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https://www.courtlistener.com/api/rest/v3/opinions/8471678/ | ON PETITION FOR PERMISSION TO APPEAL
LINN, Circuit Judge.
ORDER
Preci-Dip Durtal SA petitions for permission to appeal an order certified by the United States District Court for the Central District of California as one involving controlling issues of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Tri-Star Electronics International, Inc. opposes.
In December 1997, Tri-Star changed its state of incorporation from Ohio to California by creating a new corporate entity in California and merging the new entity with its Ohio operation. Tri-Star immediately filed a Statement of Merger with the Ohio Secretary of State. In August 2005, TriStar used the same practice to become a Delaware corporation, assigning all of its rights, including its patent rights to the new Delaware entity.
In 2008, Tri-Star filed this suit against Preci-Dip, alleging infringement of U.S. Patent No. 6,250,974. Preci-Dip moved to dismiss the complaint, alleging that when the inventor assigned his rights in 1999, he did so to Tri-Star, Ohio, which according to Preci-Dip ceased to exist under Ohio law at the time Tri-Star filed its Statement of Merger. Preci-Dip argued that Tri-Star has no standing to bring this suit.
On February 19, 2009, the district court denied Preci-Dip’s motion to dismiss. The court explained that the original assignment agreement between the inventor and Tri-Star, Ohio was effective because the agreement assigned all rights in the patent to Tri-Star, Ohio its successors and assigns. The court also explained that under Ohio Rev.Code §§ 1701.79, 1701.82, TriStar, Ohio continued to exist notwithstanding the merger to convey, assign, transfer or otherwise vest property or rights in the surviving or new entity. Finally, the district court found that even if it were to find that Tri-Star, California did not receive the rights to the patent by operation of law, the original assignment agreement should be reformed under the equitable doctrine of contract reformation to reflect the parties’ clear intention despite a mistake in drafting. The court nevertheless granted Preei-Dip’s request to certify its order for permissive appeal.
Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal interlocutory orders certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990); 28 U.S.C. § 1292(d)(2) (“the Federal Circuit *566may, in its discretion, permit an appeal to be taken from such order”). We determine that granting the petition in these circumstances is warranted.
Accordingly,
IT IS ORDERED THAT:
The petition for permission to appeal is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471680/ | ON PETITION FOR WRIT OF MANDAMUS
LINN, Circuit Judge.
ORDER
Classic Industries, LP et al. (Classic) petition for a writ of mandamus to direct the United States District Court for the Southern District of Texas to vacate its orders denying Classic’s motion to dismiss the complaint. Shell Oil Products Company, LLC and Motiva Enterprises, LLC (Shell) oppose.
The genesis of this declaratory judgment action lies in Shell’s efforts to equip service station canopies with the unique identifier of a red and yellow, curved, fascia motif. In 2002, Shell contracted with Classic to manufacture the component parts of the fascia design. The parties dispute several facts leading up to their 2002 agreement, including who initially came up with the design for the motif. However, it is undisputed that prior to their agreement, Classic filed four patent applications for an ornamental design covering components of the curved fascia motif known as the “Lazy S” design. The four patents issued shortly after the parties 2002 agreement. The parties subsequently agreed to continue their relationship through the fall of 2007.
Early in 2007, Shell approached three potential alternative suppliers. Architectural Graphics, Inc. (AGI) was one of those suppliers. AGI and Shell began discussions on a supply agreement, but negotiations stalled when AGI informed Shell that without the original design drawings and specifications Shell would have to pay additional redevelopment costs.* AGI also brought to Shell’s attention, apparently for *567the first time, the existence of Classic’s four design patents. AGI notified Shell that any agreement between Shell and AGI would require a provision indemnifying AGI in the event it was sued by Classic for patent infringement.
Without an agreement with AGI, Shell began negotiating a contract extension with Classic. During a meeting in November 2007, Shell confronted Classic about the patents and apparently mentioned the possibility of using an alternative supplier for the fascia components. Shell alleges that Classic responded that “[a]ll any vendor would have to do is pay Classic a license fee to sell Lazy S.”
The parties ultimately agreed to extend the agreement until February 29, 2008, at which time the relationship terminated. On April 29, 2008, Shell filed a complaint seeking, inter alia, a declaration that Classic’s design patents were invalid and unenforceable, as well as claims for conversion, unfair competition, breach of contract, unjust enrichment, conversion, theft, fraud, and misappropriation of trade secrets. Classic moved to dismiss the complaint, contending that there was not a sufficient judiciable controversy at issue between the parties because Classic has never threatened to bring an infringement claim against Shell. The district court denied Classic’s motion. The district court found that Shell’s prior discussions with AGI and Classic’s November 2007 statement that any vendor would have to pay Classic a license fee were sufficient to establish jurisdiction over the declaratory judgment action.
The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of obtaining the relief desired, Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). A court may deny mandamus relief “even though on normal appeal, a court might find reversible error.” In re Cordis Corp., 769 F.2d 733, 737 (Fed.Cir.1985); see also United States v. Watson, 66 C.C.P.A. 107, 603 F.2d 192, 196-97 (1979) (“the writ will not issue to cure the mere commission of reversible error”). “That a petitioner may suffer hardship, inconvenience, or an unusually complex trial does not provide a basis for a court to grant mandamus.” In re Roche Molecular Sys., Inc., 516 F.3d 1003, 1004 (Fed.Cir.2008) (citing United States v. Watson, 66 C.C.P.A. 107, 603 F.2d 192, 195 (1979)).
Classic contends that the district court clearly abused its discretion by determining jurisdiction based upon the statement that any vendor would have to pay Classic a license. Under the general standard set forth by the Supreme Court in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007), a declaratory action is available when the facts as alleged, “ ‘under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant’ relief’ (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)).
In the papers submitted, Classic has not met its heavy burden to show a clear abuse of discretion. Classic has also not shown why it cannot raise any challenge to the district court’s determination after an appeal from a final judgment.
Accordingly,
*568IT IS ORDERED THAT:
Classic’s petition for a writ of mandamus is denied.
Shell alleges in its papers here and below that it turned over the original specifications and drawings to Classic prior to their 2002 agreement and that Classic refused to return the materials upon Shell's repeated requests. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471748/ | SUMMARY ORDER
Petitioners Jian Xin Chen and Sai Ying Chen, natives and citizens of the People’s Republic of China, seek review of a July 31, 2008 order of the BIA denying Jian Xin Chen’s motion to reopen.2 In re Jian Xin Chen, No. A095 381 258 (B.I.A. Jul. 31, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Chen’s motion to reopen was untimely and number-barred where that motion was his third such motion and was filed almost five years after the agency issued a final order of removal in July 2004. See 8 C.F.R. § 1003.2(c)(2).
There are no time and numerical limitations for filing a motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). The BIA did not abuse its discretion in concluding that the petitioner did not demonstrate material changed country conditions excusing the time and numerical limitations applicable to Chen’s motion. See 8 C.F.R. § 1003.2(c)(3)(h); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Chen argues that in denying his motion, the BIA violated his due process rights. However, Chen has no due process right to seek a discretionary grant of a motion to reopen. Cfi Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Chen has remained in this country illegally for over fourteen years. In that time he has filed, and had adjudicated, an asylum application and three motions to reopen. He has received ample process. See Yuen Jin, 538 F.3d at 157; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for *642a stay of removal in this petition is DISMISSED as moot.
. In its decision, the BIA noted that while Sai Ying Chen had been a ‘'rider” in its previous decisions, the motion in question was filed only on behalf of Jian Xin Chen. Both Sai Ying Chen and Jian Xin Chen petition this Court for review. While arguably Sai Ying Chen lacks standing to seek review of the BIA's July 2008 order, we leave to the agency the determination of how our denial of this petition for review will affect Sai Ying Chen’s status. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471750/ | SUMMARY ORDER
Petitioner-appellant Rahsaan Butler (“defendant”) was convicted after a jury trial in New York State Supreme Court, New York County, of Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. Defendant appealed, contending that the prosecutor’s use of peremptory challenges to remove two African-Americans jurors was discriminatory, and that the trial court thus erroneously denied defendant’s Batson claim, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On March 27, 2001, the Appellate Division, First Department, affirmed defendant’s conviction. The Appellate Division concluded that the trial court correctly determined that defendant “numerical showing” had failed to establish a prima facie case of discrimination, in the circumstances in which the prosecution’s peremptory challenges were made. Judge Smith, Associate Judge of the New York Court of Appeals, denied defendant’s application for leave to appeal. People v. Butler, 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84 (2001).
On July 23, 2002, Defendant filed pro se a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), in the District Court, asserting that the state court’s rulings denying defendant’s Batson challenge was an unreasonable application of clearly established federal law.2 The District *643Court referred the matter to Magistrate Judge Kevin N. Fox, who recommended that defendant’s petition be denied in its entirety in a Report and Recommendation dated December 17, 2004 (“R & R”). J.A. 39-40. Defendant filed timely objections to the R & R, asking that the District Court either grant a writ of habeas corpus or a Certificate of Appealability. On August 8, 2008, 2008 WL 3338202, the District Court adopted the R & R, denying defendant’s petition for a writ of habeas corpus but granting a Certificate of Ap-pealability on defendant’s Batson claim. Defendant’s appeal challenges the District Court’s denial of his petition for a writ of habeas corpus. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
We review a district court’s ruling on a petition for a writ of habeas corpus de novo. See, e.g., Overton v. Newton, 295 F.3d 270, 275 (2d Cir.2002). Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus may not issue for any claim adjudicated on the merits by a state court unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts in light of the evidence presented” in state court, id. § 2254(d)(2). We have been reminded that “clearly established Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008) (quoting Williams).
A state court decision is “contrary to” clearly established federal law if the state court’s conclusion on a question of law is “opposite” that of the Supreme Court or if the state court reaches a different outcome than the Supreme Court “on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413, 120 S.Ct. 1495; Alexander, 543 F.3d at 100 (quoting Williams). A state court decision “involves an unreasonable application of’ clearly established federal law as determined by the Supreme Court if it “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a defendant’s] case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A federal habeas court should not “conflat[e] ‘unreasonableness’ with ‘clear error’ ... because ‘[t]he gloss of clear error fails to give proper deference to state courts.’” Brisco v. Ercole, 565 F.3d 80, 87-88 (2d Cir.2009). “Some increment of incorrectness beyond error is required.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000). We have noted, however, “that the increment [of error beyond clear error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (internal quotation marks omitted).
Defendant argues that (1) the state trial court’s application of Batson was contrary to clearly established federal law and should be afforded no deference because the trial court denied defendant’s challenge due to a lack of a “pattern” of discrimination rather than a failure to assert a prima facie case; (2) the Appellate Division’s determination that defendant failed to establish a prima facie case of discrimination was incorrect and also should not have been afforded deference by the District Court because the Appellate Division based its conclusion on the trial court’s “incomplete” findings; and (3) the District *644Court unreasonably concluded that the statistical disparity was insufficient to support a prima facie case and improperly discounted that disparity due to the small number of African Americans included in the venire. Although “statistical disparities are to be examined,” United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991), courts must also consider “any other relevant circumstances,” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir.1998). We agree with the District Court that, in the circumstances presented, “[t]here are inadequate facts here that ‘give rise to a sufficiently strong inference of racial motivation to make a prima facie showing.’ ” J.A. 53 (quoting Cousin v. Bennett, 511 F.3d 334, 337 (2d Cir.2008)).
Even if the state court used different terminology in stating that there was no “pattern” of discrimination, we also agree with the District Court that “[t]he Appellate Division did not unreasonably apply the law ... in concluding that the totality of the circumstances reflected on the record did not give rise to an inference that the prosecution struck [the jurors at issue] on the basis of them race.” J.A. 57. “An unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Alexander, 543 F.3d at 100 (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). We have noted that “the unreasonable application standard falls somewhere between merely erroneous and unreasonable to all reasonable jurists.” Alexander, 543 F.3d at 100 (internal quotation marks omitted). “[I]t is one thing to conclude that a pattern of strikes is prima facie evidence of discrimination; it is a very different thing to hold that the contrary conclusion would be an unreasonable application of Batson.” Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir.2007); see also J.A. 57.
Substantially for the reasons stated by the District Court in its order of August 8, 2008, we conclude that the state court’s application of the Batson standard in this case was not “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1) and, therefore, defendant’s claim does not support the grant of a habeas corpus petition.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
. Defendant also asserted in his petition for a writ of habeas corpus that his right to a fair trial was violated by the trial court's denial of his motion to dismiss a certain juror. That claim is not before us on this appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471752/ | SUMMARY ORDER
Petitioner Kissima Saho (“petitioner” or “Saho”), a native and citizen of The Gambia, seeks review of the Board of Immigration Appeals (“BIA”) orders of May 16, 2008, and February 27, 2009, denying his motions to reopen. Petitioner argues that (1) he is eligible for a reopening of his proceedings without regard to time limits because he did not receive oral notice of the date and time of his hearing; (2) the BIA erred in finding that he failed to appear because petitioner was at the immigration court, though in the incorrect room, at the time and date of his hearing; (3) the BIA erred when it found that he was not prima facie eligible to submit a successive application for asylum, withholding of removal, and relief under the Convention Against Torture; (4) the BIA erred in upholding his in absentia removal order because he established that he had ineffective assistance of counsel, which qualifies as exceptional circumstances that are sufficient to mitigate his failure to appear; (5) equitable tolling should apply in this case; (6) his motion to reopen is not time-barred because country conditions in The Gambia have changed; and (7) he is eligible for “re-papering” and cancellation of removal. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
First, this Court lacks jurisdiction to consider several of petitioner’s arguments regarding the May 2008 order because he failed to exhaust all administrative remedies. 8 U.S.C. § 1252(d)(1).1 Furthermore, we have consistently held that we ordinarily will not consider arguments regarding individual issues that were not exhausted before the agency. See, e.g., Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122-23 (2d Cir.2007). Before the BIA, Saho failed to challenge his in absentia order of removal because of alleged ineffective assistance of counsel and because he allegedly did not receive oral notice of the hearings. Additionally, Saho did not argue before the BIA that he “attended” his hearing because he was at the immigration court, though assertedly in the incorrect room. Finally, Saho argued neither that he is eligible for “re-papering” nor that equitable tolling should apply before the BIA. Accordingly, we cannot consider any of these arguments. We therefore proceed to consider the remaining questions pressed by Saho — namely, his challenge to the BIA’s May 2008 order denying his motion to reopen.
We review denials of motions to reopen or continue proceedings for “abuse of discretion.” See Melnitsenko v. Mukasey, 517 F.3d 42, 50 (2d Cir.2008). The BIA “abuses its discretion” — that is, errs as a matter of law — if its decision “(1) provides no rational explanation, (2) inexplicably departs from established policies, (3) is devoid of any reasoning, (4) contains only summary or conelusory statements, or (5) fails to consider the facts of record relevant to the motion.” Ni v. Mukasey, 520 F.3d 125, 129 (2d Cir.2008) (internal alteration marks omitted).
Here the BIA denied Saho’s motion to reopen because it was untimely and numerically barred under the applicable regulation. 8 C.F.R. § 1003.2(c)(2). An alien seeking to reopen proceedings is en*647titled to one motion to reopen and must file that motion no later than 90 days after the date on which the final administrative order was entered. Id. Saho challenges the BIA’s denial of his third motion to reopen, which was filed in August 2007— ten years after the Immigration Judge ordered Saho removed. There is no dispute that Saho’s August 2007 motion to reopen was untimely and numerically barred.
Although Saho’s motion is untimely and numerically barred, he may reopen his proceedings if he qualifies for one of the exceptions outlined in the regulations. See 8 C.F.R. § 1003.2(c)(3). Saho argues that he qualifies for the exception allowing additional motions to reopen “based on changed circumstances arising in the country of nationality ... if such evidence is material and was not available ... at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Although Saho does allege a change in his personal circumstances — the birth of his three U.S. citizen daughters — he does not allege a change in circumstances in the country of removal. It is well-settled that a change in personal circumstances does not qualify as an exception to the time and number limits on motions to reopen. See Wei Guang Wang v. Board of Immigration Appeals, 437 F.3d 270, 273-74 (2d Cir.2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). Because Saho did not allege a change in country circumstances, he does not qualify for an exception to the time and number limits and therefore the BIA’s denial of his motion to reopen was proper.
Furthermore, Saho is ineligible to file a successive asylum application because he is subject to a final order of removal. To file a successive asylum application when subject to a final order of removal, a petitioner must meet the same procedural requirements as a motion to reopen. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008). Specifically, a petitioner must exhibit a change in country conditions that would warrant an exception to the time and number limits for a motion to reopen. Id. at 150. Because Saho alleges only a change in personal circumstances, and does not suggest, much less show, changed country conditions, he is ineligible to file a successive application for asylum while subject to a final order of removal.2
Because we conclude that the BIA was correct in its May 2008 order denying Saho’s motion to reopen on these several procedural grounds, we need not reach the issue of whether Saho was prima facie eligible for asylum or withholding of removal. See, e.g., Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 106-07, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (holding that there are three independent grounds on which the BIA may deny a motion to reopen, including for failure to offer material, previously unavailable evidence). As we have previously held, “[b]e-cause petitioners failed to satisfy the requirements for a motion to reopen, the BIA did not err in ... failing to consider their successive asylum applications.” Yuen Jin, 538 F.3d at 160.
Finally, we conclude that the BIA was correct in denying petitioner’s fourth motion to reopen. First, neither Saho’s argument that he should not be considered to have failed to appear for his deportation hearings nor the claim that he failed to receive oral warnings of the consequences of his failure to appear provide for an exception to the time and number limitations on motions to reopen. See 8 C.F.R. § 1003.2(c).
*648Second, though ineffective assistance of counsel may in some circumstances provide a basis for equitable tolling of the time and number limitations, “an alien must demonstrate that he or she has exercised due diligence during the entire period he or she seeks to toll. This 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.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008). Here, as the BIA properly found, nine years passed from the time Saho received the allegedly ineffective assistance until he sought to reopen his proceedings, during which time he took no apparent action to pursue his claims, making equitable tolling entirely inappropriate.
Accordingly, there is no basis to reopen Saho’s deportation proceedings or to rescind the in absentia order of deportation and the BIA did not err in finding the third and fourth motions to reopen time and number barred. As Saho is subject to a final order of deportation, he is prima facie ineligible for the “re-papering” procedure of Section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which is available only in cases “in which there has not been a final administrative order” of deportation. Pub.L. 104-208, § 309(c), 110 Stat. 3009 (codified as Note to 8 U.S.C. § 1101).
CONCLUSION
For the foregoing reasons, the petition for review is DENIED.
. This statute provides that "[a] court may review a final order of removal only if ... the alten has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
. Petitioner may of course ask the BIA to reopen his case sua sponte so that, even at this late date, he can make his claims related to FGM. We intimate no view on any such application. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471754/ | SUMMARY ORDER
Xhavit Lajqi, a native and citizen of Kosovo, seeks review of an October 27, 2008 order of the BIA denying his motion to remand and affirming the December 15, 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 Xhavit Lajqi, No. A098 890 976 (B.I.A. Oct. 27, 2008), aff'g No. A098 890 976 (Immig. Ct. N.Y. City Dec. 15, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of 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). 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. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). 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, 421 F.3d 149, 156-57 (2d Cir.2005).
As a preliminary matter, while his appeal to the BIA was pending, Lajqi submitted additional evidence, which the BIA construed as a motion to remand and subsequently denied. As Lajqi does not challenge the BIA’s denial of his motion, he waives any such argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
In denying Lajqi’s application for asylum, withholding of removal, and CAT relief, the agency properly concluded that conditions in Kosovo had changed sufficiently such that Lajqi’s fear of persecution was no longer objectively well-founded. 8 C.F.R. § 1208.13(b)(l)(i)(A); see also Hoxhallari v. Gonzales, 468 F.3d 179, 187-88 (2d Cir.2006) (upholding the agency’s finding that conditions in Albania had changed fundamentally such that any presumption of a well-founded fear had been rebutted). But see Alibasic v. Mukasey, 547 F.3d 78, 81-82 (2d Cir.2008) (finding insufficient the BIA’s reasoning in reversing the IJ’s grant of asylum based on allegedly changed country conditions). Here, the agency properly based its decision on record evidence and adequately *650explained its reasoning. Cf. Alibasic, 547 F.3d at 81-82. Indeed, the State Department report in the record indicated that an ethnic Albanian was elected president of Kosovo, that inter-ethnic violence had decreased, that Kosovo developed a multiparty political system with the three main parties sharing power, and that the Kosovo Liberation Army was disbanded. Thus, because substantial evidence supports the agency’s finding that country conditions have fundamentally changed in Kosovo, the agency properly denied Lajqi’s application for asylum. 8 C.F.R. § 1208.13(b)(l)(i)(A).
Although Lajqi argues that the BIA erred in denying his claim for humanitarian asylum, we cannot disagree with the agency’s finding that Lajqi did not show the type of atrocious persecution for which humanitarian asylum is reserved. See Matter of Chen, 20 I. & N. Dec. 16, 19-20 (BIA 1989); Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir.2007).
Because Lajqi was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on his claims for withholding of removal and CAT relief. See 8 C.F.R. § 1208.16(b)(1 )(i)(A); 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, 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/8471756/ | SUMMARY ORDER
Petitioner Vezir Ismaili, a native and citizen of Macedonia, seeks review of a June 30, 2008 order of the BIA affirming the December 6, 2006 decision of Immigration Judge (“IJ”) Lawrence N. DiCostan-zo, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Vezir Ismaili, No. A78 279 766 (B.I.A. June 30, 2008), aff'g No. A78 279 766 (Immig. Ct. Hartford Dec. 6, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review 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., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The IJ did not err in finding that Ismaili failed to establish his eligibility for relief. With respect to his past persecution claim, we find no error in the IJ’s conclusion that the search of the home of Ismaili’s parents for weapons did not rise to the level of past persecution.2 See Ivanishvili v. U.S. Dep’t, 433 F.3d 332, 342 (2d Cir.2006).
Because Ismaili did not establish that he suffered past persecution, he was not entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b). Moreover, the agency properly found that conditions in Macedonia had changed for the better with respect to the treatment of ethnic Albanians. The 2005 Country Report on Human Rights Practices in Macedonia indicated “some progress was made” between Albanian and Macedonians despite existing tension. The BIA also observed that Ismaili’s fear of returning was undermined by the fact that his parents continue to “live in the same town in Macedonia without indication of problems.” See 8 C.F.R. §§ 208.13(b)(1)(i)(A), 208.13(b)(2); Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999). Accordingly, substantial evidence supports the agency’s finding that Ismaili failed to demonstrate that he has a well-founded fear of future persecution.
Ismaili’s inability to show the objective likelihood of persecution needed to make out an asylum claim rendered him unable to meet the higher standard required to succeed on a claim for withholding of removal where both claims rested on the same factual predicate. See 8 C.F.R. *652§ 1208.16(b)(1)(i)(A); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Finally, the IJ properly denied Ismaili’s request for CAT relief after properly concluding that the evidence Ismaili submitted was insufficient to demonstrate that he would more likely than not be tortured if returned to Macedonia. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 157-158 (2d Cir.2005).
For the foregoing reasons, the petition for review is hereby DENIED. Having completed our review, we DISMISS the petitioner’s pending motion for a stay of removal as moot.
. We decline to consider any argument regarding the Macedonian government's alleged desire to conscript Ismaili into the military because he made no such claim before the agency. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471758/ | SUMMARY ORDER
Defendant-appellant Eduardo Antonio Serna challenges a November 21, 2007 judgment of the District Court sentencing defendant principally to 70 months’ imprisonment to be followed by five years of supervised release, entered by the Court after he pleaded guilty, with no plea agreement, to conspiring to distribute and to possess with intent to distribute 50 grams or more of cocaine base, see 21 U.S.C. §§ 846(b), 841(b)(l)(A)(iii), and to distributing and possessing with intent to intent to distribute 50 grams or more of cocaine base, see 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(iii). On appeal, defendant contends that (1) the sentence imposed by the District Court was procedurally and substantively unreasonable and (2) he received ineffective assistance of counsel. We assume the parties’ familiarity with the facts and procedural history of the case.
Defendant’s sentence was neither procedurally nor substantively unreasonable. United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (ere banc) (“[Appellate scrutiny [of sentences] encompasses two components: procedural review and substantive review.”). It is undisputed that the District Court identified the proper Guidelines range, acknowledged that the range was advisory, and considered the factors set forth in 18 U.S.C. 3553(a). See United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006) (reasoning that, whether a sentence is “procedurally reasonable” depends on “whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a)”). We note, in particular, that the District Court correctly applied U.S.S.G. § 2D1.1 cmt. n. 10, as written, see United States v. Crosby 397 F.3d 103, 115 (2d Cir.2005) (noting that district courts must consider “the applicable Guidelines range (or arguably applicable ranges) as well as the other factors listed in [S]ection 3553(a)” (emphasis added)), and that defense counsel did not object to the District Court’s Guidelines calculation. Moreover, we find that the sentence imposed by the District Court, which was at the bottom of the recommended Guidelines range, was substantively reasonable.
Although we have “expressed a baseline aversion to resolving ineffectiveness claims on direct review, ... [we have] entertained ineffective assistance claims *654for the first time on direct appeal when their resolution is beyond any doubt or to do so would be in the interest of justice.” United States v. Khedr, 343 F.3d 96, 99-100 (2d Cir.2003) (internal quotation marks omitted). In this case, we are able to conclude, beyond any doubt, that defendant, who avoided a ten-year statutory mandatory minimum sentence because he obtained “safety valve” relief, see 18 U.S.C. § 3553(f)(5), cannot meet the high bar for demonstrating ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Two of defendant’s proffered grounds for ineffective assistance are factually incorrect inasmuch as, contrary to defendant’s contentions on appeal, (1) defendant never entered into a plea agreement and (2) trial counsel did indeed seek a departure based on defendant’s purportedly minor role in the offense. Moreover, we decline to second guess trial counsel’s decision not to contest defendant’s involvement in drug transactions with co-defendant Janet Quijano. Had defendant contested those charges at trial or not received safety-valve relief he could have been subject to a ten-year mandatory minimum sentence. See United States v. Gaskin, 364 F.3d 438, 470 (2d Cir.2004) (“A defense attorney does not render objectively unreasonable representation when he advises his client to act in a way that secures a reduced sentence.”).
CONCLUSION
For the reasons stated above, the November 21, 2007 judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471760/ | SUMMARY ORDER
Petitioner Guo Ying Lin, a native and citizen of the People’s Republic of China, seeks review of a February 12, 2008 order of the BIA denying his “Motion to Reopen/Reonsider.” In re Guo Ying Lin, No. A070 899 868 (B.I.A. Feb. 12, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The BIA did not abuse its discretion in denying Lin’s motion to reconsider for failure to specify errors of fact or law in its prior decision denying his first motion to reopen as untimely. See 8 C.F.R. § 1003.2(b)(1); see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). Indeed, in his motion to reconsider, Lin argued that the BIA should have excused the untimeliness of his first motion to reopen based on the ineffective assistance of his former counsel; however, as the BIA noted, Lin did not make such an argument in his first motion to reopen. See 8 C.F.R. § 1003.2(b)(1); see also In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006) (providing that “[a] motion to reconsider is not a mechanism by which a party may file a new brief before the Board raising additional legal arguments that are unrelated to those issues raised before”).
The BIA also did not abuse its discretion in denying Lin’s second motion to reopen as untimely and number-barred. Indeed, there is no dispute that Lin’s second motion to reopen filed in November 2006 was untimely and number-barred where the BIA entered a final order of removal in March 2002. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered).
Furthermore, the BIA did not abuse its discretion in declining to equitably toll the time period for filing Lin’s motion to reopen because he failed to demonstrate that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). Contrary to Lin’s argument, the BIA did not err in requiring him to demonstrate due diligence in pursuing his claims during the time period before his discovery of the purportedly ineffective assistance of his former counsel. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d *656Cir.2008). Moreover, the record supports the BIA’s finding that Lin failed to take any actions in his case for almost a year between the BIA’s March 2002 decision dismissing his appeal and his discovery of that dismissal in February 2003. Even after discovering the allegedly ineffective assistance of counsel, Lin waited more than three years to file a motion to reopen. Given this substantial delay, the BIA did not err in refusing to equitably toll the time period for filing Lin’s motion. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007).
In addition, Lin abandons any challenge to the BIA’s determination that he failed to demonstrate material changed country conditions excusing the time and numerical limitations for filing his motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii) (providing that there is no time limit for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing”). Instead, Lin argues that we should remand his case for reconsideration of his motion to reopen in light of our decision in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008). However, in Man Hui Shao, we reviewed the agency’s analysis of evidence similar to that in the record of this case, and concluded that it did not err in finding that such evidence does not demonstrate either material changed country conditions or a reasonable possibility of persecution. 546 F.3d at 169-72. Therefore, remand is inappropriate. See id.; see also Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (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 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/8471762/ | SUMMARY ORDER
Defendant-appellant Jose Delacruz challenges a judgment of conviction entered by the District Court on March 7, 2008 after he pleaded guilty to conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, see 21 U.S.C. § 846. The District Court sentenced defendant principally to 108 months’ imprisonment, to be followed by a term of three years’ supervised release. On appeal, defendant argues that the District Court committed plain error by ordering a forfeiture without informing the defendant of the possibility of forfeiture in light of his plea. See Fed.R.Crim.P. ll(b)(l)(J) (“Before the court accepts a plea of guilty .... [it] must inform the defendant of, and determine that the defendant understands ... any applicable forfeiture.”). We assume the parties’ familiarity with the facts and procedural history of the case.
Defendant’s contention that the District Court committed plain error in failing to inform him of an applicable forfeiture of approximately $1.77 million prior to imposing a forfeiture in that amount is unavailing. It is not disputed that neither defendant’s plea agreement nor the Rule 11 proceeding informed him of the forfeiture. However, even assuming that the District Court committed error that was plain, defendant has not established that the error prejudicially affected his substantial rights. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir.2006) (“To satisfy the plain-error standard, the defendant must demonstrate, inter alia, that (1) there was error, (2) the error was plain, [and that] (3) the error prejudicially affected his substantial rights.” (internal quotation marks *658omitted)). Defendant, who received a sentence below the suggested Guidelines range, does not claim or make any effort to demonstrate that, but for the District Court’s error, he would not have pleaded guilty. See id. (“In order to demonstrate that a Rule 11 error affected his substantial rights, a defendant must show ‘a reasonable probability that, but for the error, he would not have entered the plea.’”) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2338, 159 L.Ed.2d 157 (2004)). Indeed, defendant has at no point attempted to withdraw his guilty plea.
Vacatur of the March 7, 2008 judgment of conviction is not warranted. Nevertheless, the Government and defendant agree that the cause should be remanded for the limited purpose of vacating the forfeiture order, which was not mentioned in the Rule 11 proceeding. We agree that, in the circumstances presented, a limited remand is appropriate.
CONCLUSION
For the reasons stated above, the March 7, 2008 judgment of conviction is AFFIRMED except with respect to the question of forfeiture, and the cause is REMANDED for the limited purpose of having the District Court vacate the forfeiture order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471764/ | SUMMARY ORDER
Petitioner, Li Jie Wang, seeks review of a November 24, 2008 order of the BIA denying her motions to reonsider and reopen. In re Li Jie Wang, No. A 095 161 911 (B.I.A. Nov. 24, 2008). 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 reconsider or reopen for abuse of discretion. See Ri Kai Lin v. BCIS, 514 F.3d 251, 253-54 (2d Cir.2008).
I. Motion to Reconsider
The regulations provide that a motion to reconsider must specify errors of fact or law in the BIA’s decision and be supported with pertinent authority. See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reconsider “is a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.” Matter of Cerna, 20 I. & N. Dec. 399, 402 n. 2 (B.I.A.1991) (internal quotation marks omitted).
The BIA did not abuse its discretion in denying Wang’s motion to reconsider because she failed to specify any error in fact or law in its July 2006 decision. See 8 C.F.R. § 1003.2(b)(1). The BIA reasonably found that to the extent her motion to reconsider reiterated the same ineffective assistance of counsel claim she made in her first motion to reopen, it had previously reviewed and rejected that claim. See Jin Ming Liu v. Gonzales, 439 *660F.3d 109, 111 (2d Cir.2006) (finding that the BIA does not abuse its discretion by denying a motion to reconsider where the motion merely repeats arguments that the BIA has previously rejected). Additionally, the BIA properly found that to the extent Wang’s motion to reconsider raised neiv factual assertions concerning the representation of different counsel, it did not specify an error of fact or law in the July 2006 decision. See 8 C.F.R. § 1003.2(b)(1); Matter of O-S-G-, 24 I. & N. Dec. 56, ST-58 (B.I.A.2006) (“A motion to reconsider contests the correctness of the original decision based on the previous factual record....”).
II. Motion to Reopen
The BIA denied Wang’s second motion to reopen because it was number-barred under 8 C.F.R. § 1003.2(e)(2), and declined to reopen her immigration proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). To the extent that Wang, citing 8 U.S.C. § 1252(a)(2)(D), states a reviewable claim that application of the number bar violated her due process rights, that claim is wholly without merit. She admitted presenting a fraudulent asylum application, and was nonetheless given the opportunity to present an amended application. Wang was granted numerous continuances over a two-and-a-half year period to allow her to file an amended application. She failed to do so. Moreover, she has already litigated one motion to reopen. See Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir.2008) (holding that motions to reopen provide additional process to aliens challenging removal). Under these circumstances, it cannot be said that the government denied Wang a “full and fair opportunity to present her claims.” See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir.2006) (internal quotation marks omitted).
To the extent that Wang claims that her situation is “exceptional” and therefore the BIA should have reopened under 8 C.F.R. § 1003.2(a), Matter of J-J-, 21 I & N. Dec. 976, 984 (B.I.A.1997), we lack jurisdiction to review this claim, see Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
We have reviewed Wang’s other claims and find them to be without merit.
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. 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/8471766/ | SUMMARY ORDER
Appellants Ruth E. Buck and Donald Buck (“the Bucks”), proceeding pro se, appeal the district court’s dismissal of their complaint. The Bucks argue, inter alia, that the district court erred in finding that they had failed to comply with Northern District of New York Local Rule 7.1 (“Local Rule 7.1”) and granting summary judgment on their obstruction of easement claim against Thomas Libous and Frances Libous (“the Libouses”) after deeming the Libouses’ statement of material facts admitted. The Libouses argue, inter alia, that the district court properly applied Local Rule 7.1. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo orders granting summary judgment, and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Mil*662ler v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). We are required to resolve all ambiguities and draw all inferences in favor of the nonmovant. See Nationwide Life Ins. Co. v. Bankers Leasing Assoc., 182 F.3d 157, 160 (2d Cir.1999).
