into removal proceedings, and thereafter sought asylum, withholding of removal, and relief under the Convention Against Torture. Following a hearing on November 22, 2006, the IJ denied relief. The BIA dismissed the appeal and issued a final order of removal on May 7, 2008. Liu filed a petition for review. The IJ based his denial of Liu’s request for relief on his conclusion that she was not a credible witness. This finding was based on the numerous inconsistencies both between Liu’s credible fear interview and her testimony at the hearing and within her hearing testimony, her admission that she lied during her credible fear interview, and her reliance on supporting documentation that appeared to the IJ to be fabricated. At her credible fear interview, Liu stated that she was married, that she had given birth to one child, and that her second pregnancy was forcibly aborted. *789In a supplemental statement submitted with her asylum application, she admitted that these statements had all been untrue and that she had made them at the direction of the smugglers, who threatened her and her family if she did not. She explained that she was rescinding those statements because the smugglers had been captured and she was no longer afraid of them. In her asylum application and at the hearing, Liu claimed that she was seeking relief from removal because she had been married before the legal age in China and therefore her marriage was illegal.1 She claimed that when the family planning officials learned of the illegal marriage, they threatened her with fines and with the insertion of an IUD. She and her husband went into hiding until she left for the United States. She claimed that she did not want to be implanted with an IUD because she wanted to have three children, and she could not afford to pay the fines. Notably, her testimony at the hearing was that she would have been fined in the amount of 25,000 RMB and that she paid over 500,000 RMB to come to the United States. Liu maintained that if she was returned to China, she would be jailed and fined. In support of her application, she submitted letters from her parents and her in-laws. The IJ observed that the language in each of these letters was strikingly similar to the others and to her supplemental statement and that he therefore believed that they had been fabricated. Based on his adverse credibility determination, the IJ denied all forms of relief and ordered Liu removed to China. In dismissing her appeal, the BIA concluded that Liu was unable to demonstrate on appeal that the IJ’s adverse credibility finding was clearly erroneous. The BIA further held that, even if it were to accept her testimony as true, she failed to establish past persecution or a well-founded fear of future persecution upon return to China. The BIA reasoned that Liu was never arrested, detained or physically mistreated, she never paid the fine that was allegedly imposed for her illegal marriage or refusal to have an IUD implanted, and she was unable to show that the fine in her case would result in such a substantial economic deprivation that it would constitute persecution. With respect to her family planning claim, the BIA found that the threat of the forced insertion of an IUD alone does not per se constitute persecution. Because she is now of legal age, the BIA concluded that she could legally marry and have a child in China. Finally, the BIA held that Liu’s claim that she would jailed based on her illegal departure from China was speculative at best and could not support her claim for relief. We have jurisdiction over this petition for review under 8 U.S.C. § 1252. To be granted asylum as a refugee, an applicant must establish that she is unable or unwilling to return to her homeland “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To be entitled to withholding of removal, an applicant must prove that her “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). It is well-recognized that an alien who is unable to establish refugee status for the purpose of asylum will be unable to establish the right to withholding of removal. See Zubeda v. *790Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). Au applicant for either form of relief must offer “credible, direct and specific evidence” in support of her claim. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004); Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir.1998). The IJ denied relief because he found that Liu was not credible. Because the BIA’s decision clearly incorporated the adverse credibility findings made by the IJ, we review both determinations at this time. See Chen, 376 F.3d at 222; Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). The adverse credibility determination is a factual finding subject to review under the substantial evidence standard. See Kaita v. Attorney General, 522 F.3d 288, 296 (3d Cir.2008). “Under this deferential standard of review, we must uphold the credibility determination of the BIA or IJ unless ‘any reasonable adjudicator would be compelled to conclude to the contrary.’” Chen, 376 F.3d at 222 (quoting 8 U.S.C. § 1252(b)(4)(B)). However, an adverse credibility finding based on inconsistencies in the record must be based on matters that go to the heart of the asylum claim.2 See Kaita, 522 F.3d at 296. Based on a thorough review of the record, we conclude that the adverse credibility finding is supported by substantial evidence. Liu does not address the IJ’s finding that her testimony was not credible due to discrepancies between her representations during her credible fear interview and in her written application for relief and her testimony before the IJ. Those discrepancies were significant and we defer to the IJ’s conclusion that Liu failed to rehabilitate her credibility after admitting to lying during her credible fear interview. See Chen v. Gonzales, 434 F.3d 212, 220-21 (3d Cir.2005) (noting that “an IJ is normally in the best position to make credibility determinations as he is uniquely qualified to decide whether an alien’s testimony has about it the ring of truth”). The only aspect of the IJ’s adverse credibility determination that Liu does address in her brief is the IJ’s comment regarding the similarities between Liu’s written statement and the letters from her relatives. Liu argues that these similarities can be explained largely by the translation process and the fact that people from the same village tend to use similar terminology. The question on review is whether Liu has demonstrated that “the evidence not only supports a contrary conclusion, but compels it.” See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). We cannot say that it does.3 *791Based on the foregoing, we will deny the petition for review. . Liu claimed that she was married at age eighteen, but that she did not seek permission for the marriage because she was below the legal age of twenty-one. At the time of the hearing, Liu was over twenty-one years of age. . In enacting the Real ID Act of 2005, Congress changed the credibility determination 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, this new provision only applies to applications for relief filed after May 11, 2005, the effective date of the Act. See id. As the Government concedes, these changes are not applicable to the instant petition, as Liu filed her application for relief prior to that date. See Chukwu v. Attorney General, 484 F.3d 185, 189 (3d Cir.2007). . Liu also challenges the BIA's alternative holding that, even if it were to accept her testimony as true, she failed to establish past persecution or a well-founded fear of future persecution upon return to China. Liu argues that she fled China out of fear of forcible insertion of an IUD, as well as the possibility of being jailed and fined, and that this alone qualifies as a well-founded fear of future persecution. In light of our holding regarding the IJ’s credibility determination, we need not reach the merits of this claim. We note, however, that Liu fails to cite to, nor are we aware of, any precedent holding that the threat of insertion of an IUD alone qualifies as persecution. See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as "threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom”).

