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MEMORANDUM **
Arturo Reyes-Rodriguez appeals his jury-trial conviction for drug crimes, and possession of a firearm in furtherance of a drug trafficking offense, in violation of 21 U.S.C. §§ 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The sole argument on appeal is that trial counsel was ineffective. Although we generally do not review such claims on direct appeal, here the record is sufficiently developed to permit us to resolve the issue. See United States v. Vgeri, 51 F.3d 876, 882 (9th Cir.1995).
There is no “reasonable probability that, but for counsel’s [allegedly] unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, Reyes-Rodriguez was not prejudiced by *244his counsel’s allegedly deficient performance, and we reject his contention that he was denied ineffective assistance of counsel. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*275MEMORANDUM **
Kathy Grismore appeals pro se from the district court’s judgment dismissing her action as a sanction under Federal Rule of Civil Procedure 37(b) for failure to comply with discovery orders. Grismore also appeals from the postjudgment order awarding attorneys’ fees and costs. We have jurisdiction under 28 U.S.C. § 1291 to review the judgment. We review for an abuse of discretion. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002) (discovery rulings); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.1987) (dismissal). We affirm in part and dismiss in part.
The district court did not abuse its discretion by granting defendants’ motion to compel discovery responses because the information sought was relevant to damages. See Fed.R.Civ.P. 26(b)(1) (describing permissible discovery); Hallett, 296 F.3d at 751 (stating that broad discretion is vested in the trial court to permit discovery).
The district court did not abuse its discretion by dismissing the action because Grismore failed to respond to discovery after the district court ordered her several times to do so and warned her that noncompliance could result in dismissal. See Malone, 833 F.2d at 130, 132 & n. 1 (setting forth factors that a district court must consider before dismissing an action for failure to comply with a court order).
We lack jurisdiction to review the district court’s order granting attorneys’ fees and costs because Grismore did not file an amended notice of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir.2007).
Grismore’s remaining contentions are unavailing.
AFFIRMED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
California prisoner Raymond D. Jackson, Sr. appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants violated his constitutional rights by refusing to search for and provide potentially exculpatory DNA evidence. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003). We affirm.
The district court properly determined that California issue preclusion law barred Jackson’s federal claim. Jackson sought to relitigate an issue that was identical to one previously litigated and decided in state court; the state court decision was final and on the merits; and Jackson, the petitioner in the state proceeding, is the same party against whom the defendant seeks preclusion here. See San Remo Hotel L.P. v. San Francisco City & County, 364 F.3d 1088, 1096 (9th Cir.2004) (stating that issue preclusion applies if the state courts would give preclusive effect to the judgment of the state court and the federal courts would find the substantive law to be the same in the state and federal proceedings), ajfd on other grounds by 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005); see also Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1225 (1990) (summarizing California’s issue preclusion law).
Moreover, Jackson has stated no viable due process claim regarding access to the DNA evidence at issue. See Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, — U.S. -, 129 S.Ct. 2308, 2320-22, 174 L.Ed.2d 38 (2009) (holding that there is no procedural due process claim to post-conviction access to DNA evidence when a state’s procedures for post-conviction relief satisfy recognized principles of fundamental fairness, as well as no substantive due process right).
Jackson’s remaining contentions are unpersuasive.
Jackson’s requests for judicial notice are denied.
Jackson’s request for appointment of counsel or a court-appointed investigator is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
California state prisoner Raymond D. Jackson, Sr. appeals pro se from the district court’s summary judgment dismissing his 42 U.S.C. § 1983 action alleging, inter alia, that defendants denied him access to the courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Aguilera v. Baca, 510 F.3d 1161, 1167 (9th Cir.2007). We affirm in part, vacate in part, and remand.
The district court properly granted summary judgment on Jackson’s access to courts claim because Jackson failed to raise a triable issue that he suffered “actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
Jackson’s remaining contentions are unpersuasive.
Jackson’s motion to correct a “clerical error” in his reply brief is granted.
*248We grant in part Jackson’s motion for judicial notice filed on Dec. 12, 2008, and take judicial notice of the order denying a certificate of appealability filed on May 29, 2008. All other pending motions are denied.
We vacate in part and remand for the limited purpose of directing that the district court dismiss the pendent state claims without prejudice. See Wade v. Reg’l Credit Ass’n, 87 F.3d 1098, 1101 (9th Cir.1996).
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Francisco Torres-Salas, a native and citizen of Mexico, petitions for review of the former Legalization Appeals Unit’s (“LAU”) order dismissing Torres-Salas’ appeal from the denial of his Special Agricultural Worker (“SAW”) application. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a SAW application, Perez-Martin v. Ashcroft, 394 F.3d 752, 758 (9th Cir.2005), and we deny the petition for review.
The LAU did not abuse its discretion in dismissing Torres-Salas’ SAW appeal where Torres-Salas provided insufficient evidence of qualifying employment. See Perez-Martin, 394 F.3d at 759-60 (to overcome derogatory government evidence, an applicant must provide enough evidence to show qualifying employment “as a matter of just and reasonable inference”) (quoting 8 U.S.C. § 1160(b)(3)(B)(iii)).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Francisco Torres-Salas, a native and citizen of Mexico, petitions for review of the former Legalization Appeals Unit’s (“LAU”) order dismissing Torres-Salas’ appeal from the denial of his Special Agricultural Worker (“SAW”) application. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a SAW application, Perez-Martin v. Ashcroft, 394 F.3d 752, 758 (9th Cir.2005), and we deny the petition for review.
The LAU did not abuse its discretion in dismissing Torres-Salas’ SAW appeal where Torres-Salas provided insufficient evidence of qualifying employment. See Perez-Martin, 394 F.3d at 759-60 (to overcome derogatory government evidence, an applicant must provide enough evidence to show qualifying employment “as a matter of just and reasonable inference”) (quoting 8 U.S.C. § 1160(b)(3)(B)(iii)).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Hrachya Nersisyan and his son, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the IJ’s timeliness determination because the IJ’s extraordinary circumstances analysis is based on uncertain dates. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (court had jurisdiction over changed circumstances issue because it involved an application of a statutory standard to “undisputed” facts).
Substantial evidence supports the IJ’s finding that Nersisyan failed to establish he suffered harm that rose to the level of past persecution on account of his religion. See Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir.2006). Nersisyan also failed to establish a clear probability of future persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1185 (9th Cir.2003). Aecording*251ly, substantial evidence supports the agency’s denial of withholding of removal.
Substantial evidence also supports the IJ’s denial of CAT relief because Ner-sisyan failed to establish a likelihood of torture in Armenia. See Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir.2009).
The BIA’s reduction of the voluntary departure period was permissible because the BIA did not issue a streamlined order. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 981 (9th Cir.2006).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Franklin Shuron Jones appeals the district court’s order denying his motion for reduction of sentence, 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jones, No. 2:05-cr-00029-FL-1 (E.D.N.C. filed June 30, 2009; entered July 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
Jhon Harry Sierra, native and citizen of Colombia, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s (“IJ”) decision de*252nying his application for asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), we dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider Sierra’s social group claim because he did not exhaust it before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
Sierra contends he demonstrated that the Revolutionary Armed Forces of Columbia (“FARC”) harassed him on account of his imputed political opinion. Substantial evidence supports the IJ’s conclusion that Sierra failed to provide any evidence that the FARC were motivated by more than extortion. See Ochoa v. Gonzales, 406 F.3d 1166, 1171-72 (9th Cir.2005); cf. Borja v. INS, 175 F.3d 732, 735-36 (9th Cir.1999) (explaining that ‘extortion plus’ is necessary to satisfy nexus requirement). Because he failed to demonstrate that the FARC were or would be interested in him on account of a protected ground, accordingly, his asylum and withholding of removal claims fail. See Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812; see Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005).
Finally, we deny Sierra’s due process contention. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (no due process violation where no error).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
David Selinger appeals pro se from the Bankruptcy Appellate Panel’s (“BAP”) order denying his motion to reopen the time to file a notice of appeal. We have jurisdiction under 28 U.S.C. § 158(d). We review for abuse of discretion. Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1069-70 (9th Cir.2003). We affirm in part and dismiss in part.
*255The BAP did not abuse its discretion by denying the motion to reopen because Selinger had not established the essential elements of Rule 4(a)(6) of the Federal Rules of Appellate Procedure. See Nunley v. City of L.A., 52 F.3d 792, 796 (9th Cir.1995) (explaining that the movant bears the burden of proving non-receipt of the entry of judgment); see also Arai, 316 F.3d at 1069 (holding that Rule 4(a)(6) does not require the court to grant the relief, even if the requirements are met).
To the extent Selinger seeks to appeal other issues, we lack jurisdiction to review them. See Fed. R.App. P. 4(a)(1)(A); Stephanie-Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir.2007) (“A timely notice of appeal is a non-waivable jurisdictional requirement.”).
Appellees’ motion to strike portions of Selinger’s opening brief is denied as moot.
AFFIRMED in part and DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Moisés Sanchez-Garcia appeals from the 63-month sentence imposed following his guilty plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Sanchez-Garcia contends that the sentence is substantively unreasonable because the district court did not sufficiently consider the nature of his prior offenses, the age of his kidnapping conviction, the potential sentencing disparity with other similarly situated defendants and his background. Sanchez-Garcia also contends that the district court did not sufficiently explain the sentence in order to allow meaningful appellate review. The district court properly considered the § 3553(a) factors and adequately explained the sentence selected. Accordingly, the district court did not procedurally err at sentencing. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Moreover, in light of the totality of the circumstances, the sentence is substantively reasonable. See id; see also United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (“A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals”).
We remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herreras-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jhon Harry Sierra, native and citizen of Colombia, petitions for review of the Board of Immigration Appeals’ order affirming an immigration judge’s (“IJ”) decision de*252nying his application for asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), we dismiss in part and deny in part the petition for review.
We lack jurisdiction to consider Sierra’s social group claim because he did not exhaust it before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
Sierra contends he demonstrated that the Revolutionary Armed Forces of Columbia (“FARC”) harassed him on account of his imputed political opinion. Substantial evidence supports the IJ’s conclusion that Sierra failed to provide any evidence that the FARC were motivated by more than extortion. See Ochoa v. Gonzales, 406 F.3d 1166, 1171-72 (9th Cir.2005); cf. Borja v. INS, 175 F.3d 732, 735-36 (9th Cir.1999) (explaining that ‘extortion plus’ is necessary to satisfy nexus requirement). Because he failed to demonstrate that the FARC were or would be interested in him on account of a protected ground, accordingly, his asylum and withholding of removal claims fail. See Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812; see Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005).
Finally, we deny Sierra’s due process contention. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (no due process violation where no error).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM ***
Hovik Manukian, a native and citizen of Iran, seeks review of a final order of the Board of Immigration Appeals (BIA) denying his claims for asylum, withholding of removal and protection under the Convention Against Torture (CAT). We grant the petition and remand for a determination on an open record whether Manukian is entitled to asylum, withholding of removal or CAT relief.1
The BIA and immigration judge (IJ) made an adverse credibility determination on three grounds, stating each was insufficient by itself, but, taken together, provided sufficient reason to discredit Manuki-an’s testimony that he was a member of the Assembly of God Church in Iran, assisted Muslims in converting to Christianity, and escaped Iran to avoid persecution for his role in the conversion of Muslims. We conclude that at least one of these grounds — that an Assembly of God member would have made more effort to locate or attend more frequently Assembly of God services in Las Vegas, Nevada or Glendale, California — was based on improper conjecture. See Li v. Holder, 559 F.3d 1096, 1102-07 (9th Cir.2009); Guo v. Ashcroft, 361 F.3d 1194, 1201-02 (9th Cir.2004); Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000). The IJ’s decision also failed to address Manukian’s uncontested explanation that there were no Assembly of God Churches providing services in Armenian — the only language he spoke besides Farsi — in Las Vegas, where he lived at the time. See Singh v. Gonzales, 439 F.3d 1100, 1106-07 (9th Cir.2006). Manu-kian’s challenge to the adverse credibility determination in his notice of appeal to the BIA and the BIA’s combined affirmance on all three grounds of the IJ’s adverse credibility determination sufficiently exhausted the claim. See Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.2006). Because this one ground fails, we are compelled to find the adverse credibility determination, as stated by the BIA and IJ, was unsupported by substantial evidence. Guo, 361 F.3d at 1199.
We therefore grant the petition for review and remand to the BIA for further proceedings on an open record. Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009).
*254PETITION GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because Manukian's counsel on appeal is currently in disciplinary proceedings before the Ninth Circuit, and the court has ordered him not to file any new cases for one year pending proof of adequate retraining, and that amicus counsel be appointed to some of his cases, see In re: Asbet A. Issakhanian, Esq., No. 09-80068 (9th Cir.), we have independently reviewed the record and construed Manukian's appeal as raising and arguing all issues that would be presented by competent amicus counsel.
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MEMORANDUM **
David Selinger appeals pro se from the Bankruptcy Appellate Panel’s (“BAP”) order denying his motion to reopen the time to file a notice of appeal. We have jurisdiction under 28 U.S.C. § 158(d). We review for abuse of discretion. Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1069-70 (9th Cir.2003). We affirm in part and dismiss in part.
*255The BAP did not abuse its discretion by denying the motion to reopen because Selinger had not established the essential elements of Rule 4(a)(6) of the Federal Rules of Appellate Procedure. See Nunley v. City of L.A., 52 F.3d 792, 796 (9th Cir.1995) (explaining that the movant bears the burden of proving non-receipt of the entry of judgment); see also Arai, 316 F.3d at 1069 (holding that Rule 4(a)(6) does not require the court to grant the relief, even if the requirements are met).
To the extent Selinger seeks to appeal other issues, we lack jurisdiction to review them. See Fed. R.App. P. 4(a)(1)(A); Stephanie-Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir.2007) (“A timely notice of appeal is a non-waivable jurisdictional requirement.”).
Appellees’ motion to strike portions of Selinger’s opening brief is denied as moot.
AFFIRMED in part and DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Plaintiff Mark J. Ferguson appeals the district court’s grant of partial summary judgment in favor of Defendant Quin-street, Inc. We have jurisdiction under 28 U.S.C. § 1291. We review the summary judgment decision de novo, Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir.2009), and we affirm.
Ferguson lacks standing to pursue his claim under the CAN-SPAM Act, codified at 15 U.S.C. § 7701 et seq. See Gordon, 575 F.3d at 1048-57 (holding that a plaintiff who merely provided e-mail accounts and hosted a website on leased server space did not have standing under CAN-SPAM). In addition, the district court correctly concluded that Ferguson’s state law claims under Wash. Rev.Code § 19.190.010 et seq. and Wash. Rev.Code § 19.86.010 et seq. are preempted by CAN-SPAM. See Gordon, 575 F.3d at 1057-66.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
The seamen concede that they did not incur liability or receive balance bills for additional medical expenses until after they informed them medical providers that they were not subject to state workers’ compensation limitations. Because the seamen did not receive balance bills from them medical providers until after they filed their third amended complaint, the seamen had suffered no injury-in-fact at the time the third amended complaint was filed and therefore lacked standing to bring their complaint.1 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n. 4, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (plurality opinion); Didrickson v. United States Dep’t of Interior, 982 F.2d 1332, 1339 (9th Cir.1992).
Nor do the seamen establish a “genuine threat” of future injury. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc). The seamen offer conclusory allegations regarding their risk of future liability, but adduce no evidence that any medical provider was dissatisfied with an employer’s initial payment before the seamen filed the third amended complaint. Likewise, the seamen adduce no evidence that the employers will not pay the additional medical bills. Without any “specific facts,” these “some day” threats are insufficient to confer standing. See Lujan, 504 U.S. at 563-64, 112 S.Ct. 2130. The seamen’s predictions of contingent liability are similarly speculative, as the seamen fail to adduce evidence establishing concrete, immediate *258harm caused by any contingent liability. Cf. Clinton v. City of New York, 524 U.S. 417, 431, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998); Bancard Servs., Inc. v. E* Trade Access, Inc., 292 F.Supp.2d 1235, 1240-41 (D.Or.2003).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. It follows that the two seamen who did not receive balance bills, and the seaman who received a balance bill with a zero balance, likewise failed to show injury-in-fact and thus lacked standing.
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MEMORANDUM **
Defendant Kenneth Delano appeals the district court’s order denying his motion to suppress evidence. Because the record shows that Mr. Delano was arrested after a valid investigatory stop, and that the evidence at issue was discovered in the course of a valid search incident to arrest, we affirm.
This court reviews the lawfulness of a search and seizure de novo. See United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir.2007); United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.2005). Whether or not the police officers had reasonable suspicion to make an investigative stop is a mixed question of fact and law which this court reviews de novo. See United States v. Manzo-Jurado, 457 F.3d 928, 934 (9th Cir.2006). The district court’s underlying findings of fact are reviewed for clear error. See Berber-Tinoco, 510 F.3d at 1087; Stafford, 416 F.3d at 1073.
Investigative detentions must be supported by “reasonable suspicion” based on articulable facts that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Courts reviewing the legality of investigatory detentions “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Here, the police received information about an reported domestic violence incident involving one man and one woman in a residence at the end of a dead-end street, and minutes later happened upon a car containing one man and one woman driving away from that dead-end. The totality of these circumstances justifies a brief investigative detention in order to ascertain whether the individuals in the car were those involved in the reported criminal activity. Once Mr. Delano identified himself using the name of the man reported to be involved in the domestic violence incident, the officers had reasonable suspicion to detain him for further questioning. The investigative stop that led to Mr. Delano’s arrest was thus valid.
A “vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle” is invalid unless “it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant, — U.S. -, -, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009). Mr. Delano was arrested on an outstanding warrant for violating the conditions of his parole. Possession of a firearm is a parole violation. The police officers who arrested Mr. Delano saw a firearm at Mr. Delano’s feet during the course of that arrest. It was therefore reasonable for the officers to believe that evidence of the offense of arrest, violation of parole, would be found in a subsequent search of the vehicle. The vehicle search that led to the seizure of Mr. Delano’s firearm was thus a valid search incident to arrest.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ibrahim Weyne appeals the district court’s orders denying his motion to suppress and motion to dismiss for prosecuto-rial vindictiveness. Because the search of Weyne’s car was a valid inventory search and because Weyne failed to show an appearance of prosecutorial vindictiveness, we affirm.
“We review de novo motions to suppress, and any factual findings made at the suppression hearing for clear error.” United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992). We review *261de novo motions to dismiss an indictment for vindictive prosecution. United States v. Jenkins, 504 F.3d 694, 699 (9th Cir.2007).
As an initial matter, we hold that Weyne is not precluded from arguing that the search at issue in this case violated the Fourth Amendment. Even if “a claim [was] not raised by petitioner below, we would ordinarily feel free to address it, since it was addressed by the court below. Our practice ‘permit[s] review of an issue not pressed so long as it has been passed upon....’” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (quoting United States v. Williams, 504 U.S. 36, 41, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992)). Here, Weyne’s unlawful search argument is not waived for failure to raise it in the district court because both the government and the district court addressed the issue in connection with the motion to suppress.
Viewing the evidence in the light most favorable to the government, see United States v. Cervantes-Gaitan, 792 F.2d 770, 772 (9th Cir.1986), the district court’s finding that the search of Weyne’s car was in preparation for towing was not clearly erroneous. As such, we affirm the district court’s denial of Weyne’s motion to suppress on the ground that the search was a valid inventory search. See Colorado v. Bertine, 479 U.S. 367, 369, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (affirming inventory search of a vehicle prior to impoundment); South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (holding that officers may conduct an inventory search of a lawfully impounded vehicle without a warrant).
We also affirm the district court’s denial of Weyne’s motion to dismiss for prosecu-torial vindictiveness because Weyne failed to make a threshold showing of an appearance of vindictiveness. Where, as here, there is no direct evidence of actual vindictiveness, a defendant must first make a prima facie showing of “facts that warrant an appearance of such.” United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir.1995) (quoting United States v. Sinigaglio, 942 F.2d 581, 584 (9th Cir.1991)). An appearance of vindictiveness exists “only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.” United States v. Jenkins, 504 F.3d 694, 700 (9th Cir.2007) (quoting United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir.1982)).
Weyne’s contention that the charge at issue in this case was brought in federal, rather than state, court as retribution for his refusal to plead guilty in a prior, unrelated case is insufficient, without more, to raise an appearance of vindictiveness. The Supreme Court has held in an analogous context that “the mere fact that a defendant refuses to plead guilty and forces the government to prove its case [at trial] is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified,” United States v. Goodwin, 457 U.S. 368, 382-83, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), because, before a case matures to the point of trial, “the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has broader significance,” id. at 381, 102 S.Ct. 2485. Here, it is undisputed that the charge against Weyne at issue in this case arose from additional, intervening criminal conduct; it did not arise from the same set of facts that led to his prior prosecution. Accordingly, Weyne cannot dispute that prosecutors who brought the present case possessed “additional infor*262mation that suggested] a basis for further prosecution” in federal court, id. at 381, 102 S.Ct. 2485, and, for this reason, “the mere fact that [Weyne] [previously] refuse[d] to plead guilty ... is insufficient to warrant a presumption that [these] subsequent [charges] ... are unjustified,” id. at 382-83, 102 S.Ct. 2485.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER AND JUDGMENT*
DAVID M. EBEL, Circuit Judge.
Plaintiff-Appellant Wellman E. Gibson is a prisoner of the state of Colorado. He instituted this action against a number of officials in the Colorado Department of Corrections, claiming both disability discrimination under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and a violation of his First Amendment right to free exercise of his religion, asserted under 42 U.S.C. § 1983. The district court granted him leave to proceed in forma pauperis per 28 U.S.C. § 1915(a), but later dismissed his claims as frivolous under § 1915(e)(2)(B)(ii), because his claims, in its view, were repetitive of claims he had filed in a prior suit. Because the scope of the prior proceedings did not encompass the claims Gibson now seeks to press, we REVERSE that determination and REMAND for further proceedings.
I. Background
Gibson avers that he suffers from a number of physical disabilities that have caused him — among other problems — to lose dexterity in his hands.1 Because he claims he cannot use his hands to read, beginning in 2003 he was allowed to participate in the prison’s Books on Tape program, in which he was able to listen to both general books and the books he claims are necessary for the exercise of his Jewish faith. In 2006, Gibson was denied the right to participate in the Books on Tape program, allegedly for security reasons.
At around the same time, Gibson submitted a claim for disability discrimination as part of the settlement process in Mon-tez v. Romer, a class action lawsuit filed in the early 1990s on behalf of Colorado inmates suffering from particular disabilities. See Montez v. Romer, 32 F.Supp.2d 1235 (D.Colo.1999) (denying motion to dismiss class action complaint) [Montez /]. When that ease settled in 2003, the district court imposed a Remedial Plan under which class members could present claims of discrimination to a Special Master for *360processing. See Montez v. Owens, Civ. No. 92-N-870 (OES), at 1-2, 2007 WL 4226365 (D.Colo.2007) [Montez III The Remedial Plan, however, limited the Special Master’s jurisdiction to determining whether inmates were disabled within the meaning of the Plan, which encompassed only “mobility, hearing, and vision impairments and ... diabetes.” Id. at 2, 2007 WL 4226365.
Before the Special Master, Gibson presented his claim for recovery under the Remedial Plan “premised on an alleged permanent mobility disability.” Montez II at 3, 2007 WL 4226365. The Special Master noted that Gibson suffered from degenerative disk disease as well as a number of other back ailments. Id. The Special Master also noted that Gibson “claims he has been discriminated against by having his books on tape taken by DOC. He claims that his hand difficulties with dexterity and his cataracts mandate his continuing in the books on tape program.” Id. at 4, 2007 WL 4226365. The Special Master initially awarded compensation to Gibson, but upon an objection by the state, reviewed further evidence, including a prison surveillance tape showing Gibson “moving his possessions into a cell, climbing stairs and walking, with and without objects in his hands, without difficulty.” Id. Based on this evidence, the Special Master determined “that Claimant Gibson is NOT a mobility disabled person under the terms of the remedial plan.” Id. at 5, 2007 WL 4226365 (emphasis in original).
On May 5, 2009, Gibson filed the instant action in the district court, alleging disability discrimination under the ADA and interference with his protected First Amendment right to practice his religion. His claim was premised entirely on his loss of dexterity in his hands, rather than any mobility-based disability. The district court determined that his disability discrimination claim was “repetitive of the claim[ ] he assert[ed] in [Montez II.] Therefore, [his claims] will be dismissed as legally frivolous.” (Record on Appeal at 18.) The district court further determined that Gibson’s First Amendment claim “is belied by the determination in Montez [II ] that a surveillance video of Mr. Gibson shows that he is able to grasp a handrail when he climbs the stairs. Any denial of religious book tapes based on a claim of medical disability is foreclosed by the finding in Montez [II] and is legally frivolous.” (Id.) The district court dismissed Gibson’s case in its entirety, and revoked his permission to proceed in forma pau-peris on appeal.
II. Discussion
As a general rule, a litigant is prohibited from bringing a claim that has already been decided in a prior case by the twin doctrines of preclusion: res judicata and collateral estoppel. See San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 336-37, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). However, for preclusion to apply, the litigant must seek to litigate either the same claim, see, e.g., Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1147 (10th Cir.2007), or the same issue, see, e.g., Union Telephone Co. v. Qwest Corp., 495 F.3d 1187, 1195 (10th Cir.2007), that was decided in the prior proceeding. Further, res judicata may also bar a litigant from bringing a claim that was not-but could have been-brought in a prior proceeding that generated a final, valid judgment on the merits. See Pelt v. Utah, 539 F.3d 1271, 1281 (10th Cir.2008). Finally, in order to preclude relitigation of a particular issue under collateral estoppel, the prior determination of that issue must have been necessary to the judgment. See Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir.2009).
*361While Gibson did press a claim for disability discrimination before the Special Master in Montez II, the Special Master’s jurisdiction was confined to a single question: whether Gibson fell within the class as defined in the Remedial Plan. Montez II at 3, 2007 WL 4226365. That class was limited to inmates with “mobility, hearing, and vision impairments and ... diabetes.” Id. at 2, 2007 WL 4226365. Therefore, Gibson would not have been able to bring a claim or obtain relief based solely on a loss of dexterity in his hands. It is this latter claim that he raised with the district court in this proceeding; therefore, at least on the limited appellate record now before us, principles of res judicata should not bar Gibson’s current suit.
To be sure, the Special Master in Mon-tez II took note of the issue of Gibson’s claimed hand pain, and observed based on the video tape that “[h]e does not appear to have difficulty in gripping.” Id. at 4, 2007 WL 4226365. But once again, given the limited scope of the decision before the Special Master, any determination of the effect of Gibson’s hand pain does not appear to have been necessary to the Special Master’s judgment that Gibson did not fall within the Remedial Plan class. Therefore, collateral estoppel would not bar Gibson from litigating the issue of his hand pain before the district court in this case.
In reaching this decision, however, we note that we take no position whatever on the overall merits of Gibson’s ADA and First Amendment claims, nor do we preclude further evidence or argument on the issue of res judicata or issue preclusion.
Conclusión
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case for further proceedings. Further, we REVERSE the district court’s revocation of the plaintiffs in forma pauperis status and order that any partial payments of the appellate filing fee he has made to date, beyond the payments required of in forma pauperis appellants, be refunded.
After examining appellant's brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. On review of the district court's dismissal of Gibson's claim, we assume the truth of all of his factual allegations. See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008).
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ORDER GRANTING CERTIFICATE OF APPEALABILITY*
DAVID M. EBEL, Circuit Judge.
Petitioner Richard G. Kirby, a pro se litigant, seeks a certificate of appealability under 28 U.S.C. § 2253(c) that will enable him to appeal the district court’s dismissal without prejudice of his 28 U.S.C. § 2254 petition for a writ of a habeas corpus.
Kirby was convicted of felonious fraud in a New Mexico state court, found to be a habitual offender, and sentenced to serve five years’ imprisonment. In his § 2254 petition, Kirby raised nine claims for relief from his conviction. The magistrate judge found Kirby had exhausted six of those habeas claims, but failed to exhaust the remaining three (Claim Nos. 6, 8, and 9). Specifically, the magistrate judge found these three claims “had not been raised in any state court proceeding.” (R. vol. 2 at 708.) The magistrate judge, therefore, recommended dismissal without prejudice of the entire § 2254 petition, and the district court adopted those findings, later denying a motion to reconsider.
In the claims the district court deemed unexhausted, Kirby alleged ineffective assistance of appellate counsel (Claim No. 6), that the trial court erred in awarding restitution (Claim No. 8), and that the trial court erred in failing to grant Kirby bond pending appeal (Claim No. 9). Before the district court, Kirby offered to sever Claim Nos. 8 and 9 if unexhausted but maintained that he exhausted Claim No. 6. On appeal, Kirby continues to argue that all three claims were exhausted, or, in the alternative, Claim No. 6 was exhausted, and the court should have allowed him to sever the unexhausted claims.
We will grant a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). If a district court denies a habeas petition on procedural grounds, a certificate of appeal-ability “should issue ... if the prisoner *391shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “To exhaust state court remedies with respect to a particular constitutional claim, a habeas petitioner must give the state courts a fair opportunity to address the claim.” Johnson v. Champion, 288 F.3d 1215, 1224 (10th Cir.2002). From a preliminary review, Kirby appears to have potentially exhausted Claim Nos. 6 and 9, but not Claim No. 8.
With respect to Claim No. 6, Kirby filed an Amended Petition for Writ of Habeas Corpus on May 5, 2008 with the County of Dona Ana Third Judicial District of the State of New Mexico in which he raised the following ground for relief:
Appellate Counsel — Ground Six
Pursuant to his rights under State v. Franklin, 78 N.M. 127, 129, 42[8] P.2d 982 (1967) (an indigent criminal defendant has a right to have all issues raised by appointed appellate counsel.) Appellate counsel was deficient for not raising the above prosecutorial misconduct claims.