As a preliminary matter, we note that the only remaining claim on appeal is the Bucks’ obstruction of easement allegation. Moreover, as the Bucks’ brief concerns solely the district court order granting summary judgment on the obstruction of easement claim against the Libouses, the Bucks have waived any argument that the district court erred in denying this claim against other defendants. See, e.g., Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998).
We accord “considerable deference” to a district court’s interpretation and application of its own local rule, and review such rulings for abuse of discretion. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir.1995). Local Rule 7.1 requires, in relevant part, that a party opposing a motion for summary judgment file a response that mirrors the movant’s statement of material facts, admits or denies each of the movant’s assertions in matching numbered paragraphs, and supports denials with specific citations to the record.
Here, although the Bucks’ response perhaps did not “mirror” the Libouses’ statement of material facts, it did list specific paragraphs and express opposition to the facts asserted therein, particularly those facts relating to the location of the easement and right of way. Further, although the Bucks may not have provided specific citations to the record in their response, they included affidavits that supported then* counter-assertions of fact. Accordingly, the Bucks plainly intended to controvert assertions raised in the Libouses’ statement of material facts, and supported them own assertions with relevant documents.
In addition, Fed.R.Civ.P. 83 provides that a “local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply.” See Fed.R.Civ.P. 83; see also Contino v. United States, 535 F.3d 124, 127 (2d Cir.2008). In this case, the record provides no indication that the Bucks willfully failed to comply with Local Rule 7.1, and enforcement of this rule would cost them their right to present this claim to a jury. See Nationwide Life Ins. Co., 182 F.3d at 160 (‘We have long recognized that summary judgment is a drastic device, since its prophylactic function, when exercised, cuts off a party’s right to present his case to the jury.”)(internal quotation marks omitted). Indeed, the Bucks provided a separate “Statement of Material Fact” section that specifically contested paragraphs 19 and 60 of the Libouses’ statement of facts — the two facts that the district court found to be dispositive.
Accordingly, given the Bucks’ response, their pro se status, and Fed.R.Civ.P. 83, the district court abused its discretion in finding that the Bucks failed to comply with Local Rule 7.1, and deeming the Li-bouses’ statement of material facts admitted. Further, the location of the easement and right of way is a disputed issue of material fact, and it was therefore inappropriate to grant summary judgment on the Bucks’ obstruction of easement claim against the Libouses.
We need not decide whether the Bucks’ prior sworn allegations in an unrelated case contradict the prior testimony of Richard Buck, as this would not necessarily preclude the Bucks from raising a material issue of fact regarding their obstruction of easement claim.
*663We have considered all remaining claims and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby VACATED and REMANDED in part and AFFIRMED in part. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471768/ | SUMMARY ORDER
Angela J. Martel appeals from a judgment of the United States District Court for the District of Connecticut (Eginton, J.) dismissing her § 1983 suit against South Windsor police officer Richard A. Watrous on grounds of qualified immunity. Martel was arrested and tried for the burglary of her aunt’s home, but was acquitted by a jury. She subsequently filed suit against Watrous and the Town of South *664Windsor, alleging, inter alia, false arrest and seeking damages for violation of her federal and state constitutional rights. The district court ruled that Watrous was entitled to qualified immunity with regard to Martel’s federal claims because it was objectively reasonable for Watrous to act as he did in arresting Martel. On appeal, Martel argues that Watrous’s actions were not objectively reasonable. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
“An arresting officer is entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Golino v. New Haven, 950 F.2d 864, 870 (2d Cir.1991). “[Pjrobable cause to arrest exists when police officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir.2007) (internal quotation marks omitted).
“Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officer[ ] to believe that there was probable cause, and a plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden.” Golino, 950 F.2d at 870 (citations omitted). “In order to mount such a challenge, the plaintiff must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause.” Id. (internal quotation marks omitted).
Martel has failed to discharge this heavy burden. She first attacks Watrous’s subjective belief that the written confession signed by Grant (the actual burglar) implicating Martel was truthful, arguing that the record contains no evidence indicating that Watrous actually believed Grant, and suggesting that in any case Watrous’s mental state is a fact for the jury. But the mere assertion that Watrous may not have believed Grant’s confession is insufficient. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.2008) (“A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory.”).
Martel next argues that Watrous could not have reasonably relied on her aunt’s statements implicating Martel because these amounted to “rank speculation, unsubstantiated suspicions, raw conjecture and naked assumption.” However, the aunt adduced reasons to support her suspicions. And “[wjhen information is received from a putative victim ... probable cause exists unless the circumstances raise doubt as to the person’s veracity.” Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir.2001) (citation omitted). Martel has pointed to nothing in the record that would call her aunt’s truthfulness into question, and Watrous was therefore entitled to rely on the aunt’s information in determining probable cause.
Finally, Martel suggests that Watrous either disregarded or failed to appreciate certain exculpatory evidence. But there is no evidence to show that Watrous either knowingly or recklessly included false information in the warrant affidavit or omitted relevant information.
*665Accordingly, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471663/ | *555
ORDER
PER CURIAM.
Jennifer West requests reconsideration of this court’s rejection of her petition for review as untimely.
On September 19, 2008, 110 M.S.P.R. 152, the Board denied West’s petition for review and informed West that its decision was final and that any petition for review must be received by this court within 60 calendar days of her receipt of the Board’s decision. West concedes that she filed her petition for review more than 60 days after receiving the Board’s decision. She indicates that she received the Board’s final decision on September 26, 2008. This court received West’s petition for review on March 9, 2009.
A petition for review must be received by the court within 60 days of receipt of the Board’s final order. 5 U.S.C. § 7703(b)(1). To be timely filed, the petition must be received by this court on or before the date that the petition is due. Pinat v. Office of Personnel Management, 931 F.2d 1544, 1546 (Fed.Cir.1991) (petition is filed when received by this court; court dismissed petition received nine days late). Because West’s petition was not timely received by this court, it must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) West’s motion for reconsideration is denied. Her petition for review is dismissed as untimely filed.
(2) Each side shall bear its own costs.
(3) Any other pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471665/ | ON MOTION
PER CURIAM.
ORDER
Pamela D. Dinkier moves for leave to proceed in forma pauperis and submits correspondence requesting that the court accept her untimely petition for review. The court considers whether the petition should be dismissed.
On April 30, 2008, the Merit Systems Protection Board issued a final decision in Dinkler v. Office of Pers. Mgmt., No. CH-0831-07-0409-1-1, 109 M.S.P.R. 28, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of *556receipt of the Board’s decision. The Board’s records reflect that Dinkier received the Board’s decision on May 9, 2008. The court received Dinkler’s petition for review 62 days later, on July 10, 2008.*
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“Compliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”).
Because Dinkler’s petition for review was received by this court two days late, this court must dismiss Dinkler’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for review is dismissed.
(2) All pending motions are moot.
The petition for review listed the docket number for an earlier petition of Dinkler’s and was originally filed under that number. However, upon review of the file, the court determined that Dinkier's July 10, 2008 submission was a new petition for review and docketed it as 2009-3147. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471666/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss for lack of jurisdiction Oscar S. Goins’s appeal from a decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals (Board) decision that denied Goins entitlement to disability corn-*557pensation based on Agent Orange exposure for liver disease, kidney disease, and skin disease. Goins opposes.
At the Court of Appeals for Veterans Claims, Goins argued that the Board erred in (1) determining he was not eligible for disability compensation based on exposure to Agent Orange, (2) failing to apply the benefit of the doubt principle pursuant to 38 U.S.C. § 5107(b), (3) failing to provide a Statement of the Case (SOC), and (4) not addressing whether Goins was entitled to disability compensation for post-traumatic stress disorder (PTSD). The Court of Appeals for Veterans Claims affirmed the Board’s decision. In doing so, the coui’t found that none of Goins’s claimed diseases were entitled to a presumption of Agent Orange exposure and that there was no medical evidence that Goins suffered from any current skin, liver, or kidney condition. The court also found that the record reflected that Goins received an SOC and that his PTSD claim was pending before the agency and was not on appeal before the court.
The court’s jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the validity of any statute or regulation, or an interpretation thereof relied on by the court in its decision. This court may also entertain challenges to the validity of a statute or regulation, and to interpret constitutional and statutory provisions as needed for resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional question, this court lacks jurisdiction over challenges to factual determinations or laws or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).
Goins asserts in his brief and response that the Court of Appeals for Veterans Claims failed to consider the evidence that demonstrates his entitlement to compensation benefits. Goins’s arguments regarding how the court weighed the evidence and facts of his case are outside of this court’s limited jurisdiction. Goins also generally asserts that the court failed to follow the statutes and regulations and also violated his “constitutional rights from A-Z,” including various assertions of due process violations alleged against the agency, the court, and the government. Although Goins asserts that his arguments involve issues of statutory interpretation and matters of law, this court must look beyond the appellant’s characterization of the issues to determine whether they fall within the jurisdiction of this court. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed.Cir.2007); Helfer v. West, 174 F.3d 1332, 1335 (Fed.Cir.1999). Here, Goins’s arguments are aimed at factual issues or issues outside the confines of this appeal. Because we agree with the Secretary that this court lacks jurisdiction, we must dismiss Goins’s appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions are granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471669/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Jenese E. Smith’s appeal from the United States Court of Appeals for Veterans Claims judgment in Smith v. Peake, 06-2970, for lack of jurisdiction. Smith opposes,
Smith sought review by the Court of Appeals for Veterans Claims of a Board of Veterans’ Appeals decision that denied particular disability ratings. Determining that the Board’s statement of reasons or bases was inadequate, the Court of Appeals for Veterans Claims vacated and remanded the appeal for readjudication. Smith now seeks review of the remand order.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court typically lacks jurisdiction over remand orders because they are not final judgments. This court can only review remands, inter alia, where “the remand disposes of an important legal issue that would be effectively unreviewable at a later stage of litigation.” Winn v. Brown, 110 F.3d 56, 57 (Fed.Cir.1997). See also Williams v. Principi, 275 F.3d 1361, 1364 (Fed.Cir.2002). Because the Court of Appeals for Veterans Claims decision to remand in this case does not decide any legal issue that would be effectively unreviewable at a later stage of litigation, this court does not have jurisdiction to review the Court of Appeals for Veterans Claims remand order.*
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
If the Court of Appeals for Veterans Claims issues an adverse final decision at a later date, Smith may thereafter seek review of that decision, if appealable and within this court's jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471670/ | ON MOTION
LINN, Circuit Judge.
ORDER
The Secretary of Veterans Affairs responds to the court’s June 18, 2008 order and requests that the court summarily reverse the judgment of the United States Court of Appeals for Veterans Claims in DeVillena v. Nicholson, No. 04-0896. The Secretary states that Lucia S. DeVillena does not oppose.
On February 11, 2004, the Board of Veterans’ Appeals denied DeVillena’s 1998 claim for dependency and indemnity compensation (DIC), finding that the cause of DeVillena’s husband’s death was not related to his military service, and that he was not in receipt of or entitled to receive compensation for a totally disabling service-connected disability for ten years pri- or to his death.
On appeal, the Court of Appeals for Veterans Claims reversed the Board’s decision with respect to its conclusion that DeVillena was not entitled to DIC benefits because her husband was not in receipt of or entitled to receive compensation for a totally disabling service-connected disability for the ten years prior to his death. Specifically, the Court of Appeals for Veterans Claims concluded that DeVillena was entitled to benefits based on a “hypothetical entitlement theory” that was in force at the time DeVillena filed her claim for benefits in 1998. In January of 2000, an amendment to 38 C.F.R. § 3.22 eliminated the application of a hypothetical entitlement theory. The Secretary appealed.
This court stayed proceedings in this case pending disposition of Tarver v. Shinseki, 557 F.3d 1371 (Fed.Cir.2009). In our opinion in Tarver, involving virtually identical facts as the present appeal, we held that the § 3.22 amendment should be applied retroactively to bar the application of a hypothetical entitlement theory for claims filed prior to the amendment’s effective date.
In the present case, with respect to the use of the hypothetical entitlement theory, it is clear that summary reversal is warranted and that DeVillena is not entitled to dependency and indemnity compensation.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to summarily reverse is granted. The case is remanded for further proceedings.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471673/ | ON MOTION
LINN, Circuit Judge.
ORDER
Daniel Nash moves for reconsideration of the court’s rejection of his petition for review as untimely. The United States Postal Service (USPS) moves for an extension of time to submit a response. USPS responds to the motion for reconsideration and moves to dismiss the petition for review. Nash responds.
On December 4, 2008, the Merit Systems Protection Board issued a final decision in Nash v. United State Postal Serv., No. CH-0752-08-0531-I-1, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. Nash states that he received the Board’s decision on December 8, 2008.* The court received Nash’s petition for review 74 days later, on February 20, 2009.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“[cjompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”).
Nash asserts that he mailed his petition for review on January 30, 2009 and thus believed it would arrive at the court within the 60-day time limit. Counsel for Nash asserts that his office contacted the clerk’s office on January 30, 2009 before mailing the petition to verify what documents were required to be submitted and that the clerk’s office did not inform his office that mail sent to the court is sent to an offsite location for irradiation prior to delivery to the court. Counsel for Nash asserts that this procedure delayed the filing of the petition for review and argues that mail should be deemed received when it is received in the offsite facility, rather than when it arrives at the court.
Nash cites a nonprecedential disposition, Apiado v. Office of Pers. Mgmt., 1991 WL 237641 (Fed.Cir. Nov. 8, 1991), in which the appellant mistakenly mailed his appeal to an agency rather than the court. After the time for appealing expired, the agency forwarded the documents to this court. *561The court declined to rule that the appeal should be dismissed for lack of jurisdiction, determining that the failure of the agency to timely forward the petition may have precluded the appellant’s otherwise timely petition. Apiado is not citable pursuant to Fed. Cir. R. 32.1, is not precedential, and is not binding on the court. In addition, to the extent that the ruling in Apiado was based on the “unique circumstances” doctrine, that doctrine was squarely rejected by the United States Supreme Court in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).
Nash also cites the court’s decision in Baney v. Department of Justice, 263 Fed.Appx. 892 (Fed.Cir.2008). In Baney, the petition for review was initially rejected as untimely. However, the petitioner then submitted documentation in the form of a certified mail receipt showing that a mailing to this court was delivered within the timeframe for submitting a petition for review. The court determined that the petition was deemed received on that date and thus was timely. In Baney, the court determined that the petition for review was received and filed within the statutory timeframe. In this case, however, it is uneontested that the petition was received by the court beyond the 60-day limit. Thus, Baney is not applicable.
USPS contends that the Supreme Court and this court have confirmed that the timely filing of a petition for review is a jurisdictional requirement and thus this court lacks authority to waive or equitably toll the timeliness requirement. USPS contends that in Bowles, the Supreme Court ruled that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement” and that the court has no authority to create equitable exceptions. In addition, USPS argues that this court confirmed in Oja that the 60-day time period set forth in section 7703(b)(1) may not be equitably tolled.
Pursuant to Fed. R.App. P. 25(a)(2), “filing is not timely unless the clerk receives the papers within the time fixed for filing” (emphasis added). Thus, it is clear that the timeliness of a submission must be assessed based on the date of receipt by the clerk, not any other location. Bowles and Oja make clear that this court cannot waive the 60-day time limit set forth in section 7703(b)(1). Because Nash’s petition for review was received by this court 14 days late, we must dismiss Nash’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) Nash’s motion for reconsideration is denied.
(2) USPS’s motion to dismiss is granted. The petition for review is dismissed as untimely.
(3) Each side shall bear its own costs.
(4) USPS’s motion for an extension of time is granted.
The Board’s records reflect that Nash received the Board decision on December 10, 2008. Nevertheless, even assuming that December 10 is the correct date of receipt, Nash's petition for review would still be untimely. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471675/ | ON MOTION
PER CURIAM.
ORDER
The Postmaster General moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Frank Baiamonte’s appeal from the United States Postal Service Board of Contract Appeals decisions in case nos. 5297, 5324, and 5334 for lack of jurisdiction. Baiamonte opposes.
Baiamonte filed cases with the Board seeking review of the United States Postal Service’s decision to terminate his mail delivery contract for default and to deny him access to the mail. On April 11, 2008, 2008 WL 2811801, addressing consolidated case nos. 5297 and 5324, the Board denied Baiamonte’s appeal regarding the termination of a contract for default and found that the Postal Service was entitled to recover costs associated with replacing Baiamonte after the termination. On July 29, the Board denied Baiamonte’s motion for reconsideration. In case no. 5332, the Postal Service moved to dismiss Baiam-onte’s five claims for payment based on the Postal Service’s decision denying him access to the mail. The Board granted the motion with respect to four of the claims, but retained jurisdiction to continue to decide the remaining claim. Baiamonte filed a notice of appeal of the Board’s three decisions on December 8, 2008.
With respect to the Board’s decisions in case nos. 5297 and 5324, the Postal Service argues that the court lacks jurisdiction because Baiamonte did not timely file his notice of appeal with the court. The Board issued its decision on July 29, 2008 and Baiamonte did not file his notice of appeal until December 8, 2009, or 132 days later. Although there is nothing in the record indicating the exact date Baiamonte received the decision, Baiamonte stated in his notice of appeal that he received the decision within 7 days of its issuance.
Any appeal from a Board decision must be received by the court within 120 days after the date of receipt of the Board decision. 41 U.S.C. § 6107(g)(1)(A); Fed.R.App. P. 15(a). The time limit for filing a notice of appeal is jurisdictional. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (timely filing of notice of appeal in civil case is jurisdictional requirement); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)). Because Baiamonte’s notice of appeal was at best filed 125 days after he received the Board decision, the appeal regarding case nos. 5297 and 5324 must be dismissed as untimely filed.
The Postal Service also argues that the court lacks jurisdiction over Baiamonte’s appeal of the Board’s decision in case no. 5332 because there is a pending claim before the Board, and thus any appeal is premature. Because there is a pending claim, there is no final judgment in case no. 5332 and the appeal as to that case is premature. See Pause Technology, LLC v. TiVo Inc., 401 F.3d 1290, 1294 (Fed.Cir.2005) (stating that “a pending counterclaim precludes jurisdiction”); Nystrom v. TREX Co., 339 F.3d 1347, 1350 (Fed.Cir.*5632003) (“If a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no final decision under 28 U.S.C. § 1295(a)(1) and therefore no jurisdiction”). Thus, we grant the motion to dismiss.*
Accordingly,
IT IS ORDERED THAT:
(1) The Postmaster General’s motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
If the Board issues an adverse final decision in case no. 5332 at a later date, Baiamonte may thereafter seek review of that decision, if appropriate and timely filed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471679/ | ON PETITION FOR PERMISSION TO APPEAL
LINN, Circuit Judge.
ORDER
Preci-Dip Durtal SA petitions for permission to appeal an order certified by the United States District Court for the Central District of California as one involving controlling issues of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Tri-Star Electronics International, Inc. opposes.
In December 1997, Tri-Star changed its state of incorporation from Ohio to California by creating a new corporate entity in California and merging the new entity with its Ohio operation. Tri-Star immediately filed a Statement of Merger with the Ohio Secretary of State. In August 2005, TriStar used the same practice to become a Delaware corporation, assigning all of its rights, including its patent rights to the new Delaware entity.
In 2008, Tri-Star filed this suit against Preci-Dip, alleging infringement of U.S. Patent No. 6,250,974. Preci-Dip moved to dismiss the complaint, alleging that when the inventor assigned his rights in 1999, he did so to Tri-Star, Ohio, which according to Preci-Dip ceased to exist under Ohio law at the time Tri-Star filed its Statement of Merger. Preci-Dip argued that Tri-Star has no standing to bring this suit.
On February 19, 2009, the district court denied Preci-Dip’s motion to dismiss. The court explained that the original assignment agreement between the inventor and Tri-Star, Ohio was effective because the agreement assigned all rights in the patent to Tri-Star, Ohio its successors and assigns. The court also explained that under Ohio Rev.Code §§ 1701.79, 1701.82, TriStar, Ohio continued to exist notwithstanding the merger to convey, assign, transfer or otherwise vest property or rights in the surviving or new entity. Finally, the district court found that even if it were to find that Tri-Star, California did not receive the rights to the patent by operation of law, the original assignment agreement should be reformed under the equitable doctrine of contract reformation to reflect the parties’ clear intention despite a mistake in drafting. The court nevertheless granted Preei-Dip’s request to certify its order for permissive appeal.
Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal interlocutory orders certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990); 28 U.S.C. § 1292(d)(2) (“the Federal Circuit *566may, in its discretion, permit an appeal to be taken from such order”). We determine that granting the petition in these circumstances is warranted.
Accordingly,
IT IS ORDERED THAT:
The petition for permission to appeal is granted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471681/ | ON PETITION FOR WRIT OF MANDAMUS
LINN, Circuit Judge.
ORDER
Classic Industries, LP et al. (Classic) petition for a writ of mandamus to direct the United States District Court for the Southern District of Texas to vacate its orders denying Classic’s motion to dismiss the complaint. Shell Oil Products Company, LLC and Motiva Enterprises, LLC (Shell) oppose.
The genesis of this declaratory judgment action lies in Shell’s efforts to equip service station canopies with the unique identifier of a red and yellow, curved, fascia motif. In 2002, Shell contracted with Classic to manufacture the component parts of the fascia design. The parties dispute several facts leading up to their 2002 agreement, including who initially came up with the design for the motif. However, it is undisputed that prior to their agreement, Classic filed four patent applications for an ornamental design covering components of the curved fascia motif known as the “Lazy S” design. The four patents issued shortly after the parties 2002 agreement. The parties subsequently agreed to continue their relationship through the fall of 2007.
Early in 2007, Shell approached three potential alternative suppliers. Architectural Graphics, Inc. (AGI) was one of those suppliers. AGI and Shell began discussions on a supply agreement, but negotiations stalled when AGI informed Shell that without the original design drawings and specifications Shell would have to pay additional redevelopment costs.* AGI also brought to Shell’s attention, apparently for *567the first time, the existence of Classic’s four design patents. AGI notified Shell that any agreement between Shell and AGI would require a provision indemnifying AGI in the event it was sued by Classic for patent infringement.
Without an agreement with AGI, Shell began negotiating a contract extension with Classic. During a meeting in November 2007, Shell confronted Classic about the patents and apparently mentioned the possibility of using an alternative supplier for the fascia components. Shell alleges that Classic responded that “[a]ll any vendor would have to do is pay Classic a license fee to sell Lazy S.”
The parties ultimately agreed to extend the agreement until February 29, 2008, at which time the relationship terminated. On April 29, 2008, Shell filed a complaint seeking, inter alia, a declaration that Classic’s design patents were invalid and unenforceable, as well as claims for conversion, unfair competition, breach of contract, unjust enrichment, conversion, theft, fraud, and misappropriation of trade secrets. Classic moved to dismiss the complaint, contending that there was not a sufficient judiciable controversy at issue between the parties because Classic has never threatened to bring an infringement claim against Shell. The district court denied Classic’s motion. The district court found that Shell’s prior discussions with AGI and Classic’s November 2007 statement that any vendor would have to pay Classic a license fee were sufficient to establish jurisdiction over the declaratory judgment action.
The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of obtaining the relief desired, Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). A court may deny mandamus relief “even though on normal appeal, a court might find reversible error.” In re Cordis Corp., 769 F.2d 733, 737 (Fed.Cir.1985); see also United States v. Watson, 66 C.C.P.A. 107, 603 F.2d 192, 196-97 (1979) (“the writ will not issue to cure the mere commission of reversible error”). “That a petitioner may suffer hardship, inconvenience, or an unusually complex trial does not provide a basis for a court to grant mandamus.” In re Roche Molecular Sys., Inc., 516 F.3d 1003, 1004 (Fed.Cir.2008) (citing United States v. Watson, 66 C.C.P.A. 107, 603 F.2d 192, 195 (1979)).
Classic contends that the district court clearly abused its discretion by determining jurisdiction based upon the statement that any vendor would have to pay Classic a license. Under the general standard set forth by the Supreme Court in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007), a declaratory action is available when the facts as alleged, “ ‘under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant’ relief’ (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)).
In the papers submitted, Classic has not met its heavy burden to show a clear abuse of discretion. Classic has also not shown why it cannot raise any challenge to the district court’s determination after an appeal from a final judgment.
Accordingly,
*568IT IS ORDERED THAT:
Classic’s petition for a writ of mandamus is denied.
Shell alleges in its papers here and below that it turned over the original specifications and drawings to Classic prior to their 2002 agreement and that Classic refused to return the materials upon Shell's repeated requests. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471749/ | SUMMARY ORDER
Petitioners Jian Xin Chen and Sai Ying Chen, natives and citizens of the People’s Republic of China, seek review of a July 31, 2008 order of the BIA denying Jian Xin Chen’s motion to reopen.2 In re Jian Xin Chen, No. A095 381 258 (B.I.A. Jul. 31, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Chen’s motion to reopen was untimely and number-barred where that motion was his third such motion and was filed almost five years after the agency issued a final order of removal in July 2004. See 8 C.F.R. § 1003.2(c)(2).
There are no time and numerical limitations for filing a motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). The BIA did not abuse its discretion in concluding that the petitioner did not demonstrate material changed country conditions excusing the time and numerical limitations applicable to Chen’s motion. See 8 C.F.R. § 1003.2(c)(3)(h); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Chen argues that in denying his motion, the BIA violated his due process rights. However, Chen has no due process right to seek a discretionary grant of a motion to reopen. Cfi Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Chen has remained in this country illegally for over fourteen years. In that time he has filed, and had adjudicated, an asylum application and three motions to reopen. He has received ample process. See Yuen Jin, 538 F.3d at 157; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for *642a stay of removal in this petition is DISMISSED as moot.
. In its decision, the BIA noted that while Sai Ying Chen had been a ‘'rider” in its previous decisions, the motion in question was filed only on behalf of Jian Xin Chen. Both Sai Ying Chen and Jian Xin Chen petition this Court for review. While arguably Sai Ying Chen lacks standing to seek review of the BIA's July 2008 order, we leave to the agency the determination of how our denial of this petition for review will affect Sai Ying Chen’s status. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471751/ | SUMMARY ORDER
Petitioner-appellant Rahsaan Butler (“defendant”) was convicted after a jury trial in New York State Supreme Court, New York County, of Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. Defendant appealed, contending that the prosecutor’s use of peremptory challenges to remove two African-Americans jurors was discriminatory, and that the trial court thus erroneously denied defendant’s Batson claim, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On March 27, 2001, the Appellate Division, First Department, affirmed defendant’s conviction. The Appellate Division concluded that the trial court correctly determined that defendant “numerical showing” had failed to establish a prima facie case of discrimination, in the circumstances in which the prosecution’s peremptory challenges were made. Judge Smith, Associate Judge of the New York Court of Appeals, denied defendant’s application for leave to appeal. People v. Butler, 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84 (2001).
On July 23, 2002, Defendant filed pro se a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), in the District Court, asserting that the state court’s rulings denying defendant’s Batson challenge was an unreasonable application of clearly established federal law.2 The District *643Court referred the matter to Magistrate Judge Kevin N. Fox, who recommended that defendant’s petition be denied in its entirety in a Report and Recommendation dated December 17, 2004 (“R & R”). J.A. 39-40. Defendant filed timely objections to the R & R, asking that the District Court either grant a writ of habeas corpus or a Certificate of Appealability. On August 8, 2008, 2008 WL 3338202, the District Court adopted the R & R, denying defendant’s petition for a writ of habeas corpus but granting a Certificate of Ap-pealability on defendant’s Batson claim. Defendant’s appeal challenges the District Court’s denial of his petition for a writ of habeas corpus. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
We review a district court’s ruling on a petition for a writ of habeas corpus de novo. See, e.g., Overton v. Newton, 295 F.3d 270, 275 (2d Cir.2002). Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus may not issue for any claim adjudicated on the merits by a state court unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts in light of the evidence presented” in state court, id. § 2254(d)(2). We have been reminded that “clearly established Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008) (quoting Williams).
A state court decision is “contrary to” clearly established federal law if the state court’s conclusion on a question of law is “opposite” that of the Supreme Court or if the state court reaches a different outcome than the Supreme Court “on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413, 120 S.Ct. 1495; Alexander, 543 F.3d at 100 (quoting Williams). A state court decision “involves an unreasonable application of’ clearly established federal law as determined by the Supreme Court if it “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a defendant’s] case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A federal habeas court should not “conflat[e] ‘unreasonableness’ with ‘clear error’ ... because ‘[t]he gloss of clear error fails to give proper deference to state courts.’” Brisco v. Ercole, 565 F.3d 80, 87-88 (2d Cir.2009). “Some increment of incorrectness beyond error is required.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000). We have noted, however, “that the increment [of error beyond clear error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (internal quotation marks omitted).
Defendant argues that (1) the state trial court’s application of Batson was contrary to clearly established federal law and should be afforded no deference because the trial court denied defendant’s challenge due to a lack of a “pattern” of discrimination rather than a failure to assert a prima facie case; (2) the Appellate Division’s determination that defendant failed to establish a prima facie case of discrimination was incorrect and also should not have been afforded deference by the District Court because the Appellate Division based its conclusion on the trial court’s “incomplete” findings; and (3) the District *644Court unreasonably concluded that the statistical disparity was insufficient to support a prima facie case and improperly discounted that disparity due to the small number of African Americans included in the venire. Although “statistical disparities are to be examined,” United States v. Alvarado, 923 F.2d 253, 255 (2d Cir.1991), courts must also consider “any other relevant circumstances,” Tankleff v. Senkowski, 135 F.3d 235, 249 (2d Cir.1998). We agree with the District Court that, in the circumstances presented, “[t]here are inadequate facts here that ‘give rise to a sufficiently strong inference of racial motivation to make a prima facie showing.’ ” J.A. 53 (quoting Cousin v. Bennett, 511 F.3d 334, 337 (2d Cir.2008)).
Even if the state court used different terminology in stating that there was no “pattern” of discrimination, we also agree with the District Court that “[t]he Appellate Division did not unreasonably apply the law ... in concluding that the totality of the circumstances reflected on the record did not give rise to an inference that the prosecution struck [the jurors at issue] on the basis of them race.” J.A. 57. “An unreasonable application of federal law is different from an incorrect or erroneous application of federal law.” Alexander, 543 F.3d at 100 (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). We have noted that “the unreasonable application standard falls somewhere between merely erroneous and unreasonable to all reasonable jurists.” Alexander, 543 F.3d at 100 (internal quotation marks omitted). “[I]t is one thing to conclude that a pattern of strikes is prima facie evidence of discrimination; it is a very different thing to hold that the contrary conclusion would be an unreasonable application of Batson.” Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir.2007); see also J.A. 57.
Substantially for the reasons stated by the District Court in its order of August 8, 2008, we conclude that the state court’s application of the Batson standard in this case was not “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1) and, therefore, defendant’s claim does not support the grant of a habeas corpus petition.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
. Defendant also asserted in his petition for a writ of habeas corpus that his right to a fair trial was violated by the trial court's denial of his motion to dismiss a certain juror. That claim is not before us on this appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471753/ | SUMMARY ORDER
Petitioner Kissima Saho (“petitioner” or “Saho”), a native and citizen of The Gambia, seeks review of the Board of Immigration Appeals (“BIA”) orders of May 16, 2008, and February 27, 2009, denying his motions to reopen. Petitioner argues that (1) he is eligible for a reopening of his proceedings without regard to time limits because he did not receive oral notice of the date and time of his hearing; (2) the BIA erred in finding that he failed to appear because petitioner was at the immigration court, though in the incorrect room, at the time and date of his hearing; (3) the BIA erred when it found that he was not prima facie eligible to submit a successive application for asylum, withholding of removal, and relief under the Convention Against Torture; (4) the BIA erred in upholding his in absentia removal order because he established that he had ineffective assistance of counsel, which qualifies as exceptional circumstances that are sufficient to mitigate his failure to appear; (5) equitable tolling should apply in this case; (6) his motion to reopen is not time-barred because country conditions in The Gambia have changed; and (7) he is eligible for “re-papering” and cancellation of removal. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
First, this Court lacks jurisdiction to consider several of petitioner’s arguments regarding the May 2008 order because he failed to exhaust all administrative remedies. 8 U.S.C. § 1252(d)(1).1 Furthermore, we have consistently held that we ordinarily will not consider arguments regarding individual issues that were not exhausted before the agency. See, e.g., Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122-23 (2d Cir.2007). Before the BIA, Saho failed to challenge his in absentia order of removal because of alleged ineffective assistance of counsel and because he allegedly did not receive oral notice of the hearings. Additionally, Saho did not argue before the BIA that he “attended” his hearing because he was at the immigration court, though assertedly in the incorrect room. Finally, Saho argued neither that he is eligible for “re-papering” nor that equitable tolling should apply before the BIA. Accordingly, we cannot consider any of these arguments. We therefore proceed to consider the remaining questions pressed by Saho — namely, his challenge to the BIA’s May 2008 order denying his motion to reopen.
We review denials of motions to reopen or continue proceedings for “abuse of discretion.” See Melnitsenko v. Mukasey, 517 F.3d 42, 50 (2d Cir.2008). The BIA “abuses its discretion” — that is, errs as a matter of law — if its decision “(1) provides no rational explanation, (2) inexplicably departs from established policies, (3) is devoid of any reasoning, (4) contains only summary or conelusory statements, or (5) fails to consider the facts of record relevant to the motion.” Ni v. Mukasey, 520 F.3d 125, 129 (2d Cir.2008) (internal alteration marks omitted).
Here the BIA denied Saho’s motion to reopen because it was untimely and numerically barred under the applicable regulation. 8 C.F.R. § 1003.2(c)(2). An alien seeking to reopen proceedings is en*647titled to one motion to reopen and must file that motion no later than 90 days after the date on which the final administrative order was entered. Id. Saho challenges the BIA’s denial of his third motion to reopen, which was filed in August 2007— ten years after the Immigration Judge ordered Saho removed. There is no dispute that Saho’s August 2007 motion to reopen was untimely and numerically barred.
Although Saho’s motion is untimely and numerically barred, he may reopen his proceedings if he qualifies for one of the exceptions outlined in the regulations. See 8 C.F.R. § 1003.2(c)(3). Saho argues that he qualifies for the exception allowing additional motions to reopen “based on changed circumstances arising in the country of nationality ... if such evidence is material and was not available ... at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Although Saho does allege a change in his personal circumstances — the birth of his three U.S. citizen daughters — he does not allege a change in circumstances in the country of removal. It is well-settled that a change in personal circumstances does not qualify as an exception to the time and number limits on motions to reopen. See Wei Guang Wang v. Board of Immigration Appeals, 437 F.3d 270, 273-74 (2d Cir.2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). Because Saho did not allege a change in country circumstances, he does not qualify for an exception to the time and number limits and therefore the BIA’s denial of his motion to reopen was proper.