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Vacated and remanded by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cleveland McLean, Jr., appeals from the district court’s order denying his 18 U.S.C. § 3582 (2000) motion for reduction of sentence. While his motion was long, rambling, and difficult to understand, McLean cited Sentencing Guidelines Amendments 500, 570, and 640 as the basis for *924his motion. The district court construed the motion as invoking Amendments 706, 711, and 715. Because the district court did not consider McLean’s motion on the grounds raised, we vacate and remand for reconsideration. We grant McLean’s motion to supplement his informal brief. We express no opinion on the merits of McLean’s motion. 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. VACATED AND REMANDED.

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Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joe Lee Fulgham seeks to appeal the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Fulgham v. Honeycutt, No. 2:09-CV-00086-JBF-JEB (E.D.Va. Mar. 2, 2009). 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. DISMISSED.

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Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth Wayne Tucker appeals the district court’s order denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Tucker, No. 3:07-cr-00098-HEH-l (E.D. Va. June 13, 2008). We grant Tucker’s motion to withdraw his motion to stay. Further, we grant Tucker’s motion to amend his informal brief and deny his motions for a transcript and appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

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PER CURIAM: * Inmate Marcus Hodge appeals the district court’s dismissal with prejudice under 28 U.S.C. §§ 1915A and 1915e of his lawsuit against Officer Williams under 42 U.S.C. § 1983. We AFFIRM. Hodge contends that he advised Officer Williams that another prisoner, Deryl Ware, “said I couldn’t pray no more and if I did we would fight.” According to Hodge, Williams stated that no one could keep him from praying, and he would look into it. Hodge then went to a visitation. Upon his return, Ware allegedly confronted him, saying Williams had advised Ware of Hodge’s complaint. Ware then assaulted Hodge, who alleges that he suffered cuts on his hand, a cut lip, and a sore neck, though he says he has no continuing injuries. Through the prison discipline system, Hodge was ultimately found guilty of disciplinary violations of fighting and reckless conduct arising from the fight and received a sanction of “15 days no visitation.” His grievance against Williams was denied. Hodge filed a § 1983 action against Officer Williams alleging that he failed to protect Hodge from Ware and was deliberately indifferent in doing so. The district court requested a more definite statement, and Hodge responded. The district court then conducted a screening under 28 U.S.C. § 1915A. The court concluded that Hodge’s allegations failed to state a claim for which relief could be granted, and dismissed under § 1915A(b)(l). Although the court found that Ware’s threat to Hodge constituted a substantial risk of harm, it found insufficient allegation of facts to support Hodge’s contention that Williams was deliberately indifferent to that risk. Alternatively, the court found that only de min-imis injuries were alleged and dismissed on that ground as well.1 On appeal, Hodge contends that Williams failed to follow policy in how he handled Hodge’s allegations. He abandons his claim for compensatory damages, stating “Mr. Hodge is only seeking punitive damages.” Hodge argues that Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), supports his appeal. After reviewing the record, we agree with the district court that Hodge has failed to allege facts sufficient to support a finding of deliberate indifference. See id. at 347-48, 106 S.Ct. 668 (“Respondents’ lack of due care in this case led to serious injury, but that lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent.”) While Williams’s handling of the situation by talking to Ware ultimately was ineffectual, *981Hodge’s allegations do not support a finding that it was deliberately indifferent. Hodge has not alleged facts sufficient to support recovery of punitive damages against Williams. See Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The district court’s judgment is AFFIRMED. Pursuant to 5th Cut. 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. . Because we affirm on the first ground, we need not reach the alternative ground.

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PER CURIAM: * Juan Manuel Jaime-Villafuerte (Jaime), a Mexican citizen, appeals the 50-month prison sentence imposed by the district court after he pleaded guilty to illegal reentry pursuant to 8 U.S.C. § 1326(a). He argues that the sentence is greater than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a)and specifically asserts that, in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the presumption of reasonableness does not apply to his within-guidelines sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is flawed in that it is not supported by empirical studies. Jaime further asserts that the 16-step offense level enhancement he received pursuant to § 2L1.2(b)(l)(A)(i) for a prior drug offense conviction over represented the seriousness of his criminal history and his propensity to commit future crimes. We have consistently rejected Jaime’s “empirical data” argument, concluding that Kimbrough does not question the presumption of reasonableness and does not require district or appellate courts to independently analyze the empirical grounding behind each individual guideline. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009), petition for cert. filed (June 24, 2009) (No. 08-11099). Accordingly, Jaime’s correctly calculated within-guidelines sentence is afforded a presumption of reasonableness. See Duarte, 569 F.3d at 529-30. Jaime has not rebutted that presumption. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, — U.S.—, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir.2006). Jaime has not shown that the 50-month sentence imposed by the district court was unreasonable. The record demonstrates that the district court properly made an individualized assessment to determine whether a sentence within the guidelines range was sufficient but not greater than necessary to achieve the goals of § 3553(a). See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2463, 168 L.Ed.2d 203 (2007). The judgment of the district court is AFFIRMED. Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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ORDER Guadalupe Macias-Martinez pleaded guilty to illegally reentering the United States after being deported following his prison term for drug trafficking. See 8 U.S.C. § 1326(b)(2). The district court applied the 16-level increase for aggravated felonies see U.S.S.G. § 2L1.2, in calculating a guidelines imprisonment range of 57 to 71 months, but imposed a below-guidelines term, 52 months. Macias-Martinez filed a notice of appeal, but his counsel is unable to discern any nonfrivolous claims to pursue and seeks to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We address only the potential issues identified in counsel’s supporting brief and Macias-Martinez’s response under Cir. R. 51(b). See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Macias-Martinez reentered the United States a year after he was deported, and within six months he was again convicted in Wisconsin court of trafficking cocaine. He was sentenced to 90 days in prison and, on top of that, reimprisoned for approximately 18 months for violating the terms of the supervised release imposed as part of his original trafficking sentence. During that time, he was taken into federal custody, where he pleaded guilty to the immigration violation. The district