(Doc. No. 1 at 142.) In denying Kirby’s petition on June 5, 2008, the state court did not address Kirby’s ineffective assistance of appellate counsel claim. Kirby appealed the denial of his habeas petition directly to the Supreme Court of New Mexico. In his petition to the state supreme court, Kirby incorporated by cross-reference the arguments raised in his amended habeas petition, but it is unclear whether he attached his lower court filings. The court summarily denied relief on July 25, 2008.
Kirby raised Claim No. 9 when he filed a Supplemental Request for Bond Pending Habeas with the County of Dona Ana Third Judicial District of the State of New Mexico. In his petition to the state supreme court, he incorporated by cross-reference this supplemental filing. Kirby does not cite to any specific decision addressing or disposing of this motion; however, the state courts presumably viewed this motion as moot given the lower court’s denial of Kirby’s amended habeas petition on June 5, 2008 and the state supreme court’s denial of it on July 25, 2008.
As to Claim No. 8, Kirby indicated to the federal district court that he raised this claim in his Amended Petition for Writ of Habeas Corpus filed on May 5, 2008 with the County of Dona Ana Third Judicial District of the State of New Mexico. However, Kirby does not appear to have clearly raised this issue in that petition.
Thus, after a preliminary review, Kirby appears to have arguably exhausted Claim Nos. 6 and 9, but not Claim No. 8. See Johnson, 288 F.3d at 1224. For this reason, we grant Kirby a certificate of ap-pealability. See 28 U.S.C. § 2253(c). We direct the respondents to address the following issues plus any others it deems appropriate: (1) whether Kirby exhausted his state court claims for relief expressed in Claim Nos. 6, 8, and 9 of his federal § 2254 petition; (2) whether the district court erred in failing to allow Kirby to sever Claim Nos. 6, 8 and 9 to the extent that such claims are determined not to have been exhausted; and (3) whether this court should remand to the district court for its consideration of Kirby’s request to sever and dismiss any unexhausted claims and to proceed with an analysis of the merits of the remaining exhausted claims.
The Court hereby GRANTS Kirby a certificate of appealability and orders Re*392spondents to file a Response Brief within 30 days of the issuance of this order. The Court also GRANTS Kirby’s motion to proceed informa pauperis on appeal. See Fed. R.App. P. 24.
This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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ON MOTION
PER CURIAM.
ORDER
Frank Baiamonte moves for reconsideration of the court’s order dismissing his appeal as untimely.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion is denied.
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MEMORANDUM *
The seamen concede that they did not incur liability or receive balance bills for additional medical expenses until after they informed them medical providers that they were not subject to state workers’ compensation limitations. Because the seamen did not receive balance bills from them medical providers until after they filed their third amended complaint, the seamen had suffered no injury-in-fact at the time the third amended complaint was filed and therefore lacked standing to bring their complaint.1 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n. 4, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (plurality opinion); Didrickson v. United States Dep’t of Interior, 982 F.2d 1332, 1339 (9th Cir.1992).
Nor do the seamen establish a “genuine threat” of future injury. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc). The seamen offer conclusory allegations regarding their risk of future liability, but adduce no evidence that any medical provider was dissatisfied with an employer’s initial payment before the seamen filed the third amended complaint. Likewise, the seamen adduce no evidence that the employers will not pay the additional medical bills. Without any “specific facts,” these “some day” threats are insufficient to confer standing. See Lujan, 504 U.S. at 563-64, 112 S.Ct. 2130. The seamen’s predictions of contingent liability are similarly speculative, as the seamen fail to adduce evidence establishing concrete, immediate *258harm caused by any contingent liability. Cf. Clinton v. City of New York, 524 U.S. 417, 431, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998); Bancard Servs., Inc. v. E* Trade Access, Inc., 292 F.Supp.2d 1235, 1240-41 (D.Or.2003).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. It follows that the two seamen who did not receive balance bills, and the seaman who received a balance bill with a zero balance, likewise failed to show injury-in-fact and thus lacked standing.
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MEMORANDUM **
Defendant Kenneth Delano appeals the district court’s order denying his motion to suppress evidence. Because the record shows that Mr. Delano was arrested after a valid investigatory stop, and that the evidence at issue was discovered in the course of a valid search incident to arrest, we affirm.
This court reviews the lawfulness of a search and seizure de novo. See United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir.2007); United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.2005). Whether or not the police officers had reasonable suspicion to make an investigative stop is a mixed question of fact and law which this court reviews de novo. See United States v. Manzo-Jurado, 457 F.3d 928, 934 (9th Cir.2006). The district court’s underlying findings of fact are reviewed for clear error. See Berber-Tinoco, 510 F.3d at 1087; Stafford, 416 F.3d at 1073.
Investigative detentions must be supported by “reasonable suspicion” based on articulable facts that criminal activity “may be afoot.” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Courts reviewing the legality of investigatory detentions “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Here, the police received information about an reported domestic violence incident involving one man and one woman in a residence at the end of a dead-end street, and minutes later happened upon a car containing one man and one woman driving away from that dead-end. The totality of these circumstances justifies a brief investigative detention in order to ascertain whether the individuals in the car were those involved in the reported criminal activity. Once Mr. Delano identified himself using the name of the man reported to be involved in the domestic violence incident, the officers had reasonable suspicion to detain him for further questioning. The investigative stop that led to Mr. Delano’s arrest was thus valid.
A “vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle” is invalid unless “it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant, — U.S. -, -, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009). Mr. Delano was arrested on an outstanding warrant for violating the conditions of his parole. Possession of a firearm is a parole violation. The police officers who arrested Mr. Delano saw a firearm at Mr. Delano’s feet during the course of that arrest. It was therefore reasonable for the officers to believe that evidence of the offense of arrest, violation of parole, would be found in a subsequent search of the vehicle. The vehicle search that led to the seizure of Mr. Delano’s firearm was thus a valid search incident to arrest.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ibrahim Weyne appeals the district court’s orders denying his motion to suppress and motion to dismiss for prosecuto-rial vindictiveness. Because the search of Weyne’s car was a valid inventory search and because Weyne failed to show an appearance of prosecutorial vindictiveness, we affirm.
“We review de novo motions to suppress, and any factual findings made at the suppression hearing for clear error.” United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992). We review *261de novo motions to dismiss an indictment for vindictive prosecution. United States v. Jenkins, 504 F.3d 694, 699 (9th Cir.2007).
As an initial matter, we hold that Weyne is not precluded from arguing that the search at issue in this case violated the Fourth Amendment. Even if “a claim [was] not raised by petitioner below, we would ordinarily feel free to address it, since it was addressed by the court below. Our practice ‘permit[s] review of an issue not pressed so long as it has been passed upon....’” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (quoting United States v. Williams, 504 U.S. 36, 41, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992)). Here, Weyne’s unlawful search argument is not waived for failure to raise it in the district court because both the government and the district court addressed the issue in connection with the motion to suppress.
Viewing the evidence in the light most favorable to the government, see United States v. Cervantes-Gaitan, 792 F.2d 770, 772 (9th Cir.1986), the district court’s finding that the search of Weyne’s car was in preparation for towing was not clearly erroneous. As such, we affirm the district court’s denial of Weyne’s motion to suppress on the ground that the search was a valid inventory search. See Colorado v. Bertine, 479 U.S. 367, 369, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (affirming inventory search of a vehicle prior to impoundment); South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (holding that officers may conduct an inventory search of a lawfully impounded vehicle without a warrant).
We also affirm the district court’s denial of Weyne’s motion to dismiss for prosecu-torial vindictiveness because Weyne failed to make a threshold showing of an appearance of vindictiveness. Where, as here, there is no direct evidence of actual vindictiveness, a defendant must first make a prima facie showing of “facts that warrant an appearance of such.” United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir.1995) (quoting United States v. Sinigaglio, 942 F.2d 581, 584 (9th Cir.1991)). An appearance of vindictiveness exists “only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.” United States v. Jenkins, 504 F.3d 694, 700 (9th Cir.2007) (quoting United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (9th Cir.1982)).
Weyne’s contention that the charge at issue in this case was brought in federal, rather than state, court as retribution for his refusal to plead guilty in a prior, unrelated case is insufficient, without more, to raise an appearance of vindictiveness. The Supreme Court has held in an analogous context that “the mere fact that a defendant refuses to plead guilty and forces the government to prove its case [at trial] is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified,” United States v. Goodwin, 457 U.S. 368, 382-83, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), because, before a case matures to the point of trial, “the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has broader significance,” id. at 381, 102 S.Ct. 2485. Here, it is undisputed that the charge against Weyne at issue in this case arose from additional, intervening criminal conduct; it did not arise from the same set of facts that led to his prior prosecution. Accordingly, Weyne cannot dispute that prosecutors who brought the present case possessed “additional infor*262mation that suggested] a basis for further prosecution” in federal court, id. at 381, 102 S.Ct. 2485, and, for this reason, “the mere fact that [Weyne] [previously] refuse[d] to plead guilty ... is insufficient to warrant a presumption that [these] subsequent [charges] ... are unjustified,” id. at 382-83, 102 S.Ct. 2485.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Kelvin Carver Johnson, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). He also appeals from an order denying his motion to amend or alter the judgment pursuant to Fed.R.Civ.P. 59(e). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s application of substantive law and review for clear error its factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), and we affirm.
The district court properly dismissed Johnson’s action because his failure to submit his initial grievance within the applicable 15-working-day deadline did not constitute proper exhaustion. See Woodford v. Ngo, 548 U.S. 81, 83-84, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997 is mandatory and cannot be satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or appeal.”); see also Cal.Code. Regs. tit. 15, § 3084.6(c).
The district court did not abuse its discretion in denying Johnson’s Rule 59(e) motion because there were no grounds to alter or amend the judgment. See School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.1993) (stating standard of review and describing grounds for relief under Rule 59(e)).
We deny Johnson’s request for judicial notice. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to the resolution of the appeal).
We do not consider Johnson’s argument that he was denied due process because it is raised for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (explaining that, as a general rule, the court will not consider arguments *267that are raised for the first time on appeal). Johnson’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM***
Ruth Manzo appeals from the district court’s grant of summary judgment to her employer, Laborers International Union of North America, Local 872 (Local 872), in this Title VII action on her claims of hostile work environment1 and retaliation. We affirm.
Manzo has failed to raise a triable issue of fact as to whether Vaughn’s conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir.2007) (internal quotation marks omitted). Viewing the evidence in the record in the light most favorable to Manzo, she has only adduced facts demonstrating that Vaughn made proposals of marriage, which on all but one instance she did not take seriously and understood to be a joke, and that Vaughn made one crude sexual remark about a co-worker (whom Manzo later dated and wed) at an office party.2 As the district court concluded, such conduct was not severe or persistent enough for a reasonable woman in Manzo’s position to consider the terms and conditions of her employment to be altered. See, e.g., Vasquez v. County of Los Angeles, 349 F.3d 634, 642-44 (9th Cir.2003); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110-11 (9th Cir.2000).
Likewise, Manzo has failed to establish a prima facie case for retaliation because she did not engage in protected activity prior to her termination. The only evidence of alleged protected activity that Manzo referenced before the district court was of her complaints to Local 872 executives expressing her fear at Vaughn’s “scary” behavior — his cursing and banging at his desk and having a messy office. These were not claims of discrimination or sexual harassment, and Manzo admitted *269that she did not say she was being sexually harassed by Vaughn. Because her comments did not “refer[ ] to some practice by the employer that [was] allegedly unlawful,” she did not engage in protected activity. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir.1983). Moreover, even if the comments had been protected activity, Manzo has not pointed to any evidence that would constitute a “showing sufficient for a reasonable trier of fact to infer that [Vaughn or Tommy White] w[ere] aware that [Manzo] had engaged in protected activity” before firing Manzo, as necessary to demonstrate causation. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir.2003). Finally, while Manzo vaguely alludes to the timing of the alleged protected action and retaliatory employment decision, she makes no demonstration of reasonable inferences as to timing, either. Cf. Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (finding circumstantial evidence of causation where plaintiff presented evidence of employer’s knowledge of protected activity and proximity in time). Accordingly, there is no basis to consider whether Local 872 has demonstrated a legitimate reason for Manzo’s termination, or whether Manzo has demonstrated that the reason was pretextual.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. The district court treated Manzo’s first cause of action in her complaint as a hostile work environment claim and Manzo has not challenged this determination on appeal.
. Manzo did not point to Vaughn's cursing and banging at his desk and having a messy office in September 2004 as examples of sexually harassing conduct in her response to Local 872's summary judgment motion before the district court. Accordingly, the district court had no independent obligation to consider this evidence. Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001) ("The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.”) In any event, Manzo has not demonstrated how this conduct was "of a sexual nature," Craig, 496 F.3d at 1054-55, or motivated by "a general hostility to the presence of women in the workplace," Kortan v. California Youth Authority, 217 F.3d 1104, 1110 (9th Cir.2000) (internal quotation marks omitted).
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MEMORANDUM *
Edward Boracchia and Boracchia & Associates (collectively, “Boracchia”) appeal the district court’s order dismissing their claims as time-barred under the statute of limitations. We affirm in part, reverse in part, and remand for further proceedings.
The question before us in this case is whether the district court properly applied the Indiana Uniform Commercial Code (“Indiana UCC”) and its four-year statute of limitations, Ind.Code § 26-1-2-725(1) (2008), to bar Boracchia’s breach of contract claim. Biomet argues that Bo-racchia waived any challenge to whether the Indiana UCC applies, and any arguments that the Indiana twenty-year statute of limitations applies, by failing to raise such arguments before the district court in their opposition to Biomet’s Motion to Dismiss. Boracchia did not discuss the applicable statute of limitations in their opposition to Biomet’s Motion to Dismiss, but raised the issue at oral argument. At the hearing, the district court reprimanded Boracchia’s attorney for failing to make the arguments in their opposition brief, but did not as its ratio decidendi state that the arguments were waived. In its written order, district court stated that Bo-racchia’s arguments regarding the Indiana twenty-year statute were “not well taken” and held that the Indiana UCC’s four-year statute of limitations barred Boracchia’s claim. Boracchia’s arguments were preserved for appeal because they were raised before the district court at oral argument and the district court ruled on the merits of these arguments in its written order.1 *271Although sometimes it may be obvious from the context that the judge is treating the claim as waived, here it was not and the judge did not say that he was treating it as waived.
The parties’ contract contained a choice of law provision selecting Indiana law. The district court, sitting in diversity in California, applied California’s choice of law principles and found that the choice of law provision of the contract was enforceable for the purpose of determining the statute of limitations. Hatfield v. Halifax PLC, 564 F.3d 1177, 1182 (9th Cir.2009) (applying California choice of law principles) (citing Hambrecht & Quist Venture Partners v. Am. Med. Int’l Inc., 38 Cal.App.4th 1532, 46 Cal.Rptr.2d 33, 41 (1995)). We agree.
The contract, although entitled a “distributorship agreement,” was an agency contract for services, not a contract for the sale of goods. Its language, the testimony and declarations, and the language of the termination letter, make it plain that Biomet’s “devices” were to be sold by Biomet to the hospitals, and that none of the devices were sold to Boracchia. All that Boracchia bought were the “instruments,” not the “devices,” and the termination letter provided for repurchase of the “instruments” but not the inventory of devices. Thus, the Indiana UCC and its four-year statute of limitations do not apply. See Ind.Code § 26-1-2-102 (2008); Insul-Mark Midwest v. Modern Materials, 612 N.E.2d 550, 553 (Ind.1993).
Indiana law provides a general statute of limitations for actions on written contracts not governed by the Indiana UCC or another specific statute of limitations. Indiana’s general statute of limitations for written contracts entered into before 1982 is twenty years. Ind.Code § 34-11-2-11 (2008); cf. Meisenhelder v. Zipp Exp., Inc., 788 N.E.2d 924, 930 (Ind.Ct.App.2003). Given that Boracchia’s claim for breach of contract accrued in 1995, see Meisenhelder, 788 N.E.2d at 930, Boraec-hia’s suit was timely. Thus, we reverse the district court’s dismissal of Boracchia’s breach of contract claim, and remand to the district court for further proceedings on this claim.
The district court also granted summary judgment against Boracchia on claims arising under the California Independent Wholesale Representatives Contractual Relations Act of 1990, Cal. Civ.Code § 1738, and the California Business and Professional Code 17200. Cal. Bus. Prof. Code § 17200. We affirm. Whether Bo-racchia waived these claims by failing to argue them in their opening brief on appeal, see Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.2003), or whether the claims are barred by the statute of limitations (as the district court correctly held, both claims are subject to four-year statutes of limitation and accrued in 1995), the claims were properly dismissed.
AFFIRMED in part, REVERSED in part, REMANDED. Each party shall bear its own cost on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The issue of waiver is indeed close as our dissenting colleague ably demonstrates. Carmen v. San Francisco United School District, 237 F.3d 1026 (9th Cir.2001), addresses what *271is required of a trial judge when facts for a genuine issue are set out in papers other than the opposition brief and the documents to which it refers. Carmen does not address the problem of insufficient argumentation in the opposition or hearing on the motion for summary judgment. While the record in district court is ambiguous on whether the judge was addressing the merits or waiver, we think the better reading is that he was addressing the merits. We cannot help but be influenced by the clear correctness of the proposition that Biomet simply and clearly on the record did not sell the medical devices to Boracchia, so the error in applying the statute of limitations for the sale of goods is crystal clear.
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MEMORANDUM **
Robert Lee Fryburger, a California state prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habe-as corpus petition. The district court rejected Fryburger’s contention that he was entitled to parole because he had served fifteen years of his fifteen-years-to-life sentence. We affirm.
“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Nonetheless, a prisoner may acquire a liberty interest in parole if a state, *274through the use of mandatory language, creates a presumption that parole will be granted when certain designated conditions are satisfied. See Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).
We agree with the district court that the prison’s calculation of a “maximum eligible parole date” did not create a liberty interest that Fryburger would be paroled on that date. “Under California law, prisoners serving an indeterminate sentence for second degree murder may serve up to life in prison but become eligible for parole consideration after serving minimum terms of confinement.” Irons v. Carey, 505 F.3d 846, 851 (9th Cir.2007) (internal quotation marks omitted). Although a parole release date is set, parole may be denied if “the prisoner will pose an unreasonable risk of danger to society if released from prison.” Id.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER AND JUDGMENT*
DAVID M. EBEL, Circuit Judge.
Plaintiff-Appellant Wellman E. Gibson is a prisoner of the state of Colorado. He instituted this action against a number of officials in the Colorado Department of Corrections, claiming both disability discrimination under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and a violation of his First Amendment right to free exercise of his religion, asserted under 42 U.S.C. § 1983. The district court granted him leave to proceed in forma pauperis per 28 U.S.C. § 1915(a), but later dismissed his claims as frivolous under § 1915(e)(2)(B)(ii), because his claims, in its view, were repetitive of claims he had filed in a prior suit. Because the scope of the prior proceedings did not encompass the claims Gibson now seeks to press, we REVERSE that determination and REMAND for further proceedings.
I. Background
Gibson avers that he suffers from a number of physical disabilities that have caused him — among other problems — to lose dexterity in his hands.1 Because he claims he cannot use his hands to read, beginning in 2003 he was allowed to participate in the prison’s Books on Tape program, in which he was able to listen to both general books and the books he claims are necessary for the exercise of his Jewish faith. In 2006, Gibson was denied the right to participate in the Books on Tape program, allegedly for security reasons.
At around the same time, Gibson submitted a claim for disability discrimination as part of the settlement process in Mon-tez v. Romer, a class action lawsuit filed in the early 1990s on behalf of Colorado inmates suffering from particular disabilities. See Montez v. Romer, 32 F.Supp.2d 1235 (D.Colo.1999) (denying motion to dismiss class action complaint) [Montez /]. When that ease settled in 2003, the district court imposed a Remedial Plan under which class members could present claims of discrimination to a Special Master for *360processing. See Montez v. Owens, Civ. No. 92-N-870 (OES), at 1-2, 2007 WL 4226365 (D.Colo.2007) [Montez III The Remedial Plan, however, limited the Special Master’s jurisdiction to determining whether inmates were disabled within the meaning of the Plan, which encompassed only “mobility, hearing, and vision impairments and ... diabetes.” Id. at 2, 2007 WL 4226365.
Before the Special Master, Gibson presented his claim for recovery under the Remedial Plan “premised on an alleged permanent mobility disability.” Montez II at 3, 2007 WL 4226365. The Special Master noted that Gibson suffered from degenerative disk disease as well as a number of other back ailments. Id. The Special Master also noted that Gibson “claims he has been discriminated against by having his books on tape taken by DOC. He claims that his hand difficulties with dexterity and his cataracts mandate his continuing in the books on tape program.” Id. at 4, 2007 WL 4226365. The Special Master initially awarded compensation to Gibson, but upon an objection by the state, reviewed further evidence, including a prison surveillance tape showing Gibson “moving his possessions into a cell, climbing stairs and walking, with and without objects in his hands, without difficulty.” Id. Based on this evidence, the Special Master determined “that Claimant Gibson is NOT a mobility disabled person under the terms of the remedial plan.” Id. at 5, 2007 WL 4226365 (emphasis in original).
On May 5, 2009, Gibson filed the instant action in the district court, alleging disability discrimination under the ADA and interference with his protected First Amendment right to practice his religion. His claim was premised entirely on his loss of dexterity in his hands, rather than any mobility-based disability. The district court determined that his disability discrimination claim was “repetitive of the claim[ ] he assert[ed] in [Montez II.] Therefore, [his claims] will be dismissed as legally frivolous.” (Record on Appeal at 18.) The district court further determined that Gibson’s First Amendment claim “is belied by the determination in Montez [II ] that a surveillance video of Mr. Gibson shows that he is able to grasp a handrail when he climbs the stairs. Any denial of religious book tapes based on a claim of medical disability is foreclosed by the finding in Montez [II] and is legally frivolous.” (Id.) The district court dismissed Gibson’s case in its entirety, and revoked his permission to proceed in forma pau-peris on appeal.
II. Discussion
As a general rule, a litigant is prohibited from bringing a claim that has already been decided in a prior case by the twin doctrines of preclusion: res judicata and collateral estoppel. See San Remo Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 336-37, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005). However, for preclusion to apply, the litigant must seek to litigate either the same claim, see, e.g., Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1147 (10th Cir.2007), or the same issue, see, e.g., Union Telephone Co. v. Qwest Corp., 495 F.3d 1187, 1195 (10th Cir.2007), that was decided in the prior proceeding. Further, res judicata may also bar a litigant from bringing a claim that was not-but could have been-brought in a prior proceeding that generated a final, valid judgment on the merits. See Pelt v. Utah, 539 F.3d 1271, 1281 (10th Cir.2008). Finally, in order to preclude relitigation of a particular issue under collateral estoppel, the prior determination of that issue must have been necessary to the judgment. See Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir.2009).
*361While Gibson did press a claim for disability discrimination before the Special Master in Montez II, the Special Master’s jurisdiction was confined to a single question: whether Gibson fell within the class as defined in the Remedial Plan. Montez II at 3, 2007 WL 4226365. That class was limited to inmates with “mobility, hearing, and vision impairments and ... diabetes.” Id. at 2, 2007 WL 4226365. Therefore, Gibson would not have been able to bring a claim or obtain relief based solely on a loss of dexterity in his hands. It is this latter claim that he raised with the district court in this proceeding; therefore, at least on the limited appellate record now before us, principles of res judicata should not bar Gibson’s current suit.
To be sure, the Special Master in Mon-tez II took note of the issue of Gibson’s claimed hand pain, and observed based on the video tape that “[h]e does not appear to have difficulty in gripping.” Id. at 4, 2007 WL 4226365. But once again, given the limited scope of the decision before the Special Master, any determination of the effect of Gibson’s hand pain does not appear to have been necessary to the Special Master’s judgment that Gibson did not fall within the Remedial Plan class. Therefore, collateral estoppel would not bar Gibson from litigating the issue of his hand pain before the district court in this case.
In reaching this decision, however, we note that we take no position whatever on the overall merits of Gibson’s ADA and First Amendment claims, nor do we preclude further evidence or argument on the issue of res judicata or issue preclusion.
Conclusión
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND the case for further proceedings. Further, we REVERSE the district court’s revocation of the plaintiffs in forma pauperis status and order that any partial payments of the appellate filing fee he has made to date, beyond the payments required of in forma pauperis appellants, be refunded.
After examining appellant's brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. On review of the district court's dismissal of Gibson's claim, we assume the truth of all of his factual allegations. See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008).
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MEMORANDUM **
Froylan Contreras appeals the district court’s order denying his motion to suppress. Because the district court did not clearly err in finding that the contraband at issue inevitably would have been discovered, we affirm.
“We review de novo motions to suppress, and any factual findings made at the suppression hearing for clear error.” United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992). “[IJnevitable discovery rulings are mixed questions [of law and fact] that ... should be reviewed under a clearly erroneous standard.” United States v. Lang, 149 F.3d 1044, 1048 (9th Cir.1998).
In appealing the district court’s denial of his motion to suppress, Contreras challenges the district court’s conclusions that (1) the search of the car Contreras was driving prior to his arrest was proper under the Fourth Amendment, and (2) the contraband discovered during that search inevitably would have been discovered when police impounded the car from the shoulder of the freeway and inventoried its contents.
We hold that the search of Contreras’ car violated the Fourth Amendment because Contreras was not within reaching distance of the passenger compartment at *265the time of the search and it was not reasonable for police to believe that the car contained evidence of Contreras’ offense. Arizona v. Gant, — U.S. -, -, 129 S.Ct. 1710, 1723, 173 L.Ecl.2d 485 (2009). (The district court did not have the benefit of the Supreme Court’s decision in Gant when it denied Contreras’s motion to suppress.) The searching officer’s good faith reliance on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), does not cure this violation. United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir.2009).
Nonetheless, we affirm the ruling below because the district court did not clearly err in finding that police inevitably would have discovered the contraband at issue. Evidence otherwise subject to exclusion may be admitted “if the government [can] prove ‘by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’ ” Lang, 149 F.3d at 1047 (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). Washington law states that “[w]hen a driver of a vehicle is arrested for ... [d]riving while license súspended or revoked ... the arresting officer may, in his/her own discretion, considering reasonable alternatives, cause the vehicle to be impounded.” Wash. Admin. Code § 204-96-010.
Testimony in the record supports the district court’s findings that (1) even if the search at issue had not taken place, the officer on the scene would have lawfully exercised his discretion to impound the car Contreras was driving from the shoulder of the freeway because it posed a danger to other motorists; (2) once the car was impounded, officers would have searched the passenger compartment to inventory its contents; and (3) during this inventory search, officers would have discovered the contraband at issue.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Kelvin Carver Johnson, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). He also appeals from an order denying his motion to amend or alter the judgment pursuant to Fed.R.Civ.P. 59(e). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s application of substantive law and review for clear error its factual determinations. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), and we affirm.
The district court properly dismissed Johnson’s action because his failure to submit his initial grievance within the applicable 15-working-day deadline did not constitute proper exhaustion. See Woodford v. Ngo, 548 U.S. 81, 83-84, 95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that “proper exhaustion” under § 1997 is mandatory and cannot be satisfied “by filing an untimely or otherwise procedurally defective administrative grievance or appeal.”); see also Cal.Code. Regs. tit. 15, § 3084.6(c).
The district court did not abuse its discretion in denying Johnson’s Rule 59(e) motion because there were no grounds to alter or amend the judgment. See School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.1993) (stating standard of review and describing grounds for relief under Rule 59(e)).
We deny Johnson’s request for judicial notice. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to the resolution of the appeal).
We do not consider Johnson’s argument that he was denied due process because it is raised for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (explaining that, as a general rule, the court will not consider arguments *267that are raised for the first time on appeal). Johnson’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Edward Boracchia and Boracchia & Associates (collectively, “Boracchia”) appeal the district court’s order dismissing their claims as time-barred under the statute of limitations. We affirm in part, reverse in part, and remand for further proceedings.
The question before us in this case is whether the district court properly applied the Indiana Uniform Commercial Code (“Indiana UCC”) and its four-year statute of limitations, Ind.Code § 26-1-2-725(1) (2008), to bar Boracchia’s breach of contract claim. Biomet argues that Bo-racchia waived any challenge to whether the Indiana UCC applies, and any arguments that the Indiana twenty-year statute of limitations applies, by failing to raise such arguments before the district court in their opposition to Biomet’s Motion to Dismiss. Boracchia did not discuss the applicable statute of limitations in their opposition to Biomet’s Motion to Dismiss, but raised the issue at oral argument. At the hearing, the district court reprimanded Boracchia’s attorney for failing to make the arguments in their opposition brief, but did not as its ratio decidendi state that the arguments were waived. In its written order, district court stated that Bo-racchia’s arguments regarding the Indiana twenty-year statute were “not well taken” and held that the Indiana UCC’s four-year statute of limitations barred Boracchia’s claim. Boracchia’s arguments were preserved for appeal because they were raised before the district court at oral argument and the district court ruled on the merits of these arguments in its written order.1 *271Although sometimes it may be obvious from the context that the judge is treating the claim as waived, here it was not and the judge did not say that he was treating it as waived.
The parties’ contract contained a choice of law provision selecting Indiana law. The district court, sitting in diversity in California, applied California’s choice of law principles and found that the choice of law provision of the contract was enforceable for the purpose of determining the statute of limitations. Hatfield v. Halifax PLC, 564 F.3d 1177, 1182 (9th Cir.2009) (applying California choice of law principles) (citing Hambrecht & Quist Venture Partners v. Am. Med. Int’l Inc., 38 Cal.App.4th 1532, 46 Cal.Rptr.2d 33, 41 (1995)). We agree.