Furthermore, Saho is ineligible to file a successive asylum application because he is subject to a final order of removal. To file a successive asylum application when subject to a final order of removal, a petitioner must meet the same procedural requirements as a motion to reopen. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008). Specifically, a petitioner must exhibit a change in country conditions that would warrant an exception to the time and number limits for a motion to reopen. Id. at 150. Because Saho alleges only a change in personal circumstances, and does not suggest, much less show, changed country conditions, he is ineligible to file a successive application for asylum while subject to a final order of removal.2
Because we conclude that the BIA was correct in its May 2008 order denying Saho’s motion to reopen on these several procedural grounds, we need not reach the issue of whether Saho was prima facie eligible for asylum or withholding of removal. See, e.g., Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 106-07, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (holding that there are three independent grounds on which the BIA may deny a motion to reopen, including for failure to offer material, previously unavailable evidence). As we have previously held, “[b]e-cause petitioners failed to satisfy the requirements for a motion to reopen, the BIA did not err in ... failing to consider their successive asylum applications.” Yuen Jin, 538 F.3d at 160.
Finally, we conclude that the BIA was correct in denying petitioner’s fourth motion to reopen. First, neither Saho’s argument that he should not be considered to have failed to appear for his deportation hearings nor the claim that he failed to receive oral warnings of the consequences of his failure to appear provide for an exception to the time and number limitations on motions to reopen. See 8 C.F.R. § 1003.2(c).
*648Second, though ineffective assistance of counsel may in some circumstances provide a basis for equitable tolling of the time and number limitations, “an alien must demonstrate that he or she has exercised due diligence during the entire period he or she seeks to toll. This 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.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008). Here, as the BIA properly found, nine years passed from the time Saho received the allegedly ineffective assistance until he sought to reopen his proceedings, during which time he took no apparent action to pursue his claims, making equitable tolling entirely inappropriate.
Accordingly, there is no basis to reopen Saho’s deportation proceedings or to rescind the in absentia order of deportation and the BIA did not err in finding the third and fourth motions to reopen time and number barred. As Saho is subject to a final order of deportation, he is prima facie ineligible for the “re-papering” procedure of Section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which is available only in cases “in which there has not been a final administrative order” of deportation. Pub.L. 104-208, § 309(c), 110 Stat. 3009 (codified as Note to 8 U.S.C. § 1101).
CONCLUSION
For the foregoing reasons, the petition for review is DENIED.
. This statute provides that "[a] court may review a final order of removal only if ... the alten has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
. Petitioner may of course ask the BIA to reopen his case sua sponte so that, even at this late date, he can make his claims related to FGM. We intimate no view on any such application. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471755/ | SUMMARY ORDER
Xhavit Lajqi, a native and citizen of Kosovo, seeks review of an October 27, 2008 order of the BIA denying his motion to remand and affirming the December 15, 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 Xhavit Lajqi, No. A098 890 976 (B.I.A. Oct. 27, 2008), aff'g No. A098 890 976 (Immig. Ct. N.Y. City Dec. 15, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of 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). 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. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). 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, 421 F.3d 149, 156-57 (2d Cir.2005).
As a preliminary matter, while his appeal to the BIA was pending, Lajqi submitted additional evidence, which the BIA construed as a motion to remand and subsequently denied. As Lajqi does not challenge the BIA’s denial of his motion, he waives any such argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
In denying Lajqi’s application for asylum, withholding of removal, and CAT relief, the agency properly concluded that conditions in Kosovo had changed sufficiently such that Lajqi’s fear of persecution was no longer objectively well-founded. 8 C.F.R. § 1208.13(b)(l)(i)(A); see also Hoxhallari v. Gonzales, 468 F.3d 179, 187-88 (2d Cir.2006) (upholding the agency’s finding that conditions in Albania had changed fundamentally such that any presumption of a well-founded fear had been rebutted). But see Alibasic v. Mukasey, 547 F.3d 78, 81-82 (2d Cir.2008) (finding insufficient the BIA’s reasoning in reversing the IJ’s grant of asylum based on allegedly changed country conditions). Here, the agency properly based its decision on record evidence and adequately *650explained its reasoning. Cf. Alibasic, 547 F.3d at 81-82. Indeed, the State Department report in the record indicated that an ethnic Albanian was elected president of Kosovo, that inter-ethnic violence had decreased, that Kosovo developed a multiparty political system with the three main parties sharing power, and that the Kosovo Liberation Army was disbanded. Thus, because substantial evidence supports the agency’s finding that country conditions have fundamentally changed in Kosovo, the agency properly denied Lajqi’s application for asylum. 8 C.F.R. § 1208.13(b)(l)(i)(A).
Although Lajqi argues that the BIA erred in denying his claim for humanitarian asylum, we cannot disagree with the agency’s finding that Lajqi did not show the type of atrocious persecution for which humanitarian asylum is reserved. See Matter of Chen, 20 I. & N. Dec. 16, 19-20 (BIA 1989); Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir.2007).
Because Lajqi was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on his claims for withholding of removal and CAT relief. See 8 C.F.R. § 1208.16(b)(1 )(i)(A); 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, 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/8471759/ | SUMMARY ORDER
Defendant-appellant Eduardo Antonio Serna challenges a November 21, 2007 judgment of the District Court sentencing defendant principally to 70 months’ imprisonment to be followed by five years of supervised release, entered by the Court after he pleaded guilty, with no plea agreement, to conspiring to distribute and to possess with intent to distribute 50 grams or more of cocaine base, see 21 U.S.C. §§ 846(b), 841(b)(l)(A)(iii), and to distributing and possessing with intent to intent to distribute 50 grams or more of cocaine base, see 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(iii). On appeal, defendant contends that (1) the sentence imposed by the District Court was procedurally and substantively unreasonable and (2) he received ineffective assistance of counsel. We assume the parties’ familiarity with the facts and procedural history of the case.
Defendant’s sentence was neither procedurally nor substantively unreasonable. United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (ere banc) (“[Appellate scrutiny [of sentences] encompasses two components: procedural review and substantive review.”). It is undisputed that the District Court identified the proper Guidelines range, acknowledged that the range was advisory, and considered the factors set forth in 18 U.S.C. 3553(a). See United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006) (reasoning that, whether a sentence is “procedurally reasonable” depends on “whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a)”). We note, in particular, that the District Court correctly applied U.S.S.G. § 2D1.1 cmt. n. 10, as written, see United States v. Crosby 397 F.3d 103, 115 (2d Cir.2005) (noting that district courts must consider “the applicable Guidelines range (or arguably applicable ranges) as well as the other factors listed in [S]ection 3553(a)” (emphasis added)), and that defense counsel did not object to the District Court’s Guidelines calculation. Moreover, we find that the sentence imposed by the District Court, which was at the bottom of the recommended Guidelines range, was substantively reasonable.
Although we have “expressed a baseline aversion to resolving ineffectiveness claims on direct review, ... [we have] entertained ineffective assistance claims *654for the first time on direct appeal when their resolution is beyond any doubt or to do so would be in the interest of justice.” United States v. Khedr, 343 F.3d 96, 99-100 (2d Cir.2003) (internal quotation marks omitted). In this case, we are able to conclude, beyond any doubt, that defendant, who avoided a ten-year statutory mandatory minimum sentence because he obtained “safety valve” relief, see 18 U.S.C. § 3553(f)(5), cannot meet the high bar for demonstrating ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Two of defendant’s proffered grounds for ineffective assistance are factually incorrect inasmuch as, contrary to defendant’s contentions on appeal, (1) defendant never entered into a plea agreement and (2) trial counsel did indeed seek a departure based on defendant’s purportedly minor role in the offense. Moreover, we decline to second guess trial counsel’s decision not to contest defendant’s involvement in drug transactions with co-defendant Janet Quijano. Had defendant contested those charges at trial or not received safety-valve relief he could have been subject to a ten-year mandatory minimum sentence. See United States v. Gaskin, 364 F.3d 438, 470 (2d Cir.2004) (“A defense attorney does not render objectively unreasonable representation when he advises his client to act in a way that secures a reduced sentence.”).
CONCLUSION
For the reasons stated above, the November 21, 2007 judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471761/ | SUMMARY ORDER
Petitioner Guo Ying Lin, a native and citizen of the People’s Republic of China, seeks review of a February 12, 2008 order of the BIA denying his “Motion to Reopen/Reonsider.” In re Guo Ying Lin, No. A070 899 868 (B.I.A. Feb. 12, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The BIA did not abuse its discretion in denying Lin’s motion to reconsider for failure to specify errors of fact or law in its prior decision denying his first motion to reopen as untimely. See 8 C.F.R. § 1003.2(b)(1); see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). Indeed, in his motion to reconsider, Lin argued that the BIA should have excused the untimeliness of his first motion to reopen based on the ineffective assistance of his former counsel; however, as the BIA noted, Lin did not make such an argument in his first motion to reopen. See 8 C.F.R. § 1003.2(b)(1); see also In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006) (providing that “[a] motion to reconsider is not a mechanism by which a party may file a new brief before the Board raising additional legal arguments that are unrelated to those issues raised before”).
The BIA also did not abuse its discretion in denying Lin’s second motion to reopen as untimely and number-barred. Indeed, there is no dispute that Lin’s second motion to reopen filed in November 2006 was untimely and number-barred where the BIA entered a final order of removal in March 2002. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered).
Furthermore, the BIA did not abuse its discretion in declining to equitably toll the time period for filing Lin’s motion to reopen because he failed to demonstrate that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). Contrary to Lin’s argument, the BIA did not err in requiring him to demonstrate due diligence in pursuing his claims during the time period before his discovery of the purportedly ineffective assistance of his former counsel. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d *656Cir.2008). Moreover, the record supports the BIA’s finding that Lin failed to take any actions in his case for almost a year between the BIA’s March 2002 decision dismissing his appeal and his discovery of that dismissal in February 2003. Even after discovering the allegedly ineffective assistance of counsel, Lin waited more than three years to file a motion to reopen. Given this substantial delay, the BIA did not err in refusing to equitably toll the time period for filing Lin’s motion. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007).
In addition, Lin abandons any challenge to the BIA’s determination that he failed to demonstrate material changed country conditions excusing the time and numerical limitations for filing his motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii) (providing that there is no time limit for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing”). Instead, Lin argues that we should remand his case for reconsideration of his motion to reopen in light of our decision in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008). However, in Man Hui Shao, we reviewed the agency’s analysis of evidence similar to that in the record of this case, and concluded that it did not err in finding that such evidence does not demonstrate either material changed country conditions or a reasonable possibility of persecution. 546 F.3d at 169-72. Therefore, remand is inappropriate. See id.; see also Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (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 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/8471763/ | SUMMARY ORDER
Defendant-appellant Jose Delacruz challenges a judgment of conviction entered by the District Court on March 7, 2008 after he pleaded guilty to conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, see 21 U.S.C. § 846. The District Court sentenced defendant principally to 108 months’ imprisonment, to be followed by a term of three years’ supervised release. On appeal, defendant argues that the District Court committed plain error by ordering a forfeiture without informing the defendant of the possibility of forfeiture in light of his plea. See Fed.R.Crim.P. ll(b)(l)(J) (“Before the court accepts a plea of guilty .... [it] must inform the defendant of, and determine that the defendant understands ... any applicable forfeiture.”). We assume the parties’ familiarity with the facts and procedural history of the case.
Defendant’s contention that the District Court committed plain error in failing to inform him of an applicable forfeiture of approximately $1.77 million prior to imposing a forfeiture in that amount is unavailing. It is not disputed that neither defendant’s plea agreement nor the Rule 11 proceeding informed him of the forfeiture. However, even assuming that the District Court committed error that was plain, defendant has not established that the error prejudicially affected his substantial rights. See United States v. Torrellas, 455 F.3d 96, 103 (2d Cir.2006) (“To satisfy the plain-error standard, the defendant must demonstrate, inter alia, that (1) there was error, (2) the error was plain, [and that] (3) the error prejudicially affected his substantial rights.” (internal quotation marks *658omitted)). Defendant, who received a sentence below the suggested Guidelines range, does not claim or make any effort to demonstrate that, but for the District Court’s error, he would not have pleaded guilty. See id. (“In order to demonstrate that a Rule 11 error affected his substantial rights, a defendant must show ‘a reasonable probability that, but for the error, he would not have entered the plea.’”) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2338, 159 L.Ed.2d 157 (2004)). Indeed, defendant has at no point attempted to withdraw his guilty plea.
Vacatur of the March 7, 2008 judgment of conviction is not warranted. Nevertheless, the Government and defendant agree that the cause should be remanded for the limited purpose of vacating the forfeiture order, which was not mentioned in the Rule 11 proceeding. We agree that, in the circumstances presented, a limited remand is appropriate.
CONCLUSION
For the reasons stated above, the March 7, 2008 judgment of conviction is AFFIRMED except with respect to the question of forfeiture, and the cause is REMANDED for the limited purpose of having the District Court vacate the forfeiture order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471765/ | SUMMARY ORDER
Petitioner, Li Jie Wang, seeks review of a November 24, 2008 order of the BIA denying her motions to reonsider and reopen. In re Li Jie Wang, No. A 095 161 911 (B.I.A. Nov. 24, 2008). 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 reconsider or reopen for abuse of discretion. See Ri Kai Lin v. BCIS, 514 F.3d 251, 253-54 (2d Cir.2008).
I. Motion to Reconsider
The regulations provide that a motion to reconsider must specify errors of fact or law in the BIA’s decision and be supported with pertinent authority. See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reconsider “is a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.” Matter of Cerna, 20 I. & N. Dec. 399, 402 n. 2 (B.I.A.1991) (internal quotation marks omitted).
The BIA did not abuse its discretion in denying Wang’s motion to reconsider because she failed to specify any error in fact or law in its July 2006 decision. See 8 C.F.R. § 1003.2(b)(1). The BIA reasonably found that to the extent her motion to reconsider reiterated the same ineffective assistance of counsel claim she made in her first motion to reopen, it had previously reviewed and rejected that claim. See Jin Ming Liu v. Gonzales, 439 *660F.3d 109, 111 (2d Cir.2006) (finding that the BIA does not abuse its discretion by denying a motion to reconsider where the motion merely repeats arguments that the BIA has previously rejected). Additionally, the BIA properly found that to the extent Wang’s motion to reconsider raised neiv factual assertions concerning the representation of different counsel, it did not specify an error of fact or law in the July 2006 decision. See 8 C.F.R. § 1003.2(b)(1); Matter of O-S-G-, 24 I. & N. Dec. 56, ST-58 (B.I.A.2006) (“A motion to reconsider contests the correctness of the original decision based on the previous factual record....”).
II. Motion to Reopen
The BIA denied Wang’s second motion to reopen because it was number-barred under 8 C.F.R. § 1003.2(e)(2), and declined to reopen her immigration proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). To the extent that Wang, citing 8 U.S.C. § 1252(a)(2)(D), states a reviewable claim that application of the number bar violated her due process rights, that claim is wholly without merit. She admitted presenting a fraudulent asylum application, and was nonetheless given the opportunity to present an amended application. Wang was granted numerous continuances over a two-and-a-half year period to allow her to file an amended application. She failed to do so. Moreover, she has already litigated one motion to reopen. See Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir.2008) (holding that motions to reopen provide additional process to aliens challenging removal). Under these circumstances, it cannot be said that the government denied Wang a “full and fair opportunity to present her claims.” See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir.2006) (internal quotation marks omitted).
To the extent that Wang claims that her situation is “exceptional” and therefore the BIA should have reopened under 8 C.F.R. § 1003.2(a), Matter of J-J-, 21 I & N. Dec. 976, 984 (B.I.A.1997), we lack jurisdiction to review this claim, see Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
We have reviewed Wang’s other claims and find them to be without merit.
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. 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/8471767/ | SUMMARY ORDER
Appellants Ruth E. Buck and Donald Buck (“the Bucks”), proceeding pro se, appeal the district court’s dismissal of their complaint. The Bucks argue, inter alia, that the district court erred in finding that they had failed to comply with Northern District of New York Local Rule 7.1 (“Local Rule 7.1”) and granting summary judgment on their obstruction of easement claim against Thomas Libous and Frances Libous (“the Libouses”) after deeming the Libouses’ statement of material facts admitted. The Libouses argue, inter alia, that the district court properly applied Local Rule 7.1. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo orders granting summary judgment, and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Mil*662ler v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). We are required to resolve all ambiguities and draw all inferences in favor of the nonmovant. See Nationwide Life Ins. Co. v. Bankers Leasing Assoc., 182 F.3d 157, 160 (2d Cir.1999).
As a preliminary matter, we note that the only remaining claim on appeal is the Bucks’ obstruction of easement allegation. Moreover, as the Bucks’ brief concerns solely the district court order granting summary judgment on the obstruction of easement claim against the Libouses, the Bucks have waived any argument that the district court erred in denying this claim against other defendants. See, e.g., Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998).
We accord “considerable deference” to a district court’s interpretation and application of its own local rule, and review such rulings for abuse of discretion. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir.1995). Local Rule 7.1 requires, in relevant part, that a party opposing a motion for summary judgment file a response that mirrors the movant’s statement of material facts, admits or denies each of the movant’s assertions in matching numbered paragraphs, and supports denials with specific citations to the record.
Here, although the Bucks’ response perhaps did not “mirror” the Libouses’ statement of material facts, it did list specific paragraphs and express opposition to the facts asserted therein, particularly those facts relating to the location of the easement and right of way. Further, although the Bucks may not have provided specific citations to the record in their response, they included affidavits that supported then* counter-assertions of fact. Accordingly, the Bucks plainly intended to controvert assertions raised in the Libouses’ statement of material facts, and supported them own assertions with relevant documents.
In addition, Fed.R.Civ.P. 83 provides that a “local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply.” See Fed.R.Civ.P. 83; see also Contino v. United States, 535 F.3d 124, 127 (2d Cir.2008). In this case, the record provides no indication that the Bucks willfully failed to comply with Local Rule 7.1, and enforcement of this rule would cost them their right to present this claim to a jury. See Nationwide Life Ins. Co., 182 F.3d at 160 (‘We have long recognized that summary judgment is a drastic device, since its prophylactic function, when exercised, cuts off a party’s right to present his case to the jury.”)(internal quotation marks omitted). Indeed, the Bucks provided a separate “Statement of Material Fact” section that specifically contested paragraphs 19 and 60 of the Libouses’ statement of facts — the two facts that the district court found to be dispositive.
Accordingly, given the Bucks’ response, their pro se status, and Fed.R.Civ.P. 83, the district court abused its discretion in finding that the Bucks failed to comply with Local Rule 7.1, and deeming the Li-bouses’ statement of material facts admitted. Further, the location of the easement and right of way is a disputed issue of material fact, and it was therefore inappropriate to grant summary judgment on the Bucks’ obstruction of easement claim against the Libouses.
We need not decide whether the Bucks’ prior sworn allegations in an unrelated case contradict the prior testimony of Richard Buck, as this would not necessarily preclude the Bucks from raising a material issue of fact regarding their obstruction of easement claim.
*663We have considered all remaining claims and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby VACATED and REMANDED in part and AFFIRMED in part. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471769/ | SUMMARY ORDER
Angela J. Martel appeals from a judgment of the United States District Court for the District of Connecticut (Eginton, J.) dismissing her § 1983 suit against South Windsor police officer Richard A. Watrous on grounds of qualified immunity. Martel was arrested and tried for the burglary of her aunt’s home, but was acquitted by a jury. She subsequently filed suit against Watrous and the Town of South *664Windsor, alleging, inter alia, false arrest and seeking damages for violation of her federal and state constitutional rights. The district court ruled that Watrous was entitled to qualified immunity with regard to Martel’s federal claims because it was objectively reasonable for Watrous to act as he did in arresting Martel. On appeal, Martel argues that Watrous’s actions were not objectively reasonable. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
“An arresting officer is entitled to qualified immunity from a suit for damages on a claim for arrest without probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Golino v. New Haven, 950 F.2d 864, 870 (2d Cir.1991). “[Pjrobable cause to arrest exists when police officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir.2007) (internal quotation marks omitted).
“Normally, the issuance of a warrant by a neutral magistrate, which depends on a finding of probable cause, creates a presumption that it was objectively reasonable for the officer[ ] to believe that there was probable cause, and a plaintiff who argues that a warrant was issued on less than probable cause faces a heavy burden.” Golino, 950 F.2d at 870 (citations omitted). “In order to mount such a challenge, the plaintiff must make a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in his affidavit and that the allegedly false statement was necessary to the finding of probable cause.” Id. (internal quotation marks omitted).
Martel has failed to discharge this heavy burden. She first attacks Watrous’s subjective belief that the written confession signed by Grant (the actual burglar) implicating Martel was truthful, arguing that the record contains no evidence indicating that Watrous actually believed Grant, and suggesting that in any case Watrous’s mental state is a fact for the jury. But the mere assertion that Watrous may not have believed Grant’s confession is insufficient. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.2008) (“A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory.”).
Martel next argues that Watrous could not have reasonably relied on her aunt’s statements implicating Martel because these amounted to “rank speculation, unsubstantiated suspicions, raw conjecture and naked assumption.” However, the aunt adduced reasons to support her suspicions. And “[wjhen information is received from a putative victim ... probable cause exists unless the circumstances raise doubt as to the person’s veracity.” Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir.2001) (citation omitted). Martel has pointed to nothing in the record that would call her aunt’s truthfulness into question, and Watrous was therefore entitled to rely on the aunt’s information in determining probable cause.
Finally, Martel suggests that Watrous either disregarded or failed to appreciate certain exculpatory evidence. But there is no evidence to show that Watrous either knowingly or recklessly included false information in the warrant affidavit or omitted relevant information.
*665Accordingly, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471682/ | PER CURIAM.
ORDER
Upon review of Michael S. Anderson’s recently docketed appeal, we sua sponte consider whether we have jurisdiction over this appeal.
Anderson filed a prisoner civil rights complaint in the United States District Court for the Southern District of Georgia. The district court dismissed the complaint for failure to exhaust administrative remedies. Anderson appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affmmed the district court’s dismissal on January 8, 2008, 261 Fed.Appx. 254. On March 3, 2008, — U.S. -, 128 S.Ct. 1476, 170 L.Ed.2d 300, the United States Supreme Court denied Anderson’s petition for writ of certiorari. In March of 2009, Anderson filed another notice of appeal with the district court, this time seeking review by this court.
It is unclear whether Anderson seeks review of the district court’s decision, the Eleventh Circuit’s decision, or the Supreme Court’s disposition. In any event, this court does not have jurisdiction to review any of those matters. This court’s jurisdiction over appeals is limited pursuant to 28 U.S.C. § 1295(a)(1), (2). Therefore, this appeal must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) Anderson’s appeal is dismissed for lack of jurisdiction.
(2) Each side shall bear its own costs.
(3) Any other pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471684/ | ON MOTION
ORDER
Rashid El Malik moves to voluntarily dismiss his appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471687/ | ON MOTION
ORDER
James T. Kirby moves without opposition to voluntarily dismiss his appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471690/ | ON MOTION
NEWMAN, Circuit Judge.
ORDER
The United States moves to dismiss E. Lisk Wyckoff, Jr.’s appeal as premature. Wyckoff does not oppose.
Wyckoff filed a complaint in the United States Court of Federal Claims seeking a refund of federal income taxes paid in connection with his investments in a group of tax-shelter partnerships. This complaint was one of several related com*572plaints filed in the Court of Federal Claims seeking such relief. The trial court stayed this case pending its decision in Prati v. United States, 81 Fed.Cl. 422 (2008), believing that the decision in Prati would control the outcome of the other cases. In Prati, the Court of Federal Claims dismissed the case, determining that it lacked jurisdiction over the alleged claims. Accordingly, the Court of Federal Claims also dismissed the other pending cases. On reconsideration, the Court of Federal Claims vacated its judgment in the present case, finding case-specific claims that were not resolved by Prati. Wyckoff appealed to this court.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(3). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” (citation omitted)). Wyckoff does not disagree that his appeal is premature. Because the Court of Federal Claims vacated its judgment and has not concluded its proceedings, there is no final judgment. Wyckoff may, of course, file a notice of appeal after the trial court concludes its proceedings and enters final judgment, if appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471692/ | ON MOTION
ORDER
Upon consideration of Hanley Industries, Inc.’s motion to voluntarily dismiss its appeal,
IT IS ORDERED THAT:
*573(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471694/ | ON MOTION
NEWMAN, Circuit Judge.
ORDER
Marc Mathers moves for an extension of time to file his brief or, in the alternative, for leave to file his brief out of time. Yshheyna Hamilla opposes and moves to dismiss Mathers’ appeal for failure to prosecute. Mathers opposes. Hamilla replies.
Mathers filed a notice of appeal on December 30, 2008. The certified list of the United States Patent and Trademark Office was filed on February 6, 2009 and the appeal was docketed on February 9, 2009. Mathers did not file his brief by the due date set by the court’s rules. Instead, Mathers filed a motion for an extension of time on April 14, 2009.
Hamilla argues that because Mathers did not file a timely brief or a timely motion for an extension of time in compliance with Fed. Cir. R. 26(b)(1), the appeal should be dismissed for failure to prosecute. Mathers asserts that he was under the impression that he would receive a document from the United States Patent and Trademark Office indicating that the “record on appeal was complete and that the period of time allowed for preparation of the appeal brief had begun.” Counsel for Mathers further states that he relied on a former secretary who “had suddenly become unreliable and who represented to the undersigned that she had made regular checks for the due date of this action when, in fact, no such checks had been made.”
Fed. Cir. R. 31(a)(1)(B) provides that in an appeal from an agency decision, the appellant’s brief is due within 60 days of the date of service of the certified list. Counsel is charged with knowledge of the court’s rules, and counsel’s failure to properly review or understand the rules does not excuse his noncompliance.
Furthermore, counsel for Mathers states in his extension motion, filed on April 14, “[l]ast week the undersigned received an email from a contract vendor which stated that the initial brief was due on April 14, 2009.” Counsel does not explain why he did not promptly act on this information and file a brief or an extension motion immediately. Rule 26(b) requires that a motion for an extension of time be made at *574least 7 days prior to the date sought to be extended or, if it is not, that it be accompanied by an affidavit or declaration explaining the extraordinary circumstances justifying deviation from this requirement. Mathers’ extension motion does not include the required affidavit or declaration and thus fails to comply with the court’s rules.
Because Mathers did not timely file his brief or file a proper extension motion, the appeal is dismissed. See Julien v. Zeringue, 864 F.2d 1572 (Fed.Cir.1989) (court may dismiss for failure to file a brief).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
(3) All pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471770/ | SUMMARY ORDER
Petitioners Moussa Abbas El Chaikh Ali (“Moussa”) and Hassan Abbas El Chaikh Ali (“Hassan”), citizens of Lebanon, seek review of a September 27, 2006 order of the BIA affirming the October 25, 2004 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, denying their applications for asylum, withholding of removal and relief under Article 3 of the Convention Against Torture (“CAT”). In re Moussa Abbas El Chaikh Ali, Hassan Abbas El Chaikh Ali, Nos. A95 282 567, A95 282 568 (B.I.A. Sept. 27, 2006), aff'g Nos. A95 282 567, A95 282 568 (Immig. Ct. N.Y. City Oct. 25, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Scope of Review
Where, as here, the BIA agrees with the IJ’s conclusions, but rejects some of her findings and supplements her decision, we review the IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We have never held that a petitioner is limited to the “exact contours” of the arguments he or she made before the agency. Gill v. INS, 420 F.3d 82, 85-86 (2d Cir.2005). On the contrary, we may consider “specific, subsidiary legal arguments, or arguments by extension,” even if such arguments were not presented below. Id. at 86. In determining which argu-*667merits constitute “issues” that must be exhausted, and which constitute “subsidiary-arguments” that do not, we examine whether an unexhausted argument “constitutes a ground, in and of itself, on which an IJ’s denial of [relief] may be based.” Steevenez v. Gonzales, 476 F.3d 114, 117-18 (2d Cir.2007).
Here, the Petitioners clearly challenged the IJ’s nexus finding in their notices of appeal to the BIA. Specifically, they reiterated their initial contention that Moussa was punished because of his political opinion. Accordingly, we find that the Petitioners’ assertion that the Lebanese government may have had a mixed motive for mistreating Moussa to be a subsidiary legal argument of the overall claim that Moussa suffered persecution on account of his political opinion. Gill, 420 F.3d at 85-86. Furthermore, although the Petitioners did not raise before the BIA Hassan’s claim that he feared persecution because he had refused to join Hezbollah, that issue is administratively exhausted because the BIA directly addressed the issue in its opinion. See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). Moreover, Moussa and Hassan exhausted their argument that the mistreatment of their family members established a pattern and practice of persecution against similarly situated individuals in Lebanon, where, in their notices of appeal, the Petitioners mentioned the mistreatment of their family and specifically noted that they need not show that they would be singled out for persecution if they demonstrated that similarly situated individuals have been the target of a pattern or practice of persecution. Accordingly, we find that Petitioners exhausted this argument by raising it with specificity before the BIA. See Steevenez, 476 F.3d at 117.
Lastly, the petitioners failed to raise a CAT claim before the BIA or this Court, and we deem any such claim to be unexhausted and waived. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
Merits
Moussa contends that his persecution, including imprisonment and torture, bore a nexus to his political opinions because his spying on Hezbollah for the government of Israel was motivated by his opposition to the government of Lebanon, and his punishment was motivated at least in part, not only by his violation of Lebanese law, but also by the fact that his violation was grounded in political opposition to the regime in general and Hezbollah in particular. The BIA’s rejection of his nexus contention was made before this Court’s decision in Vumi v. Gonzales, 502 F.3d 150 (2d Cir.2007). In Vumi we ruled that the agency must consider “the political context or country conditions” in order to determine whether an opponent of a regime had the opportunity, available in democracies, to promote change through peaceful processes. See id. 502 F.3d at 156. We conclude that the case must be remanded to afford the agency an opportunity to reconsider in light of Vumi. Since a remand must occur, it may also be appropriate for the agency to consider our recent decision in Delgado v. Mukasey, 508 F.3d 702 (2d Cir.2007), concerning persecution at the hands of a terrorist organization, and Islami v. Gonzales, 412 F.3d 391 (2d Cir.2005), concerning persecution based on refusal to join the Serb-dominated Yugoslavian army, which “would likely require [the petitioner’s] participation in military campaigns widely ‘condemned by the international community as contrary to basic rules of human conduct.’ ” Id. at 397 (quoting M.A. v. INS, 899 F.2d 304, 312 (4th Cir.1990)).
Apart from the agency’s reconsideration pursuant to this remand, we invite the *668responsible officials of the Executive Branch to give consideration to whether it wishes to pursue removal of an individual who has suffered imprisonment and torture for aiding an ally of the United States in opposing Hezbollah, an entity formally listed by this country as a terrorist organization.
For the foregoing reasons the petition for review is GRANTED, the BIA’s decision is VACATED and the case is REMANDED to the agency for further proceedings. Any previously granted motion to stay removal is VACATED, and any pending request for oral argument in this case is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), Second Circuit Local Rule 34(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471772/ | SUMMARY ORDER
Plaintiff-appellant Heriberto Palacio, incarcerated at the Coxasackie Correctional Facility and proceeding pro se, challenges an August 15, 2006 judgment of the District Court granting the motion of defen*669dants-appellees for summary judgment and dismissing his complaint. Plaintiff brought the instant civil rights action pursuant to 42 U.S.C. § 1988 in connection with claims that defendants-appellees violated his rights under the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment of the Constitution while he was incarcerated at the Manhattan Detention Center for Men (“MDC”). Before the District Court, plaintiff alleged principally that his Centrally Monitored Classification status was improper; that defendants failed to protect him from attacks by two inmates; and that he was denied adequate medical care. On appeal, plaintiff contends that the District Court erred in (1) denying him appointment of counsel in violation of his Sixth Amendment right to counsel; (2) refusing to compel discovery; and (3) granting summary judgment to defendants. We assume the parties’ familiarity with the facts and procedural history of the case.
In order to establish a procedural due process claim under § 1983, a plaintiff must demonstrate that he possessed a protected property or liberty interest and was deprived of it without due process. See, e.g., McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir.2001). As a general rule, conditions of confinement imposed in pretrial detention do not give rise to a violation of a prisoner’s due process rights unless they are punitive. See Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee.”). Moreover, we are mindful that the intervention of courts in a prison’s classification of prisoners for monitoring and control purposes might in some cases improperly involve courts in the day-to-day operations of prison systems, “which are better left to the expertise of prison administration authorities.” Pugliese v. Nelson, 617 F.2d 916, 925 (2d Cir.1980). We have held that “the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is not a right protected by the due process clause itself.” Covino v. Vt. Dep’t of Corr., 933 F.2d 128, 129 (2d Cir.1991) (internal quotation marks omitted); see also Bell, 441 U.S. at 537, 99 S.Ct. 1861 (noting that “[n]ot every disability imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense”). As the District Court noted, we have also held that, in the context of pretrial detention in the federal prison system, “a prisoner’s mere expectation of benefits associated with non-CMC status does not amount to a statutory or constitutional entitlement sufficient to trigger due process protections.” Pugliese, 617 F.2d at 925.
The record in this case does not indicate that plaintiff was assigned to CMC status as a punitive measure. Accordingly, we agree with the District Court that, at least under the circumstances presented here, “ ‘New York State CMC designation is not a deprivation of a liberty interest triggering due process considerations.’ ” Palacio, 2006 WL 2372250, at *8, 2006 U.S. Dist. LEXIS 57339, at *30 (quoting Mack v. Artuz, No. 01 Civ. 11832, 2002 WL 31845087, at *7, 2002 U.S. Dist. LEXIS 24216, at *23 (S.D.N.Y. Dec. 19, 2002); see also Majid v. Malone, No. 95 Civ. 2545, 1996 WL 134756, at *3, 1996 U.S. Dist. LEXIS 3515, at *8 (S.D.N.Y.1996)) (observing that New York State CMC designation is similar to federal CMC designation “in all material respects”). It follows from our conclusion that plaintiff has not established a liberty interest in the appeal of his CMC classification.
*670We have reviewed plaintiffs remaining claims and find them to be without merit. Substantially for the reasons stated by the District Court in its careful and thoughtful Memorandum Decision and Order of August 11, 2006, the August 15, 2006 judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471774/ | *671
SUMMARY ORDER
John Doe appeals from an order of the District Court for the District of Connecticut (Eginton, J.) granting summary judgment in favor of defendants-appellees. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The district court had subject matter jurisdiction over this matter through diversity jurisdiction under 28 U.S.C. § 1331. This Court has appellate jurisdiction over the district court’s summary judgment ruling pursuant to 28 U.S.C. § 1291. The case is properly decided under Connecticut state law.