court imposed a new sentence running concurrently with the reimprisonment term. *266Macias-Martinez does not wish to challenge his guilty plea, so counsel appropriately refrains from discussing possible arguments about the voluntariness of the plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). Counsel first concludes, and we agree, that any challenge to the reasonableness of the sentence would be frivolous. The district court considered at length the sentencing factors set forth in 18 U.S.C. § 3553(a)(2) and imposed a sentence below the guidelines range. We accord a within-guidelines sentence a presumption of reasonableness, see Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-64, 168 L.Ed.2d 203 (2007); United States v. Shannon, 518 F.3d 494, 496 (7th Cir.2008); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005), and the presumption is strengthened when the defendant is complaining about a sentence below the guidelines range applicable to his offense. Counsel then considers whether Macias-Martinez could argue that the district court should have imposed a lesser prison term based on the allegedly substandard conditions of his presentencing confinement in Wisconsin prisons. At sentencing Macias-Martinez asserted that for the past nine months he spent 19 hours a day locked in his cell with limited access to a television, and that, as a result of his transfers between state and federal custody, he was unable to access all of the funds in his inmate account. And because he could not use those funds, he continued, he went without needed dental care and sundries that would have eased his time in jail. But, as counsel notes, conditions of presentencing confinement are not among the factors that judges must consider in crafting a sentence. See 18 U.S.C. 3553(a)(2); United States v. Turner, 569 F.3d 637, 642 (7th Cir.2009). Even though a lower sentence might be justified by conditions of presentencing confinement that are extraordinarily harsh, United States v. Campos, 541 F.3d 735, 751 (7th Cir.2008), there are two reasons why it would be frivolous for Macias-Martinez to claim that the district court had to address the circumstances of his detention. First, he presented no documentation showing that conditions were as unpleasant as he alleged. See id. Second, putting aside the evidentiary issue, the conditions Macias-Martinez described were not unusually harsh and thus did not merit the judge’s attention. See United States v. Ramirez-Gutierrez, 503 F.3d 643, 646 (7th Cir.2007) (poor ventilation, inadequate opportunities to exercise, and lack of dental care not so harsh as to warrant special consideration). The final potential issue identified by counsel is the district court’s failure to consider the absence of a “fast track” program for illegal reentry cases in the Eastern District of Wisconsin. We have consistently held that a sentencing judge in a district without a “fast track” program may not take into account the fact that similar defendants in districts operating such programs could receive lower sentences. See United States v. Pacheco-Diaz, 506 F.3d 545, 552 (7th Cir.2007); United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir.2006). Those cases all, however, predate Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and other circuits are split on whether that decision requires them to reevaluate a district court’s discretion to consider fast-track disparities. Compare United States v. Rodríguez, 527 F.3d 221, 229 (1st Cir.2008) (overruling previous cases that held a district court lacked discretion), with United States v. Gomez-Herrera, 523 F.3d 554, 562 (5th Cir.2008), United States v. Vega-Castillo, *267540 F.3d 1235, 1238-39 (11th Cir.2008), and United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir.2009). Even so, because Macias-Martinez never asked the court to exercise discretion, it would be frivolous to argue on appeal that it abused its discretion. See United States v. Filipiak, 466 F.3d 582, 584 (7th Cir.2006). Macias-Martinez contends that the district court should have shortened his sentence based on the amount of time he had already served on his reimprisonment. He points to U.S.S.G. § 5G1.3(b)(l), which requires a district court to reduce a sentence to reflect time served on an undischarged prison term that was imposed for an offense already taken into account by the guidelines calculation. See United States v. Bangsengthong, 550 F.3d 681, 682 (7th Cir.2008); United States v. Knight, 562 F.3d 1314, 1329 (11th Cir.2009). By Macias-Martinez’s reckoning, proper application of § 5G1.3(b) would have shaved eight months off his prison term. Yet application note 2(B) specifically explains that § 5G1.3(b) does not apply in a case like this, where the current offense is illegal entry and the prior offense was an aggravated felony. See United States v. Morales-Castillo, 314 F.3d 561, 563-64 (11th Cir.2002). Lastly, Macias-Martinez proposes arguing that his counsel performed deficiently by failing to ask the district court to consider fast-track disparities and § 5G1.3(b). But a claim of ineffective assistance of counsel is better left to collateral appeal, where a record devoted to counsel’s performance can be developed, and it would be frivolous to argue that this is the exceptional case where ineffectiveness is apparent from the trial record. United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009); see United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005). Macias-Martinez believes that the current record shows egregious behavior on counsel’s part simply because he failed to raise those issues in the district court, but we would give “every indulgence” to the possibility that counsel’s decision was tactical, Recendiz, 557 F.3d at 531. Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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ORDER Kevin Kane petitioned for a writ of ha-beas corpus to compel the Bureau of Prisons to credit against his federal prison term the time he served in state custody before sentencing. See 28 U.S.C. § 2241. The district court dismissed Kane’s petition without prejudice on the ground that he filed it without first exhausting his administrative remedies. We affirm the judgment. Kane was arrested by Illinois authorities in 2002 for home invasion and pleaded guilty to that charge in 2003. Pending his state sentencing, Kane was indicted by a federal grand jury for attempted possession with intent to distribute a controlled substance, see 21 U.S.C. §§ 846, 841(a)(1), and possession of a firearm in furtherance of a drug offense, see 18 U.S.C. § 924(c)(1)(A). He was turned over to federal authorities in July 2003 and, after pleading guilty to the federal chai-ges, remained housed in the Metropolitan Correctional Center in Chicago until June 8, 2004. On that day he appeared in state court and was sentenced on the home-invasion charge to four years imprisonment, which the Illinois court deemed satisfied by time served. Later that month state authorities released Kane into federal custody where, at last, a sentence of 78 months was imposed. Kane was displeased that he would have to serve his entire federal sentence, having already spent approximately two years in jail, almost a year of which was at the Metropolitan Correctional Center, a federal facility. Using different procedural vehicles, Kane filed three motions in which he asked the district court to reduce his sentence based on his presentence incarceration. We are asked to review only the last of those, Kane’s § 2241 petition, which the district court dismissed without prejudice after the government pointed out that Kane had not initiated, let alone exhausted, his administrative remedies with the BOP. A district court has no power to give credit for time served; that authority rests solely with the BOP. See United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (interpreting 18 U.S.C. § 