The contract, although entitled a “distributorship agreement,” was an agency contract for services, not a contract for the sale of goods. Its language, the testimony and declarations, and the language of the termination letter, make it plain that Biomet’s “devices” were to be sold by Biomet to the hospitals, and that none of the devices were sold to Boracchia. All that Boracchia bought were the “instruments,” not the “devices,” and the termination letter provided for repurchase of the “instruments” but not the inventory of devices. Thus, the Indiana UCC and its four-year statute of limitations do not apply. See Ind.Code § 26-1-2-102 (2008); Insul-Mark Midwest v. Modern Materials, 612 N.E.2d 550, 553 (Ind.1993).
Indiana law provides a general statute of limitations for actions on written contracts not governed by the Indiana UCC or another specific statute of limitations. Indiana’s general statute of limitations for written contracts entered into before 1982 is twenty years. Ind.Code § 34-11-2-11 (2008); cf. Meisenhelder v. Zipp Exp., Inc., 788 N.E.2d 924, 930 (Ind.Ct.App.2003). Given that Boracchia’s claim for breach of contract accrued in 1995, see Meisenhelder, 788 N.E.2d at 930, Boraec-hia’s suit was timely. Thus, we reverse the district court’s dismissal of Boracchia’s breach of contract claim, and remand to the district court for further proceedings on this claim.
The district court also granted summary judgment against Boracchia on claims arising under the California Independent Wholesale Representatives Contractual Relations Act of 1990, Cal. Civ.Code § 1738, and the California Business and Professional Code 17200. Cal. Bus. Prof. Code § 17200. We affirm. Whether Bo-racchia waived these claims by failing to argue them in their opening brief on appeal, see Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.2003), or whether the claims are barred by the statute of limitations (as the district court correctly held, both claims are subject to four-year statutes of limitation and accrued in 1995), the claims were properly dismissed.
AFFIRMED in part, REVERSED in part, REMANDED. Each party shall bear its own cost on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The issue of waiver is indeed close as our dissenting colleague ably demonstrates. Carmen v. San Francisco United School District, 237 F.3d 1026 (9th Cir.2001), addresses what *271is required of a trial judge when facts for a genuine issue are set out in papers other than the opposition brief and the documents to which it refers. Carmen does not address the problem of insufficient argumentation in the opposition or hearing on the motion for summary judgment. While the record in district court is ambiguous on whether the judge was addressing the merits or waiver, we think the better reading is that he was addressing the merits. We cannot help but be influenced by the clear correctness of the proposition that Biomet simply and clearly on the record did not sell the medical devices to Boracchia, so the error in applying the statute of limitations for the sale of goods is crystal clear.
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MEMORANDUM **
Robert Lee Fryburger, a California state prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habe-as corpus petition. The district court rejected Fryburger’s contention that he was entitled to parole because he had served fifteen years of his fifteen-years-to-life sentence. We affirm.
“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Nonetheless, a prisoner may acquire a liberty interest in parole if a state, *274through the use of mandatory language, creates a presumption that parole will be granted when certain designated conditions are satisfied. See Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).
We agree with the district court that the prison’s calculation of a “maximum eligible parole date” did not create a liberty interest that Fryburger would be paroled on that date. “Under California law, prisoners serving an indeterminate sentence for second degree murder may serve up to life in prison but become eligible for parole consideration after serving minimum terms of confinement.” Irons v. Carey, 505 F.3d 846, 851 (9th Cir.2007) (internal quotation marks omitted). Although a parole release date is set, parole may be denied if “the prisoner will pose an unreasonable risk of danger to society if released from prison.” Id.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*275MEMORANDUM **
Kathy Grismore appeals pro se from the district court’s judgment dismissing her action as a sanction under Federal Rule of Civil Procedure 37(b) for failure to comply with discovery orders. Grismore also appeals from the postjudgment order awarding attorneys’ fees and costs. We have jurisdiction under 28 U.S.C. § 1291 to review the judgment. We review for an abuse of discretion. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002) (discovery rulings); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.1987) (dismissal). We affirm in part and dismiss in part.
The district court did not abuse its discretion by granting defendants’ motion to compel discovery responses because the information sought was relevant to damages. See Fed.R.Civ.P. 26(b)(1) (describing permissible discovery); Hallett, 296 F.3d at 751 (stating that broad discretion is vested in the trial court to permit discovery).
The district court did not abuse its discretion by dismissing the action because Grismore failed to respond to discovery after the district court ordered her several times to do so and warned her that noncompliance could result in dismissal. See Malone, 833 F.2d at 130, 132 & n. 1 (setting forth factors that a district court must consider before dismissing an action for failure to comply with a court order).
We lack jurisdiction to review the district court’s order granting attorneys’ fees and costs because Grismore did not file an amended notice of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir.2007).
Grismore’s remaining contentions are unavailing.
AFFIRMED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM:
William Gregory Hughes, appointed counsel for Richard Lee Bradley in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Bradley’s conviction and sentence are AFFIRMED.
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MEMORANDUM **
Hector Hernandez-Ortiz appeals from the 42-month sentence imposed following his guilty-plea conviction for being found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Hernandez-Ortiz contends the district court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence beyond the two-year statutory maximum, because the information did not allege and he did not admit the temporal relationship between his removals and pri- or conviction. Because the information al*278leged two dates of removal which Hernandez-Ortiz admitted at the plea hearing, his contention is foreclosed by United States v. Mendoza-Zaragoza, 567 F.3d 431, 432 (9th Cir.2009) (holding that indictment charging illegal reentry may support § 1326(b)(2) sentencing enhancement even if it alleges removal date without specifying relative date of prior conviction).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Victor Manuel Ramirez Hernandez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ denial of his motion to reopen or reconsider the underlying denial of his application for cancellation of removal based on his failure to establish the requisite hardship to his qualifying relatives.
Petitioner contends that the BIA erred in denying his “motion to reopen and reconsider removal proceedings” because he established the requisite hardship to his United States citizen children. The BIA construed petitioner’s motion solely as a motion for reconsideration because the motion did not present new facts or submit new evidentiary materials, but only raised additional legal arguments. We agree that the BIA properly construed the motion as a motion for reconsideration, and we conclude that the BIA properly denied the motion due to petitioner’s failure to allege any material or factual errors in the underlying decision. See 8 C.F.R. § 1003.2(b)(1). In addition, we lack jurisdiction to review the BIA’s underlying discretionary determination that there was insufficient evidence to establish a prima facie case of hardship. See Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir.2006).
Petitioner also raises new contentions for the first time in his opening brief, namely, that petitioner can now establish the requisite hardship because the immigration judge did not have the opportunity to consider the changes in Mexico arising from public health concerns and increased criminal activity, and because petitioner has a new United States citizen child. We lack jurisdiction to consider these contentions because petitioner asserts them for the first time in his opening brief, and he failed to exhaust his administrative remedies with the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004).
Finally, petitioner alleges that the BIA erred because it did not reopen sua *280sponte. This court lacks jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Felipe Gutierrez Balmaceda, his wife Lucrecia Gutierrez, and their son Adrian Gutierrez Delgado, natives and citizens of Mexico, petition pro se for review of the decision of the Board of Immigration Appeals denying their motion to reconsider the BIA’s denial of their application for cancellation of removal based on their failure to establish the requisite hardship to their qualifying United States citizen children.
Petitioners contend that the BIA erred in denying their motion to reconsider because the IJ erred in finding that the lead petitioner failed to establish 10 years continuous presence in the United States, the BIA erred in finding that there was no extreme hardship to the qualifying relatives, and the IJ erred in requiring the minor petitioner to have a qualifying relative.
The BIA based its underlying decision on petitioners’ failure to establish the requisite hardship, and we need not consider petitioners’ contentions that arise from the other elements of cancellation relief. See Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir.2002) (where requirements of relief are “conjunctive, failure to meet any one of them is fatal”). The evidence of hardship to petitioners’ qualifying relatives presented with the motion to reconsider concerned the same hardship ground as the initial application for cancellation relief. We lack jurisdiction to review the BIA’s discretionary determination that the evidence was insufficient to establish a prima facie case of hardship. See Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir.2006).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Carlos Penafiel-Falcon, a native and citizen of Peru, petitions for review of the *284Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision finding him removable and denying cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008), and we deny in part and dismiss in part the petition for review.
The government’s motion to strike the evidence filed with Penafiel-Falcon’s opening brief, labeled Appendix “A”, is granted. See 8 U.S.C. § 1252(b)(4)(A).
The agency properly concluded that under the modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), Penafiel-Falcon is removable and ineligible for cancellation of removal as an aggravated felon because his conviction under California Penal Code § 459/460(b) constitutes a burglary offense and he was sentenced to a term of imprisonment of at least one year for his crime. See 8 U.S.C. §§ 1101(a)(43)(G) & 1229b(a)(3); Ye v. INS, 214 F.3d 1128, 1132 (9th Cir.2000); United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002).
The agency properly relied on the charging document and abstract of judgment to determine that Penafiel-Falcon pled guilty to a charge that meets the federal definition of burglary and was sentenced to 1 year and 4 months in prison. See United States v. Snellenberger, 548 F.3d 699, 701-702 (9th Cir.2008) (per cu-riam) (state clerk minute orders and documents of equal reliability may be relied upon to determine if a crime qualifies as a predicate offense); Ye, 214 F.3d at 1132 (defining burglary). The fact that Penaf-iel-Falcon’s term of imprisonment was not imposed until after he violated probation is not legally significant. See United States v. Jimenez, 258 F.3d 1120, 1125 (9th Cir.2001).
We lack jurisdiction to review Pe-nafiel-Falcon’s contention that his revocation of probation was improperly entered because he failed to exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We need not reach Penafiel-Falcon’s argument regarding his 2003 grand theft conviction because the BIA did not rely on this conviction in its order.
To the extent Penafiel-Falcon seeks to have his habeas petition reviewed as part of this petition for review, we lack jurisdiction to review a habeas petition in the first instance. See Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir.1992).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON MOTION
PER CURIAM.
ORDER
Frank Baiamonte moves for reconsideration of the court’s order dismissing his appeal as untimely.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion is denied.
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MEMORANDUM **
Hector Hernandez-Ortiz appeals from the 42-month sentence imposed following his guilty-plea conviction for being found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Hernandez-Ortiz contends the district court erred under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence beyond the two-year statutory maximum, because the information did not allege and he did not admit the temporal relationship between his removals and pri- or conviction. Because the information al*278leged two dates of removal which Hernandez-Ortiz admitted at the plea hearing, his contention is foreclosed by United States v. Mendoza-Zaragoza, 567 F.3d 431, 432 (9th Cir.2009) (holding that indictment charging illegal reentry may support § 1326(b)(2) sentencing enhancement even if it alleges removal date without specifying relative date of prior conviction).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Victor Manuel Ramirez Hernandez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ denial of his motion to reopen or reconsider the underlying denial of his application for cancellation of removal based on his failure to establish the requisite hardship to his qualifying relatives.
Petitioner contends that the BIA erred in denying his “motion to reopen and reconsider removal proceedings” because he established the requisite hardship to his United States citizen children. The BIA construed petitioner’s motion solely as a motion for reconsideration because the motion did not present new facts or submit new evidentiary materials, but only raised additional legal arguments. We agree that the BIA properly construed the motion as a motion for reconsideration, and we conclude that the BIA properly denied the motion due to petitioner’s failure to allege any material or factual errors in the underlying decision. See 8 C.F.R. § 1003.2(b)(1). In addition, we lack jurisdiction to review the BIA’s underlying discretionary determination that there was insufficient evidence to establish a prima facie case of hardship. See Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir.2006).
Petitioner also raises new contentions for the first time in his opening brief, namely, that petitioner can now establish the requisite hardship because the immigration judge did not have the opportunity to consider the changes in Mexico arising from public health concerns and increased criminal activity, and because petitioner has a new United States citizen child. We lack jurisdiction to consider these contentions because petitioner asserts them for the first time in his opening brief, and he failed to exhaust his administrative remedies with the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004).
Finally, petitioner alleges that the BIA erred because it did not reopen sua *280sponte. This court lacks jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Felipe Gutierrez Balmaceda, his wife Lucrecia Gutierrez, and their son Adrian Gutierrez Delgado, natives and citizens of Mexico, petition pro se for review of the decision of the Board of Immigration Appeals denying their motion to reconsider the BIA’s denial of their application for cancellation of removal based on their failure to establish the requisite hardship to their qualifying United States citizen children.
Petitioners contend that the BIA erred in denying their motion to reconsider because the IJ erred in finding that the lead petitioner failed to establish 10 years continuous presence in the United States, the BIA erred in finding that there was no extreme hardship to the qualifying relatives, and the IJ erred in requiring the minor petitioner to have a qualifying relative.
The BIA based its underlying decision on petitioners’ failure to establish the requisite hardship, and we need not consider petitioners’ contentions that arise from the other elements of cancellation relief. See Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir.2002) (where requirements of relief are “conjunctive, failure to meet any one of them is fatal”). The evidence of hardship to petitioners’ qualifying relatives presented with the motion to reconsider concerned the same hardship ground as the initial application for cancellation relief. We lack jurisdiction to review the BIA’s discretionary determination that the evidence was insufficient to establish a prima facie case of hardship. See Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir.2006).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Carlos Penafiel-Falcon, a native and citizen of Peru, petitions for review of the *284Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision finding him removable and denying cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008), and we deny in part and dismiss in part the petition for review.
The government’s motion to strike the evidence filed with Penafiel-Falcon’s opening brief, labeled Appendix “A”, is granted. See 8 U.S.C. § 1252(b)(4)(A).
The agency properly concluded that under the modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), Penafiel-Falcon is removable and ineligible for cancellation of removal as an aggravated felon because his conviction under California Penal Code § 459/460(b) constitutes a burglary offense and he was sentenced to a term of imprisonment of at least one year for his crime. See 8 U.S.C. §§ 1101(a)(43)(G) & 1229b(a)(3); Ye v. INS, 214 F.3d 1128, 1132 (9th Cir.2000); United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002).
The agency properly relied on the charging document and abstract of judgment to determine that Penafiel-Falcon pled guilty to a charge that meets the federal definition of burglary and was sentenced to 1 year and 4 months in prison. See United States v. Snellenberger, 548 F.3d 699, 701-702 (9th Cir.2008) (per cu-riam) (state clerk minute orders and documents of equal reliability may be relied upon to determine if a crime qualifies as a predicate offense); Ye, 214 F.3d at 1132 (defining burglary). The fact that Penaf-iel-Falcon’s term of imprisonment was not imposed until after he violated probation is not legally significant. See United States v. Jimenez, 258 F.3d 1120, 1125 (9th Cir.2001).
We lack jurisdiction to review Pe-nafiel-Falcon’s contention that his revocation of probation was improperly entered because he failed to exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We need not reach Penafiel-Falcon’s argument regarding his 2003 grand theft conviction because the BIA did not rely on this conviction in its order.
To the extent Penafiel-Falcon seeks to have his habeas petition reviewed as part of this petition for review, we lack jurisdiction to review a habeas petition in the first instance. See Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir.1992).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Aurelia Singh Tinoco, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s continuous physical presence determination. Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Singh Tinoco’s challenges to her January 2000 expedited removal orders. See 8 U.S.C. § 1252(a)(2)(A); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818-819 (9th Cir.2004).
Substantial evidence supports the agency’s determination that Singh Tinoco’s expedited removal orders prevented her from accruing the continuous physical presence required for cancellation of removal. See 8 U.S.C. § 1229b(b)(l) (requiring 10 years of continuous physical *286presence to be eligible for cancellation of removal); Juarez-Ramos v. Gonzales, 485 F.3d 509, 512 (9th Cir.2007) (an expedited removal order interrupts accrual of continuous physical presence for purposes of cancellation).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON MOTION
GAJARSA, Circuit Judge.
ORDER
Nalco Company moves for a stay, pending appeal, of the preliminary injunction entered by the United States District Court for the Southern District of Texas. Baker Hughes Incorporated et al. (Baker Hughes) oppose. The court considers whether to vacate the district court’s preliminary injunction and remand for further proceedings.
Baker Hughes brought this patent infringement suit alleging that Nalco infringed its patent related to a method for removing impurities from crude oil during the desalting process. Baker Hughes sought a preliminary injunction to prevent Nalco from performing or soliciting the use of the patented process. Nalco opposed the preliminary injunction motion, arguing, inter alia, that the movants could not meet their burden of demonstrating that Baker Hughes would be irreparable harmed without a preliminary injunction. On September 11, 2009, the court granted Baker Hughes’ motion for a preliminary injunction.
Nalco appeals and seeks to stay the injunction pending appeal. In its motions papers, Nalco argues, inter alia, that the district court abused its discretion by failing to make findings regarding whether Baker Hughes would face irreparable *573harm without a preliminary injunction. Baker Hughes concedes that the district court “did not explicitly state its findings of irreparable harm” but argues that a stay is not warranted because this court may rely on the district court’s implicit findings regarding irreparable harm.
As we explained in Nutrition 21 v. United States, 930 F.2d 867, 869 (Fed.Cir.1991), “[sjufficient factual findings ... are necessary to allow this court to have a basis for meaningful review.... Otherwise, this court has no basis for evaluating what facts entered into the district court’s analysis or whether the district court’s reasoning comports with the applicable legal standard.”; see also Atlantic Thermoplastics Co., Inc. v. Faytex Carp., 970 F.2d 834, 837 (Fed.Cir.1992) (district court’s conclu-sory statements not sufficient to satisfy Fed.R.Civ.P. 52(a)); Transmatic, Inc. v. Gulton Indus., Inc., 53 F.3d 1270, 1276 (Fed.Cir.1995) (“although the district court need not make elaborate findings on every factual issue raised, it must find and specify as many subsidiary facts as necessary to inform the reviewing court of the steps by which it determined factual issues and reached its ultimate conclusions”).
Regarding irreparable harm, the district court summarized the parties’ contrary positions but made no findings. That is not enough under this court’s cases to provide meaningful review. Baker Hughes relies on Reebok Int’l Ltd. v. J. Baker, Inc., 32 F.3d 1552 (Fed.Cir.1994) for its argument that the district court need not make express findings on irreparable harm and that we may thus review implicit findings. However, to the extent that Reebok permits a district court to decide a motion for a preliminary injunction without making express findings on all disputed issues, it is expressly limited to cases involving the denial of a preliminary injunction. See id. at 1556 (“we specifically decline today to require a district court to articulate findings on the third and forth factors when the court denies a preliminary injunction because a party fails to establish either of the two critical factors”). In the circumstances of this case, it was necessary for the district court to make findings on irreparable harm before granting the motion for a preliminary injunction.
In the interest of justice, of judicial efficiency and the conservation of the parties’ resources, we determine that the best course in these circumstances is to vacate the district court’s preliminary injunction and remand for further pi’oceedings. The district court may, if it chooses, issue a new preliminary injunction accompanied by adequate findings and conclusions. We do - not address the parties’ other arguments at this time.
Accordingly,
IT IS ORDERED THAT:
(1) The preliminary injunction is vacated and this case is remanded to the district court for further proceedings.
(2) Nalco’s motion for a stay, pending appeal, is moot.
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JUDGMENT
PER CURIAM.
This case was considered on the record from the National Transportation Safety Board and on the briefs of the parties pursuant to D.C. Circuit Rule 34(j). It is
ORDERED AND ADJUDGED that the petition is denied.
*590This case arises out of U.S. Airways Express Flight 4803 on April 18, 2008 from New York LaGuardia to Ithaca. Federal Aviation Administration (FAA) regulations require that before each flight the captain must sign a load manifest showing that the flight is safely within weight guidelines. In this case, the pilot, petitioner here, admits that he signed the load manifest for Flight 4803. On its face, the load manifest shows inaccuracies (the number of passengers listed in each section does not equal the number of passengers listed in the “total” box) and alterations (the Runway & Climb Limit Rate was crossed out and replaced). As a result, the FAA revoked petitioner’s license in an emergency proceeding.
Petitioner then had an administrative hearing at which his first officer testified that petitioner knew the plane was overweight and suggested altering the manifest to avoid having to deplane a passenger. The manifest was indeed altered and the flight completed with all passengers on board. The ALJ credited the first officer’s testimony and approved the FAA’s action. Petitioner appealed to the National Transportation Safety Board, presenting the same arguments he presents to this court, and the Board upheld the ALJ.
In this court, petitioner presents essentially three arguments: there was insufficient evidence to sustain the charge of intentional falsification of records, his affirmative defense of reasonable reliance should have been credited by the Board, and the copy of the load manifest was inappropriately admitted to evidence. On the first issue, the Board concluded that the evidence was sufficient to sustain the charge of intentional falsification because the petitioner (1) made a false representation (2) in reference to a material fact (3) with knowledge of the falsity of the fact. See Hart v. McLucas, 535 F.2d 516, 519 (9th Cir.1976). The correct standard of review is whether the agency’s decision finds support in the record as a whole. E.g., Chritton v. Nat’l Trans. Safety Bd., 888 F.2d 854, 856 (D.C.Cir.1989) (upholding the Board’s suspension of petitioner’s license while explaining that the agency is to be upheld even if a “plausible alternative interpretation” of the facts is present so long as there exists enough “relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) (internal quotations omitted). In his brief, petitioner emphasizes inconsistencies in the first officer’s testimony including the date of the flight and who ultimately filled out the load manifest and offers motives for the first officer’s alleged dishonesty. The Board, however, rejected these minor inconsistencies and credibility challenges as insufficient to disturb the long-standing practice of deferring to the credibility determinations of the trier of fact. Our own review of the record also presents no reason to disturb the ALJ’s credibility findings.
Petitioner’s second argument, regarding the affirmative defense, was also considered and properly rejected by both the ALJ and the Board. Given the facts as found by the ALJ, there was no paperwork or other person on which petitioner could have relied in making his impromptu changes to the load manifest that would support a defense of reasonable reliance.
Petitioner’s third argument, regarding the admissibility of the copy of the load manifest, was also considered and properly rejected by both the ALJ and the Board. Agency proceedings are not governed by the Federal Rules of Evidence, and even under those rules, a copy is generally as admissible as the original, see Fed.R.Evid. 1003.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of *591the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41.
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MEMORANDUM **
Aurelia Singh Tinoco, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s continuous physical presence determination. Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Singh Tinoco’s challenges to her January 2000 expedited removal orders. See 8 U.S.C. § 1252(a)(2)(A); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818-819 (9th Cir.2004).
Substantial evidence supports the agency’s determination that Singh Tinoco’s expedited removal orders prevented her from accruing the continuous physical presence required for cancellation of removal. See 8 U.S.C. § 1229b(b)(l) (requiring 10 years of continuous physical *286presence to be eligible for cancellation of removal); Juarez-Ramos v. Gonzales, 485 F.3d 509, 512 (9th Cir.2007) (an expedited removal order interrupts accrual of continuous physical presence for purposes of cancellation).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ventura Ortuno-Garcia, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. *287§ 1252. We review de novo questions of law, Morales Apolinar v. Mukasey, 514 F.3d 893, 895 (9th Cir.2008), and we deny the petition for review.
The agency properly concluded that Or-tuno-Garcia is statutorily ineligible for cancellation of removal because she was convicted of two crimes involving moral turpitude. See 8 U.S.C. § 1229b(b)(l)(C) (an alien is ineligible for cancellation of removal if convicted of an offense under 8 U.S.C. § 1182(a)(2)). Ortuno-Garcia’s contention that she is eligible for cancellation of removal because she was convicted over ten years prior to her application for relief is foreclosed by Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir.2008).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
This appeal from the district court’s order granting appellee’s motion for a preliminary injunction comes to us for review under Ninth Circuit Rule 3-3. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm.
Our sole inquiry is whether the district court abused its discretion in granting preliminary injunctive relief. See Winter v. Natural Res. Def. Council, Inc., — U.S. -, -, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008); Marlyn Nutraceuticals, Inc., v. Mucos Pharma, 571 F.3d 873, 876 (9th Cir.2009). Here, the district court correctly identified the legal standards for likelihood of confusion of a trademark and of trade dress. See Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1258 (9th Cir.2001); AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979).
We conclude that the district court did not rely on an erroneous legal premise or abuse its discretion in concluding that Cytosport was likely to succeed on the merits and showed a strong likelihood that it would suffer irreparable harm if the preliminary injunction did not issue. Accordingly, we affirm the district court’s order granting the preliminary injunction.1
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The 6/11/09 pro se motion to file an amicus brief is denied.
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MEMORANDUM **
Alice Willis appeals pro se from the Tax Court’s summary judgment allowing the Commissioner of Internal Revenue (“Commissioner”) to proceed with its collection action. We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We review de novo the Tax Court’s grant of summary judgment, Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir.2002), and we affirm.
The Tax Court properly granted the Commissioner’s summary judgment motion because Willis failed to raise any genuine issue of material fact and the record supports the Commissioner’s determination that the collection actions should proceed. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993) (per curiam) (affirming summary judgment where Commissioner’s evidence supported its assessments and taxpayers relied upon concluso-ry allegations unsupported by facts).
The record does not support Willis’s contentions that the Tax Court improperly *291conducted a de novo trial and considered evidence outside the administrative record.
Willis’s contention that she was improperly denied a face-to-face collection due process (“CDP”) hearing is unavailing because “[a] CDP hearing may, but is not required to, consist of a face-to-face meeting.” 26 C.F.R. § 301.6330-l(d)(2)(A-D6). Further, Willis failed to respond to requests to provide detailed documentation as to the issues she wished to raise at the hearing and failed to raise a valid challenge to the proposed levy. Cf. 26 C.F.R. § 301.6330-l(d)(2)(A-D7) (stating that a taxpayer who presents relevant, non-frivolous arguments in the CDP hearing request will ordinarily be offered the opportunity for a face-to face meeting).
Willis’s contention that she was not sent a notice of deficiency is unavailing because she has not produced any evidence contradicting the certified mail log showing that notice was mailed. See 26 U.S.C. § 6212(b)(1) (stating that a notice of deficiency addressed to the taxpayer’s last known address suffices for purposes of notice); see also United States v. Zolla, 724 F.2d 808, 810 (9th Cir.1984) (explaining that an official record of mailing was highly probative and sufficient, in the absence of contrary evidence, to show that the notice of deficiency was properly made).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*288MEMORANDUM **
Ricardo Lozano Ortiz, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ denial of his application for cancellation of removal based on his failure to establish the requisite hardship to his lawful permanent resident wife and their United States citizen children.
We lack jurisdiction to consider petitioner’s challenge to the BIA’s nonreviewable discretionary determination that there was insufficient evidence to establish the requisite hardship to his qualifying relatives. See Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir.2006).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Alice Willis appeals pro se from the Tax Court’s summary judgment allowing the Commissioner of Internal Revenue (“Commissioner”) to proceed with its collection action. We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We review de novo the Tax Court’s grant of summary judgment, Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir.2002), and we affirm.
The Tax Court properly granted the Commissioner’s summary judgment motion because Willis failed to raise any genuine issue of material fact and the record supports the Commissioner’s determination that the collection actions should proceed. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993) (per curiam) (affirming summary judgment where Commissioner’s evidence supported its assessments and taxpayers relied upon concluso-ry allegations unsupported by facts).
The record does not support Willis’s contentions that the Tax Court improperly *291conducted a de novo trial and considered evidence outside the administrative record.
Willis’s contention that she was improperly denied a face-to-face collection due process (“CDP”) hearing is unavailing because “[a] CDP hearing may, but is not required to, consist of a face-to-face meeting.” 26 C.F.R. § 301.6330-l(d)(2)(A-D6). Further, Willis failed to respond to requests to provide detailed documentation as to the issues she wished to raise at the hearing and failed to raise a valid challenge to the proposed levy. Cf. 26 C.F.R. § 301.6330-l(d)(2)(A-D7) (stating that a taxpayer who presents relevant, non-frivolous arguments in the CDP hearing request will ordinarily be offered the opportunity for a face-to face meeting).
Willis’s contention that she was not sent a notice of deficiency is unavailing because she has not produced any evidence contradicting the certified mail log showing that notice was mailed. See 26 U.S.C. § 6212(b)(1) (stating that a notice of deficiency addressed to the taxpayer’s last known address suffices for purposes of notice); see also United States v. Zolla, 724 F.2d 808, 810 (9th Cir.1984) (explaining that an official record of mailing was highly probative and sufficient, in the absence of contrary evidence, to show that the notice of deficiency was properly made).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Tomas Padrón Miranda and Maria Teresa Escoto Larios, natives and citizens of Mexico, seek review of a Board of Immigration Appeals order denying their motion to reopen removal proceedings. We dismiss the petition for review.
We lack jurisdiction to review the Board’s denial of petitioners’ motion to reopen, which introduced further evidence of hardship to then* United States citizen daughter. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir.2006) (explaining that § 1252(a)(2)(B)® bars jurisdiction where question presented in motion to reopen is essentially the same unreviewable discretionary issue originally decided).
Our conclusion that we lack jurisdiction to review the Board’s denial of reopening forecloses petitioners’ argument that the Board failed to meaningfully review and analyze the issues raised in the motion. See Fernandez, 439 F.3d at 603-04; Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir.2004) (explaining that cancellation is a discretionary form of relief in which a petitioner has no due process rights regarding the denial thereof).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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JUDGMENT
PER CURIAM.
This case was considered on the record from the National Transportation Safety Board and on the briefs of the parties pursuant to D.C. Circuit Rule 34(j). It is
ORDERED AND ADJUDGED that the petition is denied.
*590This case arises out of U.S. Airways Express Flight 4803 on April 18, 2008 from New York LaGuardia to Ithaca. Federal Aviation Administration (FAA) regulations require that before each flight the captain must sign a load manifest showing that the flight is safely within weight guidelines. In this case, the pilot, petitioner here, admits that he signed the load manifest for Flight 4803. On its face, the load manifest shows inaccuracies (the number of passengers listed in each section does not equal the number of passengers listed in the “total” box) and alterations (the Runway & Climb Limit Rate was crossed out and replaced). As a result, the FAA revoked petitioner’s license in an emergency proceeding.
Petitioner then had an administrative hearing at which his first officer testified that petitioner knew the plane was overweight and suggested altering the manifest to avoid having to deplane a passenger. The manifest was indeed altered and the flight completed with all passengers on board. The ALJ credited the first officer’s testimony and approved the FAA’s action. Petitioner appealed to the National Transportation Safety Board, presenting the same arguments he presents to this court, and the Board upheld the ALJ.