Both parties acknowledge that a negligence claim cannot survive if the defendant had no legal duty to protect the plaintiff from the type of harm suffered. Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997). Whether a legal duty exists is a legal question that a court can decide at summary judgment. Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). The existence of a legal duty depends upon a two prong analysis that examines 1) the foreseeability of the harm and 2) public policy. Monk v. Temple George Assocs., LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005).
Connecticut has adopted the Restatement (Second) of Torts § 317, which provides that an employer has a duty to control off-duty employees only when the tort occurs on premises in possession of the master or on grounds the employee entered as a servant (neither of which apply here), or when the employee uses the chattel of the employer. Murdock v. Croughwell, 268 Conn. 559, 569-70, 848 A.2d 363 (2004). The Restatement, as well as underlying Connecticut law on duty, further requires that the type of harm also be foreseeable. Id., Jaworski, 241 Conn, at 406, 696 A.2d 332 (foreseeability is determined by “whether a reasonable person in the defendant’s position, knowing what he knew or should have known, would have anticipated the harm that resulted from his actions”).
The district court correctly granted summary judgment to defendant-appellees on all counts. Doe v. Fed. Express Corp., 571 F.Supp.2d 330, 334 (D.Conn.2008). As the district court ruled, the employee, Paul Sykes, did not use the chattels of the employer to commit the tort and the harm suffered was not foreseeable. Doe, 571 F.Supp.2d at 333-34. The chattels allegedly used by Sykes, a FedEx Kinko’s uniform, the office telephone, and the company’s goodwill, were not directly used to commit the sexual abuse. Mrs. Doe correctly understood that Sykes’s computer repair business was separate from FedEx Kinko’s when she engaged him to work at her home. Whatever goodwill his association with FedEx Kinko’s initially represented could not have been the reason that Mrs. Doe left him in charge of her minor children without supervision: she had known Sykes for more than half a year, had had him working at her home approximately 10-20 times, and had invited him back to their home after he swam naked in the family pool with one of her minor sons. This long social relationship between the Doe family and Sykes — and the harm that resulted from that relationship — was not foreseeable to the defendant.
Since the employer’s chattels were incidental to the tort and the harm was not foreseeable, the defendant had no legal duty to protect the plaintiff. Therefore, the district court’s ruling granting summary judgment to the defendant is affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471776/ | *673
SUMMARY ORDER
Jin Ming Zheng, a native and citizen of the People’s Republic of China, seeks review of an October 27, 2006 order of the BIA, affirming the April 19, 2005 decision of Immigration Judge (“IJ”) Paul A. De-Fonzo, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Ming Zheng, No. A70 908 849 (B.I.A. Oct. 27, 2006), aff'g No. A70 908 849 (Immig. Ct. N.Y. City Apr. 19, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
As an initial matter, we decline to consider Zheng’s due process argument that the IJ was biased, because she failed to exhaust such argument before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007); see also Valbrun v. Hogan, 439 F.3d 136, 137 (2d Cir.2006) (finding that a petitioner “cannot evade BIA review merely by labeling [his] claim a due process claim”) (quoting United States v. Gonzalez-Roque, 301 F.3d 39, 48 (2d Cir.2002)). Zheng waives any argument that she was eligible for relief from removal on account of her religion or that she was eligible for CAT relief on account of her illegal departure from China. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
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 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (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).
Substantial evidence supports the agency’s finding that Zheng was not credible as to her claim that she suffered a forced abortion. The IJ reasonably relied on several inconsistencies between Zheng’s testimony and statements in her written asylum application regarding events surrounding her purportedly forced abortion. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir.2006). Even if these inconsistencies are deemed minor, see Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000), the agency did not err in finding that, taken together, they provided support for its adverse credibility finding, see Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (“[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.” (internal citations omitted)). Zheng offered explanations for these discrepancies, but no reasonable fact-finder would have been compelled to credit them. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005). Having called Zheng’s credibility into question, the IJ also reasonably relied on Zheng’s failure to corroborate her claim with a statement from her husband. 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 Shu Wen Sun, 510 F.3d at 379. Thus, the agency properly denied Zheng’s application for asylum, withholding of removal, and CAT relief insofar as it *674was based on her alleged forced abortion. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (recognizing that withholding of removal and CAT claims necessarily fail if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim and the factual predicate for the claims is the same).
Absent past persecution, an applicant may establish eligibility for asylum by showing that she subjectively fears persecution on account of an enumerated ground and that her fear is objectively reasonable. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). In this case, the IJ reasonably found that Zheng failed to demonstrate a well-founded fear of persecution on account of the birth of her U.S. citizen children. Zheng did not assert before the agency a fear that family planning officials would sterilize her forcibly, stating only that family planning officials would “request that either my husband or I undergo sterilization.” 2 Moreover, the IJ did not err in concluding that inability of Zheng’s children to attend public school would not constitute persecution. Cf. Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir.2005) (holding that an alien’s loss of a job without evidence that he could not obtain another job did not constitute persecution). Accordingly, as Zheng failed to demonstrate a well-founded fear of persecution, the agency properly denied Zheng’s application for asylum and withholding of removal insofar as it was based the birth of her U.S. citizen children. See Paul, 444 F.3d at 156.
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).
. Zheng appears to assert for the first time that she has an objectively reasonable fear of forced sterilization if removed to China. However, she did not assert such a claim before the agency. See 8 U.S.C. § 1252(b)(4)(B). The only country conditions evidence in the record is the 2004 U.S. State Department’s Country Report on Human Rights Practices in China, which we have previously held does not demonstrate an objectively reasonable fear that Chinese nationals with foreign bom children will be subject to forced sterilization upon return to China. See Wei Guang Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir.2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471778/ | SUMMARY ORDER
Macary Belizaire, a native and citizen of Haiti, seeks review of: (1) an October 15, 2007 order of the BIA vacating the December 10, 2001 decision of Immigration Judge (“IJ”) Alan Vomacka granting his application for deferral of removal under the Convention Against Torture (“CAT”), In re Macary Belizaire, No. A41 055 892 (B.I.A. Oct. 15, 2007), vacating in part No. A41 055 892 (Immig. Ct. N.Y. City Dec. 10, 2001); and (2) a February 29, 2008 order of the BIA denying his motion to reopen, In re Macary Belizaire, No. A41 055 892 (B.I.A. Feb. 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Belizaire is removable by reason of having committed a criminal offense covered by 8 U.S.C. § 1227(a)(2)(A)(iii) (relating to convictions for aggravated felonies); accordingly, we lack jurisdiction to review *677the agency’s factual findings and discretionary determinations. See 8 U.S.C. § 1252(a)(2)(C). The jurisdictional bar imposed by 8 U.S.C. § 1252(a)(2)(C) likewise applies to the agency’s denial of Belizaire’s motion to reopen. See Santos-Salazar v. U.S. Dep’t of Justice, 400 F.3d 99, 103 (2d Cir.2005) (citing Durant v. INS, 393 F.3d 113, 114-16 (2d Cir.2004)). However, we retain jurisdiction to review any constitutional claims or questions of law Belizaire raises in his petitions for review. See 8 U.S.C. § 1252(a)(2)(D). But a mere quarrel “over the correctness of the factual findings or justification for the discretionary choices” is not a constitutional or legal question. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Nor is a legal argument that is frivolous. Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (citations omitted).
I. No. 07-4885-ag (L): BIA’s Denial of Deferral of Removal
We lack jurisdiction to consider the majority of Belizaire’s challenges to the BIA’s decision vacating the Id’s grant of deferral of removal under the CAT. Belizaire does, however, raise a question of law as to whether the BIA applied an incorrect standard of review on remand. See Xiao Ji Chen, 471 F.3d at 328-29. But this argument is foreclosed by our decision in Belortaja v. Gonzales, in which we concluded that the BIA reasonably applies the pre-September 2002 de novo standard of review to appeals originally filed with the BIA before September 2002 but remanded to the BIA after that date. 484 F.3d 619, 624 & n. 3 (2d Cir.2007). Belizaire’s reliance on an unpublished order of this Court is misplaced. Even if that order had precedential value, the government is correct that the procedural posture in that case was materially different, the BIA having dismissed the original pre-September 2002 appeal and having reopened the appeal after that date.
We lack jurisdiction to consider the balance of Belizaire’s arguments challenging the BIA’s denial of his request for deferral of removal. See 8 U.S.C. § 1252(a)(2)(C). Although Belizaire’s argument that the BIA unambiguously mischaracterized the record appears at first to present a question of law, Maiwand v. Gonzales, 501 F.3d 101, 105 (2d Cir.2007), in substance his argument simply amounts to a challenge of the agency’s factual findings, see Ilyas Khan v. Gonzales, 495 F.3d 31, 36 (2d Cir.2007). Specifically, Belizaire contends that the BIA miseharaeterized the record when it determined that he had submitted no evidence that Haitian prison authorities intentionally deprive mentally ill prisoners of medication or that they intentionally subject the mentally ill to mistreatment. Belizaire merely contests the BIA’s factual determination that, contrary to the IJ’s finding, Belizaire did not demonstrate that Haitian prison authorities mistreat or acquiesce in the mistreatment of mentally ill prisoners. We lack jurisdiction to review his argument. See id.
We similarly lack jurisdiction to review Belizaire’s argument that his proceedings before the agency were fundamentally unfair because he was not permitted to develop the record with evidence that any mistreatment he would likely suffer would be inflicted with the “specific intent” to torture. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir.2006). While Belizaire frames this argument as a due process challenge, a cursory review of the record reveals that he had several opportunities to develop the record as to the issue of specific intent. See Xiao Ji Chen, 471 F.3d at 329. Equally without merit is Belizaire’s argument that the BIA arbitrarily and capriciously treated him differently from six similarly-situated mentally ill Haitian criminal de*678portees granted deferral of removal under the CAT in various unpublished BIA decisions. However, the BIA reasonably explained the differences in treatment. See Yan Fang Zhang v. Gonzales, 452 F.3d 167, 174 (2d Cir.2006). Accordingly, we lack jurisdiction to consider Belizaire’s argument. See Barco-Sandoval, 516 F.3d at 40.
Since Belizaire’s arguments challenging the BIA’s decision on remand are either unavailing or amount to a dispute over the agency’s factual findings, we dismiss his petition for review of that decision in part and deny it in part.
II. No. 08-1500-ag (Con): Motion to Reopen
Belizaire’s petition for review of the BIA’s denial of his motion to reopen argues that the BIA abused its discretion by failing to provide any rational explanation for finding that the new evidence that he submitted in support of his motion did not demonstrate material changed country conditions or his prima facie eligibility for relief. See Xiao Ji Chen, 471 F.3d at 329.2
As to this argument, we have jurisdiction. Although the agency need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (internal quotation marks omitted), the agency “h[as] a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,” Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.2006) (quoting Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.2005)); see also Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87-88 (2d Cir.2007).
In this case, other than its citation to Pierre v. Gonzales, 502 F.3d 109 (2d Cir.2007), the BIA’s decision provides no basis for its determination that Belizaire’s new evidence did not demonstrate his prima facie eligibility for relief. However, Belizaire submitted an affidavit from an expert on U.S. criminal deportees in Haiti. The affidavit provides that mentally ill criminal deportees are deprived of medication in Haitian prisons and that prison authorities and prisoners intentionally mistreat mentally ill criminal deportees, whom they believe are under a curse or spell, thereby exposing them to dangers exceeding those that non-mentally ill criminal deportees face. These facts seem material to Belizaire’s case, particularly since the BIA denied his application for deferral of removal for his failure to submit evidence demonstrating that he would not receive his medication in Haitian prison and that he would be mistreated on account of his mental illness.
The BIA’s citation of Pierre does not adequately explain the BIA’s conclusion. Pierre recognized that while “imprisonment in Haiti without more is not torture,” criminal deportees “with certain histories, characteristics, or medical conditions” may be able to demonstrate that they will more likely than not be tortured. 502 F.3d at 121-22. The evidence Belizaire submitted in support of his motion to reopen suggests that mentally ill criminal deportees may be more likely to be intentionally mistreated; so the BIA’s reason for relying on Pierre is unclear. The BIA abused its discretion by failing to consider that *679evidence — in particular the affidavit from Michelle Karshan. See Zhi Yun Gao, 508 F.3d at 88; see also Poradisova, 420 F.3d at 77. Accordingly, we remand to the BIA for it to explicitly consider the evidence Belizaire submitted in support of his motion to reopen.
For the foregoing reasons, the petition for review in docket number 07-4885-ag (L) is DISMISSED in part and DENIED in part. The petition for review in docket number 08-1500-ag (Con) is GRANTED. The petitioner’s motion for a stay of removal is DENIED. 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).
. Where Belizaire’s motion to reopen was timely, see 8 C.F.R. § 1003.2(c)(2), the BIA’s determination that he failed to demonstrate material changed country conditions — an exception to the time limitation for filing a motion to reopen — was irrelevant to the adjudication of his motion, cf. 8 C.F.R. § 1003.2(c)(3)(h) (excepting from the time limitation motions to reopen based on changed country conditions). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471782/ | SUMMARY ORDER
Petitioner Ming Di Ni, a native and citizen of the People’s Republic of China, seeks review of a May 2, 2008 order of the BIA affirming the October 18, 2006 decision of Immigration Judge (“IJ”) Gabriel C. Videla, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ming Di Ni, No. A99 533 465 (B.I.A. May 2, 2008), aff'g No. A99 533 465 (Immig. Ct. N.Y. City Oct. 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, because Ni failed to challenge the IJ’s denial of his CAT claim before the BIA, we lack jurisdiction to consider his unexhausted challenge to the denial of that relief. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003)). The petition for review is dismissed to that extent.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review 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).
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)(1)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).
Substantial evidence supports the IJ’s adverse credibility determination. The IJ relied on the following findings and observations: (1) Ni “was repeatedly non-responsive to very simple direct questions,” which suggested to the IJ that he was “testifying from a memorized script”; (2) when asked whether he had experi*683enced any problems attending underground churches in China, he responded with a question as to what type of problems the question was referencing; (3) contrary to his asylum application, he denied that he had experienced any problems with the Chinese government; (4) although he testified that authorities had come to his family’s home twelve to thirteen times in order to arrest him, he made no such assertion in his asylum application; (5) although he indicated in his asylum application that he “followed the church brothers and sisters to read [the] bible,” he testified that he had never read the bible; (6) he did not know the name of the church he supposedly attended on numerous occasions; (7) the name and location he provided for the government-sanctioned church in China did not match information in a letter purportedly from that church; and (8) when asked about such discrepancies, he provided different answers, some of which had no logical connection to what he was being asked to explain.
Ni asserts that his “inability to initially answer some of the IJ’s questions ... is not unreasonable given the argumentative and sometimes confusing nature of the IJ’s questions.” The record reveals, however, that the IJ asked clear and direct questions, and repeated those questions in order to provide Ni numerous opportunities to explain discrepancies. Nor was it improper for the IJ to suggest that Ni’s responses seemed scripted. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005) (stating that we give particular deference to the trier of fact’s assessment of demean- or).
The IJ properly found that Ni was not credible, based on demeanor, non-responsiveness, and inconsistencies. See 8 U.S.C. § 1158(b)(l)(B)(iii).
Because the only evidence of a threat to Ni’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003).
For the foregoing reasons, the petition for review is DENIED, in part, and DISMISSED, in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471786/ | *687SUMMARY ORDER
Petitioner-appellant Rohan Myers was convicted after a jury trial in County Court, Westchester County, of murder in the second degree. Defendant appealed, contending that the trial court erroneously found that defendant had failed to establish a prima fade case supporting his Bat-son claim, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the prosecutor’s use of peremptory challenges to remove Jamaican jurors was discriminatory. On November 17, 2008, the Appellate Division, Second Department, affirmed defendant’s conviction. The Appellate Division concluded that the trial court correctly determined that defendant had failed to establish a prima facie case of discrimination because defendant failed to “establish a pattern of purposeful exclusion which would raise an inference of discrimination.” People v. Myers, 1 A.D.3d 532, 533, 767 N.Y.S.2d 266 (2d Dep’t 2003). Defendant sought leave to appeal from the Appellate Division’s determination again citing the fact that “the prosecutor challenged each Jamaican on the panel.” J.A. 24. Judge Ciparick, Associate Judge of the New York Court of Appeals, denied defendant’s application on February 26, 2004. People v. Myers, 1 N.Y.3d 631, 777 N.Y.S.2d 30, 808 N.E.2d 1289 (2004).
On October 14, 2004, defendant filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), in the District Court, asserting that the state court’s denial of defendant’s Batson claim, when the “prosecutor [had] challenged all the Jamaicans on the jury panel,” J.A. 17, was an unreasonable application of clearly established federal law.2 The District Court referred the matter to Magistrate Judge Lisa Margaret Smith, who recommended that defendant’s petition be denied, in a Report and Recommendation dated January 20, 2006 (“R&R”). J.A. 54-70. The Magistrate Judge explained that the trial court’s finding that defendant failed to establish a prima facie Batson violation “based upon national origin was not contrary to, or an unreasonable application of, federal law,” J.A. 63, because “there is no clear authority as to whether national origin discrimination can be used as the predicate for a prima facie Batson violation,” J.A. 61. Defendant filed timely objections to the R&R, complaining that the Magistrate Judge had reviewed his claim mistakenly as one of “national origin” rather than race. On July 30, 2007, the District Court adopted the R&R, denying defendant’s petition for a writ of habeas corpus but granting a Certificate of Appealability on defendant’s Batson claim. Defendant’s appeal challenges the District Court’s denial of his petition for a •writ of habeas corpus. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
We review a district court’s ruling on a petition for a writ of habeas corpus de novo. See, e.g., Overton v. Newton, 295 F.3d 270, 275 (2d Cir.2002). Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus may not issue for any claim adjudicated on the merits by a state court unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts in light of the evidence pre*688sented” in state court, id. § 2254(d)(2). We have been reminded that “clearly established Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008) (quoting Williams).
A state court decision is “contrary to” clearly established federal law if the state court’s conclusion on a question of law is “opposite” that of the Supreme Court or if the state court reaches a different outcome than the Supreme Court “on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413, 120 S.Ct. 1495; Alexander, 543 F.3d at 100 (quoting Williams). A state court decision “involves an unreasonable application of’ clearly established federal law as determined by the Supreme Court if it “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a defendant’s] case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A federal habeas court should not “conflat[e] ‘unreasonableness’ with ‘clear error’ ... because ‘[t]he gloss of clear error fails to give proper deference to state courts.’ ” Brisco v. Ercole, 565 F.3d 80, 87-88 (2d Cir.2009). “Some increment of incorrectness beyond error is required.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000). We have noted, however, “that the increment [of error beyond clear error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (internal quotation marks omitted).
Defendant argues on appeal that (1) the state trial court’s denial of defendant’s Batson claim was erroneous; (2) the Magistrate Judge and the District Court erroneously found that he did not assert a prima facie case because they viewed his claim as one of national-origin, rather than race-based discrimination; and (3) the excluded jurors were, in fact, challenged because of their racial “subcategory:” black Jamaicans.
However, it is clear that defendant’s argument to the Appellate Division was one of national-origin discrimination only: “Mr. Myers is Jamaican. The Prosecutor challenged all of the Jamaicans on the jury panel.” J.A. 31. The Magistrate Judge therefore correctly treated defendant’s claim as one of national origin. Because defendant did not assert a “race-based” Batson argument in the Appellate Division, we find defendant’s claim unexhaust-ed and procedurally defaulted.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the District Court.
. Defendant also asserted in his petition for a writ of habeas corpus that the trial court erred in some of its instructions to the jury and evidentiary rulings. These claims are not before us on appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471788/ | SUMMARY ORDER
Plaintiff-Appellant Eugene Glicksman (“Glicksman”) appeals from the January 25, 2008 decision of the United States District Court for the Southern District of New York (Preska, J.) granting summary judgment to Defendants-Appellees New York City Environmental Control Board, et al. (“Defendants”). Glicksman brought suit under 42 U.S.C. § 1983 alleging that Defendants violated, inter alia, his rights under the First Amendment and Due Process Clause of the Fourteenth Amendment. On appeal, Glicksman principally argues that the district court (1) incorrectly determined that his First Amendment retaliation claim was barred by Garcetti v. *690Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); and (2) failed to adequately consider his claim that New York City Administrative Law Judges have a right to “decisional independence” that is relevant to the disposition of this case. Plaintiffs Br. at 45. We assume the parties’ familiarity with the underlying facts, procedural history, and the issues presented for review.
“We review an award of summary judgment de novo, and we will uphold the judgment only if the evidence, viewed in the light most favorable to the party against whom it is entered, demonstrates that there are no genuine issues of material fact and that the judgment was warranted as a matter of law.” Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir.2009). Prior to his termination on September 17, 1998, Glicksman was a New York City Administrative Law Judge (“ALJ”) at the New York City Taxi and Limousine Commission (“TLC”). Defendants claim that Glicksman was terminated for failing to adhere to TLC adjudication procedure at inquest hearings, during which taxi cab drivers do not appear. Specifically, Defendants contend that Glicksman refused to amend summonses setting forth invalid Rule 2-21 (a) charges to assert valid Rule 2-21 (b) charges. Glicksman does not deny this. See, e.g., App. at 260 (arguing before the district court that Glicksman was “properly serving his judicial function by refusing to charge a new offense in absentia .... ”). Instead, Glicksman claims, in his affidavit, that it would have been illegal or otherwise inappropriate for him to follow TLC adjudication procedure. See, e.g., id. at 290 (“Instead of putting an outright stop to [the practice of overcharging taxi drivers with Rule 2-21(a) violations], TLC told the ALJs to amend the over-charges at inquests, when the accused was not even present. ... This would have been a rather serious due process violation.”). He thus refused to do so, resulting in his allegedly retaliatory discharge.
The elements of a First Amendment retaliation claim in the context of government employment can be stated as follows: “(1) [plaintiff] engaged in constitutionally protected speech because [he] spoke as [a] citizen[ ] on a matter of public concern; (2) [plaintiff] suffered an adverse employment action; and (3) the speech was a motivating factor in the adverse employment decision.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008). The Supreme Court elaborated on the first element in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006): “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Glicksman conceded in his briefing below — and does not claim otherwise before this Court — that his First Amendment claim is based on the decisions he issued as an administrative law judge. See, e.g., App. at 270 (“This is the very essence of plaintiffs free speech claim — his decisions as an administrative law judge.... ”). Thus, the speech at issue falls squarely within the scope of Glicksman’s official duties as an administrative law judge— deciding cases.
Relying on Fierro v. City of New York, 591 F.Supp.2d 431 (S.D.N.Y.2008), Glicksman argues that Garcetti is inapplicable when an employee is terminated for speech that constitutes a refusal to undertake wrongful conduct. See Fierro, 591 F.Supp.2d at 442 (“The question of whether speech stemming from a supervisor’s instruction to a subordinate to commit a wrongful — perhaps even criminal — act falls under Garcetti is one that has not yet been *691addressed by the Second Circuit.”); see also Fierro v. City of New York, 341 Fed.Appx. 696, 698 (2d Cir.2009) (“Without addressing the substantive question of whether a public employee’s refusal to abide by an instruction to engage in misconduct is protected speech under the First Amendment, such protection was certainly not clearly established at the time Bleadon engaged in her allegedly retaliatory conduct.”). Even assuming that Gareetti left open the possibility that a public employee’s refusal to engage in clearly wrongful conduct while acting within his job responsibilities may be protected speech, hit see Gareetti, 547 U.S. at 425-26, 126 S.Ct. 1951 (noting that a powerful network of legislative enactments, such as whistle-blower protection law and labor codes, available to those who seek to expose wrongdoing, “as well as obligations arising from ... other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions” (emphasis added)), we need not reach the issue. Gareetti made clear that an employee’s mere disagreement with government policy does not give him license to carry out his employment as he sees fit (and specifically, to disregard agency policy because there may be a col-orable argument as to its impropriety) merely because such employment involves speech. See id. at 422, 126 S.Ct. 1951 (“The fact that [Ceballos’s] duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.”); id. (“[The prospect of protection for contributions to civic discourse] does not invest [government employees] with a right to perform jobs however they see fit.”); id. at 422-23, 126 S.Ct. 1951 (“Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.”).
Here, most of Glicksman’s objections to TLC inquest procedure — specifically, to the amending of invalid Rule 2-21 (a) summonses to valid Rule 2-21 (b) summons in absentia — lack merit for the simple reason that taxi drivers are afforded a subsequent opportunity to contest all such charges. See SpecApp. at 54 (“[I]f the respondent fails to appear on the scheduled ... hearing date, a default charge ... is added to the original underlying charge(s) and an inquest hearing is held in respondent’s absence. Notification of the findings of the ALJ are then mailed to the respondent. ... At a subsequent Motion to Vacate hearing, the burden is on the respondent to show both excusable neglect with respect to the default and a meritorious defense with respect to the underlying charge[, which] need not be more than an offering of proof that if substantiated could result in the dismissal of the charges.”). Glicksman contends, in addition, that he was issued an internal agency directive in violation of § 1046(c) of the City Administrative Procedure Act (“CAPA”). That provision reads as follows: “No ex parte communications ... shall be received by a hearing officer, including internal agency directives not published as rules.” Id. at 28. Glicksman’s briefing before this Court, however, does not indicate the source or content of the internal directive at issue, and hence why such directive violated the CAPA. See Appellant’s Br. at 22. Because Glicksman devoted only two vague sentences to this point, we deem the issue to be waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). Thus, even assuming that Glieksman’s reading of Gar-ceta is correct, Glicksman has not made a showing that he was directed to undertake *692clearly illegal or otherwise inappropriate conduct, and hence Glicksman’s refusal to follow TLC adjudication procedure is not protected speech.
Glicksman’s effort to frame the same claim as the assertion of a right to judicial independence fares no better. To the extent that Glicksman’s claim is grounded in the First Amendment, see, e.g., Perry v. McGinnis, 209 F.3d 597, 604 (6th Cir.2000) (“We find that a disciplinary hearing decision ... is a communicative act entitled to First Amendment protection.”), it fails for the same reasons as his First Amendment retaliation claim — i.e., it is barred by Gar-ceta. To the extent that Glicksman attempts to ground such a right in other sources, see Nash v. Califano, 613 F.2d 10, 15 (2d Cir.1980) (“[Tjhese [Administrative Procedure Act] provisions confer a qualified right of decisional independence upon ALJs ... [which] is a creation of statute, rather than the Constitution.”), we are not persuaded that New York City ALJs possess a right to judicial independence of the sort that would permit an ALJ to resist agency policy — at least not based on the sources cited by Glicksman. Indeed, Glicksman conceded as much to the district court. See App. at 507 (“[T]he City of New York still has nothing akin to a guarantee of decisional independence of ALJs.... Thus, we have no choice but to fall back on the United States Constitution.”). In his reply brief, Glicksman concedes that he lacks a “formal and express enactment” on which to base his “decisional independence” claim, see Reply Br. at 8, but then seeks to recast his claim as a procedural due process claim. Id. at 9. This argument comes too late, see Keefe on Behalf of Keefe v. Shalala, 71 F.3d 1060, 1066 (2d Cir.1995) (“Normally, we will not consider arguments raised for the first tune in a reply brief .... ”), and, in any event, Glicksman has failed to contest the district court’s dismissal of his due process claim on the ground that the “availability of an Article 78 proceeding satisfies the requirements of the due process clause in [his] case,” App. at 626.
We find Glicksman’s remaining arguments in this appeal to lack merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471790/ | SUMMARY ORDER
Jian Chiu Ye, a native and citizen of China, seeks review of a March 20, 2007 order of the BIA affirming the March 6, 2001 decision of Immigration Judge (“IJ”) Sandy Horn, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jian Chiu Ye, No. A77 866 466 (B.I.A. Mar. 20, 2007), aff'g No. A77 866 466 (Immig. Ct. N.Y. City Mar. 6, 2001). 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.2 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 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. Salimatou Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir.2008).
The agency properly found that Ye failed to meet her burden of proving either past persecution or a well-founded fear of persecution as required for a grant of asylum. Ye alleged that she was expelled from school when she was seventeen because she refused to submit to an IUD insertion and urged her classmates to do the same. She argues that her expulsion will have “lifelong economic consequence” and therefore constituted economic perse-*694ration. To prevail on her economic persecution claim, Ye needed to establish that she suffered the “deliberate imposition of [a] substantial economic disadvantage” that was sufficiently severe to “constitute a threat to [her] life or freedom.” Matter of T-Z-, 24 I. & N. Dec. 163, 173 (B.I.A. 2007). However, Ye presented no evidence or testimony establishing the nature and extent of any economic disadvantage she suffered or expects to suffer as a result of her expulsion from school. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002) (finding that petitioner had not established economic persecution where he failed to present testimony or other evidence that would enable the Court to evaluate his personal financial circumstances). In the absence of such evidence, the agency did not err in finding that Ye failed to establish that the expulsion amounted to economic persecution. See id.
Furthermore, the agency properly found that Ye’s fear of future persecution was not well-founded. The fear of forced abortion or sterilization is speculative and without record support because Ye was unmarried and childless at the time of her application. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005). Likewise speculative is her fear of a government “blacklist” as a result of her resistance to China’s family-planning policy, because the record revealed no basis for concluding that the Chinese government would still be interested in taking action undergo an IUD insertion. See id. Accordingly, the agency did not err in denying Ye’s asylum claim on the grounds that she failed to meet her burden of proof.
Because Ye failed to meet her burden of proof with respect to her asylum claim, she necessarily failed to meet the higher burden of proof required to prevail on her claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). In addition, Ye has waived any 10 challenge she might have raised to the denial of her CAT 11 claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 12 n. 5, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. While the denial of relief in asylum-only proceedings, such as those at issue here, does not result in a final order of a removal, see 8 C.F.R. § 1208.2(c)(3)(i), it is the “functional equivalent” of a removal order; jurisdiction therefore exists under 8 U.S.C. § 1252(a)(1). Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471683/ | PER CURIAM.
ORDER
Upon review of Michael S. Anderson’s recently docketed appeal, we sua sponte consider whether we have jurisdiction over this appeal.
Anderson filed a prisoner civil rights complaint in the United States District Court for the Southern District of Georgia. The district court dismissed the complaint for failure to exhaust administrative remedies. Anderson appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affmmed the district court’s dismissal on January 8, 2008, 261 Fed.Appx. 254. On March 3, 2008, — U.S. -, 128 S.Ct. 1476, 170 L.Ed.2d 300, the United States Supreme Court denied Anderson’s petition for writ of certiorari. In March of 2009, Anderson filed another notice of appeal with the district court, this time seeking review by this court.
It is unclear whether Anderson seeks review of the district court’s decision, the Eleventh Circuit’s decision, or the Supreme Court’s disposition. In any event, this court does not have jurisdiction to review any of those matters. This court’s jurisdiction over appeals is limited pursuant to 28 U.S.C. § 1295(a)(1), (2). Therefore, this appeal must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) Anderson’s appeal is dismissed for lack of jurisdiction.
(2) Each side shall bear its own costs.
(3) Any other pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471685/ | ON MOTION
ORDER
Rashid El Malik moves to voluntarily dismiss his appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471686/ | ON MOTION
ORDER
James T. Kirby moves without opposition to voluntarily dismiss his appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471689/ | ON MOTION
PER CURIAM.
ORDER
The United States responds to the court’s order concerning whether this court has jurisdiction over Paula Johnson’s appeal. Johnson has not responded. Separately, Johnson moves for leave to proceed in forma pauperis.
Johnson filed a notice of appeal seeking review of the United States Court of Federal Claims’ order that transferred her case to the United States District Court for the Southern District of Illinois. Johnson sought damages due to asserted misconduct of the United States Marshals Service. The Court of Federal Claims held that it did not have jurisdiction over the complaint and transferred the action to the district court pursuant to 28 U.S.C. § 1631. Because Johnson failed to pay the docketing fee, this court dismissed the appeal for failure to pay the fee. Johnson has now filed a motion for leave to proceed in forma pauperis, which we grant. Thus, we reinstate her appeal for purposes of determining whether the appeal should be dismissed for lack of jurisdiction or whether the appeal should be treated as a petition for a writ of mandamus.
The United States argues that this court does not have jurisdiction over Johnson’s appeal because it is not an appeal of a final judgment pursuant to 28 U.S.C. § 1291, an appeal of a district court order transferring a case to the Court of Federal Claims (see 28 U.S.C. § 1292(d)(4)(A)), or an appeal of a collateral order that meets the criteria of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We agree that this is not an appeal of a final judgment and that it is not expressly covered by section 1292(d)(4)(A), which allows an appeal to this court of a district court’s order transferring a case to the Court of Federal Claims. Concerning whether the appeal is permitted by Cohen, for an order to be appealable pursuant to that case, the order (1) must conclusively determine the disputed question, (2) must resolve an important issue completely separate from the merits of the action, and (3) must be effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The jurisdictional issue, whether the Court of Federal Claims or the district court might have jurisdiction over Johnson’s complaint, could be effectively reviewed upon any appeal from a final judgment. Thus, if the district court denies relief on Johnson’s complaint or otherwise dismisses the case and enters a final judgment, then Johnson can appeal that final judgment. The court of appeals can re*571view the jurisdictional issue at that time, and thus immediate review of the transfer order is not warranted in the circumstances of this case. Thus, we must dismiss this appeal for lack of jurisdiction.
In the alternative, we treat Johnson’s appeal as a petition for a writ of mandamus to vacate the transfer order. The remedy of mandamus is available only in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Johnson has not shown a colorable basis for jurisdiction of this subject matter in the Court of Federal Claims; we conclude that the court did not abuse its discretion in transferring the case to the district court. Thus, to the extent that we treat this appeal as a mandamus petition, the petition is denied.
Accordingly,
IT IS ORDERED THAT:
(1) Johnson’s motion for leave to proceed in forma pauperis is granted, the mandate is recalled, the court’s previous order dismissing the appeal for failure to pay the docketing fee is vacated, and the appeal is reinstated.
(2) The appeal is dismissed for lack of jurisdiction.
(3) Mandamus relief is denied.
(4) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471691/ | ON MOTION
NEWMAN, Circuit Judge.
ORDER
The United States moves to dismiss E. Lisk Wyckoff, Jr.’s appeal as premature. Wyckoff does not oppose.
Wyckoff filed a complaint in the United States Court of Federal Claims seeking a refund of federal income taxes paid in connection with his investments in a group of tax-shelter partnerships. This complaint was one of several related com*572plaints filed in the Court of Federal Claims seeking such relief. The trial court stayed this case pending its decision in Prati v. United States, 81 Fed.Cl. 422 (2008), believing that the decision in Prati would control the outcome of the other cases. In Prati, the Court of Federal Claims dismissed the case, determining that it lacked jurisdiction over the alleged claims. Accordingly, the Court of Federal Claims also dismissed the other pending cases. On reconsideration, the Court of Federal Claims vacated its judgment in the present case, finding case-specific claims that were not resolved by Prati. Wyckoff appealed to this court.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(3). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” (citation omitted)). Wyckoff does not disagree that his appeal is premature. Because the Court of Federal Claims vacated its judgment and has not concluded its proceedings, there is no final judgment. Wyckoff may, of course, file a notice of appeal after the trial court concludes its proceedings and enters final judgment, if appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471693/ | ON MOTION
ORDER
Upon consideration of Hanley Industries, Inc.’s motion to voluntarily dismiss its appeal,
IT IS ORDERED THAT:
*573(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471695/ | ON MOTION
NEWMAN, Circuit Judge.