3585); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir.1995); United States v. Pardue, 363 F.3d 695, 699 (8th Cir.2004). A district court, though, *269may review under § 2241 the BOP’s ruling on an inmate’s request for presentence credit. See United States v. Roller, 956 F.2d 1408, 1417 (7th Cir.1992); Rogers v. United States, 180 F.3d 349, 358 (1st Cir.1999). But even that review was unavailable to Kane because he did not address his request to the BOP in the first instance, and the district court reasonably concluded that he should have taken that step. Although, as the government concedes, there is no express exhaustion requirement in 28 U.S.C. § 2241, a district court is entitled to require a prisoner to exhaust the administrative remedies that the BOP offers before it will entertain a petition. See generally McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992); see also Clemente v. Allen, 120 F.3d 703, 705 (7th Cir.1997) (requiring exhaustion). And the BOP has an extensive set of procedures available to inmates. See 28 C.F.R. §§ 542.10 to 542.16. We need not decide here how far the exhaustion requirement goes or what exceptions should be recognized; we may assume that exhaustion would not be required if it were futile, and we may also assume (as the government argues) that a district court’s decision to require exhaustion should be reviewed for an abuse of discretion. Kane concedes that he did not use administrative channels to ask the BOP for presentence credit, but he argues on appeal that he should be excused from the exhaustion requirement because, as he reads the governing statute, 18 U.S.C. § 3585(b), the BOP is barred from awarding him the credit he wants and thus exhaustion would be futile. The state of Illinois gave Kane credit for the time he spent in custody before his federal sentencing, including the months he was housed in the Metropolitan Correctional Center, and thus, Kane reasons, the BOP is precluded from counting that same time against his federal sentence. See 18 U.S.C. § 3585(b); United States v. Ross, 219 F.3d 592, 594 (7th Cir.2000); United States v. Rivers, 329 F.3d 119, 121 n. 1 (2d Cir.2003); Allen v. Crabtree, 153 F.3d 1030, 1033 (9th Cir.1998). Kane may well be correct that the BOP’s hands are tied, but he also may be mistaken. Until he asks, we cannot know whether it may yet be able to grant some relief. Compare Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (noting, in the context of the Prison Litigation Reform Act, that exhaustion often may lead to changes in conditions or circumstance that resolve, in whole or in part, the grievance). The district court here did not abuse its discretion when it decided that Kane must ask the BOP first for whatever it is he wants and give the BOP an opportunity to decide whether it is empowered or persuaded to do anything for him. Accordingly, the judgment of the district court is AFFIRMED.

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ORDER A jury convicted Tyree Terrell of distributing at least 50 grams of crack in *277violation of 21 U.S.C. § 841(a)(1), and he was sentenced to 360 months’ imprisonment. Terrell now appeals his conviction and sentence, but his appointed counsel has asked to withdraw because he cannot discern any nonfrivolous arguments to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s supporting brief is facially adequate, and Terrell has responded to our invitation under Circuit Rule 51(b) to comment on counsel’s submission. We limit our review to Terrell’s arguments and the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). At trial, a government agent testified that in March, 2006, a confidential informant told him that Terrell wanted to sell 63 grams of crack for $1,300. The agent called Terrell and, identifying himself as a friend of the informant, arranged for the three to meet in order to purchase the crack. Before the meeting, the agent equipped the informant with a device to record the conversation. When they arrived at the meeting, Terrell made a phone call to his source and asked for 63 grams of crack. The men then waited for a while, and Terrell, in an apparent attempt to bolster his credibility with the “buyers,” told them that he had previously been arrested and the court had set bail at $85,000. Eventually, the three men, joined by one of Terrell’s friends, drove to meet two men in a car in a hospital parking lot. The agent gave Terrell $1,300, and the informant and Terrell got into the back seat of the car. After a minute, the informant got out of the car and gave the agent 63 grams of crack. The next day the agent called Terrell a second time, and Terrell offered to sell him firearms. The following week, Terrell and the agent spoke again, and Terrell told the agent that he was ready to sell him another 63 grams of crack whenever he wanted it. Although the government had noted in a preliminary filing that the district judge should instruct the jury that the informant’s statements should be considered not for their truth but only to provide context for Terrell’s statements, at trial neither party requested such an instruction and the judge did not make one. The jury voted to convict Terrell on the sole count in the indictment of distributing over 50 grams of crack. After trial, Terrell filed a pro se motion asking for new counsel and counsel moved to withdraw. The district court granted the motion and appointed new counsel, but several days after entering his appearance, Terrell’s second lawyer also moved to withdraw, citing a breakdown in communication. The district court granted that motion, too, and appointed a third attorney, Paul Camarena, who represents Terrell on appeal. Two weeks before sentencing, Terrell submitted a pro se letter to the court identifying a number of disagreements that he had with Camarena. At Terrell’s sentencing hearing, the district court first addressed his letter. The district judge explained that Terrell could not advance arguments pro se while represented by counsel, noted that he was on his third lawyer, and told him: “[Wje’re at a point now where if you’re not satisfied with this attorney, you can certainly proceed on your own if that’s what you want to do. Otherwise we will proceed with your attorney and the motions and the issues that he has raised. The choice is yours.” Terrell opted to retain Camarena and proceed with sentencing and allocution. The court then announced the sentence. It observed that Terrell qualified as a career offender because he was older than 18 when he committed this drug crime and *278had two prior felony convictions for armed robbery as well as a conviction for possession of a controlled substance with intent to deliver. See U.S.S.G. § 4B1.1. The court thus applied a base offense level of 37 under U.S.S.G. § 4Bl.l(b), which when combined with Terrell’s criminal history category of VI yielded an imprisonment range of 360 months to life. In considering the sentencing factors listed in 18 U.S.C. § 3553(a), the district judge placed particular emphasis on Terrell's lengthy criminal history of 11 convictions and 32 additional arrests, observing that it was “one of the most extensive [the judge had] seen.” The court then sentenced Terrell at the bottom of the guidelines range. In his Anders submission, counsel first asks whether Terrell could argue that insufficient evidence supported the jury’s verdict. We would uphold Terrell’s conviction unless no rational trier of fact could have concluded, based on the evidence viewed in the light most favorable to the prosecution, that all of the elements of the charged crime were proved beyond a reasonable doubt. See United States v. Khattab, 536 F.3d 765, 769 (7th Cir.2008). To convict Terrell of distributing crack, the government had to prove that he (1) knowingly distributed 50 grams or more of crack and (2) knew that what he was distributing was a controlled substance. 