In this court, petitioner presents essentially three arguments: there was insufficient evidence to sustain the charge of intentional falsification of records, his affirmative defense of reasonable reliance should have been credited by the Board, and the copy of the load manifest was inappropriately admitted to evidence. On the first issue, the Board concluded that the evidence was sufficient to sustain the charge of intentional falsification because the petitioner (1) made a false representation (2) in reference to a material fact (3) with knowledge of the falsity of the fact. See Hart v. McLucas, 535 F.2d 516, 519 (9th Cir.1976). The correct standard of review is whether the agency’s decision finds support in the record as a whole. E.g., Chritton v. Nat’l Trans. Safety Bd., 888 F.2d 854, 856 (D.C.Cir.1989) (upholding the Board’s suspension of petitioner’s license while explaining that the agency is to be upheld even if a “plausible alternative interpretation” of the facts is present so long as there exists enough “relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) (internal quotations omitted). In his brief, petitioner emphasizes inconsistencies in the first officer’s testimony including the date of the flight and who ultimately filled out the load manifest and offers motives for the first officer’s alleged dishonesty. The Board, however, rejected these minor inconsistencies and credibility challenges as insufficient to disturb the long-standing practice of deferring to the credibility determinations of the trier of fact. Our own review of the record also presents no reason to disturb the ALJ’s credibility findings.
Petitioner’s second argument, regarding the affirmative defense, was also considered and properly rejected by both the ALJ and the Board. Given the facts as found by the ALJ, there was no paperwork or other person on which petitioner could have relied in making his impromptu changes to the load manifest that would support a defense of reasonable reliance.
Petitioner’s third argument, regarding the admissibility of the copy of the load manifest, was also considered and properly rejected by both the ALJ and the Board. Agency proceedings are not governed by the Federal Rules of Evidence, and even under those rules, a copy is generally as admissible as the original, see Fed.R.Evid. 1003.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of *591the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41.
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MEMORANDUM **
Kathy Grismore appeals pro se from the district court’s judgment dismissing her action as a sanction under Federal Rules of Civil Procedure 37(b) and 41(b) for failure to comply with a discovery order. Grismore also appeals from the judgment awarding attorneys’ fees. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002) (discovery rulings); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.1987) (dismissal); Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 933 (9th Cir.2007) (per curiam) (attorneys’ fees). We affirm.
The district court did not abuse its discretion by granting defendant’s motion to compel discovery responses because the information sought was relevant to the claims and defenses. See Fed.R.Civ.P. 26(b)(1) (describing permissible discovery); Hallett, 296 F.3d at 751 (stating that broad discretion is vested in the trial court to permit discovery).
The district court did not abuse its discretion by dismissing the action because Grismore failed to comply with a discovery order after the district court warned her that noncompliance could result in dismissal, and she failed to appear at the hearing on the order to show cause why the action should not be dismissed. See Malone, 833 F.2d at 130, 132 (setting forth factors that a district court must consider before dis*294missing an action for failure to comply with a court order).
We do not consider Grismore’s challenge to the award of $1,515.50 in attorneys’ fees and costs under Rule 37 because Grismore did not oppose defendant’s request in the district court. See Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.2007) (declining to consider argument raised for the first time on appeal).
The district court did not abuse its discretion by awarding attorneys’ fees under 15 U.S.C. § 1692k(a)(3).
Grismore’s remaining contentions are unavailing.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Mark Durbin appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action seeking relief from state court decisions. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We affirm in part, vacate in part, and remand.
The district court properly concluded that the Rooker-Feldman doctrine barred Durbin’s action because the action is a “forbidden de facto appeal” of state court decisions, and raises constitutional claims that are “inextricably intertwined” with those prior state court decisions. See id. at 1158; Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n. 4 (9th Cir.2003) (explaining that constitutional claims are barred under the Rooker-Feldman doctrine if the claims are “inextricably intertwined” with a state court decision, even if they do not directly challenge the decision).
Durbin’s remaining contentions are unavailing.
A dismissal under the Rooker-Feldman doctrine is a dismissal for lack of subject matter jurisdiction, Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.2004), and thus should be without prejudice, Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir.2004). Accordingly, we vacate the judgment dismissing the action with prejudice, and remand for entry of judgment dismissing the action without prejudice.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Swan View Coalition and Friends of the Wild Swan appeal the district court’s partial summary judgment in favor of the government defendants in Swan View’s action challenging motorized access management in the Flathead National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the summary judgment de novo and the Endangered Species Act claims under arbitrary and capricious standards. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891-92 (9th Cir.2002).
1. Claims against the Fish & Wildlife Service
Appellants argue that the Biological Opinion’s environmental baseline should have assumed that the seven Forest Service project decisions without timetables for completion had closed roads by 2005, the original forest plan objective date. Both the Forest Service and FWS concluded that the seven projects did not require that the Forest Service act by any particular date. However, since the record does not establish that the Forest Service included deadlines in the decisions or that any of the roads had been closed, we defer to this factual conclusion. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir.2005) (noting that we do not defer to agency decisions “without substantial basis in fact”). FWS properly used actual habitat conditions as allowed by Nat'l Wildlife Fed’n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir.2008).
*297Nor was the incidental take statement arbitrary. The Biological Opinion specifically linked motor vehicle access and density to grizzly habitat and survival to define incidental take through ecological habitat conditions as permitted by Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1250 (9th Cir.2001). The incidental take statement also contained sufficient triggers for reinitiated consultation; the Forest Service’s failure to meet any of the numerous reasonable and prudent measures by specified dates will trigger reinitiated consultation. This, too, is allowed under Ariz. Cattle Growers’ Ass’n. Id.
The Biological Opinion did not fail to consider whether the extended deadlines were consistent with Interagency Grizzly Bear Guidelines. The Guidelines are not binding on FWS, Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 942-43 (9th Cir.2006), but FWS did indeed consider them (and the best scientific data upon which the Guidelines were created), including evidence that “large contiguous blocks of unroaded habitat are important to survival” of grizzly bears.
2. Claim against the Forest Service
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), precludes Appellants from asserting a National Forest Management Act APA § 706(1) claim to enforce the motorized access objectives set forth in Amendment 19 to the Forest Plan. The objectives not incorporated into project decisions are statements of priorities, not legally binding commitments enforceable under § 706(1). Norton, 542 U.S. at 71, 124 S.Ct. 2373; 36 C.F.R. § 219.7(a)(2)(h). As for the seven project decisions without Forest Service timetables for road closures, the record does not establish that the decisions required that the Forest Service close the roads by the original 2005 Amendment 19 deadlines.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Appellants Swan View Coalition and Friends of the Wild Swan, Inc., appeal the district court’s grant of summary judgment in favor of the Forest Service and Fish and Wildlife Service. This case involves the impact of the Robert-Wedge and West Side Reservoir Post-Fire Projects’ motor vehicle restrictions on threatened grizzly bears in the Flathead National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the summary judgment de novo and the Endangered Species Act and National Environmental Policy Act claims under APA arbitrary and capricious standards. Native Ecosystems Council v. Dombeck, *299304 F.3d 886, 891-92 (9th Cir.2002). We affirm.
1. Claims against the Fish and Wildlife Service
The FWS Biological Opinions did not arbitrarily exclude unmet forest plan access management objectives from the environmental baseline. Rather, FWS properly used actual habitat conditions. This is specifically required by Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir.2008). Nor were the incidental take statements arbitrary. The Biological Opinions specifically linked motor vehicle access and density to grizzly habitat and survival to define incidental take through ecological habitat conditions as permitted by Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1250 (9th Cir.2001). The incidental take statements also contained sufficient triggers for reinitiated consultation; the Forest Service’s failure to meet any of the numerous reasonable and prudent measures by specified dates will trigger reinitiated consultation. This, too, is allowed under Ariz. Cattle Growers’ Ass’n. Id.
The Biological Opinions did not fail to consider whether the projects were consistent with Interagency Grizzly Bear Guidelines. The Guidelines are not binding on FWS, Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 942-43 (9th Cir.2006), but FWS did indeed consider them (and the best scientific data upon which the Guidelines were created), including evidence that “large contiguous blocks of unroaded habitat are important to survival” of grizzly bears.
2. Claims against the Forest Service
As for the Forest Service, its Final Environmental Impact Statements did not violate NEPA. Both Statements took “a hard look” at the forest-wide cumulative effects of the projects in the context of other projects, grizzly bear populations, the Grizzly Guidelines, forest plan objectives and state and private lands. For example, the Forest Service analyzed such cumulative effects in Rg-5, which is referenced in both Final Environmental Impact Statements. This is sufficient under Ecology Center v. Castaneda, 574 F.3d 652, 666 (9th Cir.2009) (requiring “a sufficiently detailed catalogue of past, present, and future projects” and “adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Rickey Calhoun appeals dismissal on the pleadings of his 42 U.S.C. § 1983 suit. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. A prosecutor is entitled to absolute immunity from damages under § 1983 “when performing the traditional functions of an advocate.” Kalina v. Fletcher, 522 U.S. 118, 131, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). The prosecuting attorney, Jeffrey Dernbach, engaged in the traditional functions of an advocate when he filed a declaration with the court to modify a sentence that exceeded the statutory maximum. He acted in his role as a lawyer, rather than as a complaining witness, when he reported to the court regarding communication with defense counsel. See id. at 129, 118 S.Ct. 502. Accordingly, Mr. Calhoun’s claims are barred by the doctrine of prosecutorial immunity.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Julio Cesar Montes-Alva, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.
Montes-Alva argues that the IJ applied the incorrect legal standard to cancellation of removal application by failing to consider all the hardship factors in the aggregate. The record belies this contention. Because the IJ applied the correct legal standard, we lack jurisdiction to review the IJ’s discretionary determination that Montes-Alva is not entitled to cancellation of removal. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978-80 (9th Cir.2009).
Montes-Alva’s equal protection claim is foreclosed by Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir.2002) (“[L]ine-drawing decisions made by Congress or the President in the context of immigration and naturalization must be upheld if they are rationally related to a legitimate government purpose.”) (internal quotation marks and citation omitted).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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SUMMARY ORDER
Timothy Dumpson appeals from a judgment the United States District Court for the Western District of New York (Siragu-sa, /.). Dumpson, who is incarcerated in the New York Southport Correctional Facility, sued various officers at that facility alleging violations of the Eighth and Fourteenth Amendments as a result of defendants’ decision to keep Dumpson in restraints during his exercise period. See 42 U.S.C. § 1983. Prior to trial, the district court dismissed, on qualified immunity grounds, Dumpsoris right to exercise and procedural due process claims. Dumpson tried an excessive force claim to a jury, which found against him. We assume familiarity with the underlying facts and procedural history of this case, as well as the issues on appeal.
DISCUSSION
Dumpson first challenges the dismissal, on qualified immunity grounds, of his claims alleging an Eighth Amendment right to exercise and Fourteenth Amendment right to a hearing on the need to use restraints for a prolonged period. We review de novo a district court’s grant of qualified immunity. Lombardi v. Whitman, 485 F.3d 73, 78 (2d Cir.2007). In assessing qualified immunity, a court must determine whether the alleged action violated clearly established law. “This inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 822, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). A right may be clearly established through Supreme Court precedent or the case law of this circuit. Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir.1990).
The district court held that no clearly established Eighth Amendment right to exercise existed in this circuit. We disagree. We have stated that an inmate has a right to some “opportunity to exercise,” subject to a “safety exception.” Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir.1996) (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir.1985); Sostre v. McGinnis, 442 F.2d 178, 186 (2d Cir.1971)). However, despite our disagree ment with the district court’s reasoning, we affirm on another ground. Although Dumpson had a clearly established right to some opportunity for exercise, we have also held that the right could be limited by legitimate safety concerns. See Williams, 97 F.3d at 704. The evidence adduced at trial indicated that the defendants did make such a decision and that it was reasonable in light of Dumpsoris disciplinary history.
The district court also did not err in holding that Dumpson’s alleged right to a periodic review of defendants’ decision to restrain him was not clearly established. Dumpson does not direct our attention to *660any relevant precedent establishing such a right.
Dumpson finally alleges that the district court erred in admitting evidence regarding his disciplinary history. We review evidentiary rulings for abuse of discretion. See, e.g., Madeira v. Affordable Hous. Found., Inc., 469 F.3d 219, 250 (2d Cir.2006). An Eighth Amendment claim requires a fact-finder to determine whether the defendants “had a wanton state of mind when they were engaging in the alleged misconduct.” Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir.1999) (internal quotation marks and citations omitted). Given that the jury had to determine whether defendants wantonly or unnecessarily inflicted pain by keeping Dumpson restrained when he left his cell, we see no abuse of discretion in permitting the jury to consider his disciplinary history.
We have considered Dumpson’s remaining contentions and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Samba Sinera petitions this Court for review of the August 26, 2008 order of the BIA which denied his application for cancellation of removal pursuant to Section 240A(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. Section 1229b(b).
According to his Application for Cancellation of Removal, which was filed in Immigration Coui’t, New York, on October 2, 2005, Sinera was born in Gambia. He entered the United States as the holder of a B-2 visa, on February 19, 1992. He was married in 1991, and his wife, who is also a native of Gambia, entered the United States in 1993. The couple have four children, one daughter and three sons, all of whom were born in the United States.
Sinera asserts that he received a Notice to Appear charging him with removability on June 20, 2005. Sinera conceded that he was removable as charged, but applied for cancellation of removal based upon the allegation that his daughter, who was born in 1994, would be subjected to female genital mutilation (“FGM”) should she return to Gambia. Sinera asserts that his fear that this would occur is bolstered by the fact that his wife was subjected to FGM while living in Gambia.
In an oral decision, issued on December 7, 2006, Immigration Judge Barbara A. Nelson (“the IJ”) denied Sinera’s application in the following terms:
The respondent has offered no testimony regarding hardship to her [sic] children other than the possibility that his daughter might be subjected to female genital mutilation. The background material on Gambia indicates that FGM is done fairly commonly in the Gambia but it is less frequent among the educated and urban segments of the population and the government publicly supported efforts to eradicate it and discouraged it through education. The respondent alleges that family members would force the daughter to be subjected to female genital mutilation. The respondent has offered no convincing evidence of this. The Court notes that the respondent has offered nothing to establish that his wife, in fact, went through female genital mutilation. The respondent has not offered statement from his wife, he has not offered her testimony.... The Court finds that he has not established that female genital mutilation is a realistic possibility for his daughter. The Court notes that such evidence should be readily available to the respondent.
The BIA affirmed the IJ’s decision, holding that “[although the respondent’s *662daughter’s likelihood of undergoing FGM in the future is relevant to hardship, ... there is insufficient evidence to establish that she would suffer the requisite hardship.” The BIA also added that, as a U.S. citizen, Sinera’s daughter was not herself subject to removal, and that she could even stay in the U.S. with Sinera’s wife because “there is no evidence to indicate that she is in proceedings.”
In order to qualify for cancellation from removal, Sinera must establish, inter alia, “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. Section 1229b(b)(1)(D). This Court lacks jurisdiction to review “any judgment regarding the granting of relief under ... [8 U.S.C. Section 1229b].” 8 U.S.C. Section 1252(a)(2)(B)(i). While we do retain jurisdiction to consider “constitutional claims or questions of law raised upon a petition for review,” 8 U.S.C. Section 1252(a)(2)(D), where a “petitioner’s challenge is merely an objection to the IJ’s factual findings and the balancing of factors in which discretion was exercised,” this Court lacks jurisdiction to hear the petition. Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 332 (2d Cir.2006).
Sinera raises no constitutional claim and, even reading his brief with an indulgent eye, we cannot see that he has even impliedly raised a question of law. Rather, he merely repeats factual assertions made before the IJ and the BIA, such as pointing to his testimony “that the local government in the Gambia would be ineffective in protecting Sinera’s daughter because they would view the issue [of FGM] as a private family matter” and citing the State Department’s Country Report for evidence that the practice of FGM remains widespread in the country. Accordingly, Sin-era provides no basis for this Court to review the agency’s discretionary determination that he has not met his burden of demonstrating that he should be afforded relief under Section 1229b(b).
For the reasons stated above, the petition for review is hereby DISMISSED.
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SUMMARY ORDER
Petitioner Rigoberto Vega (“petitioner” or “Vega”), a native and citizen of Mexico, seeks review of a final order of removal issued by the BIA on November 19, 2008. Petitioner argues that the BIA erred in concluding that petitioner’s prior conviction for domestic battery made him eligible for removal because domestic battery is a “crime of violence.” 18 U.S.C. § 16(a). Specifically, petitioner argues that the BIA erred in concluding that his conviction for *664domestic battery in violation of the Carson City Municipal Code § 8.44.020 and the Nevada Revised Statutes §§ 33.018 and 200.485 constitutes a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i), thereby making petitioner eligible for removal. We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review de novo the BIA’s interpretation of state or federal criminal law, but we accord substantial deference to the BIA’s interpretation of provisions of the Immigration and Naturalization Act. See, e.g., Sutherland v. Reno, 228 F.3d 171, 173-74 (2d Cir.2000).
Under the Immigration and Naturalization Act, an admitted alien may be removed if “convicted of a crime of domestic violence.” 8 U.S.C. § 1227(a)(2)(E)(i). The statute further defines a “crime of domestic violence” as “any crime of violence (as defined in section 16 of title 18) against a person committed ... by an individual who is cohabitating with ... the person as a spouse.” Id1 Subsection 16(a) of title 18, relevant here because petitioner was convicted of only a misdemeanor, defines “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” The relevant inquiry, then, is whether the statute under which Vega was convicted meets this definition of “crime of violence.”
Vega was convicted of violating the Carson City Municipal Code § 8.44.020 and the Nevada Revised Statutes §§ 33.018 and 200.485. Because § 8.44.020 of the Carson City Municipal Code mirrors the § 200.485 of the Nevada Revised Statutes, we will analyze only the state statute. Under Nev.Rev.Stat. § 33.018, it is a crime of domestic violence to commit a battery upon a person with whom one has a “dating relationship.”2 Nevada law further defines a battery as “any willful and unlawful use of force or violence upon the person of another.”3
The Nevada statutes that Vega was convicted of violating plainly fall within the definition of a “crime of violence” set forth in 18 U.S.C. § 16(a). Section 16(a) requires that an offense “ha[ve] as an element the use ... of physical force against the person ... of another” to be a crime of violence and the offense for which Vega was convicted defines battery as “any willful and unlawful use of force or violence upon the person of another.” We conclude that the Nevada statutes have as an element of the offense the use of force against the person of another and therefore that Vega is eligible for removal.
Although Vega argues that § 16(a), but not the Nevada statutes, requires the use of violent force, we find his argument unpersuasive. We have previously defined *665“force,” as used in § 16(a), broadly to mean “power, violence, or pressure directed against a person or thing.” Chrzanoski v. Ashcroft, 327 F.3d 188, 192 (2d Cir.2003) (emphasis added, internal quotation marks and citations omitted). Under our precedent, violence is only one aspect of “force,” as used in § 16(a), and thus we conclude that § 16(a) does not require the use of violent force.
CONCLUSION
For the foregoing reason, the petition for review is DENIED.
. Because Vega did not challenge before the Board, and does not challenge here, that his victim was a protected person under 8 U.S.C. § 1227(a)(2)(E)(i), we need only evaluate whether petitioner committed a “crime of violence.”
. This section provides, in relevant part, as follows:
Domestic violence occurs when a person commits one of the following acts against or upon ... a person with whom he has had or is having a dating relationship ...:
(a) A battery.
Nev.Rev.Stat. § 33.018.
.Petitioner was convicted of a violation of Nev.Rev.Stat. § 200.485, which provides, in relevant part, that "[a]s used in this section .. . battery has the meaning ascribed to it in paragraph (a) of subsection 1 of [Nev.Rev. Slat. § ] 200.481.” Section 200.481 provides further that " '[b]attery means any willful and unlawful use of force or violence upon the person of another.’ "
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MEMORANDUM **
Kathy Grismore appeals pro se from the district court’s judgment dismissing her action as a sanction under Federal Rules of Civil Procedure 37(b) and 41(b) for failure to comply with a discovery order. Grismore also appeals from the judgment awarding attorneys’ fees. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002) (discovery rulings); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.1987) (dismissal); Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 933 (9th Cir.2007) (per curiam) (attorneys’ fees). We affirm.
The district court did not abuse its discretion by granting defendant’s motion to compel discovery responses because the information sought was relevant to the claims and defenses. See Fed.R.Civ.P. 26(b)(1) (describing permissible discovery); Hallett, 296 F.3d at 751 (stating that broad discretion is vested in the trial court to permit discovery).
The district court did not abuse its discretion by dismissing the action because Grismore failed to comply with a discovery order after the district court warned her that noncompliance could result in dismissal, and she failed to appear at the hearing on the order to show cause why the action should not be dismissed. See Malone, 833 F.2d at 130, 132 (setting forth factors that a district court must consider before dis*294missing an action for failure to comply with a court order).
We do not consider Grismore’s challenge to the award of $1,515.50 in attorneys’ fees and costs under Rule 37 because Grismore did not oppose defendant’s request in the district court. See Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir.2007) (declining to consider argument raised for the first time on appeal).
The district court did not abuse its discretion by awarding attorneys’ fees under 15 U.S.C. § 1692k(a)(3).
Grismore’s remaining contentions are unavailing.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Mark Durbin appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action seeking relief from state court decisions. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We affirm in part, vacate in part, and remand.
The district court properly concluded that the Rooker-Feldman doctrine barred Durbin’s action because the action is a “forbidden de facto appeal” of state court decisions, and raises constitutional claims that are “inextricably intertwined” with those prior state court decisions. See id. at 1158; Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n. 4 (9th Cir.2003) (explaining that constitutional claims are barred under the Rooker-Feldman doctrine if the claims are “inextricably intertwined” with a state court decision, even if they do not directly challenge the decision).
Durbin’s remaining contentions are unavailing.
A dismissal under the Rooker-Feldman doctrine is a dismissal for lack of subject matter jurisdiction, Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.2004), and thus should be without prejudice, Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir.2004). Accordingly, we vacate the judgment dismissing the action with prejudice, and remand for entry of judgment dismissing the action without prejudice.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Appellants Swan View Coalition and Friends of the Wild Swan, Inc., appeal the district court’s grant of summary judgment in favor of the Forest Service and Fish and Wildlife Service. This case involves the impact of the Robert-Wedge and West Side Reservoir Post-Fire Projects’ motor vehicle restrictions on threatened grizzly bears in the Flathead National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the summary judgment de novo and the Endangered Species Act and National Environmental Policy Act claims under APA arbitrary and capricious standards. Native Ecosystems Council v. Dombeck, *299304 F.3d 886, 891-92 (9th Cir.2002). We affirm.
1. Claims against the Fish and Wildlife Service
The FWS Biological Opinions did not arbitrarily exclude unmet forest plan access management objectives from the environmental baseline. Rather, FWS properly used actual habitat conditions. This is specifically required by Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir.2008). Nor were the incidental take statements arbitrary. The Biological Opinions specifically linked motor vehicle access and density to grizzly habitat and survival to define incidental take through ecological habitat conditions as permitted by Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1250 (9th Cir.2001). The incidental take statements also contained sufficient triggers for reinitiated consultation; the Forest Service’s failure to meet any of the numerous reasonable and prudent measures by specified dates will trigger reinitiated consultation. This, too, is allowed under Ariz. Cattle Growers’ Ass’n. Id.
The Biological Opinions did not fail to consider whether the projects were consistent with Interagency Grizzly Bear Guidelines. The Guidelines are not binding on FWS, Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 942-43 (9th Cir.2006), but FWS did indeed consider them (and the best scientific data upon which the Guidelines were created), including evidence that “large contiguous blocks of unroaded habitat are important to survival” of grizzly bears.
2. Claims against the Forest Service
As for the Forest Service, its Final Environmental Impact Statements did not violate NEPA. Both Statements took “a hard look” at the forest-wide cumulative effects of the projects in the context of other projects, grizzly bear populations, the Grizzly Guidelines, forest plan objectives and state and private lands. For example, the Forest Service analyzed such cumulative effects in Rg-5, which is referenced in both Final Environmental Impact Statements. This is sufficient under Ecology Center v. Castaneda, 574 F.3d 652, 666 (9th Cir.2009) (requiring “a sufficiently detailed catalogue of past, present, and future projects” and “adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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SUMMARY ORDER
Samba Sinera petitions this Court for review of the August 26, 2008 order of the BIA which denied his application for cancellation of removal pursuant to Section 240A(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. Section 1229b(b).
According to his Application for Cancellation of Removal, which was filed in Immigration Coui’t, New York, on October 2, 2005, Sinera was born in Gambia. He entered the United States as the holder of a B-2 visa, on February 19, 1992. He was married in 1991, and his wife, who is also a native of Gambia, entered the United States in 1993. The couple have four children, one daughter and three sons, all of whom were born in the United States.
Sinera asserts that he received a Notice to Appear charging him with removability on June 20, 2005. Sinera conceded that he was removable as charged, but applied for cancellation of removal based upon the allegation that his daughter, who was born in 1994, would be subjected to female genital mutilation (“FGM”) should she return to Gambia. Sinera asserts that his fear that this would occur is bolstered by the fact that his wife was subjected to FGM while living in Gambia.
In an oral decision, issued on December 7, 2006, Immigration Judge Barbara A. Nelson (“the IJ”) denied Sinera’s application in the following terms:
The respondent has offered no testimony regarding hardship to her [sic] children other than the possibility that his daughter might be subjected to female genital mutilation. The background material on Gambia indicates that FGM is done fairly commonly in the Gambia but it is less frequent among the educated and urban segments of the population and the government publicly supported efforts to eradicate it and discouraged it through education. The respondent alleges that family members would force the daughter to be subjected to female genital mutilation. The respondent has offered no convincing evidence of this. The Court notes that the respondent has offered nothing to establish that his wife, in fact, went through female genital mutilation. The respondent has not offered statement from his wife, he has not offered her testimony.... The Court finds that he has not established that female genital mutilation is a realistic possibility for his daughter. The Court notes that such evidence should be readily available to the respondent.
The BIA affirmed the IJ’s decision, holding that “[although the respondent’s *662daughter’s likelihood of undergoing FGM in the future is relevant to hardship, ... there is insufficient evidence to establish that she would suffer the requisite hardship.” The BIA also added that, as a U.S. citizen, Sinera’s daughter was not herself subject to removal, and that she could even stay in the U.S. with Sinera’s wife because “there is no evidence to indicate that she is in proceedings.”
In order to qualify for cancellation from removal, Sinera must establish, inter alia, “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. Section 1229b(b)(1)(D). This Court lacks jurisdiction to review “any judgment regarding the granting of relief under ... [8 U.S.C. Section 1229b].” 8 U.S.C. Section 1252(a)(2)(B)(i). While we do retain jurisdiction to consider “constitutional claims or questions of law raised upon a petition for review,” 8 U.S.C. Section 1252(a)(2)(D), where a “petitioner’s challenge is merely an objection to the IJ’s factual findings and the balancing of factors in which discretion was exercised,” this Court lacks jurisdiction to hear the petition. Xiao Ji Chen v. U.S. Dept. of Justice, 471 F.3d 315, 332 (2d Cir.2006).
Sinera raises no constitutional claim and, even reading his brief with an indulgent eye, we cannot see that he has even impliedly raised a question of law. Rather, he merely repeats factual assertions made before the IJ and the BIA, such as pointing to his testimony “that the local government in the Gambia would be ineffective in protecting Sinera’s daughter because they would view the issue [of FGM] as a private family matter” and citing the State Department’s Country Report for evidence that the practice of FGM remains widespread in the country. Accordingly, Sin-era provides no basis for this Court to review the agency’s discretionary determination that he has not met his burden of demonstrating that he should be afforded relief under Section 1229b(b).
For the reasons stated above, the petition for review is hereby DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maricacus Dewayne McNeill appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. McNeill, No. 5:06-cr-00246-D-1 (E.D.N.C. June 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
Raul Contreras-Gonzalez, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings. We dismiss the petition for review.
We lack jurisdiction to review the Board’s denial of petitioner’s motion to reopen, which introduced further evidence of hardship to his United States citizen wife in that she has been diagnosed with anemia and depression. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir.2006) (explaining that § 1252(a)(2)(B)(i) bars jurisdiction where question presented in motion to reopen is essentially the same un-reviewable discretionary issue originally decided).
Our conclusion that we lack jurisdiction to review the Board’s denial of reopening forecloses petitioner’s argument that the *303Board failed to meaningfully review and adequately analyze the evidence and issues raised in the motion. See Fernandez, 439 F.3d at 603-04.
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jose Covarrubias Valdivia and Ericka Tapia Ramirez, husband and wife, seek review of a Board of Immigration Appeals order denying their motion to reopen removal proceedings. We dismiss the petition for review.
We lack jurisdiction to review the Board’s denial of petitioners’ motion to reopen, which introduced further evidence of hardship to their United States citizen son. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir.2006) (explaining that § 1252(a)(2)(B)(i) bars jurisdiction where question presented in motion to reopen is essentially the same unreviewable discretionary issue originally decided).
Our conclusion that we lack jurisdiction to review the Board’s denial of reopening forecloses petitioner’s argument that the Board denied failed to meaningfully review and analyze the issues raised in the motion. See Fernandez, 439 F.3d at 603-04.
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Chapter 7 debtor Wayne Engram, his sister Madeline Engram, and his daughter Susie Engram appeal pro se from the judgment of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s order approving the trustee’s settlement of the estate’s interest in a state court quiet title action. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the bankruptcy court’s decision, United States v. Battley (In re Kimura), 969 F.2d 806, 810 (9th Cir.1992), and we affirm.