ORDER
Marc Mathers moves for an extension of time to file his brief or, in the alternative, for leave to file his brief out of time. Yshheyna Hamilla opposes and moves to dismiss Mathers’ appeal for failure to prosecute. Mathers opposes. Hamilla replies.
Mathers filed a notice of appeal on December 30, 2008. The certified list of the United States Patent and Trademark Office was filed on February 6, 2009 and the appeal was docketed on February 9, 2009. Mathers did not file his brief by the due date set by the court’s rules. Instead, Mathers filed a motion for an extension of time on April 14, 2009.
Hamilla argues that because Mathers did not file a timely brief or a timely motion for an extension of time in compliance with Fed. Cir. R. 26(b)(1), the appeal should be dismissed for failure to prosecute. Mathers asserts that he was under the impression that he would receive a document from the United States Patent and Trademark Office indicating that the “record on appeal was complete and that the period of time allowed for preparation of the appeal brief had begun.” Counsel for Mathers further states that he relied on a former secretary who “had suddenly become unreliable and who represented to the undersigned that she had made regular checks for the due date of this action when, in fact, no such checks had been made.”
Fed. Cir. R. 31(a)(1)(B) provides that in an appeal from an agency decision, the appellant’s brief is due within 60 days of the date of service of the certified list. Counsel is charged with knowledge of the court’s rules, and counsel’s failure to properly review or understand the rules does not excuse his noncompliance.
Furthermore, counsel for Mathers states in his extension motion, filed on April 14, “[l]ast week the undersigned received an email from a contract vendor which stated that the initial brief was due on April 14, 2009.” Counsel does not explain why he did not promptly act on this information and file a brief or an extension motion immediately. Rule 26(b) requires that a motion for an extension of time be made at *574least 7 days prior to the date sought to be extended or, if it is not, that it be accompanied by an affidavit or declaration explaining the extraordinary circumstances justifying deviation from this requirement. Mathers’ extension motion does not include the required affidavit or declaration and thus fails to comply with the court’s rules.
Because Mathers did not timely file his brief or file a proper extension motion, the appeal is dismissed. See Julien v. Zeringue, 864 F.2d 1572 (Fed.Cir.1989) (court may dismiss for failure to file a brief).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
(3) All pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471771/ | SUMMARY ORDER
Petitioners Moussa Abbas El Chaikh Ali (“Moussa”) and Hassan Abbas El Chaikh Ali (“Hassan”), citizens of Lebanon, seek review of a September 27, 2006 order of the BIA affirming the October 25, 2004 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, denying their applications for asylum, withholding of removal and relief under Article 3 of the Convention Against Torture (“CAT”). In re Moussa Abbas El Chaikh Ali, Hassan Abbas El Chaikh Ali, Nos. A95 282 567, A95 282 568 (B.I.A. Sept. 27, 2006), aff'g Nos. A95 282 567, A95 282 568 (Immig. Ct. N.Y. City Oct. 25, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Scope of Review
Where, as here, the BIA agrees with the IJ’s conclusions, but rejects some of her findings and supplements her decision, we review the IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We have never held that a petitioner is limited to the “exact contours” of the arguments he or she made before the agency. Gill v. INS, 420 F.3d 82, 85-86 (2d Cir.2005). On the contrary, we may consider “specific, subsidiary legal arguments, or arguments by extension,” even if such arguments were not presented below. Id. at 86. In determining which argu-*667merits constitute “issues” that must be exhausted, and which constitute “subsidiary-arguments” that do not, we examine whether an unexhausted argument “constitutes a ground, in and of itself, on which an IJ’s denial of [relief] may be based.” Steevenez v. Gonzales, 476 F.3d 114, 117-18 (2d Cir.2007).
Here, the Petitioners clearly challenged the IJ’s nexus finding in their notices of appeal to the BIA. Specifically, they reiterated their initial contention that Moussa was punished because of his political opinion. Accordingly, we find that the Petitioners’ assertion that the Lebanese government may have had a mixed motive for mistreating Moussa to be a subsidiary legal argument of the overall claim that Moussa suffered persecution on account of his political opinion. Gill, 420 F.3d at 85-86. Furthermore, although the Petitioners did not raise before the BIA Hassan’s claim that he feared persecution because he had refused to join Hezbollah, that issue is administratively exhausted because the BIA directly addressed the issue in its opinion. See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). Moreover, Moussa and Hassan exhausted their argument that the mistreatment of their family members established a pattern and practice of persecution against similarly situated individuals in Lebanon, where, in their notices of appeal, the Petitioners mentioned the mistreatment of their family and specifically noted that they need not show that they would be singled out for persecution if they demonstrated that similarly situated individuals have been the target of a pattern or practice of persecution. Accordingly, we find that Petitioners exhausted this argument by raising it with specificity before the BIA. See Steevenez, 476 F.3d at 117.
Lastly, the petitioners failed to raise a CAT claim before the BIA or this Court, and we deem any such claim to be unexhausted and waived. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
Merits
Moussa contends that his persecution, including imprisonment and torture, bore a nexus to his political opinions because his spying on Hezbollah for the government of Israel was motivated by his opposition to the government of Lebanon, and his punishment was motivated at least in part, not only by his violation of Lebanese law, but also by the fact that his violation was grounded in political opposition to the regime in general and Hezbollah in particular. The BIA’s rejection of his nexus contention was made before this Court’s decision in Vumi v. Gonzales, 502 F.3d 150 (2d Cir.2007). In Vumi we ruled that the agency must consider “the political context or country conditions” in order to determine whether an opponent of a regime had the opportunity, available in democracies, to promote change through peaceful processes. See id. 502 F.3d at 156. We conclude that the case must be remanded to afford the agency an opportunity to reconsider in light of Vumi. Since a remand must occur, it may also be appropriate for the agency to consider our recent decision in Delgado v. Mukasey, 508 F.3d 702 (2d Cir.2007), concerning persecution at the hands of a terrorist organization, and Islami v. Gonzales, 412 F.3d 391 (2d Cir.2005), concerning persecution based on refusal to join the Serb-dominated Yugoslavian army, which “would likely require [the petitioner’s] participation in military campaigns widely ‘condemned by the international community as contrary to basic rules of human conduct.’ ” Id. at 397 (quoting M.A. v. INS, 899 F.2d 304, 312 (4th Cir.1990)).
Apart from the agency’s reconsideration pursuant to this remand, we invite the *668responsible officials of the Executive Branch to give consideration to whether it wishes to pursue removal of an individual who has suffered imprisonment and torture for aiding an ally of the United States in opposing Hezbollah, an entity formally listed by this country as a terrorist organization.
For the foregoing reasons the petition for review is GRANTED, the BIA’s decision is VACATED and the case is REMANDED to the agency for further proceedings. Any previously granted motion to stay removal is VACATED, and any pending request for oral argument in this case is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), Second Circuit Local Rule 34(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471777/ | *673
SUMMARY ORDER
Jin Ming Zheng, a native and citizen of the People’s Republic of China, seeks review of an October 27, 2006 order of the BIA, affirming the April 19, 2005 decision of Immigration Judge (“IJ”) Paul A. De-Fonzo, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Ming Zheng, No. A70 908 849 (B.I.A. Oct. 27, 2006), aff'g No. A70 908 849 (Immig. Ct. N.Y. City Apr. 19, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
As an initial matter, we decline to consider Zheng’s due process argument that the IJ was biased, because she failed to exhaust such argument before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007); see also Valbrun v. Hogan, 439 F.3d 136, 137 (2d Cir.2006) (finding that a petitioner “cannot evade BIA review merely by labeling [his] claim a due process claim”) (quoting United States v. Gonzalez-Roque, 301 F.3d 39, 48 (2d Cir.2002)). Zheng waives any argument that she was eligible for relief from removal on account of her religion or that she was eligible for CAT relief on account of her illegal departure from China. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
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 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (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).
Substantial evidence supports the agency’s finding that Zheng was not credible as to her claim that she suffered a forced abortion. The IJ reasonably relied on several inconsistencies between Zheng’s testimony and statements in her written asylum application regarding events surrounding her purportedly forced abortion. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir.2006). Even if these inconsistencies are deemed minor, see Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000), the agency did not err in finding that, taken together, they provided support for its adverse credibility finding, see Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (“[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.” (internal citations omitted)). Zheng offered explanations for these discrepancies, but no reasonable fact-finder would have been compelled to credit them. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005). Having called Zheng’s credibility into question, the IJ also reasonably relied on Zheng’s failure to corroborate her claim with a statement from her husband. 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 Shu Wen Sun, 510 F.3d at 379. Thus, the agency properly denied Zheng’s application for asylum, withholding of removal, and CAT relief insofar as it *674was based on her alleged forced abortion. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (recognizing that withholding of removal and CAT claims necessarily fail if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim and the factual predicate for the claims is the same).
Absent past persecution, an applicant may establish eligibility for asylum by showing that she subjectively fears persecution on account of an enumerated ground and that her fear is objectively reasonable. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). In this case, the IJ reasonably found that Zheng failed to demonstrate a well-founded fear of persecution on account of the birth of her U.S. citizen children. Zheng did not assert before the agency a fear that family planning officials would sterilize her forcibly, stating only that family planning officials would “request that either my husband or I undergo sterilization.” 2 Moreover, the IJ did not err in concluding that inability of Zheng’s children to attend public school would not constitute persecution. Cf. Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir.2005) (holding that an alien’s loss of a job without evidence that he could not obtain another job did not constitute persecution). Accordingly, as Zheng failed to demonstrate a well-founded fear of persecution, the agency properly denied Zheng’s application for asylum and withholding of removal insofar as it was based the birth of her U.S. citizen children. See Paul, 444 F.3d at 156.
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).
. Zheng appears to assert for the first time that she has an objectively reasonable fear of forced sterilization if removed to China. However, she did not assert such a claim before the agency. See 8 U.S.C. § 1252(b)(4)(B). The only country conditions evidence in the record is the 2004 U.S. State Department’s Country Report on Human Rights Practices in China, which we have previously held does not demonstrate an objectively reasonable fear that Chinese nationals with foreign bom children will be subject to forced sterilization upon return to China. See Wei Guang Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir.2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471779/ | SUMMARY ORDER
Macary Belizaire, a native and citizen of Haiti, seeks review of: (1) an October 15, 2007 order of the BIA vacating the December 10, 2001 decision of Immigration Judge (“IJ”) Alan Vomacka granting his application for deferral of removal under the Convention Against Torture (“CAT”), In re Macary Belizaire, No. A41 055 892 (B.I.A. Oct. 15, 2007), vacating in part No. A41 055 892 (Immig. Ct. N.Y. City Dec. 10, 2001); and (2) a February 29, 2008 order of the BIA denying his motion to reopen, In re Macary Belizaire, No. A41 055 892 (B.I.A. Feb. 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Belizaire is removable by reason of having committed a criminal offense covered by 8 U.S.C. § 1227(a)(2)(A)(iii) (relating to convictions for aggravated felonies); accordingly, we lack jurisdiction to review *677the agency’s factual findings and discretionary determinations. See 8 U.S.C. § 1252(a)(2)(C). The jurisdictional bar imposed by 8 U.S.C. § 1252(a)(2)(C) likewise applies to the agency’s denial of Belizaire’s motion to reopen. See Santos-Salazar v. U.S. Dep’t of Justice, 400 F.3d 99, 103 (2d Cir.2005) (citing Durant v. INS, 393 F.3d 113, 114-16 (2d Cir.2004)). However, we retain jurisdiction to review any constitutional claims or questions of law Belizaire raises in his petitions for review. See 8 U.S.C. § 1252(a)(2)(D). But a mere quarrel “over the correctness of the factual findings or justification for the discretionary choices” is not a constitutional or legal question. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Nor is a legal argument that is frivolous. Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (citations omitted).
I. No. 07-4885-ag (L): BIA’s Denial of Deferral of Removal
We lack jurisdiction to consider the majority of Belizaire’s challenges to the BIA’s decision vacating the Id’s grant of deferral of removal under the CAT. Belizaire does, however, raise a question of law as to whether the BIA applied an incorrect standard of review on remand. See Xiao Ji Chen, 471 F.3d at 328-29. But this argument is foreclosed by our decision in Belortaja v. Gonzales, in which we concluded that the BIA reasonably applies the pre-September 2002 de novo standard of review to appeals originally filed with the BIA before September 2002 but remanded to the BIA after that date. 484 F.3d 619, 624 & n. 3 (2d Cir.2007). Belizaire’s reliance on an unpublished order of this Court is misplaced. Even if that order had precedential value, the government is correct that the procedural posture in that case was materially different, the BIA having dismissed the original pre-September 2002 appeal and having reopened the appeal after that date.
We lack jurisdiction to consider the balance of Belizaire’s arguments challenging the BIA’s denial of his request for deferral of removal. See 8 U.S.C. § 1252(a)(2)(C). Although Belizaire’s argument that the BIA unambiguously mischaracterized the record appears at first to present a question of law, Maiwand v. Gonzales, 501 F.3d 101, 105 (2d Cir.2007), in substance his argument simply amounts to a challenge of the agency’s factual findings, see Ilyas Khan v. Gonzales, 495 F.3d 31, 36 (2d Cir.2007). Specifically, Belizaire contends that the BIA miseharaeterized the record when it determined that he had submitted no evidence that Haitian prison authorities intentionally deprive mentally ill prisoners of medication or that they intentionally subject the mentally ill to mistreatment. Belizaire merely contests the BIA’s factual determination that, contrary to the IJ’s finding, Belizaire did not demonstrate that Haitian prison authorities mistreat or acquiesce in the mistreatment of mentally ill prisoners. We lack jurisdiction to review his argument. See id.
We similarly lack jurisdiction to review Belizaire’s argument that his proceedings before the agency were fundamentally unfair because he was not permitted to develop the record with evidence that any mistreatment he would likely suffer would be inflicted with the “specific intent” to torture. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir.2006). While Belizaire frames this argument as a due process challenge, a cursory review of the record reveals that he had several opportunities to develop the record as to the issue of specific intent. See Xiao Ji Chen, 471 F.3d at 329. Equally without merit is Belizaire’s argument that the BIA arbitrarily and capriciously treated him differently from six similarly-situated mentally ill Haitian criminal de*678portees granted deferral of removal under the CAT in various unpublished BIA decisions. However, the BIA reasonably explained the differences in treatment. See Yan Fang Zhang v. Gonzales, 452 F.3d 167, 174 (2d Cir.2006). Accordingly, we lack jurisdiction to consider Belizaire’s argument. See Barco-Sandoval, 516 F.3d at 40.
Since Belizaire’s arguments challenging the BIA’s decision on remand are either unavailing or amount to a dispute over the agency’s factual findings, we dismiss his petition for review of that decision in part and deny it in part.
II. No. 08-1500-ag (Con): Motion to Reopen
Belizaire’s petition for review of the BIA’s denial of his motion to reopen argues that the BIA abused its discretion by failing to provide any rational explanation for finding that the new evidence that he submitted in support of his motion did not demonstrate material changed country conditions or his prima facie eligibility for relief. See Xiao Ji Chen, 471 F.3d at 329.2
As to this argument, we have jurisdiction. Although the agency need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (internal quotation marks omitted), the agency “h[as] a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,” Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir.2006) (quoting Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.2005)); see also Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87-88 (2d Cir.2007).
In this case, other than its citation to Pierre v. Gonzales, 502 F.3d 109 (2d Cir.2007), the BIA’s decision provides no basis for its determination that Belizaire’s new evidence did not demonstrate his prima facie eligibility for relief. However, Belizaire submitted an affidavit from an expert on U.S. criminal deportees in Haiti. The affidavit provides that mentally ill criminal deportees are deprived of medication in Haitian prisons and that prison authorities and prisoners intentionally mistreat mentally ill criminal deportees, whom they believe are under a curse or spell, thereby exposing them to dangers exceeding those that non-mentally ill criminal deportees face. These facts seem material to Belizaire’s case, particularly since the BIA denied his application for deferral of removal for his failure to submit evidence demonstrating that he would not receive his medication in Haitian prison and that he would be mistreated on account of his mental illness.
The BIA’s citation of Pierre does not adequately explain the BIA’s conclusion. Pierre recognized that while “imprisonment in Haiti without more is not torture,” criminal deportees “with certain histories, characteristics, or medical conditions” may be able to demonstrate that they will more likely than not be tortured. 502 F.3d at 121-22. The evidence Belizaire submitted in support of his motion to reopen suggests that mentally ill criminal deportees may be more likely to be intentionally mistreated; so the BIA’s reason for relying on Pierre is unclear. The BIA abused its discretion by failing to consider that *679evidence — in particular the affidavit from Michelle Karshan. See Zhi Yun Gao, 508 F.3d at 88; see also Poradisova, 420 F.3d at 77. Accordingly, we remand to the BIA for it to explicitly consider the evidence Belizaire submitted in support of his motion to reopen.
For the foregoing reasons, the petition for review in docket number 07-4885-ag (L) is DISMISSED in part and DENIED in part. The petition for review in docket number 08-1500-ag (Con) is GRANTED. The petitioner’s motion for a stay of removal is DENIED. 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).
. Where Belizaire’s motion to reopen was timely, see 8 C.F.R. § 1003.2(c)(2), the BIA’s determination that he failed to demonstrate material changed country conditions — an exception to the time limitation for filing a motion to reopen — was irrelevant to the adjudication of his motion, cf. 8 C.F.R. § 1003.2(c)(3)(h) (excepting from the time limitation motions to reopen based on changed country conditions). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471781/ | *680
SUMMARY ORDER
Petitioner Qiu Lin, a native and citizen of the People’s Republic of China, seeks review of the May 2, 2008 order of the BIA affirming the September 13, 2006 decision of Immigration Judge (“IJ”) Javier Balas-quide, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qiu Lin, No. A98 350 878 (B.I.A. May 2, 2008), aff'g No. A98 350 878 (Immig. Ct. N.Y. City Sept. 13, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Dong Gao v. BIA 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
As a preliminary matter, because Petitioner did not exhaust his administrative remedies with respect to his asylum and withholding of removal claims, we lack jurisdiction to review the denial of that relief. 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006). Likewise, Petitioner failed to exhaust his argument that he is eligible for CAT relief based on his family planning claim; therefore, we decline to review his arguments regarding that claim. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). The only argument properly before us is Petitioner’s assertion that the agency erred in failing to grant him CAT relief based on his fear that he will be tortured by Chinese authorities because of his “illegal escape” from China.2
A petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China.” Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005); see also Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003). “[W]ere such a showing sufficient to secure relief under the CAT, any asylum-seeker arriving in the United States illegally from China would equally be entitled to such relief. Neither the CAT, nor the domestic regulations implementing that Convention, anticipate or require such a result.” Mu Xiang Lin, 432 F.3d at 160. Although “there is a risk that any individual detainee in China may be subjected to repressive conditions in prison,” such a generalized risk does not alone suffice to demonstrate that a petitioner is more likely than not to be tortured if repatriated to China. Id. Rather, a petitioner must present particularized evidence indicating that he or she would likely be subjected to torture. Id.
Substantial evidence supports the agency’s determination that Petitioner failed to satisfy his burden of proof for CAT relief. Petitioner relies on generalized evidence concerning the treatment of prisoners in China without submitting particularized evidence indicating that he is likely to be tortured. See Mu Xiang Lin, 432 F.3d at 160. The documents Petitioner submitted, like the documents submitted in Mu-Xing Wang and Mu Xiang Lin, “by no means establish that prisoners in [the petitioner’s] circumstances ... are ‘more likely than not’ to be tortured.” Mu-Xing *681Wang, 320 F.3d at 144 n. 21; see Mu Xiang Lin, 432 F.3d at 160-61 (declining petitioner’s CAT claim because she offered “no particularized evidence to support her claim”).
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 no longer claims to fear torture at the hands of loan sharks or smugglers, waiving any such argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471783/ | SUMMARY ORDER
Petitioner Ming Di Ni, a native and citizen of the People’s Republic of China, seeks review of a May 2, 2008 order of the BIA affirming the October 18, 2006 decision of Immigration Judge (“IJ”) Gabriel C. Videla, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ming Di Ni, No. A99 533 465 (B.I.A. May 2, 2008), aff'g No. A99 533 465 (Immig. Ct. N.Y. City Oct. 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, because Ni failed to challenge the IJ’s denial of his CAT claim before the BIA, we lack jurisdiction to consider his unexhausted challenge to the denial of that relief. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003)). The petition for review is dismissed to that extent.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review 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).
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)(1)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).
Substantial evidence supports the IJ’s adverse credibility determination. The IJ relied on the following findings and observations: (1) Ni “was repeatedly non-responsive to very simple direct questions,” which suggested to the IJ that he was “testifying from a memorized script”; (2) when asked whether he had experi*683enced any problems attending underground churches in China, he responded with a question as to what type of problems the question was referencing; (3) contrary to his asylum application, he denied that he had experienced any problems with the Chinese government; (4) although he testified that authorities had come to his family’s home twelve to thirteen times in order to arrest him, he made no such assertion in his asylum application; (5) although he indicated in his asylum application that he “followed the church brothers and sisters to read [the] bible,” he testified that he had never read the bible; (6) he did not know the name of the church he supposedly attended on numerous occasions; (7) the name and location he provided for the government-sanctioned church in China did not match information in a letter purportedly from that church; and (8) when asked about such discrepancies, he provided different answers, some of which had no logical connection to what he was being asked to explain.
Ni asserts that his “inability to initially answer some of the IJ’s questions ... is not unreasonable given the argumentative and sometimes confusing nature of the IJ’s questions.” The record reveals, however, that the IJ asked clear and direct questions, and repeated those questions in order to provide Ni numerous opportunities to explain discrepancies. Nor was it improper for the IJ to suggest that Ni’s responses seemed scripted. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005) (stating that we give particular deference to the trier of fact’s assessment of demean- or).
The IJ properly found that Ni was not credible, based on demeanor, non-responsiveness, and inconsistencies. See 8 U.S.C. § 1158(b)(l)(B)(iii).
Because the only evidence of a threat to Ni’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003).
For the foregoing reasons, the petition for review is DENIED, in part, and DISMISSED, in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471785/ | *685
SUMMARY ORDER
Petitioners, Tjon Sun Sim and Jun Fah Tjin, both natives and citizens of Indonesia, seek review of a September 22, 2008 order of the BIA affirming the May 10, 2007 decision of Immigration Judge (“IJ”) Javier Balasquide denying Sim’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), which included Tjin as a derivative applicant.2 In re Sim, Tjin, No. A 98 971 366/367 (B.I.A. Sept. 22, 2008), aff'g No. A 98 971 366/367 (Immig. Ct. N.Y. City May 10, 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). This Court reviews 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 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Sim argues that the agency erred in finding that he did not suffer past persecution. In making that finding, the agency found that Sim failed to show that a fire that destroyed his home was set by Muslim Indonesians targeting him on account of his ethnicity and religion. See 8 U.S.C. § 1158(b)(l)(B)(i) (providing that “the applicant must establish that [a protected ground] was or will be at least one central reason for” the claimed persecution); see also 8 U.S.C. § 1101(a)(42). Substantial evidence supports that finding because no evidence established a connection between the burning of Sim’s home and a protected ground where Sim testified that he did not know what caused the fire. See Manzur, 494 F.3d at 289.
Sim also argues that the agency erred by failing to consider the cumulative effect of the other incidents he described. See id. at 290. To the contrary, the agency explicitly found that, even when considered cumulatively, the incidents Sim described did not rise to the level of persecution. The record supports that conclusion. Cf. id.; see also Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (emphasizing that harm must be sufficiently severe, rising above “mere harassment”).
Likewise, the agency properly found that Sim failed to establish a well-founded fear of future persecution. Sim lived in Indonesia for over seventy years without being physically harmed. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (finding that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best”); see also Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A.1985).
Sim argues that the agency failed to consider whether he established a pattern or practice of persecuting ethnic Chinese and non-Muslims in Indonesia. This argument is contradicted by the record, which indicates that the BIA explicitly declined to find such a pattern or practice. Moreover, that finding is supported by substantial evidence in the record suggesting that conditions in Indonesia have improved in recent years. See Matter of A-M-, 23 I. & N. Dec. 737, 741 (B.I.A.2005); cf. Mufied v. Mukasey, 508 F.3d 88, 92 (2d Cir.2007).
Because the agency reasonably found that Sim failed to demonstrate ei*686ther past persecution or a well-founded fear of future persecution, it properly denied his application for asylum and withholding of removal. See 8 U.S.C. § 1101(a)(42); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). To the extent Sim challenges the IJ’s denial of his CAT claim, we are without jurisdiction to consider his argument as he failed to exhaust it before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(b).
. Because Jun Fah Tjin is a derivative applicant, this order refers only to Sim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471787/ | *687SUMMARY ORDER
Petitioner-appellant Rohan Myers was convicted after a jury trial in County Court, Westchester County, of murder in the second degree. Defendant appealed, contending that the trial court erroneously found that defendant had failed to establish a prima fade case supporting his Bat-son claim, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the prosecutor’s use of peremptory challenges to remove Jamaican jurors was discriminatory. On November 17, 2008, the Appellate Division, Second Department, affirmed defendant’s conviction. The Appellate Division concluded that the trial court correctly determined that defendant had failed to establish a prima facie case of discrimination because defendant failed to “establish a pattern of purposeful exclusion which would raise an inference of discrimination.” People v. Myers, 1 A.D.3d 532, 533, 767 N.Y.S.2d 266 (2d Dep’t 2003). Defendant sought leave to appeal from the Appellate Division’s determination again citing the fact that “the prosecutor challenged each Jamaican on the panel.” J.A. 24. Judge Ciparick, Associate Judge of the New York Court of Appeals, denied defendant’s application on February 26, 2004. People v. Myers, 1 N.Y.3d 631, 777 N.Y.S.2d 30, 808 N.E.2d 1289 (2004).
On October 14, 2004, defendant filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), in the District Court, asserting that the state court’s denial of defendant’s Batson claim, when the “prosecutor [had] challenged all the Jamaicans on the jury panel,” J.A. 17, was an unreasonable application of clearly established federal law.2 The District Court referred the matter to Magistrate Judge Lisa Margaret Smith, who recommended that defendant’s petition be denied, in a Report and Recommendation dated January 20, 2006 (“R&R”). J.A. 54-70. The Magistrate Judge explained that the trial court’s finding that defendant failed to establish a prima facie Batson violation “based upon national origin was not contrary to, or an unreasonable application of, federal law,” J.A. 63, because “there is no clear authority as to whether national origin discrimination can be used as the predicate for a prima facie Batson violation,” J.A. 61. Defendant filed timely objections to the R&R, complaining that the Magistrate Judge had reviewed his claim mistakenly as one of “national origin” rather than race. On July 30, 2007, the District Court adopted the R&R, denying defendant’s petition for a writ of habeas corpus but granting a Certificate of Appealability on defendant’s Batson claim. Defendant’s appeal challenges the District Court’s denial of his petition for a •writ of habeas corpus. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
We review a district court’s ruling on a petition for a writ of habeas corpus de novo. See, e.g., Overton v. Newton, 295 F.3d 270, 275 (2d Cir.2002). Pursuant to 28 U.S.C. § 2254(d), a writ of habeas corpus may not issue for any claim adjudicated on the merits by a state court unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts in light of the evidence pre*688sented” in state court, id. § 2254(d)(2). We have been reminded that “clearly established Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir.2008) (quoting Williams).
A state court decision is “contrary to” clearly established federal law if the state court’s conclusion on a question of law is “opposite” that of the Supreme Court or if the state court reaches a different outcome than the Supreme Court “on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413, 120 S.Ct. 1495; Alexander, 543 F.3d at 100 (quoting Williams). A state court decision “involves an unreasonable application of’ clearly established federal law as determined by the Supreme Court if it “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a defendant’s] case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. A federal habeas court should not “conflat[e] ‘unreasonableness’ with ‘clear error’ ... because ‘[t]he gloss of clear error fails to give proper deference to state courts.’ ” Brisco v. Ercole, 565 F.3d 80, 87-88 (2d Cir.2009). “Some increment of incorrectness beyond error is required.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000). We have noted, however, “that the increment [of error beyond clear error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (internal quotation marks omitted).
Defendant argues on appeal that (1) the state trial court’s denial of defendant’s Batson claim was erroneous; (2) the Magistrate Judge and the District Court erroneously found that he did not assert a prima facie case because they viewed his claim as one of national-origin, rather than race-based discrimination; and (3) the excluded jurors were, in fact, challenged because of their racial “subcategory:” black Jamaicans.
However, it is clear that defendant’s argument to the Appellate Division was one of national-origin discrimination only: “Mr. Myers is Jamaican. The Prosecutor challenged all of the Jamaicans on the jury panel.” J.A. 31. The Magistrate Judge therefore correctly treated defendant’s claim as one of national origin. Because defendant did not assert a “race-based” Batson argument in the Appellate Division, we find defendant’s claim unexhaust-ed and procedurally defaulted.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the District Court.
. Defendant also asserted in his petition for a writ of habeas corpus that the trial court erred in some of its instructions to the jury and evidentiary rulings. These claims are not before us on appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471789/ | SUMMARY ORDER
Plaintiff-Appellant Eugene Glicksman (“Glicksman”) appeals from the January 25, 2008 decision of the United States District Court for the Southern District of New York (Preska, J.) granting summary judgment to Defendants-Appellees New York City Environmental Control Board, et al. (“Defendants”). Glicksman brought suit under 42 U.S.C. § 1983 alleging that Defendants violated, inter alia, his rights under the First Amendment and Due Process Clause of the Fourteenth Amendment. On appeal, Glicksman principally argues that the district court (1) incorrectly determined that his First Amendment retaliation claim was barred by Garcetti v. *690Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); and (2) failed to adequately consider his claim that New York City Administrative Law Judges have a right to “decisional independence” that is relevant to the disposition of this case. Plaintiffs Br. at 45. We assume the parties’ familiarity with the underlying facts, procedural history, and the issues presented for review.
“We review an award of summary judgment de novo, and we will uphold the judgment only if the evidence, viewed in the light most favorable to the party against whom it is entered, demonstrates that there are no genuine issues of material fact and that the judgment was warranted as a matter of law.” Molinari v. Bloomberg, 564 F.3d 587, 595 (2d Cir.2009). Prior to his termination on September 17, 1998, Glicksman was a New York City Administrative Law Judge (“ALJ”) at the New York City Taxi and Limousine Commission (“TLC”). Defendants claim that Glicksman was terminated for failing to adhere to TLC adjudication procedure at inquest hearings, during which taxi cab drivers do not appear. Specifically, Defendants contend that Glicksman refused to amend summonses setting forth invalid Rule 2-21 (a) charges to assert valid Rule 2-21 (b) charges. Glicksman does not deny this. See, e.g., App. at 260 (arguing before the district court that Glicksman was “properly serving his judicial function by refusing to charge a new offense in absentia .... ”). Instead, Glicksman claims, in his affidavit, that it would have been illegal or otherwise inappropriate for him to follow TLC adjudication procedure. See, e.g., id. at 290 (“Instead of putting an outright stop to [the practice of overcharging taxi drivers with Rule 2-21(a) violations], TLC told the ALJs to amend the over-charges at inquests, when the accused was not even present. ... This would have been a rather serious due process violation.”). He thus refused to do so, resulting in his allegedly retaliatory discharge.
The elements of a First Amendment retaliation claim in the context of government employment can be stated as follows: “(1) [plaintiff] engaged in constitutionally protected speech because [he] spoke as [a] citizen[ ] on a matter of public concern; (2) [plaintiff] suffered an adverse employment action; and (3) the speech was a motivating factor in the adverse employment decision.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008). The Supreme Court elaborated on the first element in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006): “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Glicksman conceded in his briefing below — and does not claim otherwise before this Court — that his First Amendment claim is based on the decisions he issued as an administrative law judge. See, e.g., App. at 270 (“This is the very essence of plaintiffs free speech claim — his decisions as an administrative law judge.... ”). Thus, the speech at issue falls squarely within the scope of Glicksman’s official duties as an administrative law judge— deciding cases.
Relying on Fierro v. City of New York, 591 F.Supp.2d 431 (S.D.N.Y.2008), Glicksman argues that Garcetti is inapplicable when an employee is terminated for speech that constitutes a refusal to undertake wrongful conduct. See Fierro, 591 F.Supp.2d at 442 (“The question of whether speech stemming from a supervisor’s instruction to a subordinate to commit a wrongful — perhaps even criminal — act falls under Garcetti is one that has not yet been *691addressed by the Second Circuit.”); see also Fierro v. City of New York, 341 Fed.Appx. 696, 698 (2d Cir.2009) (“Without addressing the substantive question of whether a public employee’s refusal to abide by an instruction to engage in misconduct is protected speech under the First Amendment, such protection was certainly not clearly established at the time Bleadon engaged in her allegedly retaliatory conduct.”). Even assuming that Gareetti left open the possibility that a public employee’s refusal to engage in clearly wrongful conduct while acting within his job responsibilities may be protected speech, hit see Gareetti, 547 U.S. at 425-26, 126 S.Ct. 1951 (noting that a powerful network of legislative enactments, such as whistle-blower protection law and labor codes, available to those who seek to expose wrongdoing, “as well as obligations arising from ... other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions” (emphasis added)), we need not reach the issue. Gareetti made clear that an employee’s mere disagreement with government policy does not give him license to carry out his employment as he sees fit (and specifically, to disregard agency policy because there may be a col-orable argument as to its impropriety) merely because such employment involves speech. See id. at 422, 126 S.Ct. 1951 (“The fact that [Ceballos’s] duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.”); id. (“[The prospect of protection for contributions to civic discourse] does not invest [government employees] with a right to perform jobs however they see fit.”); id. at 422-23, 126 S.Ct. 1951 (“Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.”).