21 U.S.C. § 841(a)(1); United States v. Graham, 315 F.3d 777, 781 (7th Cir.2003). A government chemist testified at trial that the substance was, in fact, over 50 grams of crack. And the government agent who attended the drug sale testified that he had asked Terrell to sell him crack and that at their arranged meeting he gave Terrell the money they had agreed upon for the crack. Although the agent did not see Terrell hand the crack to the informant — the exchange occurred in the car and the agent could not see through its windows — a rational jury could infer that Terrell knew that he had brokered the transaction to sell crack. We agree with counsel that the government presented enough evidence to sustain a conviction. Terrell and counsel next turn to potential evidentiary issues. They initially consider whether Terrell could argue that some of the government’s testimony was inadmissible under Federal Rule of Evidence 404(b) as character evidence. Specifically, they point to Terrell’s recorded statements that he had guns for sale, would supply another 63 grams of crack if the agent needed it, and had previously been arrested and had bond set at $85,000. Rule 404(b) prohibits the use of prior convictions or other evidence of bad acts to establish that the defendant is the kind of person who commits crimes. See United States v. Ross, 510 F.3d 702, 713 (7th Cir.2007). The rule does, however, permit the government to introduce evidence of prior bad acts to prove other material facts, including identity and knowledge. Id. Here, Terrell has waived a challenge to the admission of his prior arrest and bail because he stipulated to those facts, see United States v. DeSilva, 505 F.3d 711, 718 (7th Cir.2007), and in any event the statement was admissible to show that the speaker on the recording was Terrell, something that he denied, see United States v. Ellis, 548 F.3d 539, 544 (7th Cir.2008). As for the admissibility of Terrell’s claim that he could procure another 63 grams of crack at any moment, Terrell did not object to this evidence at trial, so we would review only for plain error. See United States v. Lewis, 567 F.3d 322, 326-27 (7th Cir.2009). And Rule 404(b) was not violated because Terrell’s claim that he had ready access to more crack was direct evidence of the charged crime insofar as it showed that he knew he was dealing in crack. See United States v. *279Lane, 323 F.3d 568, 579 (7th Cir.2003). Finally, Terrell also did not object to the agent’s testimony that Terrell offered to sell guns, so review again would be for plain error. The propriety of this testimony is more questionable — after all, it is not direct evidence of Terrell’s drug sales nor does it show identity, knowledge, or any other of the 404(b) exceptions. But any mistake in admitting this statement would not rise to the level of plain error, since even without it the evidence against Terrell was overwhelming. See United States v. James, 487 F.3d 518, 526 (7th Cir.2007). We therefore agree with counsel that any 404(b) argument would be frivolous. Counsel and Terrell also ask whether Terrell could argue that the district court violated the Confrontation Clause by failing to instruct the jury not to consider the confidential informant’s side of the recorded conversations for the truth of the matter asserted. Terrell did not object to the informant’s statements at trial, so we would review their admission for plain error. See United States v. Irby, 558 F.3d 651, 655 (7th Cir.2009). Arguably the Confrontation Clause is not offended here, since we have held that the government may introduce audio tapes of conversations between the defendant and a confidential informant who did not testify at trial so long as the informant’s statements are presented only to put the defendant’s side of the conversation in context. See United States v. Nettles, 476 F.3d 508, 517 (7th Cir.2007); United States v. Tolliver, 454 F.3d 660, 666 (7th Cir.2006). To the extent that the informant’s statements might have been considered for their truth, the court’s failure to warn the jury that this use was improper — an instruction neither party requested at trial — was not plain error. The other evidence against Terrell, including the agent’s testimony describing the drug sale and Terrell’s own recorded statements of selling the drugs to the agent, easily supports the guilty verdict, even without the informant’s statements. See Irby, 558 F.3d at 656; United States v. Prude, 489 F.3d 873, 880 (7th Cir.2007). Terrell and counsel next ask whether Terrell could argue that the district court erred by not allowing him to substitute counsel for a third time. District courts have considerable discretion on requests for substitute appointed counsel, and we would review the court’s ruling only for an abuse of discretion. See United States v. Burgos, 539 F.3d 641, 645-46 (7th Cir.2008). We look at three factors in resolving such inquiries: (1) the timeliness of the motion; (2) the adequacy of the court’s inquiry into the motion; and (3) whether the breakdown between lawyer and client was so great as to result in a total lack of communication, precluding an adequate defense. United States v. Ryals, 512 F.3d 416, 419 (7th Cir.2008). Terrell filed his pro se letter outlining his dispute with Camarena two weeks before the sentencing hearing, and so we may assume that the motion was timely filed. See id. But the other two factors would weigh against granting Terrell’s request. To begin with, it is unclear that Terrell even wanted a new lawyer; when the district judge asked him what he wanted, Terrell expressed only his desire to make pro se arguments. The judge then listened to his proposed arguments at length, explained to him that he could not both advance these arguments pro se and be represented by counsel, and asked Terrell and Camarena if they wished to proceed with sentencing (they said yes). Moreover, the court had granted two earlier requests for new counsel. And ultimately, on the record before us, Camarena provided an adequate defense at the sentencing hearing. We agree with counsel *280that it would be frivolous to challenge the district court’s discretionary refusal to appoint a fourth attorney. See Burgos, 539 F.3d at 646. Terrell and counsel next raise two potential sentencing issues. Both Terrell and counsel consider whether the district court erred by commenting at length on Terrell’s extensive criminal history. Terrell contends that this amounts to plain error, but the argument is frivolous. Terrell never contested the accuracy of his criminal history as described in the presentence report. And district courts are expressly authorized to consider a defendant’s criminal history at sentencing. See 18 U.S.C. § 3553(a)(1) (instructing court to consider history and characteristics of the defendant); United States v. Gooden, 564 F.3d 887, 890-91 (7th Cir.2009) (relying on defendant’s extensive criminal history to support sentence). Terrell and counsel also ask whether Terrell could challenge the reasonableness of his sentence. But as counsel correctly points out, a sentence within a properly calculated guidelines range, as occurred here, is presumptively reasonable. Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007); United States v. Haney, 516 F.3d 553, 556 (7th Cir.2008). And here the district court gave meaningful consideration to the factors set forth in § 3553(a), including Terrell’s extensive criminal history, the need for deterrence, and the need to protect the public. Neither counsel nor Terrell are able to articulate any reason why this case might be the exception to the presumption of reasonableness, and so any argument to that effect would be frivolous. Finally, Terrell raises a catalog of complaints that do not appear in counsel’s submission, ranging from his claim that his lawyer should have called the confidential informant as a witness to his belief that the government impermissibly altered the recordings of his conversations with the agent and informant. These remaining contentions are frivolous as well, and so we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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ORDER Kotasubbarao Buddhi, a citizen of India, concedes that he has remained in the United States longer than allowed, but argues that an order of a federal magistrate judge in his son’s criminal case supersedes the depart-by date given to him when he entered the country. The magistrate judge’s order released the son into Buddhi’s custody, and Buddhi argues that the order required him to remain in the United States. An Immigration Judge and the Board of Immigration Appeals rejected Buddhi’s argument and the BIA rejected his motion to reconsider. He petitions for review from the denial of his motion to reconsider. Buddhi came to the United States after his son Vikram, a graduate student at Purdue University, was indicted in federal district court. Based on several of Vi-kram’s internet postings, the government charged him with two counts each of threatening the president, the vice-president, both men’s wives, and the secretary of defense, as well as one count of threatening to damage buildings and real property. 18 U'.S.C. §§ 871(a), 879(a)(2), 875(c), 844(e). Buddhi arrived in June 2006 as a nonimmigrant visitor and was issued an 1-94 arrival form that gave him permission to remain in the country until September 6, 2006. Shortly after Buddhi arrived, a magistrate judge granted bond to Vikram on the condition, among others, that Vikram remain in Buddhi’s custody. In April 2007, seven months after Buddhi should have left the United States, he asked Citizenship and Immigration Services to extend his stay so he could be present at his son’s trial, which was scheduled for June 2007. Buddhi’s written request suggests that he did not realize he was only permitted to remain in the country until September 6, 2006. Buddhi now says that he believed he could remain until his visa expired on May 31, 2007. While the government considered Buddhi’s request, Vikram was tried and the jury voted to convict on all counts. See Editorial, Budhi Conviction Constitutional Threat?, Post-Tribune (Merrillville, Ind.), July 6, 2007, at A8; Andy Grimm, Purdue Grad Student Guilty, Post-Tribune (Merrillville, Ind.), June 29, 2007, at A3. (According to the *283district court’s docket, Vikram’s sentencing is scheduled for November 11, 2009.) One month after the jury’s verdict, the government denied Buddhi’s request to extend his stay because he had filed the request after his authorized stay expired without explaining the delay. See 8 C.F.R. 214.1(c)(4). After the government rejected Buddhi’s request to extend his stay, it began removal proceedings against him. At a hearing before an immigration judge, Buddhi argued that his presence in the United States was lawful because the magistrate judge’s bond order releasing Vikram into his custody obligated him to remain in the country. Although Buddhi’s submission to the IJ noted his confusion over the different dates on his visa and his arrival form, the IJ did not address that issue in its order, ruling only that the magistrate judge’s order could not have extended the time that the government allowed Buddhi to remain in the United States. Accordingly, the IJ found Buddhi removable. Buddhi appealed to the BIA, which affirmed. First, the BIA agreed with the IJ that the magistrate judge’s order had no bearing on Buddhi’s right to remain in the United States. Next, the BIA found that the IJ did not make any procedural or due process errors, and even if it had, those errors were not prejudicial. Finally, the BIA found that Buddhi’s argument that he was permitted to remain in the country until the date his visa expired was moot because the government did not initiate removal proceedings until after May 31, 2007, the date the visa expired. Buddhi did not petition us to review the BIA’s decision. Instead, he timely filed a motion to reconsider, which the BIA denied because it found no errors of fact or law in its earlier decision. In addition to reiterating the reasoning of that decision, the BIA also noted that the government’s decision not to extend Buddhi’s stay was unre-viewable. See 8 C.F.R. § 214.1(c)(5) (“There is no appeal from the denial of an application for extension of stay filed on Form 1-129 or 1-539.”) Buddhi petitions for review of the BIA’s order denying his motion to reconsider. In Johnson v. Mukasey, 546 F.3d 403, 404 (7th Cir.2008), we held that we lacked jurisdiction to review the BIA’s denial of a motion to reconsider, but the motion in that case, petitioner’s third, had been denied as untimely. By contrast, Buddhi’s motion was his first, it was timely filed, and the BIA denied it on the merits. Although we have interpreted 8 U.S.C. § 1252(a)(2)(B)(ii), to divest us of jurisdiction to review most discretionary decisions, including those often involved in the denial of a motion to reconsider or a reopen, id.; Kucana v. Mukasey, 533 F.3d 534 (7th Cir.2008), we retain jurisdiction to review decisions that involve a pure error of law or the denial of a constitutional right, Johnson, 546 F.3d at 404. Buddhi’s principle argument in his motion to reconsider was that the BIA misinterpreted the magistrate judge’s order; that is a question of law that we may review. See Patel v. Holder, 563 F.3d 565, 568 (7th Cir.2009) (“Legal questions include challenges to the BIA’s interpretation of a statute, regulation, or constitutional provision.”) Buddhi’s contention is that the magistrate judge’s order releasing his son into his custody overrode his depart-by date, but this argument rests on a misconception of our country’s immigration laws. In the United States, the federal political branches have the presumptive power to determine immigration status; the courts are limited to reviewing those determinations as provided by law. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-43, 70 S.Ct. 309, 94 L.Ed. 317 (1950); Kiyemba v. Obama, 555 F.3d *2841022, 1025-26 (D.C.Cir.2009) (collecting cases). Buddhi has pointed to no law that would give a magistrate judge the power to extend an alien’s permitted stay-through a bond order regarding the alien’s son. But putting aside the question whether the magistrate judge had such power, his order does not purport to exercise it. Buddhi seems to think that had he left the country as required, he would have violated the magistrate judge’s order. Not so. The person in danger of violating the order if Buddhi left the country was Bud-dhi’s son. And the remedy for that potential violation was not for Buddhi to remain in the country illegally. It was for his son to return to court and seek a modification of the bond order. Buddhi’s next argument is a challenge to the decision by Citizenship and Immigration Services to deny his request to extend his stay in the country, but neither we nor the BIA have jurisdiction to review that decision. First, we note that Buddhi’s argument rests on a misconception about the legal significance of the expiration date on his visa (May 31, 2007) and the depart-by date on his arrival form (September 6, 2006). Buddhi seems to think that the border agent who processed his arrival erred by permitting him to stay in the country for only 90 days, until September 6, rather than the full year until his visa expired. If Buddhi had been allowed to stay until his visa expired in May 2007, his request to extend his stay, submitted in April 2007, would have been timely. See 8 C.F.R. § 214.1(c)(4). But the border agent was not required to allow Buddhi to stay for the duration of his visa, and Buddhi’s time for asking to extend his stay lapsed when his authorized stay expired in September. See id. The granting of a visa and the granting of admission to the United States are distinct acts undertaken by distinct agencies, the Department of State for visas and the Department of Homeland Security for admission. Accordingly,“[t]he period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States.” 22 C.F.R. § 41.112(a). The issuance of a visa does not guarantee admission at all. See 8 U.S.C. § 1201(h). Even if Buddhi’s belief that he could remain in the country until his visa expired explains his untimely request to extend his stay, the BIA and the IJ, which are part of the Department of Justice, were powerless to review the decision of CIS to deny the request. Although Buddhi could have asked CIS to reconsider its decision under 8 C.F.R. § 103.5, no agency appeal to the Department of Justice is permitted from that decision, id. at § 214.1(c)(5). The decision is one committed by statute to the Secretary of Homeland Security, see 8 U.S.C. § 1184(a)(1); 6 U.S.C. §§ 202, 557.1 Thus, under 8 U.S.C. § 1252(a)(2)(B)(ii), we lack jurisdiction to review it as well. See CDI Information Services, Inc. v. Reno, 278 F.3d 616, 620-21 (6th Cir.2002). Buddhi’s remaining arguments all relate to the procedures that led to his final order of removal. First, Buddhi complains that his detention by immigration authorities prevented him from seeking review of CIS’s denial of his request to extend his stay. Buddhi was in custody from *285August 21, 2007 to August 28, 2007, which may have made it difficult to ask CIS to reconsider its decision by August 29, 2007, 30 days after the decision. 8 C.F.R. § 103.5. But Buddhi’s custody did not make seeking reconsideration impossible, and even if it did, untimely filing may be excused. Id. Thus, Buddhi was not prevented from asking CIS to reconsider its decision. Buddhi also complains about the manner of his arrest and detention and that he was a victim of selective prosecution. But we lack jurisdiction to consider those claims. See Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir.2008) (detention); Hussain v. Keisler, 505 F.3d 779, 783-84 (7th Cir.2007) (selective prosecution); Iqbal Ali v. Gonzales, 502 F.3d 659, 665 (7th Cir.2007) (same). Finally, Buddhi argues, as he did in his motion to reconsider, that the IJ was biased against him and prevented him from saying everything he wanted to say, thereby denying him a full and fair hearing. Because the denial of a full and fair hearing could constitute a denial of the constitutional right to due process, see Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir.2008), we have jurisdiction to review this issue, see Duad v. United States, 556 F.3d 592, 595 (7th Cir.2009). But our review of the hearing shows that the IJ acted properly. True, the IJ did stop Buddhi from speaking at times, but Buddhi does not point to any argument or evidence that he was not allowed to put before the IJ. The IJ’s management of Buddhi’s presentation of the case demonstrates “an effort to keep the [hearing] moving, not an impermissibly biased tribunal.” Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir.2008). And even if the IJ did err in limiting Buddhi’s presentation, Bud-dhi could not prevail because our consideration here of each of his arguments shows that any error was not prejudicial. See Tariq v. Keisler, 505 F.3d 650, 657 (7th Cir.2007). Accordingly, we DISMISS Buddhi’s petition to the extent that it challenges the decision by CIS, his detention, and his prosecution; we otherwise DENY the petition. . We note that 8 U.S.C. § 1184(a)(1) actually says that "admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe," but the Homeland Security Act of 2002, expressly transferred that responsibility to the Secretary of Homeland Security, 6 U.S.C. § 202, and 6 U.S.C. § 557 commands us to read § 1184(a)(1) as if it refers to the Secretary of Homeland Security.

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ORDER We have consolidated for decision these appeals because they raise the same issue: whether a district court must disregard U.S.S.G. § 2G2.2 when imposing a sentence for a child-pornography conviction under 18 U.S.C. § 2252A. Lee Roy Lance pleaded guilty to distribution and possession of child pornography, 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B), and Donovan Dotson pleaded guilty to possession of child pornography, id. § 2252A(a)(5)(B). Judge Gilbert, who presided over both cases, imposed a below-range term of imprisonment in each: Lance was sentenced to a total of 120 months and Dotson to 66 months. These sentences, the defendants maintain, are unreasonable because they started with the application of § 2G2.2. The district court calculated Lance’s imprisonment range using a total offense level of 34. See U.S.S.G. §§ 2G2.2, 3E1.1. That offense level, coupled with Lance’s criminal history category of I, yielded a guidelines imprisonment range of 151 to 188 months. The court concluded, however, that total imprisonment of 120 months, 31 months below the properly calculated guidelines range, was reasonable when measured against the pertinent factors in 18 U.S.C. § 3553(a). For Dotson, the district court calculated a total offense level of 28, see U.S.S.G. §§ 2G2.2, 3E1.1, which along with his criminal history category of I, yielded a guidelines imprisonment range of 78 to 97 months. Once more, though, the court selected a lower term after eval*287uating all of the § 3553(a) factors. Dotson received 66 months, 12 months below the properly calculated guidelines range. At sentencing Lance and Dotson objected to the district court’s use of § 2G2.2. They argued that the court should bypass the guidelines altogether because in then-view the Sentencing Commission promulgated § 2G2.2 without any empirical data to support the imprisonment ranges that result from its application. As a consequence, the defendants continued, any sentence that takes into account a guidelines range based on § 2G2.2 must be unreasonable. The district court overruled this objection, explaining that it did not have the discretion to ignore the sentencing guidelines. The defendants did not argue that the guidelines ranges calculated by the district court were otherwise improper. On appeal Lance and Dotson repeat their argument that § 2G2.2 is invalid and that any sentence based on a guidelines range calculated using § 2G2.2 is per se unreasonable. As authority for then-contention that § 2G2.2 is flawed, the defendants quote language that was initially included but later withdrawn from our opinion in United States v. Huffstatler, 561 F.3d 694, vacated, 571 F.3d 620 (7th Cir.2009). At best, then, our revised opinion simply acknowledges that there is support for the premise that § 2G2.2 lacks empirical support. More importantly, however, in Huffstatler we conclusively upheld the validity of § 2G2.2 as the starting point when sentencing for child-pornography crimes. 571 F.3d at 624. In Huffstatler we described the argument made by the defendants here as “untenable” and observed that “while district courts perhaps have the freedom to sentence below the child-pornography guidelines based on disagreement with the guidelines, as with the crack guidelines, they are certainly not required to do so.” Id. at 623-24. Indeed, we have since added that a sentencing court is not even “required to consider ... an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.” United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir.2009). In addition to their argument about § 2G2.2, both defendants also contend that the district court failed to give proper consideration to other § 3553(a) factors besides the guidelines range. But in each case the district court discussed the § 3553(a) factors at length and imposed a below-range term of imprisonment. Lance received a prison sentence 31 months below the properly calculated guidelines range, and Dotson received a term 12 months below the properly calculated guidelines range. We presume that the choice of sentence for both defendants is reasonable, see United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008); United States v. George, 403 F.3d 470, 473 (7th Cir.2005), and we are given no reason to disturb this presumption. The judgments in both appeals are AFFIRMED.