The bankruptcy court did not err by concluding that Madeline and Susie Engram lacked standing to object to the trustee’s settlement of the estate’s interest in the state court action. See Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 777 (9th Cir.1999) (explaining that a party has standing only if the bankruptcy court order diminishes its property, increases its burdens, or detrimentally affects its rights).
Contrary to Wayne Engram’s contention, as debtor, his interest in the state court action was property of the estate. See Turner v. Cook, 362 F.3d 1219, 1225-26 (9th Cir.2004) (stating that property of estate includes all “legal or equitable interests,” including debtor’s causes of actions (quoting 11 U.S.C. § 541(a)(1))). Therefore, his contention that he was pressured into signing the settlement agreement is unavailing.
The bankruptcy court did not abuse its discretion by approving the *307agreement. See Martin v. Kane (In re A & C Props.), 784 F.2d 1377, 1380, 1381, 1383 (9th Cir.1986) (explaining that the approval of a compromise is not an abuse of discretion where the record contains a factual foundation establishing the compromise was fair, reasonable, and adequate).
The remaining contentions lack merit.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Saul Covarrubias-Ramos, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals order dismissing his appeal from an immigration judge’s (IJ) decision denying his application for cancellation of removal. We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that petitioner failed to show exceptional and extremely unusual hardship to a qualifying-relative. 8 U.S.C. § 1252(a)(2)(B); Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir.2009). We also lack jurisdiction to review the agency’s discretionary denial of voluntary departure. See 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i). Petitioner’s contentions that the IJ failed to properly consider the law and weigh all evidence of hardship do not raise a colorable due process claim. Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
Substantial evidence supports the IJ’s determination that petitioner did not meet the continuous physical presence requirement, because the record shows he was ordered removed in 2001, thereby interrupting his accrual of continuous physical presence in the United States. See Gutierrez v. Mukasey, 521 F.3d 1114, 1117-18 (9th Cir.2008); Juarez-Ramos v. Gonzales, 485 F.3d 509, 511 (9th Cir.2007). We lack jurisdiction to review petitioner’s collateral attack on his expedited removal order. Garcia de Rincon v. DHS, 539 F.3d 1133, 1139-40 (9th Cir.2008).
PETITION FOR REVIEW DISMISSED in part and DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
SLOVITER, Circuit Judge.
Jacob G. Marley appeals the District Court’s order granting summary judgment in favor of appellee CORT Furniture Rental Corporation on Marley’s claim that CORT discriminated against him in violation of § 1981 and New Jersey state law by failing to promote him to any of the three positions for which he applied, specifically in Retail Sales, Executive Sales, and as Assistant Distribution Manager. We will affirm.1
Because we write primarily for the parties, our recitation of the facts is brief. Marley, who came to the United States from Liberia in order to conduct business on behalf of the Liberian government, was granted asylum due to a Liberian civil war. In October 2004, Marley began working for CORT as a delivery truck driver. In September 2005, Marley was involved in a car accident that resulted in his being placed on medical leave until October 18, 2005. On Marley’s return to work, he was told by his doctor that he should not lift anything heavy. Although Marley remained a delivery truck driver despite his injury, he was given an additional assistant for moving the furniture he delivered.
Sometime after Marley’s return to work, he expressed to CORT’s then-District General Manager, Anthony DeCant, his desire to explore the potential for a promotion to sales. DeCant was replaced by Bill Rosa-*800to in December 2005, and Marley informed Rosato of his desire to start working in sales. The two met in February 2006, and their versions of the meeting differ but they agree there was some reference to Marley’s accent, which is the basis for Marley’s discrimination claim. Instead of resolving the issue of the effect of Marley’s Liberian accent, the District Court granted summary judgment for CORT on the ground that Marley failed to establish that he was qualified for any of the positions he sought, and therefore did not make out a prima facie case.
In support of its motion for summary judgment, CORT relied on our decision in Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir.2008), where we held that a plaintiff pursuing a mixed-motive theory of discrimination under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), must prove s/he was qualified for the position sought before proceeding on a discrimination claim. We also stated that “[i]n this respect at least, requirements under Price Waterhouse do not differ from those of McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)” (often referred to as the pretext theory) ]. The District Court reviewed the record produced on summary judgment and analyzed the qualifications needed for both sales positions for which Marley applied. The Court determined that Marley did not meet the necessary qualifications.
The Court explained that for both sales positions an applicant was required to have prior furniture sales experience and the ability to lift 25 pounds for the executive sales position and 50 pounds for the retail sales position. The Court stated that “[bjecause Marley did not have the requisite experience or the ability [to] meet the lifting requirements, he was not qualified for the jobs.” App. at 11. Moreover, although Marley claimed to have previous sales experience, he did not dispute that he did not have any furniture sales experience. We have reviewed the record and see nothing that suggests the District Court erred.
The retail sales position was filled by Charles Jagger sometime after the meeting between Marley and Rosato. Jagger had been with the company only a short time but had previous sales experience. In addition, Jagger had participated in tent sales of CORT furniture. Jagger received positive reviews in response to those tent sales. The executive sales position was filled by an individual Marley described only as a, “short, white, Caucasian kid.” App. at 306.
In May 2006, Richard Petchulat was hired as Assistant Distribution Manager. Marley alleges he was denied this position even though he applied for it, and that an hour after he applied he was informed he was not qualified for the job. That position requires three years experience in warehouse/clistribution management. Prior to his employment at CORT, Petchulat had seven years experience in warehouse management. Marley has offered no testimony or evidence regarding his warehouse management experience.
Similarly, with respect to the Assistant Distribution Manager position, the Court noted that Marley did not have three years of warehouse experience, a job requirement, whereas the successful candidate did. Although Marley disputes that there was such a requirement, he failed to articulate what the job requirements actually were and thus has not met his required burden.
Accordingly, the District Court concluded that Marley failed to establish a prima facie case for failure to promote based on his race, and the Court entered summary judgment. We find no error in the Dis*801trict Court’s analysis. Accordingly, we will affirm
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Edgar Romero, a native and citizen of Peru, was convicted of hindering his removal from the United States. He appeals an order from the United States District Court for the Middle District of Pennsylvania denying his motion seeking credit for a portion of the time he served in custody while awaiting removal. Because Romero did not show that he had exhausted his administrative remedies, the District Court correctly concluded that it lacked jurisdiction. We will therefore affirm.
I. Background
Romero came to the United States from Peru with his parents in 1983. In 1993, he was convicted of robbery and sentenced to one to three years in prison. Ten years later, he was convicted of domestic abuse and sentenced to a year in prison. While he was in a New York state prison for the latter offense, immigration authorities instituted removal proceedings against him and, after he completed his state sentence, he was transferred to federal custody for the duration of those proceedings. In August 2005, an immigration judge ordered Romero’s removal from this country, and he unsuccessfully appealed that order to the Board of Immigration Appeals and our Court.1
As part of the removal process, Romero was taken to the Peruvian Consulate in Patterson, New Jersey and asked to sign certain travel documents required by Peru. He refused. On a second trip to the Consulate, he again refused to sign the travel documents. On November 8, 2006, a grand jury in the Middle District of Pennsylvania charged Romero with one count of hindering removal, in violation of 8 U.S.C. § 1253(a)(1)(B) and (c). Following a bench trial, the District Court found Romero guilty and sentenced him to 72 months in prison.
On August 28, 2008, Romero filed a motion in the District Court, asserting that the time he had served in custody “from the date of his first refusal to sign the deportation paperwork at the Peruvian Consulate” (App.70) should be credited toward his sentence for hindering removal. With his motion, Romero submitted a supporting legal memorandum and a Bureau of Prisons Sentence Monitoring Computation Form that indicates he did not receive credit for any time served prior to his sentencing. The District Court issued a *805one-sentence order denying Romero’s motion because it lacked jurisdiction. Romero then filed the present appeal, in which he argues that the District Court does have jurisdiction and erred in denying his motion.
II. Discussion2
Title 18 U.S.C. § 3585(b)3 provides that, under certain circumstances, a defendant may be given credit toward the service of a term of imprisonment for time spent in official detention prior to the date the sentence commences. The Supreme Court has held that, under Section 3585(b), the Attorney General, acting through the Bureau of Prisons, has the authority to determine whether a defendant is entitled to prior custody credit in the first instance. United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Accordingly, district courts do not have jurisdiction to hear an application for credit for time served until a defendant has exhausted his administrative remedies by seeking credit from the Bureau of Prisons and Attorney General. See United States v. Brann, 990 F.2d 98, 103-04 (3d Cir.1993) (“[District courts do not have jurisdiction to grant credit for prior custody.... Thus, [the defendant] must first exhaust his administrative remedies ... by seeking any allowable credit for his pretrial detention from the Attorney General.”).
Thus, the District Court was correct to steer clear of the merits of Romero’s motion. Romero had the burden of demonstrating that he had exhausted administrative remedies available through the Bureau of Prisons, and he simply failed to do that. He included with his motion a Sentence Monitoring Computation Form generated by the Bureau of Prisons, but that at most proves only what is conceded, namely that he was not given credit for any of the time he was in custody before his sentencing. It does not prove anything about whether he pursued available administrative remedies to get such credit. In an apparent effort to address that deficiency, he argues before us that he stated in his moving papers in the District Court that he “sought relief through the Bureau of Prisons.” (App.78.) If a mere assertion in a legal memorandum were evidence, he might have advanced his cause, but it is not. Romero did not provide any evidence that he has exhausted his administrative remedies, and until he is able to do so and to carry his burden of proof, the District Court will not have jurisdiction to consider his motion.
III. Conclusion
Because Romero did not show that he has exhausted his administrative remedies, we will affirm the District Court’s order denying his motion.
. We dismissed Romero's appeal because we lack jurisdiction to review a final order of removal against an alien who is removable by reason of having committed an aggravated felony. Romero v. Att'y Gen., No. 06-1494 (3d Cir. July 24, 2006) (citing 8 U.S.C. § 1252(a)(2)(C)).
. We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the District Court's determination that it lacked jurisdiction. See Frett-Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir.2008) ("[OJur review of a dismissal for lack of subject matter jurisdiction is plenary.”)
. Title 18 U.S.C. § 3585(b) reads as follows:
(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
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MEMORANDUM **
Raul Contreras-Gonzalez, a native and citizen of Mexico, seeks review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings. We dismiss the petition for review.
We lack jurisdiction to review the Board’s denial of petitioner’s motion to reopen, which introduced further evidence of hardship to his United States citizen wife in that she has been diagnosed with anemia and depression. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir.2006) (explaining that § 1252(a)(2)(B)(i) bars jurisdiction where question presented in motion to reopen is essentially the same un-reviewable discretionary issue originally decided).
Our conclusion that we lack jurisdiction to review the Board’s denial of reopening forecloses petitioner’s argument that the *303Board failed to meaningfully review and adequately analyze the evidence and issues raised in the motion. See Fernandez, 439 F.3d at 603-04.
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jose Arturo Campos Mendez and Amalia Campos, natives and citizens of Guatemala and Mexico, respectively, petition pro se for review of the Board of Immigration Appeals’ denial of their application for cancellation of removal based on their failure to establish the requisite hardship to their United States citizen children. Petitioners also challenge the BIA’s denial of their motion to remand to the immigration judge.
We lack jurisdiction to consider the BIA’s nonreviewable discretionary determination that there was insufficient evidence to establish the requisite hardship. See Fernandez v. Gonzales, 439 F.3d 592, 601-03 (9th Cir.2006). In addition, the BIA did not abuse its discretion when it denied petitioners’ request to remand based on its determination that petitioners did not present any previously unavailable evidence of hardship. See 8 C.F.R. § 1003.2(c)(1).
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Saul Covarrubias-Ramos, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals order dismissing his appeal from an immigration judge’s (IJ) decision denying his application for cancellation of removal. We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that petitioner failed to show exceptional and extremely unusual hardship to a qualifying-relative. 8 U.S.C. § 1252(a)(2)(B); Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir.2009). We also lack jurisdiction to review the agency’s discretionary denial of voluntary departure. See 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i). Petitioner’s contentions that the IJ failed to properly consider the law and weigh all evidence of hardship do not raise a colorable due process claim. Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
Substantial evidence supports the IJ’s determination that petitioner did not meet the continuous physical presence requirement, because the record shows he was ordered removed in 2001, thereby interrupting his accrual of continuous physical presence in the United States. See Gutierrez v. Mukasey, 521 F.3d 1114, 1117-18 (9th Cir.2008); Juarez-Ramos v. Gonzales, 485 F.3d 509, 511 (9th Cir.2007). We lack jurisdiction to review petitioner’s collateral attack on his expedited removal order. Garcia de Rincon v. DHS, 539 F.3d 1133, 1139-40 (9th Cir.2008).
PETITION FOR REVIEW DISMISSED in part and DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
SLOVITER, Circuit Judge.
Jacob G. Marley appeals the District Court’s order granting summary judgment in favor of appellee CORT Furniture Rental Corporation on Marley’s claim that CORT discriminated against him in violation of § 1981 and New Jersey state law by failing to promote him to any of the three positions for which he applied, specifically in Retail Sales, Executive Sales, and as Assistant Distribution Manager. We will affirm.1
Because we write primarily for the parties, our recitation of the facts is brief. Marley, who came to the United States from Liberia in order to conduct business on behalf of the Liberian government, was granted asylum due to a Liberian civil war. In October 2004, Marley began working for CORT as a delivery truck driver. In September 2005, Marley was involved in a car accident that resulted in his being placed on medical leave until October 18, 2005. On Marley’s return to work, he was told by his doctor that he should not lift anything heavy. Although Marley remained a delivery truck driver despite his injury, he was given an additional assistant for moving the furniture he delivered.
Sometime after Marley’s return to work, he expressed to CORT’s then-District General Manager, Anthony DeCant, his desire to explore the potential for a promotion to sales. DeCant was replaced by Bill Rosa-*800to in December 2005, and Marley informed Rosato of his desire to start working in sales. The two met in February 2006, and their versions of the meeting differ but they agree there was some reference to Marley’s accent, which is the basis for Marley’s discrimination claim. Instead of resolving the issue of the effect of Marley’s Liberian accent, the District Court granted summary judgment for CORT on the ground that Marley failed to establish that he was qualified for any of the positions he sought, and therefore did not make out a prima facie case.
In support of its motion for summary judgment, CORT relied on our decision in Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir.2008), where we held that a plaintiff pursuing a mixed-motive theory of discrimination under Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), must prove s/he was qualified for the position sought before proceeding on a discrimination claim. We also stated that “[i]n this respect at least, requirements under Price Waterhouse do not differ from those of McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)” (often referred to as the pretext theory) ]. The District Court reviewed the record produced on summary judgment and analyzed the qualifications needed for both sales positions for which Marley applied. The Court determined that Marley did not meet the necessary qualifications.
The Court explained that for both sales positions an applicant was required to have prior furniture sales experience and the ability to lift 25 pounds for the executive sales position and 50 pounds for the retail sales position. The Court stated that “[bjecause Marley did not have the requisite experience or the ability [to] meet the lifting requirements, he was not qualified for the jobs.” App. at 11. Moreover, although Marley claimed to have previous sales experience, he did not dispute that he did not have any furniture sales experience. We have reviewed the record and see nothing that suggests the District Court erred.
The retail sales position was filled by Charles Jagger sometime after the meeting between Marley and Rosato. Jagger had been with the company only a short time but had previous sales experience. In addition, Jagger had participated in tent sales of CORT furniture. Jagger received positive reviews in response to those tent sales. The executive sales position was filled by an individual Marley described only as a, “short, white, Caucasian kid.” App. at 306.
In May 2006, Richard Petchulat was hired as Assistant Distribution Manager. Marley alleges he was denied this position even though he applied for it, and that an hour after he applied he was informed he was not qualified for the job. That position requires three years experience in warehouse/clistribution management. Prior to his employment at CORT, Petchulat had seven years experience in warehouse management. Marley has offered no testimony or evidence regarding his warehouse management experience.
Similarly, with respect to the Assistant Distribution Manager position, the Court noted that Marley did not have three years of warehouse experience, a job requirement, whereas the successful candidate did. Although Marley disputes that there was such a requirement, he failed to articulate what the job requirements actually were and thus has not met his required burden.
Accordingly, the District Court concluded that Marley failed to establish a prima facie case for failure to promote based on his race, and the Court entered summary judgment. We find no error in the Dis*801trict Court’s analysis. Accordingly, we will affirm
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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OPINION
PER CURIAM.
Toumany Fofana petitions for review of an order of the Board of Immigration Appeals (BIA), which dismissed his appeal from an Immigration Judge’s (IJ’s) final removal order. We will deny the petition.
Fofana is a native and citizen of Mauritania. He arrived with false documents in December 2002. He filed an application for asylum and conceded removability. He sought relief based on his claim that he was slave who escaped from his master, and that if he were to be returned to Mauritania, his master would kill him. In a hearing before an IJ, Fofana testified that his parents were born into slavery, as was he. A.R. 88.1 His master was a white *802Moor. Id. He is of the Soninke ethnic group. A.R. 85. He helped his father herd cattle when he was younger, and took over the job at the age of 15, when his father was too old to work. A.R. 88. Fo-fana testified that he was whipped and beaten with a baton frequently, but that he did not have any permanent marks or scars from the beatings. A.R. 90-93. In December 2000, his father fell ill. They begged the master to get him medical attention, but he refused, and his father died a week later. A.R. 90, 199. Fofana became determined to escape. He secretly sold four head of cattle. A.R. 94. He had a birth certificate, and had recently obtained an identity card. A.R. 129. He and his mother and siblings2 escaped to Mali. A.R. 94. Although he could not legally work in Mali, he found some employment with Mr. Dianguine Makadji, with whom he bore a striking physical resemblance. A.R. 103.
Makadji allowed him to “borrow” his passport, which contained a business visa for the United States. Makadji also apparently used the wages owed to Fofana to purchase a plane ticket and give him the equivalent of about $500.00. A.R. 99, 105-06. Fofana claimed that he is unable to read or write in any language. A.R. 108, 117. His seatmate helped him fill out his 1-94 form on the airplane. Id. When they arrived at JFK, he found someone who spoke his language who translated for him in the inspection interview. That person wrote down a Manhattan address for him, and gave it to a cab driver to take Fofana there. A.R. 110-11. The address was a place where other Mauritanians lived, and he stayed there for about a year. A.R. 113-14.
The IJ made an adverse credibility finding based on questions regarding: (1) Fo-fana’s identity card; (2) the lack of any marks on Fofana’s body from alleged frequent beatings; (3) Fofana’s story of how he borrowed the passport and how a stranger helped him in his airport interview; and (4) Fofana’s testimony that two submitted letters from friends back home (which did not mention slavery) were unsolicited, but that other letters, which he had misplaced, spoke about the problems of slavery in Mauritania. Because the IJ found that Fofana was not credible, he denied asylum and withholding of removal. The IJ also found no evidence that Fofana would be tortured if he were to return to Mauritania.
The BIA adopted and affirmed the IJ’s decision, and stated that it agreed that Fofana was not credible. The BIA recognized that the IJ “cited numerous factors in his adverse credibility determination,” and noted “in particular, the discrepancies cited by the Immigration Judge regarding [Fofana’s] Mauritanian identity document and the forensics report (I.J. at 9; Tr. at 79) and the respondent’s implausible testimony about his inspection when he arrived in the United States and the assistance of the stranger (I.J. at 7, 10), a matter which is adequate to be a factor in an adverse credibility determination.” A.R. 2.
An adverse credibility finding is reviewed under the substantial evidence test, and must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting 8 U.S.C. § 1252(b)(4)(B)). An adverse credibility finding cannot be supported by spec*803ulation, conjecture or minor inconsistencies, but must involve discrepancies that go to the “heart of the asylum claim.” Kaita v. Attorney General, 522 F.3d 288, 296 (3d Cir.2008).3
We hold that the IJ’s adverse credibility finding is supported by substantial evidence. We agree with the BIA that the questions regarding Fofana’s identity card particularly support the finding. First, the record notes that the card was issued in 1996, but that Fofana did not receive it until three years later. A.R. 133-34. Fo-fana had no explanation for this oddity. Fofana also insisted that the card was issued without a picture or fingerprint, and that he added those later. A.R. 134. There is no evidence in the record that the government of Mauritania would issue an identity card without a picture or seal. Fofana’s identity goes to the heart of his claim; failure to establish his identity undermines any claim that he is a former slave.4 The BIA also cited Fofana’s “implausible testimony about his inspection when he arrived in the United States and the assistance of the stranger” as a factor supporting the adverse credibility finding. We find it is not entirely implausible that Fofana could have found, among people disembarking from a flight from Mali, someone who spoke his language and who was willing to assist him. However, the IJ, who has heard many asylum cases, found that the details of Fofana’s story, including his alleged use of his employer’s passport, were more consistent with those of a person who had used a smuggler to gain entry to the United States. A.R. 35.
Because the evidence in support of Fofa-na’s credibility is not “so compelling that no reasonable factfinder could conclude as the [IJ] did,” see Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003), we will deny the petition for review.
. According to documents in the record, slavery has been outlawed in Mauritania several times, but it apparently still exists in some places. See e.g., U.S. Department of State, Country Reports on Human Rights Practices — Mauritania for 2005, at 13; A.R. 179. See also articles at A.R. 216-30.
. Two different asylum applications in the record state in the attached narrative that Fofana has a sister. He denied that at the hearing before the IJ, stating that he had only two brothers, and that the person who prepared his applications must have misunderstood. A.R. 86, 94, 127. The IJ does not seem to have considered this discrepancy in making his adverse credibility finding.
. The provisions of the Real ID Act of 2005 regarding review of adverse credibility findings do not apply to cases such as this one, where the asylum application was filed before the enactment of the Real ID Act. Real ID Act of 2005, Pub.L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005).
. The IJ also questioned why Fofana’s father would not obtain cards for the whole family rather than just Fofana. However, Fofana testified that his father may have obtained cards for the whole family; he did not know whether other family members had cards. A.R. 135-36. We thus do not consider this factor as supporting the adverse credibility finding.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Edgar Romero, a native and citizen of Peru, was convicted of hindering his removal from the United States. He appeals an order from the United States District Court for the Middle District of Pennsylvania denying his motion seeking credit for a portion of the time he served in custody while awaiting removal. Because Romero did not show that he had exhausted his administrative remedies, the District Court correctly concluded that it lacked jurisdiction. We will therefore affirm.
I. Background
Romero came to the United States from Peru with his parents in 1983. In 1993, he was convicted of robbery and sentenced to one to three years in prison. Ten years later, he was convicted of domestic abuse and sentenced to a year in prison. While he was in a New York state prison for the latter offense, immigration authorities instituted removal proceedings against him and, after he completed his state sentence, he was transferred to federal custody for the duration of those proceedings. In August 2005, an immigration judge ordered Romero’s removal from this country, and he unsuccessfully appealed that order to the Board of Immigration Appeals and our Court.1
As part of the removal process, Romero was taken to the Peruvian Consulate in Patterson, New Jersey and asked to sign certain travel documents required by Peru. He refused. On a second trip to the Consulate, he again refused to sign the travel documents. On November 8, 2006, a grand jury in the Middle District of Pennsylvania charged Romero with one count of hindering removal, in violation of 8 U.S.C. § 1253(a)(1)(B) and (c). Following a bench trial, the District Court found Romero guilty and sentenced him to 72 months in prison.
On August 28, 2008, Romero filed a motion in the District Court, asserting that the time he had served in custody “from the date of his first refusal to sign the deportation paperwork at the Peruvian Consulate” (App.70) should be credited toward his sentence for hindering removal. With his motion, Romero submitted a supporting legal memorandum and a Bureau of Prisons Sentence Monitoring Computation Form that indicates he did not receive credit for any time served prior to his sentencing. The District Court issued a *805one-sentence order denying Romero’s motion because it lacked jurisdiction. Romero then filed the present appeal, in which he argues that the District Court does have jurisdiction and erred in denying his motion.
II. Discussion2
Title 18 U.S.C. § 3585(b)3 provides that, under certain circumstances, a defendant may be given credit toward the service of a term of imprisonment for time spent in official detention prior to the date the sentence commences. The Supreme Court has held that, under Section 3585(b), the Attorney General, acting through the Bureau of Prisons, has the authority to determine whether a defendant is entitled to prior custody credit in the first instance. United States v. Wilson, 503 U.S. 329, 334, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Accordingly, district courts do not have jurisdiction to hear an application for credit for time served until a defendant has exhausted his administrative remedies by seeking credit from the Bureau of Prisons and Attorney General. See United States v. Brann, 990 F.2d 98, 103-04 (3d Cir.1993) (“[District courts do not have jurisdiction to grant credit for prior custody.... Thus, [the defendant] must first exhaust his administrative remedies ... by seeking any allowable credit for his pretrial detention from the Attorney General.”).
Thus, the District Court was correct to steer clear of the merits of Romero’s motion. Romero had the burden of demonstrating that he had exhausted administrative remedies available through the Bureau of Prisons, and he simply failed to do that. He included with his motion a Sentence Monitoring Computation Form generated by the Bureau of Prisons, but that at most proves only what is conceded, namely that he was not given credit for any of the time he was in custody before his sentencing. It does not prove anything about whether he pursued available administrative remedies to get such credit. In an apparent effort to address that deficiency, he argues before us that he stated in his moving papers in the District Court that he “sought relief through the Bureau of Prisons.” (App.78.) If a mere assertion in a legal memorandum were evidence, he might have advanced his cause, but it is not. Romero did not provide any evidence that he has exhausted his administrative remedies, and until he is able to do so and to carry his burden of proof, the District Court will not have jurisdiction to consider his motion.
III. Conclusion
Because Romero did not show that he has exhausted his administrative remedies, we will affirm the District Court’s order denying his motion.
. We dismissed Romero's appeal because we lack jurisdiction to review a final order of removal against an alien who is removable by reason of having committed an aggravated felony. Romero v. Att'y Gen., No. 06-1494 (3d Cir. July 24, 2006) (citing 8 U.S.C. § 1252(a)(2)(C)).
. We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the District Court's determination that it lacked jurisdiction. See Frett-Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir.2008) ("[OJur review of a dismissal for lack of subject matter jurisdiction is plenary.”)
. Title 18 U.S.C. § 3585(b) reads as follows:
(b) Credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences—
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
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MEMORANDUM **
Felipe Carrasco-Rivera appeals his 48-month sentence and conviction for being a previously deported alien found in the United States, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err in imposing a sixteen-level sentencing enhancement for Carrasco-Rivera’s prior conviction under California Penal Code § 288(a). See U.S.S.G. § 2L1.2(b)(l)(A)(ii). We previously have held that § 288(a) categorically constitutes a “crime of violence” under the approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir.2003). For the reasons explained in United States v. Medina-Villa, 567 F.3d 507, 511 (9th Cir.2009), our recent decision in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), does not change this conclusion.
As Carrasco-Rivera concedes, his remaining arguments — that we should limit Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), to its facts under the doctrine of constitutional doubt; that Almendarez-Ton-es has been overruled; and that 8 U.S.C. § 1326(b) is unconstitutional — are squarely foreclosed by our precedent. See United States v. Salazar-Lopez, 506 F.3d 748, 751 n. 3 (9th Cir.2007); United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006); United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Isaul Rodriguez-Banuelos appeals from the 70-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Rodriguez-Banuelos contends that his sentence is unreasonable because its is based upon dated criminal conduct that should not have been scored for purposes of his criminal history. He also contends that the district court failed to properly apply the § 3553(a) sentencing factors. We conclude that the sentence imposed is substantively reasonable and procedurally sound. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 *312(2007); United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054-1058 (9th Cir.2009). Rodriguez-Banuelos’ contention that using the same prior conviction for the sentencing enhancement and for calculating his criminal history score constitutes impermissible double counting is foreclosed. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir.2009) (per curiam).
We remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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*313MEMORANDUM **
Ricardo Flores-Gareia appeals the sentence imposed following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326.
Flores-Gareia contends that the district court failed to consider properly all of the 18 U.S.C. § 3553(a) factors when it sentenced him, thereby rendering his sentence unreasonable. Our review of the record shows that the district court considered all of the factors under 18 U.S.C. § 3553(a) when it sentenced Flores-Gar-eia, and sentenced him in accordance with those factors. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Accordingly, we conclude the district court’s 65-month sentence was reasonable.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
PER CURIAM.
Petitioner Mohammad Arshad is a citizen of Pakistan. He entered the United States in 2001 with a visitor’s visa, which he overstayed. Arshad was placed in removal proceedings in 2003. He conceded removability, but sought asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and voluntary departure. The IJ denied relief and the BIA dismissed Arshad’s subsequent appeal. Arshad then filed a petition for review.
I
Before the IJ, Arshad testified that he worked as an engineer in Pakistan. His primary employment was at the Pearl Continental Hotel in Lahore, where he maintained air conditioning systems. He testified that he also worked part-time, performing similar tasks at properties owned by then-president Nawaz Sharif and Sharif’s relatives. Arshad testified that although he met Nawaz Sharif a few times, they never spoke about anything other than the installation of air systems. Arshad claimed that he was a supporter of Sharif s political party, the Pakistani Muslim League, Nawaz Sharif Group (“PML-N”), but that he was not an official member of the party and was otherwise politically inactive. Arshad stopped working *812for Nawaz Sharif after the president lost power in a coup.
In November 1999, following the rise of President General Musharraf, Arshad was taken from his home by military personnel. Arshad claimed that military officials questioned him repeatedly during his detention, trying to obtain incriminating and/or false testimony about Nawaz Sharif. He further alleged that he was deprived of proper food and sleep, and that the military officials threatened to get him fired from his job, “take his life,” and take away his children’s education. Within two days of his return home, Arshad went to the hospital, where he was given medicine and told to eat properly and get rest. He then spent nearly a week at home recuperating. Arshad’s son, Waseem Arshad, testified that his father had rashes on his body.
In July 2000, Arshad was again taken into custody from his house. Local police detained him for four days, allegedly asking for incriminating and/or false information about Nawaz Sharif. Arshad testified that he again told the authorities nothing about Sharif. When he returned home, he again went to the hospital and received similar treatment.
Arshad testified that, in November 2000, he was forced to resign from his job at the hotel. Although he was given a letter of recommendation stating that he resigned of his own accord, he claimed that he believed authorities had contacted hotel management and forced them to terminate his employment. He claimed that he opted to resign to avoid the stigma of being fired. Nevertheless, he was unable to find another job in his field in Lahore.
Arshad came to the United States in 2001. While living in Harrisburg, he drove to Kennedy Airport in New York upon learning that Shabaz Sharif, Nawaz Sharif s brother, was traveling to the United States. Arshad testified that a newspaper advertised Shabaz Sharifs trip and suggested that supporters of the PML-N greet Shabaz Sharif at the airport. While at the airport, Arshad was able to speak with Shabaz Sharif for 10 or 15 minutes. During the conversation, Sharif allegedly advised Arshad to put off returning to Pakistan, as PML-N supporters were being arrested and detained. When Shabaz Sharif departed the country, Arshad went to the airport again to see him off. Sharif again told Arshad to delay returning to Pakistan.
Arshad also claimed that in 2004, Na-beed Arshad, one of his sons living in Pakistan, was arrested and falsely charged with making speeches against the Musharraf government. Nabeed was held only so that officials could get information about his father’s whereabouts. Waseem Arshad corroborated his father’s testimony about Nabeed’s arrest. However, Waseem also testified that he did not fear returning to Pakistan, and that his family had otherwise lived undisturbed since his father’s move to the United States.
Ultimately, the IJ denied relief, reasoning that Arshad’s asylum application was untimely and that he failed to demonstrate past persecution or a clear probability of future persecution for withholding of removal, or past torture or a likelihood of future torture, if he is removed to Pakistan. The BIA affix-med, x-easoning that Arshad’s asylum application was untimely and that he failed to qualify for an exception to the filing deadline. The BIA also upheld the IJ’s determination that Ar-shad’s two detentions and alleged forced resignation did not amount to torture ox-persecution. Finally, the Board held that the detention and questioning of Arshad’s son about his whereabouts was insufficient to demonstrate a likelihood that Arshad would be persecuted on his retux-n.
*813II
We have jurisdiction over Arshad’s petition under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence, and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted).
Arshad raises three arguments on appeal. First, he contends that the agency erred in determining that his asylum application was untimely and not subject to a changed circumstances exception. As the Government argues, we lack jurisdiction to review the propriety of the agency’s determinations regarding the timeliness of Ar-shad’s asylum application, including the applicability of the changed circumstances exception. See 8 U.S.C. § 1158(a)(3); Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007).
Second, Arshad argues that the agency erred in determining — in light of his alleged detentions, forced resignation, and meeting with Shabaz Sharif, as well as his son’s alleged false arrest — that he was ineligible for withholding of removal or CAT relief. “The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a ‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom would be threatened on account of one of the statutorily enumerated factors.’ ” Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006) (quoting Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998)). The clear probability standard is met if the petitioner shows that it is more likely than not that he will suffer persecution if removed. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003). Persecution includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). However, it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.1 With regard to Arshad’s alleged detentions and mistreatment by Pakistani authorities, the BIA agreed with the IJ that Arshad failed to demonstrate that he was persecuted or tortured. Although he sought medical attention each time he was released, the BIA reasoned that Arshad did not show he suffered any harm greater than the denial of proper food and sleep, as opposed to cmy food or sleep, consistent with his claim that doctors told him to merely eat well and rest. Although the experiences Ar-shad claims to have suffered are troubling, we are not compelled to disagree with the BIA’s determination that the conditions of his detentions did not rise to the level of severity described in Fatin, for purposes of withholding of removal, or to the level of torture.
*814Likewise, we agree that Arshad’s letter of resignation does not demonstrate past persecution entitling him to withholding of removal. See Li, 400 F.3d at 168 (holding that the “deliberate imposition of severe economic disadvantage ... may constitute persecution” if it threatens a petitioner’s life or freedom). As the BIA and IJ noted, the letter itself states that Arshad was an excellent employee who resigned of his own accord; Arshad presented no evidence, other than his unsupported assumptions, that Pakistani officials forced his employer to terminate him.
Arshad also argues that his encounter with Shabaz Sharif at JFK Airport, in which Sharif advised him not to return to Pakistan, undermines the agency’s determination that he failed to demonstrate a likelihood of future persecution or torture. However, we lack jurisdiction to entertain that claim because he failed to exhaust the issue before the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120 & n. 6 (3d Cir.2008) (holding that exhaustion of issues is jurisdictional). A petitioner may exhaust an issue by raising it either in his brief to the BIA or in his notice of appeal from the IJ’s decision. See id. at 120-21. Arshad’s only argument before the agency regarding his meeting with Sharif was his claim that Sharifs advice constituted changed circumstances sufficient to excuse the untimely filing of his asylum application.
Next, Arshad contends that his son’s arrest under false pretenses demonstrates a likelihood of future persecution or torture. As the BIA reasoned, that fact that his son was detained on one occasion and questioned about Arshad’s whereabouts is insufficient to show that he will more than likely be mistreated. More to the point, the IJ noted that the rest of Arshad’s family has remained in Pakistan undisturbed by authorities since his son’s arrest in 2004. Indeed, his son Waseem testified that he traveled to Pakistan from the United States and neither experienced problems then nor expects to be harassed on a future return.
Finally, we turn to Arshad’s argument that the decisions of the IJ and BIA were “against the weight of the evidence.” This argument misapprehends our standard of review. As already discussed, our concern is not whether the agency reached a decision contrary to one we might reach in the first instance, but whether Arshad has shown that any reasonable adjudicator would be compelled to disagree with the agency’s decision. See 8 U.S.C. § 1252(b)(4)(B). For the foregoing reasons, we conclude that Arshad has not met that burden.
Accordingly, we will deny the petition for review.
. To qualify for relief under the CAT, an applicant must establish that it is more likely than not that he will be tortured if removed. See Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir.2005). In evaluating a claim for CAT relief, the agency considers, inter alia, evidence of past torture inflicted upon the applicant. See Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002). For an act to amount to torture, it must cause severe physical or mental pain or suffering. See Auguste, 395 F.3d at 151. For the reasons mentioned in the text, Arshad cannot prevail on his claim for CAT relief.
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OPINION
PER CURIAM.
Oswaldo Galindo-Torres petitions for review of a decision rendered by the Board of Immigration Appeals on July 31, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Galindo-Torres is a native and citizen of Colombia. He arrived in the United States in May 2004 and overstayed his temporary visa. He conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming he suffered past persecution and fears future persecution in Colombia based upon his failure to join the Colombian rebel group known as the “FARC.” Specifically, Galin-do-Torres claims that, beginning in April 2003, two FARC representatives repeatedly harassed him and threatened his life and his family because he would not agree to join the FARC or to organize street vendors on the FARC’s behalf.
On December 13, 2006, the IJ issued an oral decision. Among other things, the IJ determined that Galindo-Torres did not establish that the alleged persecution was on account of any protected ground, that *816he ever suffered any actual harm, that he ever informed the government about the harassment, or that his family members who continue to reside in Colombia face any harm. Accordingly, the IJ concluded that Galindo-Torres did not meet his burden of proof and denied the application.
Galindo-Torres appealed. The BIA affirmed the Id’s decision and dismissed the appeal on July 31, 2008. This timely petition for review followed.
II. Analysis
We review the BIA’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, for Galindo-Torres to succeed on his petition for review, this Court “must find that the evidence not only supports that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Galindo-Torres attempted to prove that he suffered past persecution in Colombia and, as a result, is entitled to a rebuttable presumption that he would also face future persecution.1 See Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir.2003). “To establish eligibility for asylum on the basis of past persecution, an applicant must show: (1) an incident, or incidents that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces a government is either unable or unwilling to control.”2 Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003). The BIA concluded that Galindo-Torres failed to meet his burden of proof to establish that he suffered past persecution.
A.
To obtain asylum, an individual must demonstrate that he is a “refugee” within the meaning of the INA. To do so requires a showing that he is unwilling or unable to return to his home country because of “... persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]. Galindo-Torres argues that the BIA erroneously concluded that he failed to show persecution “on account of any statutorily-protected ground.” Specifically, Galindo-Torres claims “membership in a particular social group” targeted for persecution in Colombia: “influential, respected business people who refuse to aid, join or support the FARC.”3 See INA § 101(a)(42) [8 U.S.C. § 1101(a)(42) ].
*817The INA does not define the term “particular social group.” The statutory language is “almost completely open-ended,” see Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.1993), and we have recognized that the “contours of what constitutes a ‘particular social group’ are difficult to discern.” Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003). Accordingly, in giving meaning to this phrase, we generally have deferred to the BIA’s interpretation. See Fatin, 12 F.3d at 1239; Lukwago, 329 F.3d at 171; see also Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
In A-M-E, the BIA explained that, for purposes of the INA, a proposed “particular social group” must (1) exhibit a shared characteristic that is socially visible to others in the community, and (2) be defined with sufficient particularity. In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (BIA 2007); see also Matter of S-E-G-, et al., 24 I. & N. Dec. 579, 582 (BIA 2008) (“membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility.”); In re C-A-, 23 I. & N. Dec. 951 (BIA 2006) (social visibility of the members of a claimed social group is an important consideration in identifying the existence of a particular social group). Relying upon A-M-E-, the BIA concluded that Galindo-Torres made “no showing” that his proposed social group satisfied the social visibility and particularity requirements.4
In response, Galindo-Torres argues that, because he actively refused to join the FARC, he “is forever branded as an enemy to a powerful guerilla group that is known to harass, persecute and torture those who do not join them.” He contends that his “refusal status” provides a central and unchangeable reason why the FARC will continue to target him. See Lukwago, 329 F.3d at 178 (“immutability” of the shared characteristic is required to establish membership in a particular social group).
Even if accepted as true, Galindo-Tor-res’s argument concerning the immutability of his group membership is irrelevant. The BIA did not base its decision on the immutability (or lack thereof) of the shared characteristic common to the proposed group members. Rather, the BIA *818concluded that Galindo-Torres failed to provide any evidence of social visibility and particularity, reasonably relying on its pri- or precedent setting forth those requirements. See A-M-E-, 24 I. & N. Dec. at 74-76 Galindo-Torres provides nothing to compel us to reach a conclusion contrary to the BIA’s. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812 (1992). We have reviewed the record and conclude that substantial evidence supports the BIA’s decision.
B.
Galindo-Torres also argues that, although the BIA concluded that Galindo-Torres testified credibly about the intimidation, threats, and harassments by the FARC, the BIA “cast some doubt on his credibility” by noting that he failed to report the alleged incidents of persecution to authorities in Colombia. He contends that the BIA impermissibly “invented] explanations to justify its conclusions,” and as a result, the BIA’s decision does not rest upon substantial evidence.
We disagree. The BIA unequivocally accepted the IJ’s determination that Galindo-Torres was “credible.”5 However, the BIA also determined as a matter of law that the incidents Galindo-Torres described — essentially, threats, intimidation, and harassment by two FARC members— did not rise to the level of past persecution. See Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir.2006).
We have defined persecution to include “threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.” Lukwago, 329 F.3d at 168. However, persecution does not encompass all forms of unfair, unjust, or even unlawful treatment. Fatin, 12 F.3d at 1240. Accordingly, we have limited the type of threats constituting persecution to “only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’ ” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005). Such threats must be highly imminent in nature. Id. We agree with the BIA’s conclusion that the threats and harassment that Galindo-Torres described were not sufficiently menacing or imminent to rise to the level of persecution. See Chavarria, 446 F.3d at 518.
III. Conclusion
In sum, we conclude that the BIA’s decision to deny Galindo-Torres’s application rests upon substantial evidence, and there is nothing in the record that would compel a reasonable fact finder to conclude that reversal is warranted. We have carefully examined Galindo-Torres’s other contentions and find them to be without merit. We will therefore deny the petition for review.
. In his brief, Galindo-Torres raises no argument concerning die denial of his CAT claim. As a result, the claim is waived. See Singh v. Gonzales, 406 F.3d 191, 200 n. 9 (3d Cir.2005).
. Galindo-Torres also sought withholding of removal, and therefore bore the burden of demonstrating a “clear probability” of persecution, by showing "it is more likely than not” that he would be persecuted if he were to return to Colombia. See INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A)]; INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Because the standard for withholding of removal is more stringent than that for asylum, his failure to demonstrate eligibility for asylum necessarily means that his application for withholding of removal must also fail. See Mudric v. Att’y Gen., 469 F.3d 94, 102 n. 8 (3d Cir.2006). For convenience, we will discuss only the asylum application, but our analysis also applies to the withholding of removal claim.
.In the alternative, Galindo-Torres argues that he was persecuted on account of his political opinions, as reflected in his activities aimed at organizing local street vendors. *817However, because Galindo-Torres did not present this argument to the BIA, it is unex-hausted and we will not consider it. See INA § 242(d)(1) L8 U.S.C. § 1252(d)(1)]; Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
. Under BIA precedent, to satisfy the social visibility requirement, Galindo-Torres would have had to present evidence that influential Colombian businesspeople who refuse to join the FARC are "perceived as a group by society" — in other words, they are generally recognized in Colombia to be at some greater risk of harm than others who refuse to join the FARC. See A-M-E-, 24 I. & N. Dec. at 74 (proposed group of "affluent Guatemalans” not socially visible because there was no evidence that wealthy Guatemalans are recognized to be at greater risk of crime than the general population); see also S-E-G-, 24 I. & N. Dec. at 587 (“Salvadoran youths who resisted gang recruitment" was not a socially visible group because the youths were not in a different position from anyone else resisting Salvadoran gangs). To satisfy the particularity requirement, Galindo-Torres would have had to show that the phrase "influential, respected businesspeople” is sufficiently specific to establish the parameters of a particular social group. See A-M-E-, 24 I. & N. Dec. at 76 (wealth was "too amorphous ... too subjective, inchoate, and variable to provide the sole basis for membership in a particular social group."); S-E-G-, 24 I. & N. Dec. at 585 (young men resisting gang membership "make up a potentially large and diffuse segment of society, and the motivation [for targeting them] ... could arise from motivations quite apart from any perception that the males in question were members of a class.”).
. The BIA noted that Galindo-Torres failed to address the IJ's finding that Galindo-Torres did not report the incidents to Colombian authorities. This finding was not in the context of assessing his credibility, but rather in considering whether he established that the government was "unable or unwilling to control” the alleged persecution. See A.R. 69. On appeal, Galindo-Torres argues that he was not required to report the persecution because we agree it would have been futile. However, because we agree with the BIA’s conclusion that Galindo-Torres did not describe harm rising to the level of persecution, we need not reach the issue of whether his objective evidence compels a finding that it would have been futile to report the harm to police.
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OPINION
PER CURIAM.
Appellant Thomas Tuka, proceeding pro se, appeals the order of the Tax Court dismissing his petition for lack of jurisdiction. For the following reasons, we will affirm.
The parties’ underlying dispute stems from the issuance by the IRS of a “lock-in” letter to Tuka and his employer in 2006. By way of background, under the Withholding Compliance Program, the IRS reviews taxpayers’ claimed withholding allowances to see if excessive or improper allowances are being claimed. If an insufficient sum is being withheld, the IRS notifies the taxpayer’s employer — via “lock-in letter” — to begin withholding additional taxes 60 days after receipt of the letter. See I.R.M. ¶ 5.19.11.3.3(3). Employees who receive lock-in letters may *820seek administrative reconsideration within 30 days of receiving the letter. See id.
Nine months after receiving the lock-in letter, Tuka filed a petition in the Tax Court, alleging that he was deprived of an administrative i*emedy to challenge the change in his withholding status, as the action constituted a levy which was conducted without the required Collection Due Process (“CDP”) proceedings provided for in I.R.C. § 6330 [26 U.S.C. § 6330].1 Tuka also filed a motion to restrain the collection of any additional withholding taxes and refund any taxes already withheld. Because no formal notice of determination had been issued, the Tax Court ordered the parties to show cause why Tuka’s petition should not be dismissed. Ultimately, the Tax Court dismissed Tuka’s petition because no notice of determination had been issued by the IRS. Tuka now appeals that decision.
II
We have jurisdiction pursuant to 26 U.S.C. § 7482(a). Our review is limited to the propriety of the Tax Court’s decision, and we may not consider issues that were not part of the Tax Court proceeding or grant relief that would be beyond the power of the Tax Court itself. See IRC § 7482(a)(1), (c)(1); Comm’r v. McCoy, 484 U.S. 3, 6, 108 S.Ct. 217, 98 L.Ed.2d 2 (1987) (a “court of appeals lacks jurisdiction to decide an issue that was not the subject of the Tax Court proceeding”).
In dismissing Tuka’s petition, the Tax Court reasoned that it lacked jurisdiction because the IRS never issued a notice of determination. The Tax Court is a court of limited jurisdiction. See McCoy, 484 U.S. at 7, 108 S.Ct. 217. When a taxpayer invokes the protection of IRC § 6330, as Tuka did, the Tax Court’s jurisdiction “depends upon the issuance of a valid notice of determination by the IRS Office of Appeals and the filing of a timely petition for review.” Boyd v. Comm’r, 451 F.3d 8, 10 n. 1 (1st Cir.2006); see § 6330(d)(1) (a “person may ... appeal such determination to the Tax Coui*t”).
The IRS Office of Appeals will issue a notice of determination only after a taxpayer receives a CDP hearing to challenge an alleged deficiency. See § 6330(c)(3). The notice of determination, to be valid, must contain certain information prescribed by regulation: e.g., whether the IRS complied with laws and procedural requirements, whether and to what extent the taxpayer raised appropriate issues and/or defenses, and whether any proposed collection alternatives are acceptable. See Treas. Reg. § 301.6330-l(e)(3)(Q & A-E8(i)) (detailing the contents of a notice of determination). We agree with the Commissioner that the lock-in letter Tuka received does not constitute a notice of determination. See Davis v. Comm’r, 96 T.C.M. (CCH) 269, 272 (2008); Ballard v. Comm’r, 93 T.C.M. (CCH) 1394, 1396 (2007), aff'd, 310 Fed.Appx. 177 (9th Cir.2009) (unpublished opinion). Tuka never received a CDP hearing before the IRS Office of Appeals. Moreover, the lock-in letter, which merely explained that the IRS instructed Tuka’s employer to adjust his withholding status, contained none of the information required of a notice of determination.
Because the lock-in letter did not constitute a notice of determination,2 we agree *821that the Tax Court lacked jurisdiction over Tuka’s petition and we need not consider his other arguments on appeal. Accordingly, we will affirm the decision of the Tax Court.
. All provisions of the Internal Revenue Code are found in Title 26 of the United States Code.
. As the Government points out, see Commissioner's brief, 26-27, it appears that Tuka’s petition to the Tax Court would have been untimely if his lock-in letter had somehow constituted a notice of determination. We need not, and do not, rely on this ground. See McCoy, 484 U.S. at 6, 108 S.Ct. 217.
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OPINION
PER CURIAM.
Ferry Tjhie and his wife, Shinta Liem, petition for review of an order of the Board of Immigration Appeals (“BIA”) adopting and affirming the Immigration Judge’s (“U”) decision denying their applications for relief from removal. We will deny the petition for review.
Tjhie and Liem are natives and citizens of Indonesia.1 Tjhie came to the United States in March 1998 as a visitor, and Liem came here in January 1999 as a visitor. In 2003, the Immigration and Naturalization Service issued a notice to *822appear charging that Tjhie and Liem are subject to removal for remaining here longer than permitted. Through counsel, Tjhie and Liem conceded their removability. They applied for withholding of removal and relief under the Convention Against Torture (“CAT”). Tjhie and Liem withdrew their requests for asylum because their applications were untimely filed.
At their hearing before the IJ, Tjhie and Liem relied on their written affidavits for the facts supporting their claims for relief. Tjhie, who is Chinese, stated in his affidavit that in 1997 he was baptized and became a Christian. Tjhie had a printing business where he and Liem worked. Tjhie stated that at first he had a good relationship with his employees, and that the employees had no problem with their Christian religion. However, when riots and church bombings became more prevalent, the employees changed. The employees broke the machinery, made bad products, and teased Liem on account of her church activities. Their relationship with their employees worsened, and Tjhie decided to lay them off. The employees asked for a large sum of money as separation pay and threatened to burn down the business. Tjhie and the employees ultimately agreed upon an amount of separation pay. Tjhie stated that after the employees left, they still tried to destroy the business. In 1998, Tjhie’s friend invited him to travel to the United States with him. Tjhie stated that he wanted to tour and to see if there was a chance for business here. Tjhie feels safe here and does not want to return to Indonesia based upon his past experience. He stated that he can go to church here without fear.
Liem, who also is Chinese, stated in her affidavit that in 1989 she began attending the Christian church. She was baptized in 1993 and was an active church member. People in her neighborhood and at work began to harass her. She stated that the business also suffered and ultimately closed in December 1998. In January 1999, Liem came here to attend a church seminar in California. She then went to Philadelphia to see Tjhie. Liem does not want to return to Indonesia due to the ongoing religious conflict. She fears her life would be in danger as a practicing Christian.
Tjhie also testified at the hearing that he feared that his life was threatened in Indonesia. Liem testified that she was traumatized by the past, that she feared her belongings would be destroyed again, and that she would be followed and ridiculed when she went to church. Liem also stated on cross-examination that, after Tjhie left Indonesia, she was kicked twice while riding her motorcycle to church.
In denying withholding of removal and relief under the CAT, the IJ concluded that Tjhie and Liem did not meet their burden of proof to show that they would more likely than not be harmed if they returned to Indonesia. The IJ believed that Tjhie and Liem suffered economic problems when they lost their employees and had to run their company, and that these events led to Tjhie’s trip to the United States. The IJ noted that Tjhie came here for a business opportunity, and that his wife came here on church-related business. The IJ also noted that they waited more than four years to file their asylum applications. The IJ stated that the country reports reflect that inter-ethnic and interreligious relations involving Christians and Chinese in Indonesia have improved. The IJ recognized that Chinese individuals may be subject to discrimination, but stated that discrimination is insufficient for withholding of removal or CAT relief. The IJ also noted that there was no evidence that the government had ever harmed them, would more likely than not *823harm them, or would act in concert with others to harm them.
The BIA adopted and affirmed the IJ’s decision, noting that Tjhie and Liem were involved in an employment dispute over pay with former employees that was unrelated to their religion or ethnicity, and that the threats Tjhie and Liem received from their former employees did not amount to persecution. This petition for review followed.
To the extent the BIA adopted the decision of the IJ, we review the IJ’s decision. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). We review the findings of fact related to Petitioners’ withholding for removal and CAT claims under the substantial evidence standard. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). Under this standard, we will not disturb these findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id. We must uphold the findings of fact unless the evidence not only supports a contrary conclusion, but compels it. Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
There is substantial evidence supporting the IJ’s conclusion that Tjhie and Liem did not establish that it is more likely than not that they will be harmed if removed to Indonesia.2 The harm Tjhie and Liem experienced to their business in Indonesia did not constitute past persecution. See Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993) (noting persecution includes threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom). There is also no evidence showing that the Indonesian government ever harmed Tjhie or Liem or was unwilling to protect them. As noted by the IJ, with the exception of continued violence in certain areas, the country reports in the record reflect advances in interreligious tolerance in Indonesia. The country reports do not reflect persecution of Chinese individuals. Tjhie and Liem have not identified any evidence compelling contrary conclusions.3
Accordingly, we will deny the petition for review.
. The parties refer to Shinta as Shinta "Lim.” As recognized by the Government, the administrative record reflects' that her last name is "Liem.” A.R. at 251.
. To be granted withholding of removal, an alien must show that it is more likely than not that his life or freedom would be threatened in the country of removal because of his race, religion, nationality, membership in a particular social group, or political opinion. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003). To be granted relief under the CAT, an alien must show that it is more likely than not that he or she would be tortured if removed. Id. at 471.
. We note that Petitioners' brief misstates the record, referring to events that neither Tjhie or Liem stated occurred in their affidavits. See Pet'rs' Br. at 8, 13.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Keith Scutching challenges his sentence of 63 months’ imprisonment — a term within the applicable Guidelines range of 63 to 78 months — -arguing that the District Court failed meaningfully to consider his personal history and characteristics, as required under 18 U.S.C. § 3553(a)(1). In a written guilty plea, Scutching waived his right to appeal the sentence imposed.1 *827Supplemental Appendix (“SA”) 6-7. Accordingly, the government asks the Court to affirm the sentence imposed, without reaching the merits of Scutehing’s challenge.
Where the government invokes an appellate waiver as a bar to our review, a defendant “must raise any challenge to the waiver’s enforceability.” United States v. Goodson, 544 F.3d 529, 536 (3d Cir.2008); see also United States v. Miliano, 480 F.3d 605, 608 (1st Cir.2007). Scutching does not contest the validity of the waiver, which we independently conclude is enforceable here.
Accordingly, we will AFFIRM the Judgment and Commitment Order of the District Court.
. The plea agreement provides in pertinent part:
10. In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived....
b. If the government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
(1) the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count as set forth in paragraph 6 above;
(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; and/or
(3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), imposed an *827unreasonable sentence above the final Sentencing Guideline range determined, by the Court.
S.A. 6-7 (emphasis added). None of these exclusions apply here, as the sentence imposed was within the applicable Guidelines range, and Scutching's challenge to his sentence under § 3553(a) does not implicate a “constitutional claim[] that the relevant case law holds cannot be waived.” S.A. 6; see also United States v. Gwinnett, 483 F.3d 200, 205-06 (3d Cir.2007).
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Charles E. Atwood, II pled guilty to causing others to make false statements to the United States, in violation of 18 U.S.C. §§ 1001, 2(b), and was sentenced to twelve months in prison. He appeals his sentence, arguing that, when determining his Sentencing Guidelines range, the District Court erred by incorrectly calculating the amount of loss caused by his offense. Because the District Court did not clearly err in determining the loss amount and cor*829rectly rejected Atwood’s argument for an offset of the loss, we will affirm.
I. Background
Atwood served as president, chief executive officer, and board member of Gichner Systems Group, Inc. (“Gichner”), a company that designs, manufactures, markets, and sells military and commercial shelters and related goods. A significant portion of Gichner’s business involves supplying shelters to the United States armed forces under contracts with the Department of Defense (“DOD”). Such contracts are subject to various disclosure and accounting requirements under the Truth in Negotiations Act (“TINA”), 10 U.S.C. § 2306a, and the Federal Acquisitions Regulations System (“FAR”), 48 C.F.R. § 1.101, et seq. TINA and FAR require defense contractors to provide the government with accurate cost and pricing data prior to being awarded contracts that exceed certain monetary thresholds. See 10 U.S.C. § 2306a(a)(l). Contractors may not receive payment for goods and services supplied under ethically suspect circumstances, such as transactions involving conflicts of interest. See 10 U.S.C. § 2306a(h)(l); 48 C.F.R. § 31.205-33(c)(3) (stating that the government will not bear costs for “services obtained ... in violation of any statute or regulation prohibiting improper business practices or conflicts of interest”).
In 1995, Gichner suffered financial difficulties and began outsourcing engineering and marketing functions as a cost-reduction measure. In July 1996, Gichner granted B & B Engineering Group, Inc. (“B & B”) exclusive rights to market Gich-ner products east of the Mississippi River. B & B received substantial fees and commissions for its services.
Between 1996 and August 2004, Gichner was awarded ten contracts that were subject to TINA and FAR. The cost of each contract included funds that others at Gichner paid to B & B as fees and commissions for marketing services. Unbeknownst to Gichner, Atwood and his wife owned a controlling stake in B & B, an interest that was subject to TINA and FAR disclosure requirements. Gichner first learned of the Atwoods’ affiliation with B & B in August 2004, and the newly discovered conflict of interest meant that Gichner officers had inaccurately certified the company’s TINA and FAR data between 1996 and 2004. Gichner’s incomplete certifications resulted in payments of $294,479 that the government claims would not have been approved had it known of Atwood’s conflict. The government and Gichner eventually settled those claims for the full amount of the alleged overpayment.
On December 5, 2007, the government filed a one-count criminal information against Atwood, charging him with causing Gichner officials to make false statements in the form of inaccurate TINA certifications. On December 20, 2007, Atwood pled guilty pursuant to a written plea agreement. The government agreed that, for purposes of sentencing, it would recommend that the loss amount did not exceed $294,479. Atwood reserved the right to contest the loss amount at sentencing.
On June 9, 2009, the United States Probation Office issued a presentence report (“PSR”) that valued the loss resulting from Atwood’s conduct at $294,479. It assigned Atwood a base offense level of six and applied a twelve-level enhancement under § 2B1.1(b)(1)(G) of the Sentencing Guidelines because the loss amount was more than $200,000 but less than $400,000.1 The *830Probation Office also recommended an additional two-level increase because he had abused a position of trust and a three-level reduction for acceptance of responsibility. Based on these adjustments, it concluded that Atwood had an offense level of 17, a criminal history category of I, and a Guidelines range of 24 to 80 months in prison.
Atwood objected to the PSR, arguing that the court should reduce the loss amount by the value of the services that B & B rendered to Gichner. At the hearing to resolve the loss-related issues, the government called two witnesses to explain its loss assessment. First, it called Special Agent Tiffany Linn, who testified that she interviewed four of the government contracting officers who negotiated the contracts at issue. Linn explained that none of the officers would have approved the B & B fees and commissions had they known of Atwood’s self-dealing.
Next, the government called Jeffery LaRock, a supervisory auditor for the Defense Contract Audit Agency. LaRock testified that contractors must submit general and administrative (“G & A”) expense rates to the DOD before contracts are awarded. The G & A rate is the ratio of the contractor’s firm-wide administrative costs to the total cost of its business operations. See 48 C.F.R. § 2.101. It represents costs attributable to general business operations rather than those generated by a particular contract. Id. Contractors use their G & A rates as negotiation tools during the bidding process, and the government relies on those rates to set contract prices.
The G & A rates that Gichner submitted during the bidding process included commissions and fees paid to B & B that would not have been incorporated into the contract price had Atwood disclosed his conflict of interest. The government estimated the overpayment resulting from his offense by revising the prices of Gichner’s contracts. It subtracted B & B commissions and fees from Gichner’s other administrative costs and calculated a new G & A rate. It then applied the new rate to the contracts at issue and subtracted the resulting total from the amount the government actually paid Gichner. This formula, which was identical to the analysis Gichner employed when negotiating a settlement with the government, yielded a loss amount of $294,479.
Atwood called his own expert, who conceded that the government’s figures and methodology for computing the overpayment were sound but argued that the overpayment did not accurately represent the government’s loss for three reasons. First, he claimed that the government would have approved some of the B & B expenses had Atwood properly disclosed his self-dealing. Second, he contended that, in arriving at its loss figure, the government applied the new G & A rate to contracts in which B & B did not participate, rendering the government’s loss amount overinclusive. Third, he argued that the government had not realized any loss because it both received the shelters and services for which it contracted and recouped approximately $294,000 from Gichner. In the alternative, Atwood argued that he should receive a credit against the loss to the extent of the amounts the government recovered from Gichner.
The District Court rejected each of those arguments. First, it noted that the government would likely have disallowed the fees and commissions paid to B & B had Atwood divulged his conflict of interest, and Atwood had not identified any pertinent statute or regulation to support his assertion that the government would have approved some of the charges. Second, the Court clarified that B & B’s commissions affected Gichner’s overall G & A *831rate, which the government applied to all contracts with Gichner, regardless of whether they contained fees and commissions payable to B & B. Thus, the government necessarily calculated the total loss amount by applying its revised G & A rate to every contract, including those from which B & B did not receive a fee. Third, the Court concluded that the government’s receipt of Gichner’s products and successful recovery of the overpayments did not vitiate Atwood’s culpability for initially inducing the loss and that he remained responsible for the full $294,479.
The Court also concluded that under § 2B1.1 of the Sentencing Guidelines a defendant may receive a credit against a loss only if the loss is paid back before an offense is detected. Atwood was ineligible for a credit because he did not repay the B & B commissions before Gichner or the government detected the overcharge.
Based on these conclusions, the District Court determined that Atwood’s Guidelines range was 24 to 30 months in prison. The Court imposed a sentence of 12 months, finding that a below-Guidelines sentence adequately deterred Atwood from engaging in future criminal conduct. It also ordered Atwood to pay Gichner restitution in the amount of $294,479. Atwood filed a timely appeal, arguing that the District Court erred in computing the loss amount and by failing to give him a credit against the loss.
II. Discussion2
We review a district court’s factual findings at sentencing, including the amount of any relevant monetary loss, for clear error, and we exercise plenary review over interpretations of the Sentencing Guidelines. United States v. Jimenez, 513 F.3d 62, 85-86 (3d Cir.2008); United States v. Kushner, 305 F.3d 194, 197 (3d Cir.2002). At sentencing, the government must prove the loss amount necessary to trigger a sentencing enhancement by a preponderance of the evidence. Jimenez, 513 F.3d at 86. “Although the burden of persuasion remains with the Government, once the Government makes out a prima facie case of the loss amount, the burden of production shifts to the defendant to provide evidence that the Government’s evidence is incomplete or inaccurate.” Id. On appeal, Atwood advances the same three arguments that he raised before the District Court. We will address each in turn.
First, Atwood claims that the loss amount is less than $294,479 because the government would have allowed some of B & B’s fees and commissions notwithstanding his conflict of interest. The District Court properly rejected this argument. Besides being utterly speculative, Atwood’s claim runs contrary to the applicable federal regulation, 48 C.F.R. § 31.205-33, which states that “[pjrofessional and consultant services ... obtained, performed, or otherwise resulting in violation of any statute or regulation prohibiting improper business practices or conflicts of interest” are “unallowable.” 48 C.F.R. § 31.205-33(c)(3). Agent Linn testified that none of the government contracting officers she interviewed would have approved any portion of the B & B costs due to Atwood’s conflict. Atwood’s guesswork regarding costs that the government might have allowed is inadequate to rebut that evidence.
Second, Atwood argues that the government’s loss calculation is inflated because it applies the revised G & A rate to all Gichner contracts, regardless of whether B & B received commissions from them. As the District Court explained, however, that argument ignores the meth*832ods by which contractors bid for DOD contracts and the government sets rates. Because the fees that Gichner paid to B & B were used to calculate the G & A rate that determined the price for all contracts-not just those for which B & B received fees-the government appropriately applied the new G & A rate to all the contracts at issue.
Finally, Atwood argues that the government did not suffer a loss because it received both the shelters and services it contracted for and the $294,479 that Gichner paid to settle the TINA and FAR claims. In a line of reasoning that demonstrates man’s capacity for creative self-justification, Atwood contends that the re-coupment from Gichner allowed the government to obtain Gichner and B & B’s combined services at a below-contraet price, resulting in a “windfall” to the government. (Appellant’s Opening Brief at 20.) As the District Court correctly noted in rejecting that argument, the government would not have allowed B & B’s costs had Atwood disclosed his conflict of interest in the first place. B & B’s satisfactory performance of its obligations to Gichner does not exonerate the unallowa-ble costs contained in the purchase contracts. Moreover, the reimbursement that Gichner paid to the government did not prevent the parties affected by Atwood’s offense from realizing an actual loss. Both Gichner and the federal government were victims of Atwood’s crime. The government’s recoupment from Gich-ner does not absolve the loss because no one has yet made Gichner whole. See U.S. Sentencing Guidelines Manual § 2B1.1 emt. n. 3(A)(i) (2007) (defining “actual loss” as “the reasonably foreseeable pecuniary harm that resulted from the offense”). The District Court recognized this and properly required Atwood to make restitution to Gichner for the amounts that Gichner paid to the government. Hence, Atwood may not rely upon Gichner’s reimbursement to avoid the loss caused by his criminal conduct.
Atwood relatedly argues that the District Court should have given him credit against the loss for the services rendered by B & B. Application Note 3(E) to § 2B1.1 of the Sentencing Guidelines provides that the amount of “[ljoss shall be reduced by ... [t]he money returned, and the fair market value of the property returned and the service rendered, by the defendant or other persons acting jointly with the defendant, to the victim before the offense was detected.” Id. cmt. n. 3(E)(i). The flaw in Atwood’s reasoning is that B & B rendered services to Gichner, not to the federal government. We question whether Atwood “aet[ed] jointly” with Gichner such that he may claim credit for benefits and services that Gichner provided the federal government, but we need not resolve the issue because, in any event, Gichner, not the federal government, was the beneficiary of the marketing services provided by B & B. The lack of proof of benefit accruing to the victimized government renders Application Note 3(E) inapplicable on the record in this case. Accordingly, Atwood is not eligible under the Guidelines for a credit against the loss.
III. Conclusion
The government produced evidence that Atwood’s actions caused a loss of $294,479. The District Court weighed Atwood’s opposing arguments and found them inadequate to rebut the government’s loss assessment. In light of the government’s evidence, this ruling was not clearly erroneous. Because the District Court did not clearly err in determining the loss amount and correctly denied Atwood’s request for credit against the loss, we will affirm.
. Atwood was sentenced in accordance with the 2007 edition of the Sentencing Guidelines. We apply the same version of the Guidelines to the issues presented on appeal. See United States v. Wise, 515 F.3d 207, 220 (3d Cir.2008).
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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OPINION OF THE COURT
PER CURIAM.
Xiang Jing Lin, a native and citizen of China, arrived in the United States in March 2005. He appeared before an Immigration Judge (“IJ”) and conceded that he was removable for entering the United States without being admitted or paroled. See Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i) ]. In March 2006, Lin applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), alleging that he suffered persecution as a Falun Gong practitioner. The Immigration Judge (“IJ”) denied relief, finding that Lin was not credible, failed to provide reasonably available corroborative evidence, and did not establish that he was likely to be tortured in China. The Board of Immigration Appeals (“BIA”) dismissed Lin’s appeal, but relied on only two of the IJ’s adverse credibility findings.1 Lin has filed a petition for review of the BIA’s decision.
*834We have jurisdiction under INA § 242(a)(1) [8 U.S.C. § 1252(a)(1) ]. When the BIA accepts some of an IJ’s adverse credibility findings and rejects others, “the scope of the Court’s review [] includes both the BIA’s decision and the portion of the IJ’s decision that was left unchallenged in front of the BIA.” Douglas v. Ashcroft, 374 F.3d 230, 234 (3d Cir.2004). We review factual findings, including adverse credibility determinations, for substantial evidence, and must affirm them unless “a reasonable factfinder would be compelled to conclude otherwise.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). “So long as the BIA’s decision is supported by ‘reasonable, substantial, and probative evidence on the record considered as a whole, we will not disturb the BIA’s disposition of the case.’ ”2 Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
While in college studying law, Lin began to secretly practice Falun Gong with his “supervisor” and several classmates. The college’s Communist Party Committee discovered them and notified the security bureau. Consequently, Lin was arrested and detained for 48 hours, during which he allegedly “suffered severe torture and interrogation.” Lin graduated from college in July 2002 with a specialized degree in law, but, because a record of the arrest appeared in his college file, employers refused to hire him for law-related jobs. Although Lin was later accepted into law school, his acceptance was revoked after a background check revealed his arrest.
The BIA based its adverse credibility determination on two alleged discrepancies. The first involved Lin’s claim, both in his written asylum statement and in his testimony, that he was permitted to finish college after his arrest. See Administrative Record (“A.R.”) 145-46, 228. According to the BIA, this allegation conflicted with a statement made by Lin’s father in a letter to the IJ. In that letter, Lin’s father asserted that “[bjecause [Lin] once was detained for practicing Falun Gong, he was excluded from the college.” Id. at 206. When asked about this alleged discrepancy, Lin explained that his father “is not sure because during the time when he came to visit me I told my father I will get excluded.” Id. at 147. This explanation is likely adequate, especially considering that upon his release from detention, Lin had been told that he was “going to face disciplinary action from the college.” Id. at 120. In addition, Lin’s father also acknowledged, at least implicitly, that Lin was able to pursue his education, noting that Lin’s “study, life, and work were severely suppressed” following his detention. Id. at 206. At bottom, the BIA appeared to believe that Lin did not credibly testify about finishing college. Importantly, however, Lin provided a copy of his college diploma. Id. at 184, 188. In light of this objective evidence of Lin’s graduation, the BIA’s credibility determination is not supported by substantial evidence.
The second adverse credibility determination centered on an alleged inconsistency in Lin’s work history. Lin testified that *835“[f]rom '02 all the way to '05 I basically cannot find a job.” A.R. 127. The IJ later asked Lin a series of questions about his efforts to find law-related jobs, such as whether Lin “looked for any other line of work for that three years to see if there was something else you could do with your college degree.” Id. at 133. Lin replied that he did not. Id. Later, the IJ asked a significantly broader question: “[w]hat did you do from 2002 to 2005 ... [ojther than practice Falun Gong two to three times a week and send[ ] out 40 or 50 resumes in a three-year period.” Id. at 137. Lin replied that he had done nothing else. Id. On his asylum application form, however, Lin indicated that he worked as a Director for the Fuzhou Goods Circulation Company from September 2002 until March 2005. A.R. 221. The Government attorney noted that “the Judge asked you whether you worked from 2002 until 2005, [and] you never mentioned that you were director of the Fuzhou Goods Circulation Company.” A.R. 152. Lin replied, “[t]hat had nothing to do with the law.” Lin also explained that the company transported goods between supermarkets, that he worked there part time for a “[t]otal combined” period of one or two months, and that he performed only “odd jobs.” Id. at 150-52. We agree with the BIA that these explanations are inadequate. Lin’s failure to mention his job at the Fuzhou Goods Circulation Company in response to specific questions about his employment history during a discrete period of time is sufficient to support the adverse credibility determination.
Finally, the BIA properly denied Lin’s CAT claim because the record contains no evidence that anyone in the Chinese government, or acting with its acquiescence, seeks to torture him. See Tarrawally v. Ashcroft, 338 F.3d 180, 187-88 (3d Cir.2003); 8 C.F.R. § 208.16(c)(2).
For these reasons, we will deny Lin’s petition for review.
. The BIA rejected the IJ’s decision to base its adverse credibility finding on alleged omissions and discrepancies concerning the date Lin began practicing Falun Gong and the date he was arrested. In addition, the Board specifically declined to address the IJ's conclusion that Lin failed to provide adequate evidence corroborating his claims.
. Because Lin applied for relief after May 11, 2005, the BIA’s credibility determinations are governed by the REAL ID Act of 2005. Under the REAL ID Act, an IJ may base her credibility determination on observations of the applicant’s demeanor, the plausibility of the applicant’s story, and on the consistency of the applicant's statements. See INA § 208(b)(l)(B)(iii) [8 U.S.C. § 1158(b)(l )(B)(iii) ]; Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006). Although we have not considered whether this provision is consistent with due process, see El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir.2009) (citing “five other circuits that have considered the new standard in published opinions’’), we note that Lin’s challenge to the BIA’s adverse credibility finding would also fail under the pre-REAL ID Act standard.
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OPINION
PER CURIAM.
Khurram Afzal, a citizen of Pakistan, entered the United States as a visitor in October 2003. He overstayed his visa, and the Government charged him with remova-bility. Afzal conceded the charge and filed an application for asylum, withholding, and relief under the Convention Against Torture (CAT).1 He claimed that he suffered persecution at the hands of his father-in-law, a police officer, on the basis of his Ahmadi religion and social group.2
The Immigration Judge (“IJ”) disbelieved Afzal’s account. Based on the testimony at the hearing, the documents in the record, and the lack of evidence from Af-zal’s wife, the IJ concluded that Afzal’s conflict with his father-in-law was unrelated to Ahmadiyya. The IJ was also concerned that there might be open criminal charges against Afzal in Pakistan. The IJ denied Afzal’s applications for relief from removal because without credible testimony, Afzal did not meet his burdens of proof.
Afzal appealed to the Board of Immigration Appeals (“BIA”). The BIA found no clear error in the IJ’s determination that Afzal did not testify credibly in support of his claims, pointing out inconsistencies between Afzal’s application and testimony and other evidence in the record. The BIA also cited the lack of corroboration from Afzal’s wife as support for the decision. The BIA dismissed Afzal’s appeal.
Afzal presents a petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA relied on the IJ’s reasoning, we review the decisions of the BIA and the IJ. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, including an adverse credibility finding, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). We evaluate whether a credibility determination was “appropriately based on inconsistent statements, contradictory evidences, *837and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen, 376 F.3d at 223. We afford an adverse credibility finding substantial deference, so long as the finding is supported by sufficient, cogent reasons. See Butt, 429 F.3d at 434.
Because the adverse credibility determination in this case was supported by sufficient, cogent reasons, we will deny the petition for review. In his counseled asylum application, Afzal wrote that he is “active member of the Ahmadi sect of Muslim religion.” R. 27. He also stated that he follows Ahmadi beliefs. See id. Elsewhere, he wrote that he is “part of’ the Ahmadi religion. R. 378. All of these statements conflict with his testimony that he is not an Ahmadi. R. 95. Although Afzal said that he has Ahmadi friends, has heard Ahmadi sermons, and has paid dues to the group, he testified that he is not part of the Ahmadi group. Id. at 75, 95-97. He further specified that he did not say his prayers in an Ahmadi mosque. Id. at 96. Also, Afzal has a passport as a Muslim. The Pakistani government requires anyone who receives a passport as a Muslim to denounce the founder of the Ahmadi faith. Id. 349. Afzal has not converted to the Ahmadi faith while he has been in the United States although he said that he plans to convert and explained that he had health problems that interfered with his activities (although he has been able to work when he needed money). Id. at 104-07.
Furthermore, as the IJ and BIA explained, Afzal’s explanation for his arrest in Pakistan (that it was instituted by his father-in-law because of Afzal’s interest in Ahmadiyya) is undermined by other evidence in the record. Afzal himself provided other reasons for his conflict with his father-in-law, including that his father-in-law owed him money and did not want to pay it back. R. 98, 103. As the IJ noted, Afzal’s father’s affidavit, which did not mention Afzal’s interest in Ahmadiyya, is evidence that the dispute and resulting arrest stemmed from Afzal’s father-in-law’s response to demands for repayment. R. 98; 261. An account from someone who passed by the scene of the commotion is similar, noting the conflict over money. R. 283. Other evidence supports another reason Afzal gave, that his father-in-law expected him to go to England with his wife and Afzal refused to go. R. 103. Also in the record is a document that appears to be a police report. R. 285. In that report, Afzal is described as coming with two others, brandishing weapons and threatening harm, to his father-in-law’s house, where his wife was living because of “constrained relations” with Afzal. R. 285. As the IJ noted, it is not clear from the record if the Pakistani criminal case against Afzal was ever resolved.
The inconsistencies in the record provide a sufficient basis for the adverse credibility determination and the rejection of Afzal’s claims for relief. The IJ did not engage in “wholesale nitpicking,” as Afzal argues in his brief (citing the distinguishable case of Cham v. Attorney Gen. of the United States, 445 F.3d 683, 691 (3d Cir.2006)).
The IJ and BIA also noted Afzal’s failure to provide corroboration from his wife.3 To the extent that the IJ and the BIA required corroboration, the require*838ment was reasonable. Although Afzal has resumed communicating with his wife, R. 93, and submitted to the IJ a love note she purportedly sent him, R. 254-56, he did not provide a statement from her to corroborate his account. Under Abdulai v. Ashcroft, the agency must 1) identify the facts for which it is reasonable to expect corroboration; 2) inquire as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, 3) analyze whether the applicant has adequately explained his or her failure to do so. See 239 F.3d 542, 554 (3d Cir.2001). It was reasonable to expect Afzal to provide a statement from his wife, who would know of any history of her father’s displeasure with Afzal’s faith, who was at her parents’ house when the conflict ensued, and who speaks on the phone and corresponds with Afzal. Afzal’s only explanation for the lack of corroboration from his wife is Afzal’s statement that his attorney did not tell him he needed information from her. R. 94.
In short, because substantial evidence supports the determination that Afzal did not provide credible testimony to meet his burden of proof for asylum, withholding, or CAT relief, we will deny his petition for review.
. The Government argues that Afzal does not continue to pursue his claim for withholding under the CAT. However, we do not read his brief on appeal to waive the issue, as it includes specific references to his claim for CAT relief, the standard for an award of CAT relief, and a challenge to the basis for the agency's denial of CAT relief. See, e.g., Appellant's Brief 3 & n. 1, 9, 17-18.
. Ahmadis consider themselves to be Muslim; however, the Government of Pakistan views them as a non-Muslim minority. R. 349.
. The BIA seemed to mention corroboration as an aside. However, although the BIA and IJ discussed the lack of corroboration separately from the inconsistencies in Afzal's account, part of their discussions suggests that they conflated the credibility and corroboration analysis somewhat. Nonetheless, the basis for the BIA's ultimate decision is Afzal's failure to provide credible testimony, R. 2, a basis supported by substantial evidence in the record. Cf. Obale v. Attorney Gen. of the United States, 453 F.3d 151, 163 (3d Cir.2006).
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MEMORANDUM **
Mura Guzman-Pimentel, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ denial of her motion to reopen the underlying denial of her application for cancellation of removal, which was based on petitioner’s failure to establish the requisite hardship to her qualifying relatives.
Petitioner introduced new evidence of hardship by submitting evidence that her United States citizen daughter Stephanie was recently diagnosed with asthma, and evidence that Stephanie’s condition would be exacerbated if petitioner were removed to Mexico. Petitioner contends that the BIA erred in denying the motion to reopen when it concluded that Stephanie’s asthma did not constitute a “very serious health issue,” and erred by not considering all of the new evidence.
We conclude that the BIA properly considered the new evidence offered by petitioner, and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law”). We also conclude that petitioner has not overcome the presumption that the BIA reviewed all of the new evidence submitted with the motion to reopen. See Larita *311Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir.2000).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Isaul Rodriguez-Banuelos appeals from the 70-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Rodriguez-Banuelos contends that his sentence is unreasonable because its is based upon dated criminal conduct that should not have been scored for purposes of his criminal history. He also contends that the district court failed to properly apply the § 3553(a) sentencing factors. We conclude that the sentence imposed is substantively reasonable and procedurally sound. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 *312(2007); United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054-1058 (9th Cir.2009). Rodriguez-Banuelos’ contention that using the same prior conviction for the sentencing enhancement and for calculating his criminal history score constitutes impermissible double counting is foreclosed. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir.2009) (per curiam).
We remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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OPINION
AMBRO, Circuit Judge.
William G. and Jacqueline R. Schwartz appeal a final judgment of the United States Tax Court. The Schwartzes claim that the Tax Court erred in holding that the Internal Revenue Service (“IRS”) did not abuse its discretion in rejecting the Schwartzes’ offer-in-compromise. We disagree with the Schwartzes and affirm the Tax Court’s decision.
I.
On November 10, 2003, the IRS issued real estate attorney William Schwartz and his wife, Jacqueline, a final notice of intent to levy for unpaid tax liabilities from the tax years 1996, 1997, 1998, 2000, and 2001. Their outstanding tax liabilities totaled $287,523.10. On November 17, 2008, the IRS followed with a notice of a federal tax lien. The Schwartzes responded to these notices by requesting collection due process (“CDP”) hearings under 26 U.S.C. §§ 6320 and 6330.1 These CDP hearings *807were conducted by mail and over the telephone with four different officers in the IRS Office of Appeals.2
During the CDP hearings, the Schwartzes did not challenge their overall tax liability. Instead, they entered into negotiations with the IRS over possible compromises. During these negotiations, the parties continually disagreed over the Schwartzes’ “collection potential” — particularly, the equity in the Schwartzes’ main asset, their home. The IRS Office of Chief Counsel rejected the Schwartzes’ first offer-in-compromise as legally insufficient because the appraisal offered by the Schwartzes was over two years old and, therefore, did not accurately reflect the value of the home when the offer-in-eom-promise was submitted. As a result, the Office of Chief Counsel requested additional information from the Schwartzes, including a new appraisal of their home. The Schwartzes responded with two new appraisals — one for $400,000 and another for $430,000. All told, the Schwartzes presented four separate offers-in-compromise to the IRS, ranging from $7,542 to $129,361.
By November 2005, the parties had preliminarily agreed to settle the Schwartzes’ tax liability for $129,361. Upon reaching this agreement, the Schwartzes’ Appeals officer transferred to another IRS office, and another officer was assigned to the Schwartzes’ ease. The new Appeals officer requested an opinion from the Office of Chief Counsel on the legal sufficiency of the new offer-in-compromise. On March 26, 2006, the Office of Chief Counsel concluded that it was unable to determine the legal sufficiency of the new offer because the “reasonable collection potential” of the Schwartzes’ home had not been adequately determined. The Office of Chief Counsel suggested that the Appeals officer request appraisal assistance from the IRS Engineering Group.
In April 2006, the Schwartzes’ Appeals officer was replaced again. Their case file was transferred to the new officer, who requested appraisal assistance from the Engineering Group. After reviewing the Schwartzes’ appraisals and examining related sales in the relevant housing market, the Engineering Group’s appraiser informed the Appeals officer of her preliminary analysis. She concluded that the current market value of the Schwartzes’ home might be 30-40% greater than indicated in the Schwartzes’ appraisals. Although the appraiser briefly mentioned her appraisal methods in her exchange with the Appeals officer, no formal report was ever filed by the Engineering Group on the Schwartzes’ case.
On June 6, 2006, the Office of Appeals notified the Schwartzes that the IRS had rejected their offer-in-compromise as inadequate. The Schwartzes appealed this decision to the United States Tax Court, arguing that the IRS abused its discretion in rejecting their offer-in-compromise. The Tax Court ruled in favor of the IRS, concluding that there was sufficient disagreement over the value of the Schwartzes’ home to justify the IRS’s decision to reject the offer-in-compromise. As a result, the Tax Court held that the IRS did not abuse its discretion.
On appeal, the Schwartzes argue both that the IRS valued their assets in an arbitrary and capricious manner and that, as a general matter, the IRS should be *808required by our Court to conform with the Uniform Standards of Professional Appraisal Practice (USPAP). We disagree.
II.
We have jurisdiction to review decisions of the Tax Court under 26 U.S.C. § 7482(a)(1). “We review the Tax Court’s legal determinations de novo, but we do not disturb its factual findings unless they are clearly erroneous.” Lattera v. Comm’r, 437 F.3d 399, 401 (3d Cir.2006).
III.
During CDP hearings, taxpayers are allowed to propose collection alternatives, including offers-in-compromise. 26 U.S.C. § 6330(c)(2)(iii). The IRS officer may compromise a taxpayer’s liability where it has a “[djoubt as to collectability” of the outstanding tax liabilities. 26 C.F.R. § 301.7122-l(b)(2). Once a doubt as to collectability is established, the “decision to accept or reject an offer to compromise ... is left to the discretion of the [IRS].” 26 C.F.R. § 301.7122-l(c)(l). The IRS officer must ultimately determine whether the proposal “balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection be no more intrusive than necessary.” 26 U.S.C. § 6330(c)(3)(C). Under IRS procedures, the officer will not accept a compromise that is less than the “reasonable collection value” of the case, absent a showing of special circumstances. Rev. Proe.2003-71. The offer-in-compromise should “refleet[ ] the amount the Service could collect through other means, including administrative and judicial collection remedies.” Id.
Both parties agree that we review the IRS’s rejection of an offer-in-compromise for “abuse of discretion.” Sego v. Comm’r, 114 T.C. 604, 610 (2000); see also Living Care Alternatives of Utica, Inc. v. United States, 411 F.3d 621, 625 (6th Cir.2005) (“[I]t was proper to review the IRS Appeals Office de novo with respect to decisions about the underlying tax liability and for abuse of discretion with respect to all other decisions.”). “Judicial review of such decisions is deferential.”3 Orum v. Comm’r, 412 F.3d 819, 820 (7th Cir.2005). In considering the IRS’s determination, we are not to “conduct an independent review of what would be an acceptable offer in compromise.” Murphy v. Comm’r, 125 T.C. 301, 320 (2005), aff'd, 469 F.3d 27 (1st Cir.2006). Instead, we must “determine whether the Appeals officer’s decision to reject the offer in compromise actually submitted by the taxpayer was arbitrary, capricious, or without sound basis in fact or law.” Id.
Courts have consistently held that the IRS is owed considerable deference when considering the adequacy of a taxpayer’s proposed offer-in-compromise. See, e.g., Murphy, 469 F.3d at 32 (“We will only disturb the rejection of [the appellant’s] offer-in-compromise if it represents a clear abuse of discretion in the sense of taxpayer abuse and unfairness by the IRS.”) (internal quotation marks omitted); Orum, 412 F.3d at 821 (“[T]he Judicial Branch does not instruct the Executive Branch how to make executive decisions.”); Living Care, 411 F.3d at 627 (“In most cases, reviewing courts have merely affirmed the Appeals Officer’s determination.... ”). “[W]ithout a clear abuse of discretion in the sense of clear taxpayer abuse and unfairness by the IRS, as contemplated by Congress, the judiciaiy will inevitably become involved on a daily basis with tax *809enforcement details that judges are neither qualified, nor have the time, to administer.” Living Care, 411 F.3d at 631.
IV.
There is no clear indication that the Schwartzes were treated unfairly in this case. Although unrelated circumstances forced them to communicate with four Appeals officers, the record suggests that each officer followed the relevant IRS procedures in handling the Schwartzes’ case. Furthermore, each Appeals officer was privy to their case file. The case file contained the key valuation information offered by the Schwai'tzes, including their three home appraisals and their responses to questions about possible defects in these appraisals. Importantly, the file also contained the case notes from the previous Appeals officers working on the Schwartzes’ case.
In addition, the member of the Engineering Group who analyzed the Schwartzes’ final offer-in-compromise held an MAI designation.4 Although the Schwartzes are correct in noting that the Engineering Group only offered their conclusions informally, a formal appraisal report was not required by IRS regulations and procedures.5 The Engineering Group’s informal report briefly outlined the appraiser’s methods, which included a review of the Schwartzes’ appraisals and an independent examination of related sales in the relevant housing market. Although the appraiser only offered a preliminary opinion, she concluded that the Schwartzes’ appraisals had understated the value of their home. As noted, the Engineering Group appraiser added that the value of the Schwartzes’ home may be 30-40% higher than the appraised value. In the end, it was not an abuse of discretion for the IRS to rely on one expert’s analysis over another, especially after the IRS had already noted several defects in the previous appraisals offered by the Schwartzes, beginning with their first appraisal submitted in March 2003.
Finally, contrary to the Schwartzes’ argument, the IRS was not required to use the USPAP in reviewing the Schwartzes’ appraisals. See, e.g., Whitehouse Hotel Ltd. P’ship v. Comm’r, No. 12104-03, 2008 WL 4757336, at *10 (U.S.Tax Ct. Oct.30, 2008) (“Petitioners have not cited any authority, nor do we know of any, for the proposition that an appraiser’s compliance with USPAP is the sole determining factor as to whether an appraiser’s valuation report is reliable.”).6 It was within the discretion of the IRS to consider the appropriate method for evaluating the Schwartzes’ home appraisals. See Rev. Proc.2003-71; Int. Rev. Man. 5.8.5.4.11.
V.
Over a six-year period, the Schwartzes incurred over $287,000 in tax liabilities. In handling the Schwartzes’ case, the IRS followed its established procedures. Before determining that the Schwartzes’ of*810fer-in-compromise was inadequate, the Office of Appeals reviewed the taxpayers’ submissions (including three home appraisals), researched comparable sales, and solicited the advice of the IRS Engineering Group. In the end, the IRS “gave notice, allowed a hearing, and made a reasoned decision, which is supported by substantial evidence.” Orum, 412 F.3d at 821. In so doing, we hold that the IRS did not abuse its discretion in rejecting the Schwartzes’ offer-in-compromise.
We therefore affirm the judgment of the United States Tax Court.
. Section 6330 governs the process for IRS levy actions against the property of delinquent taxpayers, and § 6320 applies to federal tax lien filings. For an extended discussion of *807the statutory framework for this process, see Murphy v. Comm'r, 469 F.3d 27, 30 (1st Cir.2006); Living Care Alternatives of Utica, Inc. v. United States, 411 F.3d 621, 624-25 (6th Cir.2005).
. The turnover in Appeals officers was due to unrelated circumstances, including the retirement of one officer and the office transfer of another.
. The Sixth Circuit Court recently cautioned against reading other notions of due process into IRS proceedings. Living Care, 411 F.3d at 629 ("[T]he notion of due process in tax collection is not the same as in other areas of law. The IRS has historically had broad discretion. ...”).
. "Within the real estate appraisal community MAI is viewed as the highest regarded appraisal designation." Schwartz v. Comm'r, No. 12530-06L, 2008 WL 1862652, at *3 n. 8 (U.S.Tax Ct. Apr.28, 2008).
. For an overview of the real estate valuation criteria in this context, see Int. Rev. Man. 5.8.5.4.11. Although the record indicates that the communications between the Engineering Group's appraiser and the Appeals officer were informal, the appraiser based her preliminary conclusions on other sales in the relevant housing market and her analysis of the Schwartzes' appraisals. These methods are consistent with the approved methods outlined in the Internal Revenue Manual. Id.
.In Whitehouse Hotel, the Tax Court explicitly "declinefd] to adopt USPAP as the sole standard for reliability of an expert appraiser." 2008 WL 4757336, at *10.
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OPINION
PER CURIAM.
Petitioner Mohammad Arshad is a citizen of Pakistan. He entered the United States in 2001 with a visitor’s visa, which he overstayed. Arshad was placed in removal proceedings in 2003. He conceded removability, but sought asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and voluntary departure. The IJ denied relief and the BIA dismissed Arshad’s subsequent appeal. Arshad then filed a petition for review.
I
Before the IJ, Arshad testified that he worked as an engineer in Pakistan. His primary employment was at the Pearl Continental Hotel in Lahore, where he maintained air conditioning systems. He testified that he also worked part-time, performing similar tasks at properties owned by then-president Nawaz Sharif and Sharif’s relatives. Arshad testified that although he met Nawaz Sharif a few times, they never spoke about anything other than the installation of air systems. Arshad claimed that he was a supporter of Sharif s political party, the Pakistani Muslim League, Nawaz Sharif Group (“PML-N”), but that he was not an official member of the party and was otherwise politically inactive. Arshad stopped working *812for Nawaz Sharif after the president lost power in a coup.
In November 1999, following the rise of President General Musharraf, Arshad was taken from his home by military personnel. Arshad claimed that military officials questioned him repeatedly during his detention, trying to obtain incriminating and/or false testimony about Nawaz Sharif. He further alleged that he was deprived of proper food and sleep, and that the military officials threatened to get him fired from his job, “take his life,” and take away his children’s education. Within two days of his return home, Arshad went to the hospital, where he was given medicine and told to eat properly and get rest. He then spent nearly a week at home recuperating. Arshad’s son, Waseem Arshad, testified that his father had rashes on his body.
In July 2000, Arshad was again taken into custody from his house. Local police detained him for four days, allegedly asking for incriminating and/or false information about Nawaz Sharif. Arshad testified that he again told the authorities nothing about Sharif. When he returned home, he again went to the hospital and received similar treatment.
Arshad testified that, in November 2000, he was forced to resign from his job at the hotel. Although he was given a letter of recommendation stating that he resigned of his own accord, he claimed that he believed authorities had contacted hotel management and forced them to terminate his employment. He claimed that he opted to resign to avoid the stigma of being fired. Nevertheless, he was unable to find another job in his field in Lahore.
Arshad came to the United States in 2001. While living in Harrisburg, he drove to Kennedy Airport in New York upon learning that Shabaz Sharif, Nawaz Sharif s brother, was traveling to the United States. Arshad testified that a newspaper advertised Shabaz Sharifs trip and suggested that supporters of the PML-N greet Shabaz Sharif at the airport. While at the airport, Arshad was able to speak with Shabaz Sharif for 10 or 15 minutes. During the conversation, Sharif allegedly advised Arshad to put off returning to Pakistan, as PML-N supporters were being arrested and detained. When Shabaz Sharif departed the country, Arshad went to the airport again to see him off. Sharif again told Arshad to delay returning to Pakistan.
Arshad also claimed that in 2004, Na-beed Arshad, one of his sons living in Pakistan, was arrested and falsely charged with making speeches against the Musharraf government. Nabeed was held only so that officials could get information about his father’s whereabouts. Waseem Arshad corroborated his father’s testimony about Nabeed’s arrest. However, Waseem also testified that he did not fear returning to Pakistan, and that his family had otherwise lived undisturbed since his father’s move to the United States.
Ultimately, the IJ denied relief, reasoning that Arshad’s asylum application was untimely and that he failed to demonstrate past persecution or a clear probability of future persecution for withholding of removal, or past torture or a likelihood of future torture, if he is removed to Pakistan. The BIA affix-med, x-easoning that Arshad’s asylum application was untimely and that he failed to qualify for an exception to the filing deadline. The BIA also upheld the IJ’s determination that Ar-shad’s two detentions and alleged forced resignation did not amount to torture ox-persecution. Finally, the Board held that the detention and questioning of Arshad’s son about his whereabouts was insufficient to demonstrate a likelihood that Arshad would be persecuted on his retux-n.
*813II
We have jurisdiction over Arshad’s petition under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence, and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted).
Arshad raises three arguments on appeal. First, he contends that the agency erred in determining that his asylum application was untimely and not subject to a changed circumstances exception. As the Government argues, we lack jurisdiction to review the propriety of the agency’s determinations regarding the timeliness of Ar-shad’s asylum application, including the applicability of the changed circumstances exception. See 8 U.S.C. § 1158(a)(3); Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007).
Second, Arshad argues that the agency erred in determining — in light of his alleged detentions, forced resignation, and meeting with Shabaz Sharif, as well as his son’s alleged false arrest — that he was ineligible for withholding of removal or CAT relief. “The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a ‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom would be threatened on account of one of the statutorily enumerated factors.’ ” Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006) (quoting Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998)). The clear probability standard is met if the petitioner shows that it is more likely than not that he will suffer persecution if removed. See Miah v. Ashcroft, 346 F.3d 434, 439 (3d Cir.2003). Persecution includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). However, it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id.1 With regard to Arshad’s alleged detentions and mistreatment by Pakistani authorities, the BIA agreed with the IJ that Arshad failed to demonstrate that he was persecuted or tortured. Although he sought medical attention each time he was released, the BIA reasoned that Arshad did not show he suffered any harm greater than the denial of proper food and sleep, as opposed to cmy food or sleep, consistent with his claim that doctors told him to merely eat well and rest. Although the experiences Ar-shad claims to have suffered are troubling, we are not compelled to disagree with the BIA’s determination that the conditions of his detentions did not rise to the level of severity described in Fatin, for purposes of withholding of removal, or to the level of torture.
*814Likewise, we agree that Arshad’s letter of resignation does not demonstrate past persecution entitling him to withholding of removal. See Li, 400 F.3d at 168 (holding that the “deliberate imposition of severe economic disadvantage ... may constitute persecution” if it threatens a petitioner’s life or freedom). As the BIA and IJ noted, the letter itself states that Arshad was an excellent employee who resigned of his own accord; Arshad presented no evidence, other than his unsupported assumptions, that Pakistani officials forced his employer to terminate him.
Arshad also argues that his encounter with Shabaz Sharif at JFK Airport, in which Sharif advised him not to return to Pakistan, undermines the agency’s determination that he failed to demonstrate a likelihood of future persecution or torture. However, we lack jurisdiction to entertain that claim because he failed to exhaust the issue before the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120 & n. 6 (3d Cir.2008) (holding that exhaustion of issues is jurisdictional). A petitioner may exhaust an issue by raising it either in his brief to the BIA or in his notice of appeal from the IJ’s decision. See id. at 120-21. Arshad’s only argument before the agency regarding his meeting with Sharif was his claim that Sharifs advice constituted changed circumstances sufficient to excuse the untimely filing of his asylum application.
Next, Arshad contends that his son’s arrest under false pretenses demonstrates a likelihood of future persecution or torture. As the BIA reasoned, that fact that his son was detained on one occasion and questioned about Arshad’s whereabouts is insufficient to show that he will more than likely be mistreated. More to the point, the IJ noted that the rest of Arshad’s family has remained in Pakistan undisturbed by authorities since his son’s arrest in 2004. Indeed, his son Waseem testified that he traveled to Pakistan from the United States and neither experienced problems then nor expects to be harassed on a future return.
Finally, we turn to Arshad’s argument that the decisions of the IJ and BIA were “against the weight of the evidence.” This argument misapprehends our standard of review. As already discussed, our concern is not whether the agency reached a decision contrary to one we might reach in the first instance, but whether Arshad has shown that any reasonable adjudicator would be compelled to disagree with the agency’s decision. See 8 U.S.C. § 1252(b)(4)(B). For the foregoing reasons, we conclude that Arshad has not met that burden.
Accordingly, we will deny the petition for review.
. To qualify for relief under the CAT, an applicant must establish that it is more likely than not that he will be tortured if removed. See Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir.2005). In evaluating a claim for CAT relief, the agency considers, inter alia, evidence of past torture inflicted upon the applicant. See Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002). For an act to amount to torture, it must cause severe physical or mental pain or suffering. See Auguste, 395 F.3d at 151. For the reasons mentioned in the text, Arshad cannot prevail on his claim for CAT relief.
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OPINION
PER CURIAM.
Oswaldo Galindo-Torres petitions for review of a decision rendered by the Board of Immigration Appeals on July 31, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Galindo-Torres is a native and citizen of Colombia. He arrived in the United States in May 2004 and overstayed his temporary visa. He conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming he suffered past persecution and fears future persecution in Colombia based upon his failure to join the Colombian rebel group known as the “FARC.” Specifically, Galin-do-Torres claims that, beginning in April 2003, two FARC representatives repeatedly harassed him and threatened his life and his family because he would not agree to join the FARC or to organize street vendors on the FARC’s behalf.
On December 13, 2006, the IJ issued an oral decision. Among other things, the IJ determined that Galindo-Torres did not establish that the alleged persecution was on account of any protected ground, that *816he ever suffered any actual harm, that he ever informed the government about the harassment, or that his family members who continue to reside in Colombia face any harm. Accordingly, the IJ concluded that Galindo-Torres did not meet his burden of proof and denied the application.
Galindo-Torres appealed. The BIA affirmed the Id’s decision and dismissed the appeal on July 31, 2008. This timely petition for review followed.
II. Analysis
We review the BIA’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, for Galindo-Torres to succeed on his petition for review, this Court “must find that the evidence not only supports that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Galindo-Torres attempted to prove that he suffered past persecution in Colombia and, as a result, is entitled to a rebuttable presumption that he would also face future persecution.1 See Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir.2003). “To establish eligibility for asylum on the basis of past persecution, an applicant must show: (1) an incident, or incidents that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces a government is either unable or unwilling to control.”2 Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003). The BIA concluded that Galindo-Torres failed to meet his burden of proof to establish that he suffered past persecution.
A.
To obtain asylum, an individual must demonstrate that he is a “refugee” within the meaning of the INA. To do so requires a showing that he is unwilling or unable to return to his home country because of “... persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]. Galindo-Torres argues that the BIA erroneously concluded that he failed to show persecution “on account of any statutorily-protected ground.” Specifically, Galindo-Torres claims “membership in a particular social group” targeted for persecution in Colombia: “influential, respected business people who refuse to aid, join or support the FARC.”3 See INA § 101(a)(42) [8 U.S.C. § 1101(a)(42) ].
*817The INA does not define the term “particular social group.” The statutory language is “almost completely open-ended,” see Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.1993), and we have recognized that the “contours of what constitutes a ‘particular social group’ are difficult to discern.” Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003). Accordingly, in giving meaning to this phrase, we generally have deferred to the BIA’s interpretation. See Fatin, 12 F.3d at 1239; Lukwago, 329 F.3d at 171; see also Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
In A-M-E, the BIA explained that, for purposes of the INA, a proposed “particular social group” must (1) exhibit a shared characteristic that is socially visible to others in the community, and (2) be defined with sufficient particularity. In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (BIA 2007); see also Matter of S-E-G-, et al., 24 I. & N. Dec. 579, 582 (BIA 2008) (“membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility.”); In re C-A-, 23 I. & N. Dec. 951 (BIA 2006) (social visibility of the members of a claimed social group is an important consideration in identifying the existence of a particular social group). Relying upon A-M-E-, the BIA concluded that Galindo-Torres made “no showing” that his proposed social group satisfied the social visibility and particularity requirements.4
In response, Galindo-Torres argues that, because he actively refused to join the FARC, he “is forever branded as an enemy to a powerful guerilla group that is known to harass, persecute and torture those who do not join them.” He contends that his “refusal status” provides a central and unchangeable reason why the FARC will continue to target him. See Lukwago, 329 F.3d at 178 (“immutability” of the shared characteristic is required to establish membership in a particular social group).
Even if accepted as true, Galindo-Tor-res’s argument concerning the immutability of his group membership is irrelevant. The BIA did not base its decision on the immutability (or lack thereof) of the shared characteristic common to the proposed group members. Rather, the BIA *818concluded that Galindo-Torres failed to provide any evidence of social visibility and particularity, reasonably relying on its pri- or precedent setting forth those requirements. See A-M-E-, 24 I. & N. Dec. at 74-76 Galindo-Torres provides nothing to compel us to reach a conclusion contrary to the BIA’s. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812 (1992). We have reviewed the record and conclude that substantial evidence supports the BIA’s decision.
B.
Galindo-Torres also argues that, although the BIA concluded that Galindo-Torres testified credibly about the intimidation, threats, and harassments by the FARC, the BIA “cast some doubt on his credibility” by noting that he failed to report the alleged incidents of persecution to authorities in Colombia. He contends that the BIA impermissibly “invented] explanations to justify its conclusions,” and as a result, the BIA’s decision does not rest upon substantial evidence.
We disagree. The BIA unequivocally accepted the IJ’s determination that Galindo-Torres was “credible.”5 However, the BIA also determined as a matter of law that the incidents Galindo-Torres described — essentially, threats, intimidation, and harassment by two FARC members— did not rise to the level of past persecution. See Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir.2006).
We have defined persecution to include “threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.” Lukwago, 329 F.3d at 168. However, persecution does not encompass all forms of unfair, unjust, or even unlawful treatment. Fatin, 12 F.3d at 1240. Accordingly, we have limited the type of threats constituting persecution to “only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’ ” Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005). Such threats must be highly imminent in nature. Id. We agree with the BIA’s conclusion that the threats and harassment that Galindo-Torres described were not sufficiently menacing or imminent to rise to the level of persecution. See Chavarria, 446 F.3d at 518.
III. Conclusion
In sum, we conclude that the BIA’s decision to deny Galindo-Torres’s application rests upon substantial evidence, and there is nothing in the record that would compel a reasonable fact finder to conclude that reversal is warranted. We have carefully examined Galindo-Torres’s other contentions and find them to be without merit. We will therefore deny the petition for review.
. In his brief, Galindo-Torres raises no argument concerning die denial of his CAT claim. As a result, the claim is waived. See Singh v. Gonzales, 406 F.3d 191, 200 n. 9 (3d Cir.2005).
. Galindo-Torres also sought withholding of removal, and therefore bore the burden of demonstrating a “clear probability” of persecution, by showing "it is more likely than not” that he would be persecuted if he were to return to Colombia. See INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A)]; INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Because the standard for withholding of removal is more stringent than that for asylum, his failure to demonstrate eligibility for asylum necessarily means that his application for withholding of removal must also fail. See Mudric v. Att’y Gen., 469 F.3d 94, 102 n. 8 (3d Cir.2006). For convenience, we will discuss only the asylum application, but our analysis also applies to the withholding of removal claim.
.In the alternative, Galindo-Torres argues that he was persecuted on account of his political opinions, as reflected in his activities aimed at organizing local street vendors. *817However, because Galindo-Torres did not present this argument to the BIA, it is unex-hausted and we will not consider it. See INA § 242(d)(1) L8 U.S.C. § 1252(d)(1)]; Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
. Under BIA precedent, to satisfy the social visibility requirement, Galindo-Torres would have had to present evidence that influential Colombian businesspeople who refuse to join the FARC are "perceived as a group by society" — in other words, they are generally recognized in Colombia to be at some greater risk of harm than others who refuse to join the FARC. See A-M-E-, 24 I. & N. Dec. at 74 (proposed group of "affluent Guatemalans” not socially visible because there was no evidence that wealthy Guatemalans are recognized to be at greater risk of crime than the general population); see also S-E-G-, 24 I. & N. Dec. at 587 (“Salvadoran youths who resisted gang recruitment" was not a socially visible group because the youths were not in a different position from anyone else resisting Salvadoran gangs). To satisfy the particularity requirement, Galindo-Torres would have had to show that the phrase "influential, respected businesspeople” is sufficiently specific to establish the parameters of a particular social group. See A-M-E-, 24 I. & N. Dec. at 76 (wealth was "too amorphous ... too subjective, inchoate, and variable to provide the sole basis for membership in a particular social group."); S-E-G-, 24 I. & N. Dec. at 585 (young men resisting gang membership "make up a potentially large and diffuse segment of society, and the motivation [for targeting them] ... could arise from motivations quite apart from any perception that the males in question were members of a class.”).
. The BIA noted that Galindo-Torres failed to address the IJ's finding that Galindo-Torres did not report the incidents to Colombian authorities. This finding was not in the context of assessing his credibility, but rather in considering whether he established that the government was "unable or unwilling to control” the alleged persecution. See A.R. 69. On appeal, Galindo-Torres argues that he was not required to report the persecution because we agree it would have been futile. However, because we agree with the BIA’s conclusion that Galindo-Torres did not describe harm rising to the level of persecution, we need not reach the issue of whether his objective evidence compels a finding that it would have been futile to report the harm to police.
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OPINION
PER CURIAM.
Inna Osypova, a native of the former U.S.S.R. and a citizen of Ukraine, arrived in the United States as a visitor in November 2002 with permission to remain until May 2003. In June 2003, she filed an application for asylum, withholding, and protection under the Convention Against Torture (“CAT”) based on her experiences as an Assyrian in Ukraine. The Government charged her as removable for overstaying her visa in August 2003.
Osypova conceded the removability charge before the Immigration Judge (“IJ”) at a hearing where she and an expert witness testified in support of her claims. Putting aside issues about Osypo-va’s credibility, the IJ held that Osypova had not shown past persecution or the possibility of future persecution or torture on the basis on her nationality. In the alternative, the IJ made an adverse credibility finding.
Osypova appealed to the Board of Immigration Appeals (“BIA”). The BIA concluded that it did not need to decide the credibility issue because it agreed with the Id’s alternative finding that even if Osypo-va had been a credible witness, she had *825failed to meet her burdens of proof for asylum, withholding, and CAT relief. Specifically, the BIA held that her experiences did not rise to the level of persecution, her son’s experiences were irrelevant to her request for relief, and neither Osypova nor her expert nor the information in the background materials showed that she would face persecution in the future. Osypova presents a petition for review.
We have jurisdiction over Osypova’s petition for review pursuant to 8 U.S.C. § 1252(a). See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Upon review, we will deny Osypova’s petition for review.
Assuming, as the BIA did,1 that Osypova’s testimony was credible, Osypova did not describe past persecution or a well-founded fear of future persecution. In addition to incidents that happened in other countries and name-calling when she and her family came to Ukraine, Osypova described two attacks she suffered in Ukraine. In 1996, while she was shopping for shoes for her daughter, a Nationalist (who was wearing a Nationalist armband) struck her lower back or “loin” with force, called her “a Caucasian swindler” or “Caucuses [sic] ... conniver” and told her not to shop in the stores. R. 14, 223. She required out-patient treatment for soft tissue damage and trauma to her spine. R. 225. In 2002, she was squeezed by a Nationalist in a doorway while leaving a store. R. 250. She also related how her son was attacked in 1998 by two or three (or up to five) Nationalists on his way home from school. R. 15, 234. After lobbing epithets, the Nationalists broke her son’s nose and bloodied his face. R. 228, 231-34. Osypova did not seek assistance from the police after any of these incidents.
The incidents Osypova experienced were serious and certainly frightening. However, they are examples of isolated criminal activity that do not rise to the level of persecution. Cf. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (holding that “two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, [are] not sufficiently severe to be considered persecution”). Furthermore, although Osypova may have faced unkind remarks, or even discrimination, her experiences do not rise to the level of persecution. See Jarbough v. Attorney Gen. of the United States, 483 F.3d 184, 191 (3d Cir.2007) (“Abusive treatment and harassment, while always deplorable, may not rise to the level of persecution.”); Chen v. Ashcroft, 381 F.3d 221, 233 n. 20 (3d Cir.2004) (noting that courts routinely deny immigration relief to persons “who suffer racial discrimination that falls short of persecution.”).
Moreover, Osypova did not prove that she would face future persecution. The expert who testified stated that the attacks on Osypova and her son were consistent with actions of Nationalists and that he believed that she and her family would be identifiable as different from the Slavic people of Ukraine. R. 201, 209. However, when pressed, he admitted that he had no information about the persecution of Assyrians, noting that the group was too small to be tracked. R. 205. He noted that those with darker skin, including Africans and Asians, were targeted by *826Nationalists, but he conceded that Osypova would not be viewed as either. R. 188. The expert could not point to any specific information in the record about the persecution of Assyrians in Ukraine. R. 210. Also, although her family members have since moved to other countries, Osypova’s daughter remained in Ukraine unharmed for years after Osypova’s departure. R. 257.
In short, Osypova was not entitled to asylum because she did not show that she faced past persecution or that she had a well-founded fear of future persecution. Nor did she meet the higher burden of showing a clear probability that she would be persecuted in Ukraine to entitle her to withholding. Finally, she did not show that it was more likely than not that she would be tortured on return to Ukraine, so she was not entitled to CAT relief. For these reasons, we must deny her petition for review.
. Despite Osypova's argument to the contrary, the BIA did not err in declining to resolve the credibility issue and rejecting Osy-pova's claims on the merits. See Li v. Attorney Gen. of the United States, 400 F.3d 157, 164 (3d Cir.2005).
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Keith Scutching challenges his sentence of 63 months’ imprisonment — a term within the applicable Guidelines range of 63 to 78 months — -arguing that the District Court failed meaningfully to consider his personal history and characteristics, as required under 18 U.S.C. § 3553(a)(1). In a written guilty plea, Scutching waived his right to appeal the sentence imposed.1 *827Supplemental Appendix (“SA”) 6-7. Accordingly, the government asks the Court to affirm the sentence imposed, without reaching the merits of Scutehing’s challenge.
Where the government invokes an appellate waiver as a bar to our review, a defendant “must raise any challenge to the waiver’s enforceability.” United States v. Goodson, 544 F.3d 529, 536 (3d Cir.2008); see also United States v. Miliano, 480 F.3d 605, 608 (1st Cir.2007). Scutching does not contest the validity of the waiver, which we independently conclude is enforceable here.
Accordingly, we will AFFIRM the Judgment and Commitment Order of the District Court.
. The plea agreement provides in pertinent part:
10. In exchange for the undertakings made by the government in entering this plea agreement, the defendant voluntarily and expressly waives all rights to appeal or collaterally attack the defendant's conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or collateral attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law. This waiver is not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived....
b. If the government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:
(1) the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count as set forth in paragraph 6 above;
(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines; and/or
(3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), imposed an *827unreasonable sentence above the final Sentencing Guideline range determined, by the Court.
S.A. 6-7 (emphasis added). None of these exclusions apply here, as the sentence imposed was within the applicable Guidelines range, and Scutching's challenge to his sentence under § 3553(a) does not implicate a “constitutional claim[] that the relevant case law holds cannot be waived.” S.A. 6; see also United States v. Gwinnett, 483 F.3d 200, 205-06 (3d Cir.2007).
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OPINION OF THE COURT
PER CURIAM.
Xiang Jing Lin, a native and citizen of China, arrived in the United States in March 2005. He appeared before an Immigration Judge (“IJ”) and conceded that he was removable for entering the United States without being admitted or paroled. See Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i) ]. In March 2006, Lin applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), alleging that he suffered persecution as a Falun Gong practitioner. The Immigration Judge (“IJ”) denied relief, finding that Lin was not credible, failed to provide reasonably available corroborative evidence, and did not establish that he was likely to be tortured in China. The Board of Immigration Appeals (“BIA”) dismissed Lin’s appeal, but relied on only two of the IJ’s adverse credibility findings.1 Lin has filed a petition for review of the BIA’s decision.
*834We have jurisdiction under INA § 242(a)(1) [8 U.S.C. § 1252(a)(1) ]. When the BIA accepts some of an IJ’s adverse credibility findings and rejects others, “the scope of the Court’s review [] includes both the BIA’s decision and the portion of the IJ’s decision that was left unchallenged in front of the BIA.” Douglas v. Ashcroft, 374 F.3d 230, 234 (3d Cir.2004). We review factual findings, including adverse credibility determinations, for substantial evidence, and must affirm them unless “a reasonable factfinder would be compelled to conclude otherwise.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). “So long as the BIA’s decision is supported by ‘reasonable, substantial, and probative evidence on the record considered as a whole, we will not disturb the BIA’s disposition of the case.’ ”2 Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
While in college studying law, Lin began to secretly practice Falun Gong with his “supervisor” and several classmates. The college’s Communist Party Committee discovered them and notified the security bureau. Consequently, Lin was arrested and detained for 48 hours, during which he allegedly “suffered severe torture and interrogation.” Lin graduated from college in July 2002 with a specialized degree in law, but, because a record of the arrest appeared in his college file, employers refused to hire him for law-related jobs. Although Lin was later accepted into law school, his acceptance was revoked after a background check revealed his arrest.
The BIA based its adverse credibility determination on two alleged discrepancies. The first involved Lin’s claim, both in his written asylum statement and in his testimony, that he was permitted to finish college after his arrest. See Administrative Record (“A.R.”) 145-46, 228. According to the BIA, this allegation conflicted with a statement made by Lin’s father in a letter to the IJ. In that letter, Lin’s father asserted that “[bjecause [Lin] once was detained for practicing Falun Gong, he was excluded from the college.” Id. at 206. When asked about this alleged discrepancy, Lin explained that his father “is not sure because during the time when he came to visit me I told my father I will get excluded.” Id. at 147. This explanation is likely adequate, especially considering that upon his release from detention, Lin had been told that he was “going to face disciplinary action from the college.” Id. at 120. In addition, Lin’s father also acknowledged, at least implicitly, that Lin was able to pursue his education, noting that Lin’s “study, life, and work were severely suppressed” following his detention. Id. at 206. At bottom, the BIA appeared to believe that Lin did not credibly testify about finishing college. Importantly, however, Lin provided a copy of his college diploma. Id. at 184, 188. In light of this objective evidence of Lin’s graduation, the BIA’s credibility determination is not supported by substantial evidence.
The second adverse credibility determination centered on an alleged inconsistency in Lin’s work history. Lin testified that *835“[f]rom '02 all the way to '05 I basically cannot find a job.” A.R. 127. The IJ later asked Lin a series of questions about his efforts to find law-related jobs, such as whether Lin “looked for any other line of work for that three years to see if there was something else you could do with your college degree.” Id. at 133. Lin replied that he did not. Id. Later, the IJ asked a significantly broader question: “[w]hat did you do from 2002 to 2005 ... [ojther than practice Falun Gong two to three times a week and send[ ] out 40 or 50 resumes in a three-year period.” Id. at 137. Lin replied that he had done nothing else. Id. On his asylum application form, however, Lin indicated that he worked as a Director for the Fuzhou Goods Circulation Company from September 2002 until March 2005. A.R. 221. The Government attorney noted that “the Judge asked you whether you worked from 2002 until 2005, [and] you never mentioned that you were director of the Fuzhou Goods Circulation Company.” A.R. 152. Lin replied, “[t]hat had nothing to do with the law.” Lin also explained that the company transported goods between supermarkets, that he worked there part time for a “[t]otal combined” period of one or two months, and that he performed only “odd jobs.” Id. at 150-52. We agree with the BIA that these explanations are inadequate. Lin’s failure to mention his job at the Fuzhou Goods Circulation Company in response to specific questions about his employment history during a discrete period of time is sufficient to support the adverse credibility determination.
Finally, the BIA properly denied Lin’s CAT claim because the record contains no evidence that anyone in the Chinese government, or acting with its acquiescence, seeks to torture him. See Tarrawally v. Ashcroft, 338 F.3d 180, 187-88 (3d Cir.2003); 8 C.F.R. § 208.16(c)(2).
For these reasons, we will deny Lin’s petition for review.
. The BIA rejected the IJ’s decision to base its adverse credibility finding on alleged omissions and discrepancies concerning the date Lin began practicing Falun Gong and the date he was arrested. In addition, the Board specifically declined to address the IJ's conclusion that Lin failed to provide adequate evidence corroborating his claims.
. Because Lin applied for relief after May 11, 2005, the BIA’s credibility determinations are governed by the REAL ID Act of 2005. Under the REAL ID Act, an IJ may base her credibility determination on observations of the applicant’s demeanor, the plausibility of the applicant’s story, and on the consistency of the applicant's statements. See INA § 208(b)(l)(B)(iii) [8 U.S.C. § 1158(b)(l )(B)(iii) ]; Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006). Although we have not considered whether this provision is consistent with due process, see El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir.2009) (citing “five other circuits that have considered the new standard in published opinions’’), we note that Lin’s challenge to the BIA’s adverse credibility finding would also fail under the pre-REAL ID Act standard.
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