Here, most of Glicksman’s objections to TLC inquest procedure — specifically, to the amending of invalid Rule 2-21 (a) summonses to valid Rule 2-21 (b) summons in absentia — lack merit for the simple reason that taxi drivers are afforded a subsequent opportunity to contest all such charges. See SpecApp. at 54 (“[I]f the respondent fails to appear on the scheduled ... hearing date, a default charge ... is added to the original underlying charge(s) and an inquest hearing is held in respondent’s absence. Notification of the findings of the ALJ are then mailed to the respondent. ... At a subsequent Motion to Vacate hearing, the burden is on the respondent to show both excusable neglect with respect to the default and a meritorious defense with respect to the underlying charge[, which] need not be more than an offering of proof that if substantiated could result in the dismissal of the charges.”). Glicksman contends, in addition, that he was issued an internal agency directive in violation of § 1046(c) of the City Administrative Procedure Act (“CAPA”). That provision reads as follows: “No ex parte communications ... shall be received by a hearing officer, including internal agency directives not published as rules.” Id. at 28. Glicksman’s briefing before this Court, however, does not indicate the source or content of the internal directive at issue, and hence why such directive violated the CAPA. See Appellant’s Br. at 22. Because Glicksman devoted only two vague sentences to this point, we deem the issue to be waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). Thus, even assuming that Glieksman’s reading of Gar-ceta is correct, Glicksman has not made a showing that he was directed to undertake *692clearly illegal or otherwise inappropriate conduct, and hence Glicksman’s refusal to follow TLC adjudication procedure is not protected speech.
Glicksman’s effort to frame the same claim as the assertion of a right to judicial independence fares no better. To the extent that Glicksman’s claim is grounded in the First Amendment, see, e.g., Perry v. McGinnis, 209 F.3d 597, 604 (6th Cir.2000) (“We find that a disciplinary hearing decision ... is a communicative act entitled to First Amendment protection.”), it fails for the same reasons as his First Amendment retaliation claim — i.e., it is barred by Gar-ceta. To the extent that Glicksman attempts to ground such a right in other sources, see Nash v. Califano, 613 F.2d 10, 15 (2d Cir.1980) (“[Tjhese [Administrative Procedure Act] provisions confer a qualified right of decisional independence upon ALJs ... [which] is a creation of statute, rather than the Constitution.”), we are not persuaded that New York City ALJs possess a right to judicial independence of the sort that would permit an ALJ to resist agency policy — at least not based on the sources cited by Glicksman. Indeed, Glicksman conceded as much to the district court. See App. at 507 (“[T]he City of New York still has nothing akin to a guarantee of decisional independence of ALJs.... Thus, we have no choice but to fall back on the United States Constitution.”). In his reply brief, Glicksman concedes that he lacks a “formal and express enactment” on which to base his “decisional independence” claim, see Reply Br. at 8, but then seeks to recast his claim as a procedural due process claim. Id. at 9. This argument comes too late, see Keefe on Behalf of Keefe v. Shalala, 71 F.3d 1060, 1066 (2d Cir.1995) (“Normally, we will not consider arguments raised for the first tune in a reply brief .... ”), and, in any event, Glicksman has failed to contest the district court’s dismissal of his due process claim on the ground that the “availability of an Article 78 proceeding satisfies the requirements of the due process clause in [his] case,” App. at 626.
We find Glicksman’s remaining arguments in this appeal to lack merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471791/ | SUMMARY ORDER
Jian Chiu Ye, a native and citizen of China, seeks review of a March 20, 2007 order of the BIA affirming the March 6, 2001 decision of Immigration Judge (“IJ”) Sandy Horn, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jian Chiu Ye, No. A77 866 466 (B.I.A. Mar. 20, 2007), aff'g No. A77 866 466 (Immig. Ct. N.Y. City Mar. 6, 2001). 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.2 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 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. Salimatou Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir.2008).
The agency properly found that Ye failed to meet her burden of proving either past persecution or a well-founded fear of persecution as required for a grant of asylum. Ye alleged that she was expelled from school when she was seventeen because she refused to submit to an IUD insertion and urged her classmates to do the same. She argues that her expulsion will have “lifelong economic consequence” and therefore constituted economic perse-*694ration. To prevail on her economic persecution claim, Ye needed to establish that she suffered the “deliberate imposition of [a] substantial economic disadvantage” that was sufficiently severe to “constitute a threat to [her] life or freedom.” Matter of T-Z-, 24 I. & N. Dec. 163, 173 (B.I.A. 2007). However, Ye presented no evidence or testimony establishing the nature and extent of any economic disadvantage she suffered or expects to suffer as a result of her expulsion from school. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002) (finding that petitioner had not established economic persecution where he failed to present testimony or other evidence that would enable the Court to evaluate his personal financial circumstances). In the absence of such evidence, the agency did not err in finding that Ye failed to establish that the expulsion amounted to economic persecution. See id.
Furthermore, the agency properly found that Ye’s fear of future persecution was not well-founded. The fear of forced abortion or sterilization is speculative and without record support because Ye was unmarried and childless at the time of her application. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005). Likewise speculative is her fear of a government “blacklist” as a result of her resistance to China’s family-planning policy, because the record revealed no basis for concluding that the Chinese government would still be interested in taking action undergo an IUD insertion. See id. Accordingly, the agency did not err in denying Ye’s asylum claim on the grounds that she failed to meet her burden of proof.
Because Ye failed to meet her burden of proof with respect to her asylum claim, she necessarily failed to meet the higher burden of proof required to prevail on her claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). In addition, Ye has waived any 10 challenge she might have raised to the denial of her CAT 11 claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 12 n. 5, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. While the denial of relief in asylum-only proceedings, such as those at issue here, does not result in a final order of a removal, see 8 C.F.R. § 1208.2(c)(3)(i), it is the “functional equivalent” of a removal order; jurisdiction therefore exists under 8 U.S.C. § 1252(a)(1). Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471703/ | *579ON MOTION
ORDER
Upon consideration of the appellant’s motion to voluntarily dismiss this appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471704/ | ON MOTION
ORDER
Upon consideration of the appellant’s motion to withdraw this appeal,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471706/ | ON MOTION
ORDER
The court treats the notice of withdrawal, filed by Jaime E. Virtucio and transmitted to this court by the United States District Court for the District of Columbia, as a motion to voluntarily dismiss this appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471711/ | ON MOTION
ORDER
Norbet Steven Wilcox moves for leave to proceed in forma pauperis.
The court notes that Wilcox has not responded to the court’s May 29, 2009 order concerning this court’s lack of jurisdiction in this case.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) The motion to leave to proceed in forma pauperis is denied as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471713/ | ON MOTION
ORDER
Third Dimension Semiconductor, Inc. (3D) moves to dismiss its appeal. 3D states that Fairchild Semiconductor Corporation consents.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
(3) All pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471714/ | ON MOTION
PER CURIAM.
ORDER
The United States moves to dismiss Yvonne R. Kovacevich and Robert E. Ko-vacevieh’s appeal as premature. The appellants oppose.
The appellants filed a complaint in the United States Court of Federal Claims seeking a refund of federal income taxes paid. The United States counterclaimed for outstanding tax liabilities. The appellants moved to strike the counterclaim for lack of jurisdiction and the Court of Federal Claims denied the motion in part. The appellants appealed that order.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(3). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision *582Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” (citation omitted)). Because the complaint and the United States’ counterclaim are pending in the Court of Federal Claims, there is no final decision or judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471792/ | SUMMARY ORDER
Petitioner Hua Ying Yang, a native and citizen of the People’s Republic of China, seeks review of: (1) the September 28, 2007 order of the BIA denying her first motion to reopen; and (2) the May 30, 2008 order of the BIA denying her second motion to reopen. In re Hua Ying Yang, No. A075 801 719 (B.I.A. Sept. 28, 2007); In re Hua Ying Yang, No. A075 801 719 (B.I.A. May 30, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Yang’s June 2006 and March 2008 motions to reopen were untimely: the final administrative order dismissing her appeal was entered in February 2003. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). There are no time limitations for filing a motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
Yang waives any challenge to the BIA’s finding that she failed to demonstrate changed country conditions excusing the untimeliness of her first motion to reopen. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). As to her second motion to reopen, Yang argues that she identified mistranslations in the 2001 Fujian Province Population and Family Planning Law (“2001 Law”) that is relied on in the U.S. Department of State’s *6962007 report, China: Profile of Asylum Claims and Country Conditions. These mistranslations, she argues, are the functional equivalent of changed country conditions. The BIA did not abuse its discretion in concluding that Yang’s assertion of translation errors failed to demonstrate changed country conditions; she submitted no evidence in support of her claim. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Moreover, a review of the alleged translation errors demonstrates that, as the BIA found, the purportedly corrected translations would not materially alter the meaning of the country conditions evidence by demonstrating a risk of forced sterilization.
For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions 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/8471794/ | SUMMARY ORDER
Petitioner Hua Wang, a native and citizen of the People’s Republic of China, seeks review of a March 31, 2008 order of the BIA affirming the May 10, 2006 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hua Wang, No. A98 255 750 (B.I.A. March 31, 2008), aff'g No. A98 255 750 (Immig. Ct. N.Y. City May 10, 2006). 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). We review de novo questions of law and the application of law to undisputed fact. See Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. As the IJ found, Wang admitted that she lied to immigration officers at her airport and credible fear interviews and told them that she came to the United States because someone tried to force her to marry him in China. Wang’s fabrications to immigration officials on two separate occasions revealed a propensity to lie. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (holding that an IJ may rely on the principle of falsus in uno, falsus in omnibus to discredit evidence lacking independent authentication or corroboration).
Wang’s materially different accounts of her claim provided substantial evidence for the IJ’s finding that she was not credible. See Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.2004).
Additionally, because the only evidence of a threat to Wang’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for withholding of removal, and CAT relief, because all three claims were based on the same factual predicate.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 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).
. Because the IJ's adverse credibility determination is dispositive of all of Wang’s claims for relief, it is unnecessary to consider her alternate burden of proof finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471796/ | SUMMARY ORDER
Petitioners Abindin, Leonora, Xhoni, and Xhoana Agolli, all natives and citizens of Albania, seek review of the March 28, 2008 order of the BIA affirming the August 16, 2006 decision of Immigration Judge (“IJ”) Patricia A. Rohan denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Abindin Agolli et al., Nos. A097 162 983/984/985/986 (B.I.A. Mar. 28, 2008), aff'g Nos. A097 162 983/984/985/986 (Immig. Ct. *699N.Y. City Aug. 16, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As a preliminary matter, we retain jurisdiction to consider the instant petition for review despite the fact that petitioners were placed in “asylum-only” proceedings. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.2006). When the BIA does not expressly “adopt” the IJ’s decision, but its decision 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). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). 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).
Applicable regulations require IJs to exercise the Attorney General’s discretion to deny asylum to applicants who establish eligibility based solely on past persecution when the government establishes a fundamental change in circumstances sufficient to rebut the presumption of well-founded fear. 8 C.F.R. § 1208.13(b)(1). Here, having found that Abindin Agolli suffered past persecution, the agency determined that the Government successfully rebutted any presumption of a well-founded fear based on evidence that: (1) since the 2005 elections, the Democratic Party controlled the Albanian government; (2) the human rights of Albanian citizens were generally respected; and (3) State Department reports revealed a lack of politically motivated arrests or disappearances. We have upheld similar findings and are not compelled to reach a different conclusion here. See Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir.2006) (observing that the election of the Democratic Party in Albania negated petitioner’s presumption of a well-founded fear based on his pro-democracy activities).
Petitioners argue that the agency failed to consider contradictory evidence in the record. While we have held that the agency must consider an applicant’s country conditions evidence, see Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d Cir.2005), nothing in the record suggests that the BIA ignored the evidence submitted in this case, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (“[W]e presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise.”). Thus, we find no reason to disturb the agency’s finding that fundamental changed circumstances rebutted any presumption of a well-founded fear of persecution.
Abindin Agolli also asserts that the agency erred by refusing to grant him humanitarian asylum. This argument is unavailing. To be eligible for humanitarian asylum, a petitioner must demonstrate “compelling reasons for being unwilling or unable to return ... [that] aris[e] out of the severity of the past persecution.” 8 C.F.R. § 1208.13(b)(l)(iii)(A); see In re N-M-A-, 22 I. & N. Dec. 312, 326 (BIA 1998) (petitioner must show “severe harm and the long-lasting effects of that harm”). We may overturn a discretionary denial of humanitarian asylum only if it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D); Wu Zheng Huang v. INS, 436 F.3d 89, 96 (2d Cir.2006).
As the BIA observed, humanitarian asylum has been reserved for only the most “atrocious” forms of persecution. See Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989). We cannot find that the BIA abused its discretion in finding that, although “despicable,” Agolli’s mistreatment *700did not reach that level. See Jalloh v. Gonzales, 498 F.3d 148, 152 (2d Cir.2007); see also Matter of Chen, 20 I. & N. Dec. at 20 (persecution resulting in permanent disability, constant anxiousness and fearfulness, and suicidal thoughts sufficient to demonstrate “compelling reasons”).
Because the agency correctly determined that the Petitioners failed to satisfy the lower burden of proof for asylum, it also properly denied their application for withholding of removal. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (failure to establish eligibility for asylum necessarily precludes eligibility for withholding of removal because of the latter’s higher standard of proof). Petitioners’ mere reference to CAT protection in their summary of the argument does not suffice as a challenge to the agency’s denial of that relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005) (issues not raised before this court are waived and will not ordinarily be addressed on appeal).
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/8471798/ | SUMMARY ORDER
Petitioner Di Di Qiu, a native and citizen of the People’s Republic of China, seeks review of an October 5, 2007 order of the BIA denying his motion to reopen. In re Di Di Qiu, No. A073 604 510 (B.I.A. Oct. 5, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). In this case, Qiu did not file his motion to reopen until more than ten years after the BIA issued its final administrative order.
However, when a movant raises a claim of ineffective assistance of counsel, the filing deadline may, under certain conditions, be equitably tolled. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). To merit equitable tolling, the movant must demonstrate that he pursued his case with due diligence during the period of time for which he seeks tolling. See Iavorski v. I.N.S., 232 F.3d 124, 134-35 (2d Cir.2000). Here, Qiu presented no evidence to the BIA to establish that he exercised the requisite due diligence. Although he argues that the preparation of his motion was hampered by the government’s refusal to provide him with a copy of his immigration file, he also admits that he did not submit his FOIA request for the file until 2006, ten years after the BIA dismissed his appeal in the underlying proceedings. Qiu’s motion did not offer the BIA a clear, satisfactory explanation for this delay.
In his motion, Qiu alleged that he did not learn until the summer of 2006 that his application for relief had been denied. This claim strains credulity; Qiu was present in the hearing room when the IJ delivered her oral decision denying his application, the decision was translated for him by the court interpreter, and Qiu subsequently represented himself on appeal to the BIA. The record indicates that a copy of the BIA’s final administrative order dismissing his appeal was mailed to the address that Qiu provided on his Notice of Appeal, and Qiu has never specifically alleged that he did not receive it. In light of Qiu’s failure to offer a plausible explanation for his decade-long delay in seeking a copy of his immigration file and otherwise pursuing his case, the BIA reasonably found that he had not shown the required due diligence and declined his request for equitable tolling on that basis. See Iavor-ski, 232 F.3d at 134-35.
Qiu argues that the government’s refusal to provide his new attorney with a copy of his file compromised the fundamental fairness of his proceedings and constituted a due process violation. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir.2006). However, Qiu has not established that he was prejudiced in any *702way as a result of being deprived of access to the record of his underlying immigration proceedings. See, e.g., Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st Cir.2005).
Although Qiu did not merit equitable tolling, he could have established that an exception to the filing deadline for his motion was warranted by presenting evidence of changed country conditions in China. 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 100S.2(c)(3)(ii). However, Qiu submitted no such evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 149 (2d Cir.2008). The only documents that Qiu filed with his motion were copies of his marriage certificate, his wife’s U.S. passport and certificate of naturalization, and his older child’s birth certificate. In addition, Qiu alleged that his wife was pregnant with the couple’s second child. It is well-settled that the birth of U.S.-citizen children is evidence of changed personal circumstances, not evidence of changed country conditions, and such evidence does not suffice, by itself, to warrant an exemption from the time limitation on motions to reopen. See, e.g., Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule 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/8471800/ | SUMMARY ORDER
Mei Fang Cai, a native and citizen of the People’s Republic of China, seeks review of an April 4, 2008 order of the BIA, affirming the September 14, 2006 decision of Immigration Judge (“IJ”) Javier Balas-quide, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mei Fang Cai, No. A095 716 672 (B.I.A. Apr. 4, 2008), aff'g No. A095 716 672 (Immig. Ct. N.Y. City Sept. 14, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence 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. The agency reasonably relied on Cai’s inconsistent statements under oath to U.S. immigration officials and the Immigration Court. See id.; see also Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.2004). Cai contests the reliability of the record of her statements during her airport and credible fear interviews, but she admitted making false statements at those interviews. Cai explains that her smuggler told her to make a false claim in order to remain in the United States, but such explanation simply demonstrates her willingness to lie in order to obtain immigration benefits. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). The agency therefore reasonably denied Cai’s application for asylum, withholding of removal, and CAT relief insofar as it was based on her claimed fear of harm by her father’s creditors. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Accordingly, we need not consider Cai’s additional arguments related to that claim for relief.
*704As to Cai’s claim that she fears persecution and torture for having illegally departed China, “punishment for violation of a generally applicable criminal law is not persecution.” Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239 (2d Cir.1992); see also Matter of Sibrun, 18 I. & N. Dec. 354, 359 (BIA 1983) (holding that possible criminal punishment for “illegal departure” “does not demonstrate a likelihood of persecution under the Act”). Moreover, the country conditions evidence in the record indicates that, at most, Cai would be fined and “detained long enough for relatives to arrange [her] travel home.” U.S. Dep’t of State, China: Profile of Asylum Claims and Country Conditions at 35 (2005).
The agency reasonably denied Cai’s application for CAT relief based on her illegal departure from China. Without any particularized evidence, an applicant cannot demonstrate that he will more likely than not be tortured “based solely on the fact that [he] is part of the large class of persons who have left China illegally” and on generalized evidence indicating that torture occurs in Chinese prisons. 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) (holding that beyond evidence of inhumane prison conditions, a CAT claimant must provide some evidence that the authorities act with the specific intent to inflict severe physical or mental pain or suffering on those detained).
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/8471802/ | SUMMARY ORDER
Petitioner Qing Lin, a native and citizen of the People’s Republic of China, seeks review of the April 16, 2008 order of the BIA denying her motion to reopen. In re Qing Lin, No. A096 037 311 (B.I.A. Apr. 16, 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, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). The BIA did not abuse its discretion in denying Lin’s motion to reopen as untimely. As the BIA noted, its prior decision was issued in June 2006, but Lin did not file her motion until January 2008, well beyond the 90-day deadline. See 8 C.F.R. § 1003.2(c)(2). There is no time limit for filing a motion to reopen “based on changed circumstances arising in the country of nationality or in the counry to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). Here, however, the BIA properly found that Lin’s motion did not qualify for such an exception.
The BIA explicitly considered the 2006 U.S. Department of State International Religious Freedom Report, which was the only evidence that Lin submitted in support of her motion to reopen. The BIA noted that the report indicated that “the extent of religious freedom varied widely within the country” and that “treatment of unregistered groups varied regionally.” The BIA quoted the same words from the 2005 report when it denied Lin’s asylum claim in 2006. Although Lin argues that the BIA failed to consider additional language in the report, the BIA is not required to “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” as long as it “has given reasoned consideration to the petition, and made adequate findings.” Wei Guang Wang v. BIA, 437 F.3d 270, 273-275 (2d Cir.2006). Thus, the BIA did not abuse its discretion in denying Lin’s motion to reopen as untimely. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001). Contrary to Lin’s argument, the BIA was under no obligation when a motion to reopen is untimely, to consider prima facie eligibility for relief. See 8 U.S.C. § 1229a(e)(7)(C)(ii).
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 *706DISMISSED 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/8471699/ | ON MOTION
NEWMAN, Circuit Judge.
ORDER
The United States moves to dismiss Nassif J. Cannon’s and Gail F. Barber’s appeal for lack of jurisdiction. The appellants do not oppose.
The appellants filed a complaint in the United States Court of Federal Claims seeking a refund of federal income taxes paid in connection with investments in a group of tax-shelter partnerships. This complaint was one of several related complaints filed in the Court of Federal Claims seeking the same relief. The trial court stayed this case pending its decision in Prati v. United States, 81 Fed.Cl. 422 (2008), believing that the decision in Prati would control the outcome of the other cases. In Prati, the Court of Federal Claims dismissed the case, determining that it lacked jurisdiction over the alleged claims. Accordingly, the Court of Federal Claims also dismissed the other pending cases. On reconsideration, the Court of Federal Claims vacated its judgment in the present case, finding case-specific claims that were not resolved by Prati. The appellants appealed to this court.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(3). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d *5761353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” (citation omitted)). Because the Court of Federal Claims vacated its judgment and has not concluded its proceedings, there is no final judgment. The appellants may, of course, file a notice of appeal after the trial court concludes its proceedings and enters final judgment, if appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471701/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss for lack of jurisdiction Edward Z. Camillo’s appeal from a decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals (Board) decision that denied Camillo entitlement to Department of Veterans Affairs disability compensation benefits for the residuals of a brain tumor.
Camillo served on active duty in the U.S. Army from September 1960 to September 1962. His induction examination noted no prior neuropsychiatric treatment or treatment relating to a brain tumor. However, his induction examination report noted a prior history of sleepwalking, headaches, and dizziness. In June 1981, Camillo filed an application with the Department for disability compensation benefits for residuals of a brain tumor, which had been diagnosed after his discharge. A Department regional office (RO) dented Camillo’s claim as pre-existing his entry into service. The RO relied predominantly on medical records between his discharge and his application that indicated Camillo had experienced headaches, nausea, and dizziness throughout childhood resulting in among other problems a four-month absence from school.
Following two unsuccessful attempts by Camillo to reopen his claim based on new and material evidence, Camillo’s claim was reopened for adjudication in September 2004. In March 2005, he underwent examination by a Department medical examiner *577who opined that Camillo’s symptoms “were at least as likely as not related to the tumor when he entered the service and was in the service.” The examiner further noted that Camillo had a “very slowly progressing tumor that had nothing to do with him being in service.”
The Department denied Camillo’s claim for disability benefits based primarily on the Department medical examiner’s opinion. Camillo appealed the Department’s decision to the Board. Camillo also submitted in support of his claim a report from his private physician, opining that “I am certain that it is more likely tha[n] not that [Camillo’s] brain tumor did not predate his service time,” and that his tumor “significantly advanced/progressed permanently in service.”
The Board sought an independent medical examination to reconcile what it stated to be two conflicting opinions regarding the onset and development of Camillo’s brain tumor. In November 2006, the independent medical examiner opined that Camillo’s tumor began growth before his entry into service and that while in service the tumor’s growth was gradual and unremarkable. Relying on the independent examiner’s opinion and the Department’s medical examiner’s opinion, the Board found that Camillo’s brain tumor clearly and unmistakably pre-existed service and was not aggravated by service, thus rebutting the presumption of soundness.
On appeal at the Court of Appeals for Veterans Claims, Camillo argued through counsel that by seeking the independent medical examiner’s opinion the Board was improperly obtaining unnecessary additional evidence against the claim. Camillo further argued that the Board failed to provide sufficient justification for its determination that an independent medical examiner’s opinion was warranted.
In its December 1, 2008 decision, the Court of Appeals for Veterans Claims sustained the Board’s denial of entitlement to compensation benefits, rejecting each of Camillo’s arguments. Regarding the independent medical examiner’s opinion, the court held that the Board was within its discretion in ordering an independent medical examination in light of the conflicting medical evidence. The court further held that the Board had correctly determined that there was clear and unmistakable evidence rebutting the presumption of soundness by demonstrating that Camillo’s brain tumor pre-existed service and was not aggravated by service. Camillo filed a timely appeal seeking review by this court.
In his brief Camillo argues that the Board violated 38 C.F.R. § 3.304(c) by securing an independent medical examiner’s opinion when there was evidence sufficient for the Board to determine whether his claim was eligible for service connection. He contends that there is no probative value in the Department medical examiner’s report because that examiner never met with Camillo, and because there was only one probative medical opinion, there was no conflict between medical opinions to be resolved by an independent medical opinion.
The court’s jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the validity of any statute or regulation, or an interpretation thereof relied on by the court in its decision. This court may also entertain challenges to the validity of a statute or regulation, and to interpret constitutional and statutory provisions as needed for resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional *578question, this court lacks jurisdiction over challenges to factual determinations or laws or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).
Although Camillo asserts that his arguments involve an issue of regulatory interpretation, this court must look beyond the appellant’s characterization of the issues to determine whether they fall within the jurisdiction of this court. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed.Cir.2007); Helfer v. West, 174 F.3d 1332, 1335 (Fed.Cir.1999). Here, Camillo’s arguments are aimed at how the Board and the court weighed the medical opinions and applied the law to the facts of his claim. Because we agree with the Secretary that this court lacks jurisdiction, we must dismiss Camil-lo’s appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions are granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471707/ | ON MOTION
ORDER
The court treats the notice of withdrawal, filed by Jaime E. Virtucio and transmitted to this court by the United States District Court for the District of Columbia, as a motion to voluntarily dismiss this appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471708/ | ON MOTION
ORDER
Upon consideration of the joint motion to dismiss this appeal, due to settlement,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) All other pending motions are moot.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471712/ | ON MOTION
ORDER
Third Dimension Semiconductor, Inc. (3D) moves to dismiss its appeal. 3D states that Fairchild Semiconductor Corporation consents.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
(3) All pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471793/ | SUMMARY ORDER
Petitioner Hua Ying Yang, a native and citizen of the People’s Republic of China, seeks review of: (1) the September 28, 2007 order of the BIA denying her first motion to reopen; and (2) the May 30, 2008 order of the BIA denying her second motion to reopen. In re Hua Ying Yang, No. A075 801 719 (B.I.A. Sept. 28, 2007); In re Hua Ying Yang, No. A075 801 719 (B.I.A. May 30, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Yang’s June 2006 and March 2008 motions to reopen were untimely: the final administrative order dismissing her appeal was entered in February 2003. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). There are no time limitations for filing a motion to reopen, however, if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
Yang waives any challenge to the BIA’s finding that she failed to demonstrate changed country conditions excusing the untimeliness of her first motion to reopen. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). As to her second motion to reopen, Yang argues that she identified mistranslations in the 2001 Fujian Province Population and Family Planning Law (“2001 Law”) that is relied on in the U.S. Department of State’s *6962007 report, China: Profile of Asylum Claims and Country Conditions. These mistranslations, she argues, are the functional equivalent of changed country conditions. The BIA did not abuse its discretion in concluding that Yang’s assertion of translation errors failed to demonstrate changed country conditions; she submitted no evidence in support of her claim. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Moreover, a review of the alleged translation errors demonstrates that, as the BIA found, the purportedly corrected translations would not materially alter the meaning of the country conditions evidence by demonstrating a risk of forced sterilization.
For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions 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/8471795/ | SUMMARY ORDER
Petitioner Hua Wang, a native and citizen of the People’s Republic of China, seeks review of a March 31, 2008 order of the BIA affirming the May 10, 2006 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hua Wang, No. A98 255 750 (B.I.A. March 31, 2008), aff'g No. A98 255 750 (Immig. Ct. N.Y. City May 10, 2006). 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). We review de novo questions of law and the application of law to undisputed fact. See Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. As the IJ found, Wang admitted that she lied to immigration officers at her airport and credible fear interviews and told them that she came to the United States because someone tried to force her to marry him in China. Wang’s fabrications to immigration officials on two separate occasions revealed a propensity to lie. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (holding that an IJ may rely on the principle of falsus in uno, falsus in omnibus to discredit evidence lacking independent authentication or corroboration).
Wang’s materially different accounts of her claim provided substantial evidence for the IJ’s finding that she was not credible. See Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.2004).
Additionally, because the only evidence of a threat to Wang’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for withholding of removal, and CAT relief, because all three claims were based on the same factual predicate.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 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).
. Because the IJ's adverse credibility determination is dispositive of all of Wang’s claims for relief, it is unnecessary to consider her alternate burden of proof finding. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471797/ | SUMMARY ORDER
Petitioners Abindin, Leonora, Xhoni, and Xhoana Agolli, all natives and citizens of Albania, seek review of the March 28, 2008 order of the BIA affirming the August 16, 2006 decision of Immigration Judge (“IJ”) Patricia A. Rohan denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Abindin Agolli et al., Nos. A097 162 983/984/985/986 (B.I.A. Mar. 28, 2008), aff'g Nos. A097 162 983/984/985/986 (Immig. Ct. *699N.Y. City Aug. 16, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As a preliminary matter, we retain jurisdiction to consider the instant petition for review despite the fact that petitioners were placed in “asylum-only” proceedings. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.2006). When the BIA does not expressly “adopt” the IJ’s decision, but its decision 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). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). 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).
Applicable regulations require IJs to exercise the Attorney General’s discretion to deny asylum to applicants who establish eligibility based solely on past persecution when the government establishes a fundamental change in circumstances sufficient to rebut the presumption of well-founded fear. 8 C.F.R. § 1208.13(b)(1). Here, having found that Abindin Agolli suffered past persecution, the agency determined that the Government successfully rebutted any presumption of a well-founded fear based on evidence that: (1) since the 2005 elections, the Democratic Party controlled the Albanian government; (2) the human rights of Albanian citizens were generally respected; and (3) State Department reports revealed a lack of politically motivated arrests or disappearances. We have upheld similar findings and are not compelled to reach a different conclusion here. See Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir.2006) (observing that the election of the Democratic Party in Albania negated petitioner’s presumption of a well-founded fear based on his pro-democracy activities).
Petitioners argue that the agency failed to consider contradictory evidence in the record. While we have held that the agency must consider an applicant’s country conditions evidence, see Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d Cir.2005), nothing in the record suggests that the BIA ignored the evidence submitted in this case, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (“[W]e presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise.”). Thus, we find no reason to disturb the agency’s finding that fundamental changed circumstances rebutted any presumption of a well-founded fear of persecution.
Abindin Agolli also asserts that the agency erred by refusing to grant him humanitarian asylum. This argument is unavailing. To be eligible for humanitarian asylum, a petitioner must demonstrate “compelling reasons for being unwilling or unable to return ... [that] aris[e] out of the severity of the past persecution.” 8 C.F.R. § 1208.13(b)(l)(iii)(A); see In re N-M-A-, 22 I. & N. Dec. 312, 326 (BIA 1998) (petitioner must show “severe harm and the long-lasting effects of that harm”). We may overturn a discretionary denial of humanitarian asylum only if it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D); Wu Zheng Huang v. INS, 436 F.3d 89, 96 (2d Cir.2006).
As the BIA observed, humanitarian asylum has been reserved for only the most “atrocious” forms of persecution. See Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989). We cannot find that the BIA abused its discretion in finding that, although “despicable,” Agolli’s mistreatment *700did not reach that level. See Jalloh v. Gonzales, 498 F.3d 148, 152 (2d Cir.2007); see also Matter of Chen, 20 I. & N. Dec. at 20 (persecution resulting in permanent disability, constant anxiousness and fearfulness, and suicidal thoughts sufficient to demonstrate “compelling reasons”).
Because the agency correctly determined that the Petitioners failed to satisfy the lower burden of proof for asylum, it also properly denied their application for withholding of removal. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (failure to establish eligibility for asylum necessarily precludes eligibility for withholding of removal because of the latter’s higher standard of proof). Petitioners’ mere reference to CAT protection in their summary of the argument does not suffice as a challenge to the agency’s denial of that relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005) (issues not raised before this court are waived and will not ordinarily be addressed on appeal).
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/8471799/ | SUMMARY ORDER
Petitioner Di Di Qiu, a native and citizen of the People’s Republic of China, seeks review of an October 5, 2007 order of the BIA denying his motion to reopen. In re Di Di Qiu, No. A073 604 510 (B.I.A. Oct. 5, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). In this case, Qiu did not file his motion to reopen until more than ten years after the BIA issued its final administrative order.
However, when a movant raises a claim of ineffective assistance of counsel, the filing deadline may, under certain conditions, be equitably tolled. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). To merit equitable tolling, the movant must demonstrate that he pursued his case with due diligence during the period of time for which he seeks tolling. See Iavorski v. I.N.S., 232 F.3d 124, 134-35 (2d Cir.2000). Here, Qiu presented no evidence to the BIA to establish that he exercised the requisite due diligence. Although he argues that the preparation of his motion was hampered by the government’s refusal to provide him with a copy of his immigration file, he also admits that he did not submit his FOIA request for the file until 2006, ten years after the BIA dismissed his appeal in the underlying proceedings. Qiu’s motion did not offer the BIA a clear, satisfactory explanation for this delay.
In his motion, Qiu alleged that he did not learn until the summer of 2006 that his application for relief had been denied. This claim strains credulity; Qiu was present in the hearing room when the IJ delivered her oral decision denying his application, the decision was translated for him by the court interpreter, and Qiu subsequently represented himself on appeal to the BIA. The record indicates that a copy of the BIA’s final administrative order dismissing his appeal was mailed to the address that Qiu provided on his Notice of Appeal, and Qiu has never specifically alleged that he did not receive it. In light of Qiu’s failure to offer a plausible explanation for his decade-long delay in seeking a copy of his immigration file and otherwise pursuing his case, the BIA reasonably found that he had not shown the required due diligence and declined his request for equitable tolling on that basis. See Iavor-ski, 232 F.3d at 134-35.
Qiu argues that the government’s refusal to provide his new attorney with a copy of his file compromised the fundamental fairness of his proceedings and constituted a due process violation. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir.2006). However, Qiu has not established that he was prejudiced in any *702way as a result of being deprived of access to the record of his underlying immigration proceedings. See, e.g., Kheireddine v. Gonzales, 427 F.3d 80, 85 (1st Cir.2005).
Although Qiu did not merit equitable tolling, he could have established that an exception to the filing deadline for his motion was warranted by presenting evidence of changed country conditions in China. 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 100S.2(c)(3)(ii). However, Qiu submitted no such evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 149 (2d Cir.2008). The only documents that Qiu filed with his motion were copies of his marriage certificate, his wife’s U.S. passport and certificate of naturalization, and his older child’s birth certificate. In addition, Qiu alleged that his wife was pregnant with the couple’s second child. It is well-settled that the birth of U.S.-citizen children is evidence of changed personal circumstances, not evidence of changed country conditions, and such evidence does not suffice, by itself, to warrant an exemption from the time limitation on motions to reopen. See, e.g., Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule 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/8471801/ | SUMMARY ORDER
Mei Fang Cai, a native and citizen of the People’s Republic of China, seeks review of an April 4, 2008 order of the BIA, affirming the September 14, 2006 decision of Immigration Judge (“IJ”) Javier Balas-quide, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mei Fang Cai, No. A095 716 672 (B.I.A. Apr. 4, 2008), aff'g No. A095 716 672 (Immig. Ct. N.Y. City Sept. 14, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence 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. The agency reasonably relied on Cai’s inconsistent statements under oath to U.S. immigration officials and the Immigration Court. See id.; see also Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.2004). Cai contests the reliability of the record of her statements during her airport and credible fear interviews, but she admitted making false statements at those interviews. Cai explains that her smuggler told her to make a false claim in order to remain in the United States, but such explanation simply demonstrates her willingness to lie in order to obtain immigration benefits. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). The agency therefore reasonably denied Cai’s application for asylum, withholding of removal, and CAT relief insofar as it was based on her claimed fear of harm by her father’s creditors. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Accordingly, we need not consider Cai’s additional arguments related to that claim for relief.