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*536SUMMARY ORDER Substantially for the reasons stated in the District Court’s Memorandum and Order, 2008 WL 4386764, dated September 23, 2008, we conclude that the Defendants Appellee’s motion to dismiss the complaint was properly granted. Accordingly, we AFFIRM the judgment of the District Court.

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OPINION PER CURIAM. Appellant Norman Cadmus appeals from an order of the District Court dismissing his complaint. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6. I. In July 2008, Cadmus, a pro se prisoner, filed a civil rights action pursuant to 42 U.S.C. § 1983 against Defendants George W. Bush and The United States of America.1 In his complaint, Cadmus challenged the constitutionality of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. Specifically, he alleged that its prescribed one-year statute of limitations for filing a federal habeas challenge to a state court conviction improperly overlaps with Pennsylvania’s one-year statute of limitations for filing a petition under its Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann. § 9541 et seq. (2009). Cadmus claimed that this overlapping violates his rights under the First, Fifth, and Fourteenth Amendments. The District Court dismissed Cadmus’ complaint as to both defendants and Cad-mus filed a timely appeal. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of the District Court’s sua sponte dismissal of Cadmus’ complaint is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). We may affirm the District Court on any basis supported by the record. See Fairview Twp. v. EPA, 773 F.2d 517, 525 n. 15 (3d Cir.1985). Cadmus’ complaint was properly dismissed. In March 2008, Cadmus filed a habeas petition pursuant to 28 U.S.C. § 2254 in the District Court which remains pending, see Cadmus v. Warden, SCI Coal Twp., Civ. No. 08-cv-473. Cadmus does not allege that he has been precluded from seeking federal habeas relief and the District Court has yet to consider how the *560limitations period under AEDPA applies to his case. Accordingly, he has suffered no actual injury under the statute for which he may seek redress at this time. See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006). Furthermore, Cadmus provides no authority supporting his claim that AEDPA is unconstitutional as a result of its alleged “overlapping” with the PCRA. In fact, as the District Court pointed out, the limitations period under AEDPA has survived numerous constitutional challenges. See Green v. White, 223 F.3d 1001, 1003-04 (9th Cir.2000); Miller v. Marr, 141 F.3d 976, 977-78 (10th Cir.1998); Tinker v. Moore, 255 F.3d 1331, 1334 (11th Cir. 2001). Should Cadmus wish to further challenge the constitutionality of AEDPA as it applies to his case, he should do so in the context of his pending habeas action. As Cadmus’ appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. . The District Court construed Cadmus’ claim against former President Bush as one properly raised under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

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Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Todd M. Jack appeals the district court’s orders dismissing these actions pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (2006) for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jack v. Dawson, Nos. 5:09-cv-00031-gec, 5:09-cv-00038-gec, and 5:09-cv-00044-gec (W.D.Va. filed May 20, entered May 21, 2009); 2009 WL 1649702 (June 11, 2009); filed June 22, entered June 23, 2009. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

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Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth Wayne Tucker appeals the district court’s order denying his 18 U.S.C. § 3582 (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Tucker, No. 3:07-cr-00098-HEH-l (E.D. Va. June 13, 2008). We grant Tucker’s motion to withdraw his motion to stay. Further, we grant Tucker’s motion to amend his informal brief and deny his motions for a transcript and appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

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PER CURIAM: * AFFIRMED. See 5th Cir. R. 47.6. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: * Juan Manuel Jaime-Villafuerte (Jaime), a Mexican citizen, appeals the 50-month prison sentence imposed by the district court after he pleaded guilty to illegal reentry pursuant to 8 U.S.C. § 1326(a). He argues that the sentence is greater than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a)and specifically asserts that, in light of Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the presumption of reasonableness does not apply to his within-guidelines sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is flawed in that it is not supported by empirical studies. Jaime further asserts that the 16-step offense level enhancement he received pursuant to § 2L1.2(b)(l)(A)(i) for a prior drug offense conviction over represented the seriousness of his criminal history and his propensity to commit future crimes. We have consistently rejected Jaime’s “empirical data” argument, concluding that Kimbrough does not question the presumption of reasonableness and does not require district or appellate courts to independently analyze the empirical grounding behind each individual guideline. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009), petition for cert. filed (June 24, 2009) (No. 08-11099). Accordingly, Jaime’s correctly calculated within-guidelines sentence is afforded a presumption of reasonableness. See Duarte, 569 F.3d at 529-30. Jaime has not rebutted that presumption. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, — U.S.—, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008); United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir.2006). Jaime has not shown that the 50-month sentence imposed by the district court was unreasonable. The record demonstrates that the district court properly made an individualized assessment to determine whether a sentence within the guidelines range was sufficient but not greater than necessary to achieve the goals of § 3553(a). See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2463, 168 L.Ed.2d 203 (2007). The judgment of the district court is AFFIRMED. Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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