*704As to Cai’s claim that she fears persecution and torture for having illegally departed China, “punishment for violation of a generally applicable criminal law is not persecution.” Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239 (2d Cir.1992); see also Matter of Sibrun, 18 I. & N. Dec. 354, 359 (BIA 1983) (holding that possible criminal punishment for “illegal departure” “does not demonstrate a likelihood of persecution under the Act”). Moreover, the country conditions evidence in the record indicates that, at most, Cai would be fined and “detained long enough for relatives to arrange [her] travel home.” U.S. Dep’t of State, China: Profile of Asylum Claims and Country Conditions at 35 (2005).
The agency reasonably denied Cai’s application for CAT relief based on her illegal departure from China. Without any particularized evidence, an applicant cannot demonstrate that he will more likely than not be tortured “based solely on the fact that [he] is part of the large class of persons who have left China illegally” and on generalized evidence indicating that torture occurs in Chinese prisons. 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) (holding that beyond evidence of inhumane prison conditions, a CAT claimant must provide some evidence that the authorities act with the specific intent to inflict severe physical or mental pain or suffering on those detained).
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/8471716/ | ON MOTION
PER CURIAM.
ORDER
The court treats Jacqueline McEachin’s correspondence concerning the timeliness of her petition for review as a motion for reconsideration of the court’s previous rejection of her petition for review as untimely.
On March 6, 2009, the Merit Systems Protection Board issued a final decision in McEachin v. Department of Health and Human Servs., No. DC-0432-08-0740-I-1, 110 M.S.P.R. 662, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. The court received McEachin’s petition for review on May 6, 2009.
The Board’s records reflect that McEachin was registered as an e-filer. Pursuant to the Board’s regulations, an e-filer is deemed to receive a decision on the date it is served via electronic mail. See 5 CFR § 1201.14(m)(2) (“MSPB documents served electronically on registered e-filers are deemed received on the date of electronic submission”). Thus, McEachin is deemed to have received the Board’s decision on March 6, 2009. McEachin’s petition for review seeking review of the Board’s decision was received by the court 61 days later, on May 6, 2009.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 *584(Fed.Cir.1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“[c]ompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”). Because McEachin’s petition for review was received on May 6, one day late, this court must dismiss McEachin’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is denied. The petition for review is dismissed as untimely.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471719/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs responds to the court’s June 18, 2008 order and requests that the court consider the appeal on the merits and reverse the judgment of the United States Court of Appeals for Veterans Claims in Yandle v. Nicholson, No. 05-559. Lavon F. Yandle has not responded.
On January 27, 2005, the Board of Veterans’ Appeals denied Yandle’s 1999 claim for dependency and indemnity compensation (DIC), finding that the cause of Yan-dle’s husband’s death was not related to his military service, and that he was not in *586receipt of or entitled to receive compensation for a totally disabling service-connected disability for ten years prior to his death.
On appeal, the Court of Appeals for Veterans Claims reversed the Board’s decision with respect to its conclusion that Yandle was not entitled to DIC benefits because her husband was not in receipt of or entitled to receive compensation for a totally disabling service-connected disability for the ten years prior to his death. Specifically, the Court of Appeals for Veterans Claims concluded that Yandle was entitled to benefits based on a “hypothetical entitlement theory” that was in force at the time Yandle filed her claim for benefits in 1999. In January of 2000, an amendment to 38 C.F.R. § 3.22 eliminated the application of a hypothetical entitlement theory. The Secretary appealed.
This court stayed proceedings in this case pending disposition of Tarver v. Shinseki, 557 F.3d 1371 (Fed.Cir.2009). In our opinion in Tarver, involving virtually identical facts as the present appeal, we held that the § 3.22 amendment should be applied retroactively to bar the application of a hypothetical entitlement theory for claims filed prior to the amendment’s effective date.
In the present case, with respect to the use of the hypothetical entitlement theory, it is clear that summary reversal is warranted and that Yandle is not entitled to dependency and indemnity compensation.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to reverse is granted. The case is remanded for further proceedings.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471721/ | MOORE, Circuit Judge.
Sanofi-Aventis U.S. LLC, Sanofi-Aven-tis, and Debiopharm S.A. (collectively, Sa-nofi) appeal from the district court’s grant of summary judgment of noninfringement of U.S. Patent No. 5,338,874 (the '874 patent). Because the district court erred in construing composition claims as product-by-process claims, we vacate and remand.
BACKGROUND
This case is on appeal from a Hatch-Waxman infringement action concerning the pharmaceutical oxaliplatin, the active ingredient in Sanofi’s Eloxatin®, approved for the treatment of colorectal cancer. A number of drug manufacturers filed Abbreviated New Drug Applications (AN-DAs) seeking to market generic oxaliplatin products prior to the expiration of the '874 patent, which claims optically pure oxali-platin. Sanofi sued the generic drug manufacturers (collectively defendants) for infringement under 35 U.S.C. § 271(e)(2), triggering a thirty-month stay of approval by the United States Food & Drug Administration (FDA) of the defendants’ ANDAs pursuant to 21 U.S.C. § 355(j)(5)(b)(iii). On June 18, 2009, 2009 WL 1741571, the district court construed claim 1 of the '874 patent as a product-by-process claim limited to “optically pure oxaliplatin that has been resolved by means of the HPLC [high performance liquid chromatography] method described in the 874 patent specification.” Sanofi-Aventis U.S. LLC v. Sandoz, Inc., No. 07-2762, slip op. at 16, 2009 WL 1741571 (D.N.J. June 18, 2009) (Claim Construction Opinion). Holding that there was no disputed issue that the defendants did not employ the HPLC method, the district court granted summary judgment of noninfringement and entered final judgment on June 30, 2008. Sanofi filed its notice of appeal on that same day. On July 10, 2009, we granted Sanofi’s request to stay the judgment. On August 7, 2009, despite the stay of judgment, the FDA granted final approval of the ANDAs held by certain defendants. These defendants then launched their generic oxaliplatin products. We granted Sanofi’s motion for expedited review and heard arguments on September 2, 2009.
DISCUSSION
This court reviews a grant of summary judgment de novo. Immunocept, L.L.C. v. Fulbright & Jaworski, L.L.P., 504 F.3d 1281, 1286 (Fed.Cir.2007). We also review claim construction de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1455-56 (Fed.Cir.1998) (en banc). The words of a claim are generally given their ordinary and customary meaning as understood by a person of ordinary skill in the art in question at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed.Cir.2005) (en banc).
Claim 1 of the '874 patent recites:
1. Optically pure cis-oxalato (trans-1-1, 2-cyelohexanediamine) Pt(II) having a general formula of Formula (1).
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Claim 2, the only other claim at issue on appeal, depends from claim 1 and adds a melting point limitation. The district court construed the term “optically pure oxaliplatin” as “optically pure oxaliplatin that has been resolved by means of the HPLC method described in the '874 patent specification.”1 Claim Construction Opinion at 16.
*597On appeal, Sanofi argues that the district court erred when it construed claim 1 as limited to optically pure oxaliplatin purified by the HPLC process. Sanofi argues that this claim is a composition claim and does not contain a process limitation. Defendants argue that in light of the specification and prosecution history, the district court properly limited claim 1 to optically pure oxaliplatin purified by the HPLC process.
As the district court noted, “[t]here is no dispute that nothing on the face of the claims of the '874 patent limits the claims to ‘optically pure’ oxaliplatin that is produced through the use of HPLC.” Claim Construction Opinion at 16. Claim 1 is a straight forward composition claim. The district court held that the claims were nonetheless limited to oxaliplatin purified by the HPLC method in view of the specification and prosecution history. We do not agree.
We have repeatedly warned of “the danger of reading limitations from the specification into the claim.” See, e.g., Phillips, 415 F.3d at 1323. “Absent a clear disavowal or contrary definition in the specification or the prosecution history, the pat-entee is entitled to the full scope of its claim language.” Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed.Cir.2004). To narrow the plain language of a claim, a disclaimer must be clear and unmistakable. Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319, 1329 (Fed.Cir.2009). We see no such disclaimer in the specification or prosecution history of the '874 patent.
The defendants point to examples in the specification that compare the purity of oxaliplatin produced using the process discussed in a prior art reference, the Kidani process, with the purity of oxaliplatin after the HPLC process. In the “Comparative Example,” the results indicate that following the Kidani process yields oxaliplatin having an optical purity of 90%. Id. eol.7 11.25-50, col.8 11.13-15. Table 1 compares the purity of the samples obtained in all of the examples before and after resolution by HPLC. '874 patent col.8 11.3-15. The results indicate that using HPLC optical purity was obtained. Id. col.8 11.3-15. Thus, the examples illustrate how to obtain optically pure oxaliplatin. They do not clearly and unmistakably disclaim any process, and they do not justify reading a process limitation into a composition claim.
The district court relied on Andersen Corp. v. Fiber Composites, L.L.C., 474 F.3d 1361 (Fed.Cir.2007), when construing claim 1 as a product-by-process claim. In Andersen, this court held that claims to composite structures included a pelletizing process limitation where the patentee relied on that process both to define the invention and to distinguish the prior art. Andersen, 474 F.3d at 1372-74. We determined that the specification attributed the claimed physical properties to the process *598and that the specification indicated that the pelletizing step was a requirement, not a preference, of the invention. Id. at 1372. We further determined that the patentee had clearly disavowed other processes during prosecution. Id. at 1373-74; see also Chimie v. PPG Industries, Inc., 402 F.3d 1371, 1385 (Fed.Cir.2005) (holding that “atomized precipitated silica particulates” was limited to a those silica particulates formed by the patentee’s process because of an unequivocal disclaimer of other processes to overcome prior art).
By contrast, here, the patent specification and prosecution history focus on the property of the composition (optical purity) and not the process used to obtain that property. The specification defines the invention as oxaliplatin of optically high purity, not oxaliplatin prepared by the disclosed HPLC process. '874 patent eol.2 11.3-5 (“The present invention is cis-oxalato (trans-1-1, 2-cyclohexanediamine) Pt(II) of optically high purity having general formula of Formula (1).”). The specification never asserts that HPLC is required to obtain optically pure oxaliplatin. It characterizes HPLC as an “illustrative method” and a “representative process” by which the claimed compound “may be prepared.” Id. col.2 1.16, col.2 1.52, col.3 1.65. Moreover, the specification does not define the property (optical purity) by reference to the process of purification by HPLC. Thus nothing in the specification limits the invention to optically pure oxaliplatin purified using HPLC.
The prosecution history also illustrates that it is the optical purity of oxaliplatin that distinguished it from the prior art, not the process used to obtain that purity. The Examiner rejected the initially filed claims to oxaliplatin “of optically high purity” as anticipated or rendered obvious by Kidani.2 The Examiner stated that Kidani disclosed “a single isomer [oxaliplatin] useful as an antitumor agent. Note that since the single isomer complex was prepared, the optical purity of such material is very high or almost pure isomer.” In response, the applicant (Tanaka Kikinzoku Kogyo K.K., referred to herein as Sanofi) explained that it had repeated Kidani’s process “using identical reactant materials and the subsequent testing thereof.... The resultant material was tested and found to be 90% [oxaliplatin] not optically pure.... ” Sanofi explained that “[o]nly after HPLC resolution (in accordance with the teachings of the present application) was optical purity obtained.” Sanofi further asserted that the products prepared using Kidani’s method “do not have the presently claimed optical purity.” Therefore, Sanofi argued that the claimed oxali-platin “having high optical purity[ ] is not found or taught in the prior art either by inherency or by being obvious thereover.” Following a telephone interview, Sanofi agreed to amend the claims to “optically pure” oxaliplatin, rather than oxaliplatin “of high optical purity.” The Examiner entered the amendment and allowed the claims, stating that “[t]he Examiner agrees with applicants that Kidani et al. does not teach[ ] the cis-oxalato(trans-l-l, 2-cyclohexanediamine)Pt(II) as an optically pure isomer. It is clear from Kidani et al. that also other isomers can be in the final product.” Thus, Sanofi argued that the defining feature of the claimed oxali-platin was its optical purity, not the HPLC process. Nothing in the prosecution history amounts to a clear and unmistakable disclaimer of optically pure oxaliplatin prepared using other (non-HPLC) processes.
We conclude that the district court erred in its construction of claim 1. Claim 1 of *599the '874 patent is not limited to optically pure oxaliplatin produced by HPLC; this is a composition claim, not a product-by-process claim.
CONCLUSION
Because we conclude that the district court erred when construing the claims, we vacate the judgment of noninfringement and remand.
. Mayne views this construction as an interpretation of the level of purity required by *597term "optically pure.” Tr. of Oral Argument at 23:51-23:59, Sanofi-Aventis U.S. LLC v. Sandoz, Inc., No.2009-1427 (Fed.Cir. Sept. 2, 2009), available at http://oralarguments.cafc. uscourts.gov/. However, the district court stated that it did not determine the level of purity required by the term "optically pure.” See Claim Construction Opinion at 3 n. 6. On remand, the district court may, if necessary, determine the level of purity required by the term "optically pure," by looking to " ‘those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean,’ ” including " 'the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.' ” Phillips, 415 F.3d at 1314 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1116 (Fed.Cir.2004)).
. The Examiner's rejection was based on an article (Kidani et al., J. Med. Chem. 21(12) 1315-18 (1978)), which does not substantively differ from the Kidani patent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471722/ | SUMMARY ORDER
Defendants-Appellants P.O. Raymond Montero, P.O. Brian Menton, P.O. Keith Olson, and P.O. John Traynor (collectively “Appellants”) appeal from a judgment of the United States District Court for the Southern District of New York (Smith, M.J.) entered after a jury verdict finding in favor of Plaintiffs-Appellees Tremaine R. Carter and Michael Fresella (collectively “Appellees”) on their 42 U.S.C. § 1983 claim alleging unreasonable search and seizure in violation of the Fourth Amendment. We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal.
Appellants first contend that they were entitled to qualified immunity with respect to their stop and search of Appellees. The District Court reserved the question of qualified immunity with the consent of both parties, but never issued a ruling on the subject. Although we have, in the past, remanded cases where a district court has failed to dispose of an issue of qualified immunity, see Francis v. Coughlin, 849 F.2d 778, 780 (2d Cir.1988), we have declined to follow this rule where, as here, we have an “extensive factual record” at our disposal and “where as a matter of law, defendants would not be entitled to qualified immunity on the facts as alleged by plaintiffs.” Jones v. Parmley, 465 F.3d 46, 63 (2d Cir.2006). Leaving aside the question of whether the jury verdict renders the issue of Appellants’ qualified immunity moot, we conclude that Appellants are not entitled to the defense.
On the special verdict form, the jury indicated its findings that Appellants searched Plaintiffs’ car or persons or photographed their faces without consent, and that they “conducted an unreasonable search or seizure by searching [Plaintiffs’] cell phone[s], searching [their] person[s] beyond a pat-down, or by taking photograph^] of their bodfies].” We have little difficulty concluding that these findings establish a Fourth Amendment violation. The extensive search of Appellees, their vehicle, and/or their cell phones, along with the photographing — -whether alone or in combination — went well beyond what was permissible under a Terry stop. See Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Michigan v. Summers, 452 U.S. 692, 698-701, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (identifying permissible investigative measures in Terry stop context); United States v. Askew, 529 F.3d 1119, 1136 (D.C.Cir.2008); United States v. Place, 660 F.2d 44, 52 (2d *607Cir.1981). The law in this regard was clearly established and it was not objectively reasonable for Appellants to conclude otherwise. In addition, the statement of an anonymous speaker that “There’s guns in that truck,” which Appellants heard as Appellees’ vehicle crossed the intersection near where the speaker was located, did not, as a matter of law, justify the searches and photographing that occurred here. See Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). We thus conclude that Appellants are not entitled to qualified immunity. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007).
Next, Appellants challenge the District Court’s denial of their motions for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. On an appeal “after a jury verdict, we view the facts of the case in the light most favorable to the prevailing party.” Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 77 (2d Cir.2006). We set aside a jury verdict only where there is “such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (internal quotation marks omitted) (alteration in original). We review the District Court’s denial of Appellants’ Rule 50 motions de novo, applying the same standards as those applied by the District Court. Advance Pharmaceutical, Inc. v. United States, 391 F.3d 377, 390 (2d Cir.2004).
Here, the jury weighed the testimony of the parties and them witnesses, and determined that Appellees had not consented to being searched or photographed. The jury was entitled to credit Appellees’ version of the facts. We see no basis for overturning their verdict. See Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.1991).
Appellants next argue that the District Court erred in excluding evidence relating to the unavailability and gang affiliation of Appellees’ co-passenger, Dacheau Brown, along with evidence of Appellants’ conversations with Brown. We review a district court’s evidentiary rulings for abuse of discretion. Arlio, 474 F.3d at 51. We conclude that the District Court did not abuse its discretion in excluding this evidence, having concluded that the risk of prejudice substantially outweighed the evidence’s probative value. See Fed.R.Evid. 403; see also Costantino v. Herzog, 203 F.3d 164, 173 (2d Cir.2000). Although the District Court changed its position on this evidence, we find that the court’s subsequent curative instruction eliminated the risk of prejudice. See United States v. Bermudez, 529 F.3d 158, 165 (2d Cir.2008) (holding in a criminal case that defendant was not substantially prejudiced by government’s summation where court issued curative instruction after prejudicial comments).
Appellants also contend that the District Court erred in denying their motion for a new trial. We review the court’s denial of Appellants’ motion for a new trial for abuse of discretion. See Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 106 (2d Cir.2002). A motion for a new trial “ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” Id. (internal quotation marks omitted). Based on the evidence adduced at trial, we see no miscarriage of justice, and thus conclude that the court’s denial of Appellants’ motion for a new trial was not an abuse of discretion.
*608Finally, we review Appellants’ contention that the District Court erred in awarding Appellees $47,512.50 in attorney’s fees for abuse of discretion. See Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir.2008). In calculating the reasonable hourly rate for the services Appellees’ counsel rendered, the court considered the range of approved rates for attorneys doing comparable work in the Southern District of New York; Appellees’ limited success before the jury; and the hours counsel reasonably expended on the winning claims. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir.1998). We conclude that the District Court adequately took into account “all of the case-specific variables that we ... have idéntified as relevant to the reasonableness of attorney’s fees in setting a reasonable hourly rate,” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110, 117 (2d Cir.2007) (emphasis in original), amended on other grounds by 522 F.3d 182 (2d Cir.2008), and that the court’s award of attorney’s fees was well within its discretion. See, e.g., Kassim v. City of Schenectady, 415 F.3d 246, 256 (2d Cir.2005).
We have considered Appellants’ remaining contentions and conclude that they are without merit.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471725/ | SUMMARY ORDER
John Ward, Town of Wallkill Supervisor, and Robert Hertman, Town of Wallkill Police Chief, appeal from the district court’s denial of Ward and Hertman’s motion for summary judgment on the grounds that they were entitled to qualified immunity in a First Amendment retaliation case brought by Wallkill Police Officer Dennis Rolon. We assume the parties’ familiarity with the facts, proceedings below, and specification of the issues on appeal.
In the spring of 2000, Rolon filed a lawsuit in federal court alleging that his due process rights had been violated by the police department and various police and town officials. That case eventually settled in 2001, and Rolon received an $85,000 settlement. In August, 2000 — several months after that initial litigation commenced — Rolon was suspended without pay for a variety of alleged acts of misconduct. In February 2002, the arbitrator issued an opinion and award finding Rolon guilty of three of the twelve charges. However, the arbitrator also found the Town failed to properly follow the procedures set forth in the collective bargaining agreement in suspending Rolon without pay. As a remedy, the Town was ordered to reinstate Rolon to active duty with full back pay less two days’ pay as a penalty for the three charges. Rolon contends he was immediately retaliated against upon his return to work in March, 2002, and that such retaliation continued for several years, in the form of suspensions and other disciplinary actions.
While the denial of a motion for summary judgment is not typically immediately appealable, an interlocutory appeal may be taken from an order denying a defendant’s motion for qualified immunity when the denial is based only on a question of law. Salim v. Proulx, 93 F.3d 86, 90 (2d Cir.1996). “While we may not inquire into the district court’s determination that there was sufficient evidence to create a jury question, we may resolve whether, as a matter of law, the defendants are entitled to qualified immunity because the law was not clearly established or because, on the facts assumed for the purposes of appeal, the defendants’ conduct did not constitute a violation of a constitutional right.” Skehan v. Village of Mamaroneck, 465 F.3d 96, 104-105 (2d Cir.2006) (overruled on other grounds).
Government officials performing discretionary functions are entitled to qualified immunity “from federal constitutional claims ... as long as their actions could reasonably have been thought consistent with the rights they are alleged to have *610violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). A court must determine (1) whether a constitutional violated had been committed; and (2) whether a reasonable official in defendant’s position ought to have known that he was violating plaintiffs federal constitutional rights by doing what plaintiff alleges he did. Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). A court may address the prongs in whatever sequence is most logical “in light of the particular circumstances at hand.” Id. at 818.
To survive a defense motion for summary judgment on a First Amendment retaliation claim, plaintiff must set forth evidence demonstrating (1) he engaged in protected First Amendment activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251 (2d Cir.2006). Once plaintiff sets out a prima facie case, summary judgment is not appropriate unless the defendant establishes as a matter of law that he would have taken the same adverse employment action even absent the protected conduct. Id. at 253.
Appellants concede that Rolon established the first element — that is, that the 2000 lawsuit and 2001 arbitration constitutes protected First Amendment speech. Appellants further concede that the right not to be retaliated against for the exercise of First Amendment rights “is generally well established.” Appellants’ primary argument on appeal is that the acts Rolon complains of are not adverse employment actions.
“Whether an undesirable employment action qualifies as being ‘adverse’ is a heavily fact-specific, contextual determination.” Zelnik v. Fashion Institute of Tech., 464 F.3d 217, 226 (2d Cir.2006). “In the context of a First Amendment retaliatory claim, we have held that only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.” Id. (internal quotations and citations omitted). “In this context, adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.” Id. (internal quotation and citation omitted). “This list of retaliatory conduct is certainly not exhaustive, however, and lesser actions, however, and lesser actions may also be considered adverse employment actions.” Id. Being forced to defend against disciplinary charges may constitute an adverse employment action. Albert v. City of Hartford, 529 F.Supp.2d 311, 335 (D.Conn.2007). Accepting the facts as set forth by Rolon— as we must on a motion for summary judgment — -it cannot be said that defendants are entitled to qualified immunity as a matter of law.
The district court properly relied on Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.2002), where it was held that a “combination of seemingly minor incidents” over a period of time may give rise to a First Amendment retaliation claim once the incidents reach a critical mass. Id. at 109. To make such a showing, plaintiff must prove, using an objective standard, that “the total circumstances of [his] working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace.” Id. The Phillips Court upheld a jury verdict finding plaintiff was retaliated against for First Amendment speech based on “defendants’ failure to provide her with an adequate bullet-proof vest or proper instruction regarding transfer of a prisoner, or defendants’ humiliating instruction to plaintiff about use of a time clock,” because while such incidents *611“may seem minor when viewed in isolation, a finder of fact looking at them collectively over a period of several years reasonably could find that they rise to the level of actionable harm.” Id. at 109-10. Here, Rolon has been the focus of numerous disciplinary actions for a variety of misdeeds that occurred since 2002. Viewing the facts in the light most favorable to Rolon, a reasonable jury could find plaintiff was charged with an inordinate number of disciplinary infractions to an extent beyond what one would expect in a normal workplace. Indeed, as discussed further below, Rolon introduced record evidence sufficient to raise a question of fact that other officers committed similar infractions, but were not subject to similar discipline.
Defendants also argue that because Ro-lon either admitted to the acts underlying the charges or cannot recall the underlying acts, and because in several eases Rolon consented to an adverse action to resolve Notices of Discipline, it was objectively reasonable for the Chief to take the actions that he did. This analysis misses the mark. The gravamen of Rolon’s complaint is not that he was wrongly accused of committing the infractions for which disciplinary actions were taken, but that he was singled out for discipline, and subject to more severe discipline, as compared to others who committed the same or similar infractions.
Equally unavailing is defendants’ argument that they were not personally involved in the disciplinary actions. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.2001). A supervisory official personally participates in challenged conduct not only by direct participation, but by (1) failing to take corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent supervision, or deliberate indifference to the rights of others. Hayut v. State of Univ. of New York, 352 F.3d 733, 753 (2d Cir.2003). Here, the collective bargaining agreement required both Hertman and Ward’s active participation in the disciplinary process. If the police chief determined an employee should be disciplined for incompetence or misconduct, the employee was served with a Notice of Discipline setting out the charge of incompetence or misconduct as well as the proposed penalty. The Notice of Discipline needed to be served within 180 days of the triggering event. After service, a disciplinary interview between the employee and the Chief is held for the purpose of discussing the matter. The chief then makes a finding as to the employee’s guilt, and may impose a disciplinary penalty. Appeals are taken to the Town Supervisor, who makes the final decision on the charges and the appropriate penalty to be imposed, formal meeting on the charges and penalty. Once the Supervisor makes a decision, the union may grieve it to the arbitrator. The record reflects Ward participated in disciplining Rolon.
Finally, defendants argue there is no evidence of retaliatory motive by defendants. Defendants can prevail on a First Amendment retaliatory motion if defendants can show by a preponderance of the evidence that the same discipline would have taken place even in the absence of the protected conduct. Cotarelo, 460 F.3d at 253. The district court properly found that Rolon raised a question of fact as to whether officers committing similar infractions received similar discipline. Moreover, the overall quantity of evidence submitted by Rolon as to his disparate treatment raises a question of whether he was singled out for harsher disciplinary treatment because of animus against him *612as a whistle blower. See, e.g., Skehan, 465 F.3d at 107 (“[s]o long as [defendant’s] animus was a substantial or motivating factor” behind the decision, the fact that the defendant “had other legitimate reasons is irrelevant; because the plaintiffs allege that [defendant’s] motivation was unconstitutional and the district court found the issue to be disputed, we must accept the plaintiffs version of the facts.”).
In sum, “our precedent allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass.” Phillips, 278 F.3d at 109. The Circuit has made clear that in the context of a First Amendment retaliation case, we apply a less demanding standard than in other Section 1983 cases, looking only for proof that a similarly situated individual would be deterred from exercising his constitutional rights. Zelnik, 464 F.3d at 225. Taken together, the record evidence submitted by Rolon is sufficient to raise a question of material fact as to whether defendants are entitled to the protections of the qualified immunity defense.
We have considered defendants’ remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment and order of the district court are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471727/ | SUMMARY ORDER
Cross appeals from an order of the United States District Court for the Western District of New York (Arcara, J.), which adopted in toto the report and recommendation of Magistrate Judge H. Kenneth Schroeder, Jr. In sum, the district court granted summary judgment to defendants Railcar Custom Leasing, LLC (“RCL”) and ECDC Environmental, LC (“ECDC”), and dismissed plaintiffs’ complaint. The district court also dismissed RCL’s cross-claims for contractual indemnification as against ECDC. Plaintiffs and RCL both appeal. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
John McNeight worked as a railcar painter at Ebenezer Railcar Services, Inc., in West Seneca, New York. His duties included coupling and decoupling railcars so that they could be moved into the shop for painting. On August 6, 2004, McNeight began decoupling a railcar with call signal AWXX 4121 from its adjacent car. To complete the process, he needed to turn the circular hand brake on the adjacent car. The hand brake was located at the “B” end of the car, somewhere midway up the height of the car. McNeight was standing on the opposite side of the track from the hand brake. He boarded the center sill at the “A” end of the AWXX 4121, and stepped across to “B” end of the adjacent car. He then manually set the *614hand brake, and attempted to come back the way he came. Stepping backwards, he placed his left foot on the brake pipe of the AWXX 4121 car, slipped and fell. He fell approximately six feet to the gravel below. He sustained injuries including a herniated disc, a rotator cuff tear, and a compression fracture of a vertebra.
McNeight claims that the AWXX 4121 car lacked a crossover board or step, and had no crossover handhold for him to grab. An accident report identifies the absence of these devices as a cause of the accident.
The AWXX 4121 car was in the process of being refurbished so as to be leased by defendant RCL to defendant ECDC.
McNeight sued RCL and ECDC under New York’s Scaffold Law, N.Y. Labor Law § 240(1) (McKinney 2009), claiming that the absence of appropriate safety devices was the proximate cause of his injuries. See, e.g., Toefer v. Long Island R.R., 4 N.Y.3d 399, 795 N.Y.S.2d 511, 828 N.E.2d 614 (2005). The district court dismissed this claim on the ground that McNeight was not subject to the type of elevation risk contemplated by the statute, but rather to the usual and ordinary danger of a railyard. (McNeight appeals only the dismissal of the claim as against RCL.)
Labor Law § 240(1) provides in pertinent part:
All contractors and owners and their agents, ... in the ... painting, cleaning or pointing of a building or structure shall furnish ... for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
Labor Law § 240(1). In Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219, 583 N.E.2d 932 (1991), the New York Court of Appeals pointed out that while the hazards against which the statute is directed are not spelled out, they can be inferred from the “protective means” set forth in the statute “for the hazards’ avoidance.” 78 N.Y.2d at 513-14, 577 N.Y.S.2d 219, 583 N.E.2d 932. Roco-vich held that a worker who had been injured when he slipped into a 12-inch-deep trough had not suffered injury from an elevation-related risk, and so was not within the protection of the statute. Id. at 514, 577 N.Y.S.2d 219, 583 N.E.2d 932. Similarly, in Toefer, the Court of Appeals held that alighting from the back of a flatbed truck “did not present the kind of elevation-related risk that the statute contemplates.” 4 N.Y.3d at 408, 795 N.Y.S.2d 511, 828 N.E.2d 614.
The dispositive question here is not whether McNeight had to clamber over the connector between railcars (which may be an ordinary risk of a work site), but rather whether he was required to do work at an elevation, i.e., to turn the hand brake on the car adjacent to the AWXX 4121. McNeight set the hand brake while standing on the back of the ear. He testified that he did not have to climb the ladder on the car to turn the brake, and it was “not too high up.” When asked at his deposition whether he could set the break from the ground, McNeight said “maybe,” but then later corrected the statement to “I don’t think so.” See Fed.R.Civ.P. 30(e)(1).
“The burden of showing that an elevation-related risk exists, and that the owner or contractor did not provide adequate safety devices falls upon the plaintiff.” Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 681, 839 N.Y.S.2d 714, 870 N.E.2d 1144 (2007). In Broggy, plaintiff, a window washer, claimed he had to stand on a desk to wash windows, but “did not testify how high he could reach with his wand and squeegee while standing on the floor. He asserted that he had to stand on the desk, but provided no evidence to show *615that this was because he was required to work at an elevation to clean the interior of the windows.” Id. Similarly, here, McNeight has not satisfied his burden of showing that his work required him to work at an elevation. Although he may have set the brake while standing on a railcar, there is insufficient evidence in this record that setting the brake required him to be exposed to the kind of elevation risk contemplated in the statute. The brake was “not too high up.” McNeight’s statement that “he did not think” he could set the brake from the ground on the other side is not sufficient to establish that he was required to climb atop anything to set it.
McNeight also appeals the dismissal of his claim under New York’s Labor Law § 241(6) (as against RCL only). Labor Law § 241(6) provides that: “All areas in which construction, excavation or demolition work is being performed shall be so constructed ... as to provide reasonable and adequate protection and safety to the persons employed therein....” To state a claim under Labor Law § 241(6), a plaintiff must allege a violation of a particular provision of the New York Industrial Code. See Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 501-02, 601 N.Y.S.2d 49, 618 N.E.2d 82 (1993). The alleged Code violation must be grounded upon a breach of a “ ‘specific, positive command,’ rather than a ‘reiteration of common-law standards’ which would merely incorporate into the State Industrial Code a general duty of care.” Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343, 349, 670 N.Y.S.2d 816, 693 N.E.2d 1068 (1998) (quoting Ross, 81 N.Y.2d at 504, 601 N.Y.S.2d 49, 618 N.E.2d 82).
McNeight argues that RCL violated 12 N.Y.C.R.R. § 23-1.7(d), which provides that “[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition.” McNeight claims that the brake pipe on the AWXX 4121, from which he slipped, was wet with morning dew. The district court concluded that a brake pipe is not an “elevated working surface.” See Francis v. Aluminum Co. of Am., 240 A.D.2d 985, 659 N.Y.S.2d 903 (3d Dep’t 1997) (“the load of steel beams from which the plaintiff fell did not constitute a floor, passageway or elevated area as set forth in the regulation.”). Despite McNeight’s argument that workers routinely stepped on brake pipes, he has failed to demonstrate that the district court’s ruling was in error: a brake pipe being used as a momentary step is not an “elevated work surface.”
Finally, RCL appeals the dismissal of its cross-claim for contractual indemnification against ECDC. In light of our dismissal of all claims against RCL, its cross-claim against ECDC is moot. See, e.g., Wilson v. City of New York, 89 F.3d 32, 39 (2d Cir.1996).
Finding no merit in the plaintiffs’ remaining arguments, we hereby AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471729/ | *617SUMMARY ORDER
Plaintiff-appellant Min Kou Chenette asserts employment discrimination claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as well as claims under New York State Human Rights Law (“NYSHRL”), Executive Law § 290 et seq., and New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code, Title 8.
In her complaint, which is dated May 19, 2005, Chenette, who refers to herself as “a Korean female,” alleges that she was hired by Kenneth Cole Productions, Inc. (“KCP”) as a regular employee on August 1, 2003, after having completed an internship the previous year. She spent her entire tenure at KCP working as an International Coordinator in the International Licensing Department (“the Department”). Apparently, but for Chenette’s supervisor, everyone who worked in the Department was female.
The central allegation of Chenette’s complaint is that, throughout her time at KCP, she was “subjected to a regular, frequent, unwanted, and abusive pattern of behavior directed against her, as well as a working environment characterized by lewd, racial, and sexual comments and innuendos, slander, offensive physical contact, and other inappropriate behavior.... ” She alleges a number of instances in which co-workers engaged in sexually-charged jests, some employing ethnic stereotypes. Notably, KCP does not deny that Chenette’s workplace was a freewheeling one. It characterizes the Department as “a casual and friendly atmosphere” in which “friends and colleagues ... used coarse language and behaved in an overly familiar manner towards each other.”
It is undisputed that Chenette sought out promotions while at KCP, and she specifically alleges that her supervisor, Vincent Montemarano, told her that she would be considered for promotion to the position of Associate Manager for Asia. This position, however, as well as the position of Associate Manager of International Licensing, were awarded to others, both female.
The single incident allegedly indicative of a hostile working environment (hereinafter “the Kissing Incident”) which is most emphasized in Chenette’s briefing on this appeal is set forth as follows in her complaint:
21. On May 28, 2004, Plaintiff was on her way back to her desk from a meeting. Cyndi Shapiro saw her walking by and asked her to stop, whereupon Ms. Shapiro said: “Hey I am sorry if I was nasty to you on the phone yesterday, but I am overwhelmed and understaffed, and I lost my control there. I hope that you are ok with that.” Then, she came over to Plaintiff, petted her cheek with her two hands, and kissed her on the lips.
KCP acknowledges that Chenette subsequently reported the matter to its Human Resources Department, and that she also reported alleged acts of sexually and ethnically insulting comments occurring within the Department. KCP declares that, in response, it undertook two corrective actions: (1) as evidenced by an e-mail message, Ellen Rodriguez, the head of the Department, held a departmental meeting on July 12, 2004 to discuss appropriate workplace conduct; and (2) KCP in-house attorney Shari Berman conducted an internal investigation of the Kissing Incident and, as a result, KCP issued an “Incident Warning,” dated August 2004, to Cyndi Shapiro, informing her that she faced immediate termination should she engage in another “infraction of company policy and/or procedure.”
*618Chenette alleges, however, that her reporting of the Kissing Incident and other inappropriate conduct resulted in a campaign of retaliation against her. First, she contends that, on June 17, 2004, Montem-arano gave her a largely negative performance review. Further, on some unspecified date, Chenette contacted an attorney, Mark D. Schwartz, concerning her problems at KCP. Schwartz wrote two letters, dated July 12, 2004 and July 19, 2004, to the General Counsel of KCP. These communications resulted in what both parties refer to as an “interview,” on August 24, 2004, during which Berman and Gail Ca-tropa, KCP’s Vice President for Human Resources, questioned Chenette about her complaints. The parties agree that the interview did not proceed in a productive fashion. Most especially, Chenette was accompanied by Schwartz, who was asked to leave because Berman and Catropa were objected to his interruptions of their questioning.
In a letter to Montemarano, dated August 25, 2004, Chenette announced her resignation from KCP “as a result of pervasive harassment and discrimination at [KCP] directed toward me and others, as well as the retaliation that I have experienced for having reported such activity.” In a letter, dated the following day, Catro-pa asked Chenette not “to make a rash decision about your employment,” and gave Chenette “until Monday, September 7, 2004 to reconsider your resignation and report back to work.” Chenette did not respond.
The district court initially granted summary judgment on all but one of Chen-ette’s claims. Judge Cote held as follows with respect to these claims: (1) Chen-ette’s failure to promote claims failed because she was demonstrably less qualified than the two individuals who received promotion in that “Chenette had not yet received an undergraduate degree and had only worked in a full-time entry-level licensing position for approximately nine months”; (2) there was no improper retaliation arising from her negative performance review in June 2004 because Chenette herself acknowledged at her deposition that the Kissing Incident, of which she had complained shortly before the review, was not motivated by discriminatory intent as contemplated by Title VII; (3) Chenette was not constructively discharged because she could not make the legally required showing that “resigning was the only way to extricate herself from intolerable conditions”; and (4) even assuming that Chenette could prove that her work environment “sufficiently abusive,” she could succeed before a jury with her hostile work environment claim because KCP took “prompt and effective remedial actions” in response to Chen-ette’s complaints. Judge Cote also held, however, that summary judgment was not warranted on Chenette’s claim of retaliation arising from the August 24, 2004 interview because a question of fact existed as to whether the contentious atmosphere prevailing on that occasion “would dissuade a reasonable employee from making or pursuing a charge of discrimination.”
KCP filed a motion for reconsideration as to the denial of summary judgment on the claim of illegal retaliation arising from the August 24th interview. Judge Cote granted this motion, holding that “it was appropriate for and indeed incumbent upon KCP to conduct an investigation of Chenette’s discrimination complaint, and to interview Chenette during that investigation.” Accordingly, Chenette could not meet her burden of demonstrating that the interview was conducted as a result of a retaliatory motive, rather than out of legitimate “desire to develop a defense to a threatened lawsuit.” The instant appeal followed.
*619“We review a grant of summary judgment de novo.” Roe v. City ofWaterbury, 542 F.3d 31, 35 (2d Cir.2008). We analyze Chenette’s Title VII claims under the familiar standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This analysis is also applicable to her claims under the NYSHRL and the NYCHRL. See Weinstock v. Columbia University, 224 F.3d 33, 42 n. 1 (2d Cir.2000).
In general, we believe that the disposition of this case is governed by the principle that “Title VII does not establish a ‘general civility code’ for the American workplace.” Petrosino v. Bell Atlantic, 385 F.3d 210, 223 (2d Cir.2004) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). It is entirely possible that Chenette believed that her work environment was “disgusting.” But unless Chen-ette can demonstrate that the Department was disgusting in a manner that could be considered as discriminatory towards her as a Korean woman, and that adverse employment actions transpired as a result of her opposition to this situation, she does not have a cognizable Title VII claim.
A. Failure to Promote. Chen-ette makes flatly conclusory statements that she was qualified for the positions she sought. Whether or not this is true, we do not see that she has attempted to demonstrate that she had greater qualifications than the individuals who were promoted. Judge Cote noted that, in contrast to these individuals, Chenette did not have a college degree, and had considerably less experience in licensing. In addition, KCP asserts that because she was still pursuing her college degree, Chenette had a limited ability to travel, something which is plainly important to an international licensing position. In sum, because a plaintiffs “merely subjective assessment” of her own qualifications for promotion cannot defeat evidence that other individuals were more qualified, Dawson v. Bumble & Bumble, 398 F.3d 211, 224 (2d Cir.2005), Chenette has no claim arising from KCP’s failure to promote her.
B. Retaliation. Title VII makes it illegal for an employer to retaliate against an employee “because [s]he had opposed any practice made an unlawful employment practice” by the statute. 42 U.S.C. Section 2000e-3(a). With respect to the Kissing Incident, Judge Cote largely relied upon Chenette’s deposition testimony to establish that Chenette did not believe that Cyndi Shapiro’s action was motivated by a discriminatory intent, and therefore held that Chenette’s subsequent negative performance review could not be seen as a retaliatory act. We think, however, that, regardless of Chenette’s opinion, it cannot be demonstrated that, standing by itself, the kiss was violative of Title VII. Even if one considers the act as a sexual one, it is certainly wrong for Chen-ette to assert that it could reasonably amount to “sexual harassment” in violation of Title VII. On the contrary, “[n]o reasonable person could have believed that [a] single incident” of sexually inappropriate behavior by a co-worker could amount to sexual harassment. Clark County School Dist. v. Breeden, 532 U.S. 268, 271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Further, the August 24th interview certainly could not be considered an act of retaliation. KCP acted properly in investigating Chenette’s allegations because her attorney had already been threatened it with the filing of a lawsuit on the basis of those allegations.
C. Hostile Work Environment. To succeed on this claim, Chenette must prove “(1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to *620alter the conditions of her work environment; and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996). Even if we assume arguendo that the first element has been met because the offensive activity alleged by Chenette is sufficiently pervasive to constitute a hostile work environment, there is simply insufficient evidence to establish the latter element.
First, of all the offensive comments and actions alleged by Chenette, there is apparently only one, an off-color comment made by Montemarano, which was committed by a supervisory employee at KCP. More importantly, there is considerable evidence in the record that KCP, rather than tolerating a hostile work environment, acted to forestall it. It is undisputed that, after complaints made by Chen-ette, Berman conducted an investigation, and a meeting of the Department was held to discuss proper deportment in the workplace; that Cyndi Shapiro was disciplined for the Kissing Incident, see Dawson, at 223 (“any liability against [employer] arising from” allegedly offensive comments of co-worker “was precluded” by employer’s disciplining of co-worker); and that, however unsuccessfully, KCP conducted a formal interview of Chenette in response of her threat of a lawsuit. We can therefore find no reason to reverse Judge Cote’s holding that KCP exercised reasonable care in attempting to eliminate the conditions of which Chenette complains.
D. Constructive Discharge. “[A]n employee is constructively discharged when [her] employer ... intentionally creates a work atmosphere so intolerable that [she] is forced to quit involuntarily.” Petrosino, 385 F.3d at 229. Having failed on her hostile work environment claim, “she can neither survive summary judgment on her constructive discharge claim, which requires evidence of even more severe conditions.” Divers v. Metropolitan Jewish Health Systems, 2009 WL 103703 at *19 (E.D.N.Y. Jan. 14, 2009).
For the reasons stated above, the judgment the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471730/ | SUMMARY ORDER
Petitioner Xue Hua Liu, a native and citizen of the People’s Republic of China, seeks review of the October 2, 2008 order of the BIA affirming the April 10, 2007 decision of Immigration Judge (“IJ”) Margaret R. Reichenberg denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xue Hua Liu, No. A098 980 963 (B.I.A. Oct. 2, 2008), aff'g No. A098 980 963 (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 does not expressly “adopt” the IJ’s decision, but its decision 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). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Questions of law ánd the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Liu argues that the agency erred by failing to grant her relief based on her alleged resistance to China’s coercive family planning policy. See 8 U.S.C. § 1101(a)(42). To demonstrate eligibility *622on this basis, an applicant must show that: “(1) [s]he resisted China’s family planning policy; (2)[s]he was persecuted (or has a well-founded fear of persecution); and (3) the persecution was or would be because of [her] ... resistance to the policy.” Matter of M-F-W & L-G-, 24 I. & N. Dec. 633, 641 (BIA 2008). Liu claims that she resisted the policy by initially refusing to attend a mandatory gynecological examination. However, even if such refusal constituted “resistence” to China’s family planning policy, the agency did not err in finding that she was not persecuted as a result. See Matter of S-L-L-, 24 I. & N. Dec. 1, 10-11 (BIA 2006), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.2007) (applicant seeking relief pursuant to “other resistence” must also demonstrate that he “suffered harm amounting to persecution on account of that resis-tence”). The only facts Liu presented in support of her argument were that: (1) school officials broadcasted her name over a public loudspeaker to shame her into undergoing a gynecological examination; (2) officials required her to attend “ideological education” classes to persuade her to undergo the examination; and (3) officials went to her home and told her mother that Liu must attend the examination. While unfortunate, we cannot conclude, contrary to the agency, that these rose above “mere harassment.” See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006).
Liu also argues that the agency erred by concluding that her economic mistreatment did not rise to the level of persecution. Although the BIA has recognized that economic harm may constitute persecution, see Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), “the economic difficulties must be above and beyond those generally shared by others in the country ... and involve noticeably more than mere loss of social advantages or physical comforts,” Matter of T-Z-, 24 I. & N. Dec. 163, 171-73 (BIA 2007) (recognizing that economic persecution encompasses “the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.”).
Here, the agency reasonably determined that increased fees for Liu’s schooling and limitations on her career prospects did not constitute a “severe economic disadvantage” tantamount to persecution. There is no evidence that Liu was deprived of any basic necessities, and while she was precluded from obtaining certain government positions, she failed to demonstrate that she was ineligible for employment generally. Thus, we find no error in the agency’s denial of Liu’s asylum claim predicated on her allegations of economic persecution. We similarly decline Liu’s request that we remand her case so that she may introduce additional evidence in support of that claim. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.2007).
Because Liu failed to establish her eligibility for asylum, the agency also correctly denied her claim for withholding of removal because it was based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (failure to establish eligibility for asylum necessarily precludes eligibility for withholding of removal because of the latter’s higher standard of proof).
As a final matter, Liu asserts that the agency failed to give meaningful consideration to her claim for CAT relief based on her illegal departure. However, it is well-settled that the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China.” See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005). Thus, *623because Liu did not present particularized evidence demonstrating that she was likely to face torture, the agency properly denied her request for CAT relief. See id. (although “there is a risk that any individual detainee in China may be subjected to repressive conditions in prison,” this generalized risk does not demonstrate that a particular petitioner is likely to face torture if repatriated to China).
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/8471732/ | SUMMARY ORDER
Zeng-Xia Zheng, a native and citizen of China, seeks review of an October 31, 2008 order of the BIA affirming the August 1, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zeng-Xia Zheng, No. A094 797 542 (B.I.A. Oct. 31, 2008), aff'g No. A094 797 542 (Immig. Ct. N.Y. City Aug. 1, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions. See 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. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
An applicant’s credible testimony alone may suffice to carry his burden of proof in establishing eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir.2000). In this case, however, the IJ denied that relief after finding that Zheng failed to adequately corroborate material elements of her claim. Under the REAL ID Act amendments, which apply to Zheng’s application for relief, see Matter of S-B-, 24 I. & N. Dec. 42, 45 (B.I.A.2006), “[wjhere 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,” see 8 U.S.C. § 1158(b)(1)(B)(ii). In addition, “[n]o court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence ... 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).
Here, the agency properly found that Zheng’s corroborating evidence failed to meet her burden of proof. Indeed, the agency properly noted that she failed to corroborate her practice of Falun Gong in the U.S. as well as the Chinese authorities’ continued interest in her.2
Zheng argues that it was error for the agency to find that her mother’s affidavit did not support her testimony that: (1) authorities visited her parents’ home looking for her after her escape and (2) continued to visit weekly thereafter. Zheng contends that her mother’s statement that “the local government pursued her everywhere because she practiced Falun Gong” adequately corroborates her claim. However, this explanation would not compel a reasonable factfinder to conclude that the agency erred. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
*625Similarly, the agency did not err in finding that Zheng failed to adequately corroborate her participation in Falun Gong in the United States. Specifically, the agency noted that, while Zheng provided testimony from a friend in the U.S. who allegedly saw her practicing Falun Gong in the park, her friend did not know what the practice of Falun Gong looked like, and based her testimony on the statements of others. While Zheng argues that her friend did indeed witness her practicing Falun Gong, her argument is not sufficiently compelling to suggest error in the agency’s decision. See id.
Finally, the agency did not err in according little weight to the letter Zheng alleged was from her employer. See Xiao Ji Chen v. U.S. Dep’t Of Justice, 471 F.3d 315, 342 (2d Cir.2006). Zheng argues that her employer’s letter was not deficient because, although it was unsigned, “other diseernable features on the said letter would equally establish the reliability of the document at issue,” including “the official stamp of the factory” and the “official stationary of the factory.” However, the weight accorded to evidence is left largely in the hands of the IJ, and we see no reason to disturb this finding. See id.
Ultimately, substantial evidence supports the agency’s finding that Zheng failed to adequately corroborate her claim. See Corovic, 519 F.3d at 95. Thus, the agency properly found that she failed to meet her burden of establishing eligibility for asylum. See 8 U.S.C. § 1158(b)(1)(B)(ii). Because Zheng was unable to show the objective likelihood of persecution needed to make out an asylum claim, she 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).
Finally, as the Government notes, Zheng failed to challenge the denial of her application for CAT relief in her brief to the BIA or to this Court. As a result, we deem this claim abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Zheng does not acknowledge the changes that the REAL ID Act worked to the standards for reviewing corroboration findings, and cites only pre-REAL ID Act caselaw. Moreover, Zheng does not allege error in the agency's finding regarding her corroborating evidence, and incorrectly contends that the agency rendered an adverse credibility finding — even in the face of explicit statements by both the IJ and the BIA that Zheng was credible. In this respect, Zheng has come perilously close to waiving any challenge to the agency’s denial of relief. Nonetheless, because Zheng challenges the agency's reliance on the deficiencies in her documentary evidence, we consider her petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471734/ | SUMMARY ORDER
Appellant Elena Chitoiu, pro se, appeals the district court’s grant of summary judgment in favor of the Appellees in Appellant’s action to recover long term disability benefits under the Employment Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
Here, we find that the district court properly granted summary judgment. At the outset, the district court correctly determined that the appropriate standard of review was the arbitrary and capricious standard, based on the language in the plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir.1995). Applying that standard, under which a denial of benefits will be reversed “only if it was without reason, unsupported by substantial evidence or erroneous as a matter of law,” Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir.1995)(inter-nal quotation omitted), the district court correctly found that there was substantial evidence to support Appellees’ determination that Appellant had not met her burden of showing that she was unable to perform any occupation for which she was reasonably fitted. Specifically, the determination was supported by evidence, undisputed by Appellant, demonstrating that she had obtained work as a teacher, and that her physician and her psychiatrist had both released her to perform work in that field. Nor was there any support in the record for Appellant’s argument that the “any occupation” definition of disability was not the applicable standard under the plan.
*627We have carefully considered Appellant’s remaining claims and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471736/ | SUMMARY ORDER
Luis Marshall, the superintendent of Wallkill Correctional Facility, appeals from a judgment of the district court granting Stephen G. Schulz’s 28 U.S.C. § 2254 petition for a writ of habeas corpus. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.
The district court granted the writ based on ineffective assistance of counsel, finding that Schulz’s trial counsel had been ineffective in two respects. First, counsel failed to interview Otilia Ruiz, one of only two eyewitnesses to the robbery Schulz allegedly committed. Second, counsel did not call an available alibi witness, Anthony Tralongo. The district court also found that both of these errors prejudiced Schulz. We affirm, holding that the failure to make reasonable efforts to interview Ruiz fell below “an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); “undermine[d] confidence in the outcome” of his trial, thus prejudicing Schulz, id. at 694, 104 S.Ct. 2052; and therefoi’e deprived Schulz of his Sixth Amendment right to reasonably effective counsel, see id. at 685-86, 104 S.Ct. 2052. Cognizant that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, requires deference to the state courts and allows a federal court to grant a writ of habeas corpus only if it concludes that the state court’s adjudication of the claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), we nonetheless conclude that the New York Court of Appeals unreasonably applied Strickland to the facts of this case. We do so not because we have concluded in our independent judgment that the state court reached an erroneous or incorrect conclusion under Strickland, but rather because of its unreasonable application of Strickland to counsel’s failure to interview Ruiz. See Brisco v. Ercole, 565 F.3d 80, 87-88 (2d Cir.2009) (discussing the deference owed to state courts under § 2254). Having resolved this case on the basis of counsel’s failure to interview Ruiz, we need not reach counsel’s failure to call Tralongo.
The Supreme Court has long recognized that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. “Prevailing norms of practice as reflected in American Bar Association standards and the like are guides to determining what is reasonable, but they are only guides.” Id. at 688, 104 S.Ct. 2052 (internal citation omitted); see also Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (using an ABA standard to find an investigation inadequate); Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (same). The relevant standard in effect at the time of Schulz’s trial provided:
Defense counsel should conduct a prompt investigation of the circum*629stances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.
ABA Standards for Criminal Justice 4-4.1(a) (3d ed.1993).
This was a simple case. There were two eyewitnesses, one alibi witness, and no physical evidence. As pointed out by the dissent in the New York Court of Appeals, Ruiz was the more important of the two eyewitnesses because (1) “[s]he was the one whom the robber held at knifepoint,” and (2) the other eyewitness did not view the actual crime although he saw the perpetrator at the scene just prior to the robbery. People v. Schulz, 4 N.Y.3d 521, 531-32, 797 N.Y.S.2d 24, 829 N.E.2d 1192 (2005) (Rosenblatt, J, dissenting in part). Under these circumstances, any reasonably competent attorney would have made vigorous efforts to interview Ruiz prior to the trial. Indeed, Schulz’s counsel did not claim that he made a strategic decision not to interview Ruiz. Instead he claimed that he tried to interview her but was unsuccessful.
Therefore, the issue before us is the reasonableness of counsel’s efforts. Counsel claimed, without explanatory detail, that he “made an effort to find Otilia Ruiz, the main eyewitness, but had difficulty contacting her.” He also claimed that on the day Ruiz was scheduled to testify, he asked the prosecutor for permission to interview her and was refused. We conclude that counsel’s efforts were not reasonable based in part on the trial court’s finding that defense counsel could have “made [an] effort to seek an adjournment or otherwise enlist the court’s assistance in securing an opportunity to interview [Ruiz] before she took the stand” and the Appellate Division’s conclusion that counsel did not exercise due diligence in attempting to find Ruiz. In addition, the prosecutor denied that defense counsel sought her permission to interview Ruiz. The basis for the New York Court of Appeals’ determination that Schulz did not receive ineffective assistance of counsel with respect to Ruiz is not clear. We hold, however, that it would constitute an unreasonable interpretation of Supreme Court precedent for the state courts to have found that counsel’s performance with respect to Ruiz was consistent with “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.
We also hold that the state courts could not reasonably have found that Schulz failed to demonstrate prejudice. Ruiz failed to identify Schulz at trial and when questioned by new counsel after the trial, Ruiz quite definitively identified another man, Anthony Guilfoyle, as the robber. If she had been interviewed by counsel before the trial, she likely would have made the same identification, and her testimony that Guilfoyle committed the robbery would have lent force to her denial that Schulz was the perpetrator. Further, Ruiz’s identification of Guilfoyle would have undermined any suggestion that she was too scared or confused to identify Schulz. While certain aspects of Ruiz’s testimony might have been impeached, her testimony that the other eyewitness, Anthony Velasquez, attempted to influence her identification and testimony would have added to pre-existing doubts concerning his credibility. For example, armed with the knowledge that Ruiz’s police statement might not accurately convey the precise description she sought to provide *630to the police, counsel could have clarified what she meant when she said her perpetrator was “very big” and had “rotten teeth.” There was no physical evidence in this case and Velasquez — the only witness tying Schulz to the crime — was significantly impeached by his conversation with an investigating officer about a pending gun possession charge and would have been further impeached by the information provided by Ruiz. Under these circumstances, Strickland cannot be reasonably applied to find a lack of prejudice. See 466 U.S. at 696, 104 S.Ct. 2052 (“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”); see also Wilson v. Mazzuca, 570 F.3d 490, 506-507 (2d Cir.2009) (emphasizing that case against petitioner consisted of a single eyewitness and no physical evidence in holding that state courts could not reasonably have found a lack of prejudice from counsel’s ineffective assistance).
Having concluded that the New York Court of Appeals unreasonably applied Strickland in determining that counsel’s failure to interview Ruiz did not constitute ineffective assistance of counsel, we need not and do not address counsel’s failure to call Tralongo. We affirm the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471740/ | SUMMARY ORDER
Petitioner Yong Chen, a native and citizen of the People’s Republic of China, seeks review of a February 25, 2008 order of the BIA affirming the February 15, 2007 decision of Immigration Judge (“IJ”) Robert D. Weisel, denying his motion to reopen his removal proceedings. In re Yong Chen, No. A076 505 693 (B.I.A. Feb. 25, 2008), aff’g No. A076 505 693 (Immig. Ct. N.Y. City Feb. 15, 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, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the 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 BIA properly dismissed Chen’s appeal from the IJ’s denial of his untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(2). In some circumstances, the time limitation applicable to motions to reopen may be equitably tolled to accommodate claims of ineffective assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). However, an individual alleging ineffective assistance of counsel must demonstrate, among other things, that he exercised due diligence during the period he seeks to toll. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.2000). Here, as the BIA found, Chen failed to establish that he exercised due diligence in pursuing his ineffective assistance of counsel claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007). Indeed, he never explained to the agency what steps he took to pursue his case in the time he sought to toll. To the extent Chen attempts to do so now, his arguments are unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). Accordingly, we find no abuse of discretion in the BIA’s rejection of Chen’s ineffective assistance of counsel claim. See Jian Hua Wang, 508 F.3d at 715; Kaur, 413 F.3d at 233-34; Matter of Compean, 24 I. & N. Dec. 710, 732-35 (A.G.2009).
Furthermore, the BIA did not err in denying Chen’s untimely motion to reopen based on changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Chen argues that the BIA erred by finding that he failed to demonstrate materially changed country conditions sufficient to excuse his untimely motion to reopen or his prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish materially changed country conditions or an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008). Finally, we decline to consider Chen’s unexhausted argument that he will suffer economic persecution if returned to China as he failed to raise that ai’gument in his brief to the BIA. See Lin Zhong, 480 F.3d at 119-20.
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/8471742/ | SUMMARY ORDER
Petitioner Bary Maiga, a native and citizen of Burkina Faso, seeks review of the April 16, 2008 order of the BIA affirming the April 27, 2006 decision of the Immigration Judge (“IJ”) George T. Chew denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bary Maiga, No. A98 648 345 (B.I.A. Apr. 16, 2008), aff'g No. A98 648 345 (Immig. Ct. N.Y. City Apr. 27, 2006). 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 opin*635ion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions for the sake of completeness. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact, including whether a petitioner’s acts rendered him a “persecutor” under the INA. Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). However, we review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). Maiga does not petition for review of the agency’s denial of asylum and failed to sufficiently challenge the agency’s denial of his CAT claim in either his brief to the BIA or his brief to this Court. Therefore, we deem those claims abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007).
An alien who “ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion” is not eligible for withholding of removal under 8 U.S.C. § 1231(b)(3). See 8 U.S.C. §§ 1231(b)(3)(B)(i); 8 C.F.R. § 1208.16(d)(2). In assessing ineligibility for relief under these provisions, “[w]here the conduct was active and had direct consequences for the victims, we concluded that it was ‘assistance in persecution’ ... [but][w]here the conduct was tangential to the acts of oppression and passive in nature, however, we declined to hold that it ... [was] assistance.” Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006). “[T]he mere fact that [the petitioner] may be associated with an enterprise that engages in persecution is insufficient by itself to trigger the effects of the persecutor bar.” Xu Sheng Gao v. U.S. Att’y Gen., 500 F.3d 93, 99 (2d Cir.2007). Rather, the evidence must show a link between the petitioner’s specific actions and the alleged persecution. Id. at 101-02.
To determine whether a petitioner’s conduct triggers the persecutor bar, we must consider: (1) whether the alien was involved in persecution, under the same definition used to define a refugee; (2) whether the persecution was on account of the victim’s protected status — i.e., whether a nexus established; (3) whether the alien’s conduct “assisted” in the persecution, as defined in, e.g., Xu Sheng Gao and Zhang Jian Xie; and (4) whether the alien had sufficient knowledge that his actions may have assisted in persecution. See Balachova v. Mukasey, 547 F.3d 374, 384-85 (2d Cir.2008).1
Our review of the record leads us to conclude that the agency erred in finding that Maiga was statutorily ineligible for withholding of removal as a persecutor. Maiga was a member of the presidential guards in Burkina Faso, was aware that detainees were being persecuted, and had himself participated in the arrest of two political dissidents. However, contrary to the agency’s findings, the record shows that Maiga’s responsibilities as a guard were limited to chauffeuring government officials, and with respect to the two arrests he described, Maiga played only a *636tangential role that had no direct consequences for the arrested individuals. See Xu Sheng Gao, 500 F.3d at 99; Zhang Jian Xie, 434 F.3d at 143. Specifically, Maiga remained in his car when the incidents occurred, and, following their arrests, the suspects were placed in another car, after which Maiga had no further contact with them. Moreover, there was insufficient evidence that the arrested individuals were later persecuted, as they were released, unharmed, a few hours later.
Therefore, because Maiga’s actions had no direct impact on the arrested individuals, but were merely tangential in nature, and there is no evidence that the arrested individuals were persecuted on those occasions, the agency erred in determining that Maiga had assisted in persecution and was ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(i). See Weng, 562 F.3d at 515-16; Balachova, 547 F.3d at 386; Zhang Jian Xie, 434 F.3d at 143.
For the foregoing reasons, the petition for review is GRANTED, the order of the BIA is VACATED and the case is REMANDED for further proceedings. As we have completed our review, the stay of removal that the Court previously granted in this petition is VACATED.
. When we described these four considerations in Balachova v. Mukasey, we assumed that there was no voluntariness exception to the persecutor bar. The Supreme Court has since undermined the basis of our assumption, see Negusie v. Holder, - U.S. -, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009), although it did not decide whether such an exception exists. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471744/ | SUMMARY ORDER
Plaintiff-Appellant Kalliopi Sígala, through counsel, appeals from the orders of the United States District Court for the Eastern District of New York (Townes, J.), denying Appellant’s motion to reopen the case following dismissal of the complaint for failure to prosecute and Appellant’s motion for reconsideration of the denial. We assume the parties’ familiarity with the facts and procedural history.
We review a district court order denying a motion pursuant to Federal Rule of Civil Procedure 60(b) for abuse of discretion. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id.
Although we have confirmed that the district court has the authority to dismiss an action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b), we have held that such action should be taken “only in the most extreme circumstances.” U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 250-51 (2d Cir.2004). The propriety of dismissal for failure to prosecute is based on the following factors: (1) whether the plaintiffs failure to prosecute caused a delay of significant duration; (2) whether there was notice to plaintiff that further delay would result in dismissal; (3) likely prejudice to defendant because of further delay; (4) a balance between court calendar congestion against plaintiffs right to an opportunity for a day in court; and (5) the efficacy of lesser sanctions. Id. at 254. “No one factor is dispositive, and ultimately we must review the dismissal in light of the record as a whole.” Id.
In ruling on Appellant’s motions to reopen and for reargument, as well as in the underlying dismissal, the district court did not adequately address these factors or sufficiently explain its reasoning to enable us to review the district court’s reasoning. See Martens v. Thomann, 273 F.3d 159, 180 (2d Cir.2001) (holding that “[although the district court [was] not required to discuss each of the factors on the record, a decision to dismiss stands a better chance on appeal if the appellate court has the benefit of the district court’s reasoning”) (internal quotation marks omitted). The record reveals that, while there was a significant delay between the district court’s order of dismissal in January 2005 and the November 2007 motion to reopen the case, there was some evidence that Appellant did not receive actual notice of the possibility of dismissal. Further, there was significant court action during this period. Indeed, Magistrate Judge Go recommended that the case be reopened “since the only reason [Appellant’s counsel] didn’t respond to an order of impending dismissal was that [the] order was sent to a [different attorney].” There is also evidence of various communications between Appellant’s counsel and Magistrate Go from December 2002 to January 2007.
Moreover, there was no evidence of prejudice to Appellee, who did not oppose Appellant’s request to reopen the case, or of congestion of the district court’s docket. Similarly, there was no indication that the district court considered any lesser sanctions prior to dismissing the complaint. By failing to adequately address the above-listed factors, the evidence submitted by Appellant, or the magistrate’s rec*638ommendation that the ease be reopened, the district court abused its discretion. See id.
For the reasons stated above, the orders of the district court are VACATED and the case is REMANDED for the further proceedings. On remand the district court may choose to restore this matter to the calendar. If it does not do so, it should enter an order thoroughly explaining its consideration of the pertinent factors and the evidence offered by appellant. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471746/ | SUMMARY ORDER
Plaintiff-appellant Leonides Gervacio (“plaintiff’) appeals from a July 9, 2008 judgment of the District Court, which granted the motion of the defendants Bar*639ry S. Zall (“Zall”) and MMCA Leasing, Ltd. (“MMCA”) for summary judgment. Plaintiff filed the underlying action in the Supreme Court of the State of New York, New York County, and the defendants removed the case to federal court in March 2005. Plaintiff asserted claims for negligence against both defendants arising from a traffic accident in New York City. On appeal, plaintiff primarily argues the following points: (1) that he is entitled to the benefit of a lesser burden of proof in responding to a motion for summary judgment on account of his amnesia, allegedly caused by the accident in question; (2) that the District Court erred in finding that “contradictions” in Zall’s testimony did not create a genuine issue of material fact; and (B) that the District Court erred in not considering the contents of a police report prepared shortly after the accident. We assume the parties’ familiarity with the remaining factual and procedural history of the case.
We review a district court’s grant of summary judgment de novo, construing all facts in favor of the non-moving party. See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 183 (2d Cir.2006); Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005). Summary judgment is appropriate only upon a showing “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).
With respect to plaintiff’s first argument, the District Court observed that “[u]nder Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), an amnesiac plaintiff may be held to relaxed standards of evidentiary proof on summary judgment” but that where “ ‘there is absolutely no showing of facts from which negligence may be inferred, the Nosewor-thy rule is inapplicable.’ ” Gervacio v. Zall, No. 05-cv-3224, slip op. at 7-8 (S.D.N.Y. July 8, 2008) (quoting Mildner v. Wagner, 89 A.D.2d 638, 453 N.Y.S.2d 100, 101 (1982)). It also explained that, to invoke the rule, “a plaintiff must ‘present expert evidence, establishing, by clear and convincing evidence, his memory loss and its causal relationship to the defendants’ conduct.’” Id. at 8 (quoting Luscher v. Arrua, 21 A.D.3d 1005, 801 N.Y.S.2d 379 (2005)). We agree with the District Court that plaintiff’s “failure] to put forth any evidence in support of his position that Defendant Zall” was negligent renders No-seworthy inapposite and note that, in any event, plaintiff failed to supply any expert evidence demonstrating the existence of his amnesia or a causal relationship with the collision with Zall. Id. at 17-18.
Turning to plaintiffs second argument, we agree with the District Court that the purported “contradictions” or “inconsistencies” in Zall’s testimony do not create a genuine issue of material fact. Zall testified consistently that he observed the traffic signal turn green as he approached the intersection of 94th Street and First Avenue and then turn yellow, and finally red, as he entered the intersection and began to turn onto First Avenue. Plaintiffs contention that the light could not possibly have turned from red, to green and back to red again in such a short span of time is unsupported by any evidence and rests instead upon “ ‘mere speculation or conjecture.’ ” See id. at 7 (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986)).
Plaintiffs third and final argument is that the District Court erred in failing to consider the contents of a police report prepared soon after the accident. According to plaintiff, a diagram in the report depicts the scene of the accident at the time that police arrived and, furthermore, that depiction, along with other statements in the report, contradict defen*640dant Zall’s testimony about his conduct after the collision. Consideration of the police report, however, would have been inappropriate in light of plaintiffs failure to lay any foundation for the applicability of a hearsay exception, or even to establish what the diagram purports to depict. Cf. Fed.R.Evid. 803(8) advisory committee’s note (“Police reports have generally been excluded except to the extent to which they incorporate firsthand observations of the officer.”) (emphasis added); Fed. R.Evid. 803(6) advisory committee’s note (noting that information in a police report supplied by a bystander ordinarily is inadmissible). Absent some foundation, it is unclear whether the diagram depicts the scene as it appeared upon the police officer’s arrival or whether it is based upon a description of how the accident occurred according to another officer, an eyewitness or even one of the parties. Furthermore, we agree with the District Court that Zall’s conduct after the accident is irrelevant to whether he acted negligently in the moments leading up to the collision. Ger-vasio, No. 05-cv-3224, slip op. at 15.
CONCLUSION
We have considered all of the plaintiffs arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |