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OPINION
PER CURIAM.
On December 28, 2004, an Immigration Judge (“IJ”) denied the application for asylum, withholding, and protection under the Convention Against Torture filed by Ramnarain Joeglal, his wife, Lelita, and their children, Randish and Rishi, through their former attorney, Jonathan Saint-Preux. The petitioners, citizens of Suriname who came to the United States in 1993, were granted voluntary departure. They did not appeal the IJ’s decision. However, six months later, on June 29, 2005, motions to reopen were submitted to the IJ. The IJ denied the motions in August and September 2005. An appeal to the Board of Immigration Appeals (“BIA”) followed; the BIA summarily affirmed the IJ’s decisions.
On June 5, 2008, the petitioners, through new counsel, Karamvir Dahiya, filed a motion to reopen and a request for a stay of removal with the BIA. That same day, the BIA granted a stay of removal to Ramna-rain and his son, Randish. Dahiya filed a supplement on July 10, 2008, but then the Joeglals, through another attorney, Darryl L. Wynn, filed another motion to reopen.
In the motion to reopen filed through Dahiya, the petitioners alleged that their former attorney, Saint-Preux, had provided ineffective assistance of counsel. They claimed that Saint-Preux filed an asylum claim for them after the IJ advised him to look into some sort of hardship relief, but he did not appear in court on the day of petitioners’ hearing. After the IJ and the petitioners waited for more than an hour, another attorney from Saint-Preux’s office appeared on his behalf. She had no knowledge of the petitioners’ claims. The IJ threatened that the petitioners would be deported unless they withdrew their asylum claim and sought voluntary departure. Without consulting with the petitioners, Saint-Preux’s substitute accepted voluntary departure on their behalf. The petitioners did not understand voluntary departure or its consequences. Meanwhile, Saint-Preux continued to charge them for his services and filed a labor certification on then- behalf. Without their knowledge, according to Dahiya, Saint-Preux filed the 2005 motions to reopen and *792appeals with the BIA. Dahiya noted that Saint-Preux was serving a term of imprisonment for fraud and had been or would be disbarred. In the motion to reopen, the petitioners, through Dahiya, also argued that the IJ’s original order allowing voluntary departure did not properly inform the petitioners about the consequence of failing to depart so enforcing the order would violate their right to due process. They sought a new hearing.
In the supplement Dahiya filed for petitioners, he elaborated that the IJ threatened petitioners with jail if they did not accept voluntary departure. He modified the facts to note that Ramnarain Joeglal, through Saint-Preux, filed the June 29, 2005 motion to reopen. He repeated his claims of ineffective assistance of counsel and due process violations. Addressing a requirement of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), Dahiya conceded that the petitioners had not filed a complaint against Saint-Preux, but argued that there was no need to do so because Saint-Preux was already serving a sentence for his crimes and was disbarred and not subject to the imposition of sanctions. In light of Saint-Preux’s conduct, the petitioners asked to be excused from the time and number limitations on motions to reopen. In the supplement, the petitioners revealed the basis for their asylum claim. Conceding that their asylum application was “unprofessionally prepared and contains glaring omissions in the land of factual narratives what is customarily expected in a professionally prepared applications” [sic], the petitioners noted that it contained “the germ of a claim for political persecution,” namely “I was constantly threatened that if I did not work with the ruling party, I and my family would be burned out of my house.” They also pointed to this statement: “Because I refused to drive for them I was detained and questioned on numerous occasions until I left the country.” They also argued that the IJ was not neutral or impartial, and acted improperly in deciding the asylum claim was bogus before any argument was presented and in threatening that petitioners choose jail or the withdrawal of the asylum claim.
In the motion to reopen filed through Wynn, petitioners similarly asked to reopen the proceedings because of the ineffective assistance of Saint-Preux. They outlined their allegations against Saint-Preux: he arrived close to four hours late to Ramnarain Joeglal’s asylum interview, submitted documents late to the IJ, never appeared at the Joeglals’ hearing, sent a substitute who could not advise them and did not explain to them the meaning or consequences of voluntary departure, and provided the Joeglals with an incomplete application for temporary residence status for which they did not qualify. Wynn stated that the petitioners complied with Matter of Lozada by sending Saint-Preux a statement of his allegations of ineffective assistance of counsel and, after receiving no response, by filing a grievance complaint with the District Ethics Committee Secretary in Jersey City, New Jersey. The petitioners again asked that them case be reopened for a rehearing on their asylum claims.
On August 1, 2008, the BIA denied both motions as time — and number-barred and vacated the stays of removal. The BIA noted that the petitioners each presented second and third motions to reopen more than three and a half years after the final administrative decision. The BIA acknowledged that ineffective assistance of counsel can provide a basis for equitable tolling, but concluded that the petitioners had not been diligent in presenting the ineffectiveness claim. The BIA noted that the petitioners knew or should have known of Saint-Preux’s ineffectiveness on December 28, 2004, the date when he did not *793appear for their merits hearing (his failure to appear being one reason the petitioners deemed Saint-Preux ineffective).
The BIA considered the petitioners’ arguments that they exercised due diligence, including contacting no fewer than eight attorneys and other legal service providers, plus various elected officials. However, the BIA noted that Ramnarain Joeglal submitted an affidavit with the Wynn motion to reopen in which Joeglal averred that he retained Dahiya in May 2007. Accordingly, the BIA calculated that even if the time limit were tolled until May 31, 2007 (the last date the Joeglals could have retained Dahiya consistent with the affidavit), the petitioners still failed to timely file their motion to reopen within 90 days or on or before August 29, 2007.
The BIA also considered whether the petitioners were alleging ineffective assistance against Dahiya (or any of the other legal providers they consulted), but rejected any such claim because they did not comply with the requirements of Matter of Lozada (and did not even identify some of the other attorneys they consulted).
The BIA also assessed whether the petitioners were trying to reapply for asylum but found that the petitioners did not submit any new application or evidence of changed circumstances in Suriname. To the extent that petitioners sought to have the BIA reopen their case sua sponte, the BIA was not persuaded that exceptional circumstances were present. The BIA also noted that Ramnarain Joeglal seemed to wish to reopen the proceedings to adjust his status based on a pending third-preference employment-based visa petition. Considering the August 2008 Visa Bulletin published by the State Department, the BIA stated that no visas were' currently available in Ramnarain Joeglal’s visa category. The BIA also noted that he had not included an application for an adjustment of status.
The petitioners now present a petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review an order denying a motion to reopen under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004); Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir.1986). The BIA’s discretionary decision will not be disturbed unless it is arbitrary, irrational or contrary to law. See Guo, 386 F.3d at 562. In this ease, the petitioners are unable to show an abuse of discretion.
An alien faces number and time limitations on filing motions to reopen. Generally, an alien may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to reopen must be filed no later than 90 days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). The general time and number restrictions are subject to some exceptions, including the suspension of the time limit in some cases of changed country circumstances, where the evidence of changed circumstances “is material and was not available and could not have been discovered or presented at the previous hearing.” See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(h), Johnson v. Ashcroft, 286 F.3d 696, 704 (3d Cir.2002). The time limit, and perhaps the numerical limit, are subject to equitable tolling. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005); Luntungan v. Attorney Gen. of the United States, 449 F.3d 551, 557 & n. 15 (3d Cir.2006).
The motions to reopen filed through Da-hiya and Wynn were the second and third such motions filed on the petitioners’ behalf. However, if it is assumed that Saint-Preux was not authorized to file a motion to reopen and the motion through Wynn is ignored, then perhaps the motion by Dahi-*794ya could survive the number limitations on motions to reopen even without tolling.
However, even if the Dahiya-authored motion could be considered the petitioners’ first motion to reopen, the petitioners cannot show the diligence necessary to surmount the time bar. Although they argue to the contrary, they did not maintain a steadfast pursuit of their case. See Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir.2007). It appears that the BIA did not abuse its discretion in concluding that the petitioners should have been on notice in 2004 that their attorney rendered ineffective assistance when he did not appear at their hearing and sent an ill-prepared substitute. Furthermore, as the BIA noted, even if the time limit were tolled until May 31, 2007, when Ramnarain Joeglal retained Dahiya, the petitioners did not file their motion within 90 days. It was not until June 5, 2008, when they were about to be removed, that the petitioners, through Dahiya, filed their motion to reopen. (Although the petitioners imply that Dahiya, too, may have been ineffective (see, e.g., Appellant’s Brief 25), they do not say so explicitly, and they retained Dahiya at an earlier stage of the proceedings before us.) Even if they did not discover Saint-Preux’s ineffectiveness until he went to jail in 2007, they still waited a minimum of five months (and possibly much longer) before filing the motion to reopen. For these reasons, the BIA did not err in concluding they did not exercise sufficient diligence in presenting their ineffectiveness claim to merit equitable tolling. See Borges, 402 F.3d at 407.
In short, the BIA’s decision was not arbitrary, irrational or contrary to law. Accordingly, we will deny the petition for review.
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Submitted are:
(1) Appellant’s motion to quash untimely brief;
(2) Appellees’ response to motion quash;
(3) Appellees’ addendum to response;
(4) Appellant’s reply to Appellees’ response;
(5) Appellees’ supplemental response to motion to quash; and
(6) Appellees’ addendum to supplemental response in the above-captioned case.
JUDGMENT ORDER
FRANKLIN S. VAN ANTWERPEN, Circuit Judge.
The foregoing has been considered by the Court and is ruled upon as follows. We note first that although the District Court’s first July 8, 2008 order denied Jones’ first motion to alter or amend, its second July 8, 2008 order gave Jones an opportunity to respond to the Defendants-Appellees’ motion to dismiss and the Magistrate Judge’s Report and Recommendation. As that is essentially the relief Jones sought in his first motion to alter or amend, Jones’ appeal from the first order is moot. See, e.g., In re Orthopedic Bone Screw Prod. Liab. Litig., 94 F.3d 110, 111 (3d Cir.1996). Moreover, the order effectively reopened the case and, as a result, there was no longer a final, appealable order in the case. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). Accordingly, we dismiss the appeal docketed at 08-3452.
With regard to the appeal docketed at 08-3893, this matter is remanded to the District Court to consider the Defendants-Appellees’ motion to dismiss in light of Jones’ response. The District Court was incorrect in its conclusion that it lacked jurisdiction because of Jones’ first notice of appeal. See Mondrow v. Fountain House, 867 F.2d 798, 800 (3d Cir.1989). Jones’ motion to quash Appellees’ brief is denied.
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OPINION
PER CURIAM.
Xue Zhi Chen petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Chen, a native of China, entered the United States in December 2003. He was subsequently charged as removable as an arriving alien without entry documents. He conceded removability and filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He argued that he had been and would be persecuted in China on the basis of his religion. The IJ found Chen not credible and denied relief. The BIA agreed and dismissed the appeal. It noted inconsistencies between Chen’s sworn statement in 2003, his credible fear interview in 2005, and his testimony at his hearing in 2007, and upheld the IJ’s adverse credibility determination. Chen filed a timely petition for review.
We have jurisdiction under 8 U.S.C. § 1252. We must uphold the adverse credibility finding unless any reasonable adjudicator would be compelled to conclude to the contrary.1 Fiadjoe v. Attorney General, 411 F.3d 135, 153 (3d Cir.2005). Chen argues that the IJ should not have based the adverse credibility finding on his conclusion that Chen did not know much about the Mormon faith or on his rejection of Chen’s documents. However, because the BIA did not adopt the opinion of the IJ and rendered its own decision, we review the decision of the BIA and not that of the IJ. Sioe Tjen Wong v. Attorney General, 539 F.3d 225, 230 (3d Cir.2008). In upholding the adverse credibility finding, the BIA relied on the inconsistencies among Chen’s reasons for coming to the United States.
In his sworn statement, Chen indicated that he had no fear of being returned to China and that he came to the United States to work. C.A.R. at 139-140. In his *797credible fear interview, Chen stated that he was persecuted in China as a member of the Buddhist organization Ai Xing. C.A.R. at 133. At his hearing, he testified that he was persecuted as a Baptist in China and had been attending a Mormon church in the United States. C.A.R. at 69, 84. Chen does not dispute the inconsistencies noted by the BIA and admits that he was untruthful. We conclude that a reasonable adjudicator would not be compelled to find Chen credible.2
For the above reasons, we will deny the petition for review.
. Because the BIA concluded that it would uphold the IJ’s adverse credibility determination even under the prior standard, we need not decide whether 8 U.S.C. § 1158(b)(1)(B)(iii) is consistent with due process. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.2009) (canvassing Circuit law on the provision).
. Even if we reviewed and rejected the IJ's concerns about Chen’s understanding of his religion, the record would not compel a finding that Chen was credible.
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OPINION
PER CURIAM.
Petitioner Nano Sukarno entered the United States as a nonimmigrant visitor on August 9, 2000. On May 12, 2003, the Immigration and Naturalization Service served Sukarno, a native and citizen of Indonesia, with a notice to appear charging him as removable for remaining in the country for a time longer than his visa permitted. Sukarno conceded removability as charged, but applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), on the ground that he had suffered past persecution and feared future persecution due to his political activities in Indonesia. Specifically, Sukarno asserted that he was persecuted because of his membership in the Golkar Party (GP) in Muncar, Indonesia.
The IJ found that Sukarno failed to corroborate his claim that he was a member of, or held a leadership position in, the GP and thus his testimony did not establish past persecution. The IJ also held that Sukarno failed to submit any evidence that a member or leader of the GP would be targeted for future persecution. In making that finding, the IJ cited to an electronic encyclopedia (Wikipedia) article the Department of Homeland Security submitted stating that the GP is active and has won more than 20 percent of the vote in recent legislative elections. (A.R.52.) The IJ denied all petitions for relief, determining that the asylum application was untimely. Sukarno appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s decision and dismissed Sukarno’s appeal. Sukarno filed a timely petition for review of the BIA’s decision.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
*799In his petition, Sukarno challenges only the BIA’s determination on his withholding of removal claim.1 To be eligible for withholding of removal, Sukarno must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C).
Sukarno challenges the IJ’s reliance on an article from an electronic encyclopedia, arguing that it is an unreliable source for factual information about the GP. We agree with the Government that this claim is waived for Sukarno’s failure to raise it before the BIA.2 See 8 U.S.C. § 1252(d)(1); Zheng v. Gonzales, 422 F.3d 98, 107-08 (3d Cir.2005) (failure to exhaust claims before the BIA bars consideration of those claims before the court of appeals). Even if we were to consider this claim, we would find it meritless. The IJ denied Sukarno’s claim based on his failure to present evidence that he would be singled out for persecution due to his GP activities and not based on the statistics in the encyclopedia article. (A.R.52-53.)
Further, the IJ and BIA’s finding with regard to past persecution is supported by substantial evidence. The IJ held that Sukarno failed to provide any corroborating evidence that he was a member of the GP. The BIA’s rule regarding coiToborating evidence contemplates a three-part inquiry: “1) identification of the facts for which ‘it is reasonable to expect corroboration;’ 2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if [he] has not, 3) an analysis of whether the applicant has adequately explained [his] failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (citation omitted). Here, since Sukarno based his entire withholding of removal claim on his membership in the GP, it would have been reasonable for him to provide corroboration of his involvement with the party. When asked why he failed to provide supporting documents, Sukarno responded that he did not bring the documents with him. (A.R.102.) The IJ did not find this explanation reasonable given Sukarno’s “leadership position [in the GP], especially in the context of his educational and occupational accomplishments in Indonesia.” (Id. at 51.) Sukarno has made no argument that would cause us to question the IJ’s conclusion.
Moreover, the only incident of harm Sukarno testified to, aside from anonymous threatening letters, was a night-time attack by assailants dressed in ninja outfits on his home while he was out of town. (Id. at 94.) While Sukarno’s wife and child were home at the time of the attack, he did not indicate that the assailants harmed them. (Id.) This account does not compel a conclusion that Sukarno experienced past persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005)(defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”) Finally, as the Government correctly points out, Sukarno’s fear of future persecution is further undermined by the fact that his family remains in Indonesia unharmed. Id. at 537.
*800For these reasons we will deny Sukarno’s petition for review.
. In the initial petition for review, Sukarno indicated that he wished to challenge the IJ's denials of his asylum claim and relief under the CAT. Sukarno's failure to raise these issues in his appellate brief, however, constitutes a waiver of the issues on appeal. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005).
. Indeed, we note that Sukarno relied on information from the article in his appeal before the BIA. (A.R.23.)
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*801OPINION
PER CURIAM.
Yan Qing Chen petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny his petition for review.
Chen, a native and citizen of China, was charged with removability pursuant to INA § 237(a)(1)(A). It is not clear from the record when or where he entered the United States, but he did so without proper documentation. Thereafter, he applied for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”) in October 2005.1 He alleged that he feared returning to China because he and his wife had two U.S.-born children in violation of China’s family planning policies. Following a hearing, the IJ denied relief, determining that Chen failed to meet his burden of proof. He appealed to the BIA, asking that the record be remanded to the IJ for the consideration of additional evidence. The BIA affirmed the IJ’s denial of relief and denied Chen’s motion to remand. Chen timely filed a petition for review.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. To qualify for asylum, Chen must show that he is a “refugee”; in other words, that he is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158. “[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(A). The well-founded fear of persecution standard involves both a subjectively genuine fear of persecution and an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). To establish eligibility for "withholding of removal, an applicant must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.1993).
Because the BIA independently assessed the record, we review only the BIA’s final order of removal. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003). The BIA concluded, based on the evidence in the record, that Chen had not met his burden of demonstrating a well-founded fear of persecution. This finding is subject to review under the substantial evidence standard. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Under this deferential standard of review, we will uphold the findings of the BIA “unless the evidence not only supports a contrary conclusion but compels it.” Id. at 484. We review the BIA’s denial of a motion to reopen for abuse of discretion. Liu v. Attorney Gen., 555 F.3d 145, 148 (3d Cir.2009). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary, irrational, or con *802trary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002).
The BIA determined that Chen failed to cany his burden of proof. Chen’s testimony consisted of the fact that he has two U.S.-born children and that, before he came to the United States, he saw “thousands” of posters and heard “thousands” of broadcasts indicating that if a couple’s first child is a boy, they cannot have any additional children, and if their first child is a girl, they must wait four years before applying for a permit to allow them to have a second child. (A.R.1168-69.) Once they have had a second child, either the husband or the wife must be sterilized. (A.R. 1169.) He further testified that he was not personally aware of anyone who returned to China from the United States with two foreign-born children and was forced to undergo sterilization. (A.R.1171.) The BIA assumed that Chen’s testimony was credible and noted the extensive documentation he submitted in support of his claim, but concluded that it was insufficient to demonstrate an objectively reasonable likelihood of sterilization upon his return to China. We cannot say that the evidence compels a contrary conclusion. See Yu v. Attorney Gen., 513 F.3d 346, 348-49 (3d Cir.2008) (affirming BIA determination that, without additional evidence to the contrary, recent State Department Country Reports indicate that petitioner’s fear of forcible sterilization was not reasonable); Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004) (requiring asylum applicant to demonstrate by “credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution”).
On appeal, Chen argues that BIA’s decision must be vacated as it failed to explicitly consider each document he submitted in support of his claim. We disagree. As we have previously held, the BIA “is not required to “write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.’ ” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir.2006) (quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000) (internal quotations omitted)). The BIA’s opinion clearly acknowledged the voluminous record compiled by Chen and concluded that it was insufficient to carry his burden of proof. Chen has not demonstrated that a contrary conclusion is compelled.2
Next, Chen challenges the BIA’s denial of his motion to remand. While the BIA has noted that motions to remand are not explicitly provided for by the statutory scheme, when such a motion requests relief normally provided for by a motion to reopen or to reconsider, the BIA will treat is as such. See Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). Chen’s motion consisted of one paragraph requesting that the case be remanded to the IJ to allow him to consider and make part of the record over 1,000 pages of background documentation. (A.R.21.) Chen made no *803argument regarding what that evidence would show, or why it was previously unavailable. (Id.) As the BIA noted, the vast majority of the documents attached to his motion pre-dated the IJ’s January 10, 2007 decision. As Chen failed to demonstrate that these documents were material and previously unavailable, the BIA properly exercised its discretion in denying the motion. See 8 C.F.R. § 1003.2(c)(1) (explaining that evidence in support of a motion to reopen must be material and previously unavailable); INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (charging the BIA with determining whether the applicant has offered previously unavailable material evidence and demonstrated prima facie eligibility for relief sought).
We have considered all of Chen’s arguments and conclude that they are without merit. Accordingly, we will deny the petition for review.
. Before the IJ, Chen indicated that he did not wish to pursue his claim for relief under the CAT. (A.R.1151.) Additionally, the BIA found that he waived any such claim by not raising it on appeal. Accordingly, we will not address the merits of that claim.
. We note in particular that Chen maintains that "[w]hen taken with the record evidence, Dr. Aird's expert opinion makes a convincing argument that the Petitioner’s fear that he will be forcibly sterilized is reasonable.... Absent any rebuttal expert affidavit, the BIA had no reason not to accept and give full weight to Dr. Aird's opinion as conclusive proof that the PRC's family planning policy remains coercive and would be applied to the Petitioner.” (Pet'r Br. 31.) However, in Yu v. Attorney General, 513 F.3d 346 (3d Cir.2008), we agreed with the BIA that recent State Department reports tend to cast doubt on the utility of Dr. Aird’s frequently-cited affidavit, which provided only generalized statements regarding China's family planning policies and did not specifically address the issue of couples returning to China with children born overseas. Id. at 348-49.
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OPINION
PER CURIAM.
Ming Qiang Gao petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Gao, a native of China, entered the United States as a visitor in March 2007. He was subsequently charged as removable for overstaying his admission period. He filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He argued that he suffered past pei-secution in China when his wife was forcibly aborted two times and faces future persecution on account of his religion. The IJ found Gao incredible and denied relief. The BIA upheld the adverse credibility determination and dismissed the appeal. It also concluded that even if Gao were credible, husbands of women who had undergone forced abortions were not automatically eligible for relief and that Gao had not shown a well-founded fear of sterilization or other persecution. It further held that Gao had not established a well-founded fear of persecution on account of his religion. Gao filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We may reverse the BIA’s decision only if the record permits but one reasonable conclusion and that was not the one reached by the Board. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To establish eligibility for asylum, Gao must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). For withholding of removal, he must demonstrate that it is more likely than not that his life would be threatened in China on account of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, Gao must demonstrate that it is more likely than not that he *805would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
We agree with the BIA that Gao is not entitled to relief even if he were credible. The spouses of those who have undergone forced abortions are not automatically eligible for asylum. Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir. 2009) (en banc). Moreover, Gao’s detention by police does not rise to the level of persecution. Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 342 (3d Cir.2008) (“[B]rief detentions, where little or no physical harm occurs, generally do not rise to the level of persecution.”). While Gao argues that the IJ should have given Gao an opportunity to elaborate on the details of his detention, he has not explained why he did not present such evidence at his hearing. Nor did he proffer any additional details of his detention before the BIA.
Gao also argues that the BIA failed to consider evidence of the economic persecution he suffered. While he mentioned being fined in his asylum application and at his hearing, Gao did not argue before the BIA that he suffered economic persecution. Thus, this argument is unex-hausted, and we lack jurisdiction to consider it. See Hua Wu v. Attorney General, 571 F.3d 314, 317 (3d Cir.2009). Moreover, while “deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution,” Zhen Hua Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005), there is no evidence that the financial penalties imposed upon Gao meet this standard.
Gao also argues that he will suffer persecution on account of his religion if returned to China. The BIA noted that while Gao asserted that eleven members of his religious organization were arrested, he did not claim that they were persecuted or that the Chinese government was aware of his membership in the organization. In his brief, Gao does not challenge any of these findings.
For the above reasons, we will deny the petition for review.
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OPINION
PER CURIAM.
T. Montgomery Foley appeals the District Court’s decision affirming the Commissioner’s denial of his request for benefits. We will affirm.
In February 2002, Foley filed an application for supplemental security income which the Social Security Agency denied. Foley alleged disability due to back and neck conditions, cervical disc disease, arthritic knees, neck pain, and headaches. After Foley’s applications were denied, he received a hearing before an Administrative Law Judge (“ALJ”). The ALJ denied benefits but the Appeals Council vacated the decision and remanded the case for further evaluation.
In May 2005, the ALJ held a second hearing at which Foley and a vocational expert testified. The ALJ issued a new decision in August 2005, finding that Foley was not disabled. Specifically, the ALJ found that while Foley suffered from severe impairments, his claims of total disability were not credible. At the final step of the five-step sequential evaluation, the ALJ determined that Foley retained the residual functional capacity (RFC) to perform a significant range of light work. See Ramirez v. Barnhart, 372 F.3d 546, 550-51 *807(3d Cir.2004) (describing five-step process). Finally, the ALJ found that Foley was capable of performing a significant number of jobs which exist in the national and regional economy. The Appeals Counsel subsequently denied Foley’s request for review. Foley sought review of the ALJ’s decision in the District Court. The District Court, adopting the Magistrate Judge’s Report and Recommendation over Foley’s objections, affirmed the ALJ’s decision. Foley filed a timely notice of appeal from the District Court’s order.
The District Court had jurisdiction under 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g). We have jurisdiction over Foley’s appeal under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s legal conclusions. Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir.2005). We review the factual findings in the ALJ’s decision for substantial evidence. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.2003) (citations and internal quotation marks omitted).
We agree with the District Court and will adopt its reasoning. In his informal brief, Foley asserts that the ALJ ignored his medical records. Foley’s medical history is summarized in detail in the Magistrate Judge’s Report and Recommendation, the appellant’s brief, and the ALJ’s decision; therefore, we need not repeat it here. While Foley has been diagnosed with mild cervical degenerative disease, foaminal stenosis, and possible facet degeneration, several medical professionals have noted that Foley’s complaints of debilitating pain are inconsistent with the medical evidence. (A.R. at 244, 255-56, 284.) In addition, the ALJ weighed Foley’s complaints against evidence of his failure to take prescribed medication and his non-compliance with medical advice. (Id. at 20.) Finally, as discussed further below, the ALJ properly weighed evidence from numerous medical professionals regarding the severity of Foley’s medical condition. Thus, we reject Foley’s assertion that the ALJ failed to properly consider, discuss and weigh the relevant evidence pertaining to his disability allegations. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir.2001).
Further, the ALJ acted within his discretion by disregarding Dr. John Sutton’s RFC assessment. (A.R. at 20.) A treating physician’s opinion may be afforded “more or less weight depending upon the extent to which supporting explanations are provided”. Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir.2008) (citation and internal quotations omitted). Dr. Sutton’s opinion was not entitled to much weight inasmuch as his own assessment in June 2004 noted that the objective evidence did not support Foley’s claims of debilitating pain.1 (A.R. at 256.) Moreover, the evaluation of an impartial consultant, Dr. Abu Aziz, supported the ALJ’s RFC assessment. See Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir.2000) (an ALJ may reject a treating physician outright on the basis of contradictory med*808ical evidence.) Therefore, the ALJ’s finding that Foley could perform work requiring a light level of exertion is supported by substantial evidence.
Foley also contends that the ALJ did not properly consider his headaches in making the RFC determination. According to the magistrate judge, the ALJ erred in finding that Foley’s headaches were not severe under step two of the analysis. Specifically, the magistrate judge found that the headaches, in combination with his neck condition, had more than a minimal effect on his ability to work and, thus, constituted a severe impairment. See 20 C.F.R. §§ 416.920(e), 416.921(a). Nevertheless, the magistrate judge held that any error in this regard was harmless inasmuch as Foley’s headaches were connected with his cervical condition, the limitations of which the ALJ adequately addressed in calculating Foley’s RFC.2 Foley, in his Objections to the Magistrate Judge’s Report and Recommendation, argued that the record was replete with multiple references to the extreme nature and scope of his headache disorder, which was not related to his cervical condition. The District Court found that even if Foley’s headaches constituted a separate disorder, that disorder did not constitute a severe impairment because it imposed no functional limitations on his ability to perform work related activities. Foley v. Astrue, 2008 WL 2996519 (W.D.Pa. July 31, 2008).
We agree with the District Comb. To the extent that Foley’s headaches stem from his degenerative cervical condition, the ALJ properly considered that evidence in assessing Foley’s RFC. As to an independent headache condition, at least one doctor has diagnosed Foley with a “headache disorder.” (A.R. at 284) Further, as the district court pointed out, the record indicates that Foley suffered from headaches as a child. (A.R. at 245) A diagnosis alone, however, does not demonstrate disability. See Petition of Sullivan, 904 F.2d 826, 845(3d Cir.1990). Rather, Foley was required to show that his headaches significantly limited his physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 404.1521(a). Dr. McLaughlin, a neurologist who examined Foley, noted that migraines, a cervical disorder, or possible bruxism were the cause of Foley’s headaches. (A.R. at 284) Aside from Foley’s own testimony (which the ALJ found not credible), the record contains no evidence of limitations resulting from his headache disorder that were not already considered in connection with his cervical condition. Thus, we agree with the ALJ that Foley failed to show that his headache disorder, independent of his cervical condition, was a medically severe impairment. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (claimant bears the burden at step two of the sequential evaluation process to prove that he has a severe impairment).
For the reasons set forth above, we will affirm the judgment of the District Court.
. As the appellee points out, Dr. Sutton's RFC assessment was essentially consistent with the AU's RFC assessment. The ALJ found that Foley could lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit, stand and/or walk for two hours at a time; and occasionally climb, balance, stoop or crouch. In comparison, Dr. Sutton placed no limitation on Foley sitting in an 8 hour workday and restricted him to lifting/carrying 20 pounds occasionally and 10 pounds frequently; standing/walking at least 2 hours in an 8 hour workday; limited pushing/pulling with extremities; occasionally balancing, kneeling, crouching or stooping; frequent crawling and never climbing.
. According to the repoi'ts of numerous examining doctors, Foley's headaches were closely related to his cervical pain. (A.R. at 84, 86, 254, 271, 292, 302). Indeed, Foley testified that his headaches began when he started feeling pain in his neck. (Id. at 385).
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OPINION OF THE COURT
PER CURIAM.
Javier Contreras Delgado petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
I.
Delgado, a native and citizen of Colombia, entered the United States as a lawful permanent resident in 1965. The next year, in November 1966, Delgado was convicted of larceny under NJ.Rev.Stat. § 2A:119-1 (repealed) in Union County, New Jersey. Over the course of the following forty years, Delgado was convicted of shoplifting in New Jersey four times— in 1973, 1975, 1999, and 2003.
Delgado subsequently left the United States. When he applied for re-admission as a returning legal permanent resident, he was served with a notice to appear alleging that he was inadmissible for having committed crimes involving moral turpitude in 1999 and 2003. The government later filed additional charges alleging that *810he was subject to removal for the 1966 larceny conviction as well.
At his removal hearing, Delgado conceded removability but sought cancellation of removal under § 240A(a) of the INA.1 The Immigration Judge (“IJ”) denied relief, explaining in a written decision that Delgado was not eligible for cancellation of removal because he had not continuously resided in the country for the requisite seven years. See 8 U.S.C. § 1229b. According to the IJ, under the “stop-time” provision, 8 U.S.C. § 1229b(d)(1), Delgado’s years of residence stopped accruing when he committed his first crime of moral turpitude, and the clock never started anew because there was no evidence that he was lawfully readmitted into the country. On appeal to the BIA, Delgado argued that the offenses for which he had been convicted could not serve as stop-time convictions because shoplifting is not a “crime” under New Jersey law. The BIA rejected this argument and, by order entered March 11, 2008, 2008 WL 762624, dismissed the appeal.
Delgado now petitions for review of the BIA’s order.2
II.
On appeal, Delgado argues that the IJ erred in finding that he had failed to meet the continuous physical presence requirement of Section 240A(a)(2) because, according to Delgado, the seven-year clock should have been reset when he re-entered the United States after his 1973 shoplifting conviction. See Okeke v. Gonzales, 407 F.3d 585 (3d Cir.2005). Delgado also argues that the IJ failed to conduct a hearing, and the BIA failed to remand the matter for a hearing, in violation of his due process rights.
Delgado did not, however, raise either of these arguments in his appeal to the BIA. Instead, Delgado argued only that his convictions for shoplifting could not serve as stop-time convictions because shoplifting is not a “crime” under New Jersey law. (A000008-09; A000015.) Although we recognize a liberal exhaustion policy for immigration petitioners, we have explained that a petitioner will be deemed to have exhausted his administrative remedies only if he makes an effort “to place the Board on notice of a straightforward issue being raised on appeal.” Joseph v. Attorney General of U.S., 465 F.3d 123, 126 (3d Cir.2006) (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005)) (citing Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004)). Here, Delgado did nothing to alert the BIA that he wanted it to consider his argument that the clock should have been reset when he reentered the country in 1973, nor did he object to the IJ’s failure to hold a hearing on his claims. As a result, the BIA did not consider these arguments, and we do not have jurisdiction to consider them on appeal. See id.
*811III.
Accordingly, we will deny the petition for review.
. Delgado also sought relief in the form of a waiver of removal under former § 212(c) of the INA, but the IJ denied relief and the BIA affirmed. Delgado does not challenge this determination on appeal. (Petitioner's Br. 4.)
. Because this appeal concerns "constitutional claims or questions of law," the prohibition against appellate review of discretionary determinations does not apply. 8 U.S.C. § 1252(a)(2)(D). However, to the extent that Delgado argues that he was entitled to cancellation of removal because the discretionary factors weigh in his favor, we lack jurisdiction. See Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.2003) (concluding that, "for nondiscretionary factors, the Court maintains jurisdiction, but as to discretionary decisions, we lack jurisdiction”).
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*812OPINION
PER CURIAM.
Petitioner Elaine Carter is a native and citizen of Jamaica who seeks review of the Board of Immigration Appeals’s (“BIA”) denial of her motion to reopen her removal proceedings. For the following reasons, we will deny the petition for review.
I.
The petitioner entered the United States as a conditional permanent resident in September 1993 based on her 1991 marriage to Yaqub Muhammed. In September 1995, Muhammed filed a 1-751 petition to remove the conditions to his wife’s residency. The Department of Homeland Security (“DHS”) (then, the Immigration and Naturalization Service) denied the petition in 1997 after determining that the marriage was fraudulent. The DHS then issued the petitioner a notice to appear (“NTA”), charging her with removability due to the termination of her conditional permanent residency status. See 8 U.S.C. § 1227(a)(1)(D)®. In July 1998, an Immigration Judge (“IJ”) found the petitioner removable as charged and determined that the INS properly denied the 1-751 petition. The BIA dismissed the appeal in October 2000.
The petitioner divorced Muhammed and in March 2001 married Herman Carter. The DHS then erroneously granted the petitioner conditional permanent residency based on her marriage to Carter. Mr. Carter filed an 1-130 petition for an alien relative, the couple jointly filed an 1-751 petition to remove the conditions on the petitioner’s residency, and the petitioner filed an 1-485 petition to register as a permanent resident or to adjust her status. In December 2004, the DHS denied the I-751 petition and terminated the petitioner’s status because the Attorney General had previously found that she had engaged in marriage fraud. See 8 U.S.C. § 1154(c). The petitioner was issued another NTA, which charged her with removability under 8 U.S.C. § 1227(a)(1)(D)®. She sought review of the denial of the 1-751 application, but in July 2005 the IJ found that removability had been established by clear and convincing evidence. The IJ also found that the DHS properly terminated the petitioner’s residency status because of the previous finding of marriage fraud. On March 22, 2006, the BIA dismissed Carter’s appeal.
Two years later, on May 8, 2008, the petitioner filed an untimely motion to reopen with the BIA alleging that her previous counsel failed to notify her of the BIA’s 2006 dismissal of her appeal. She also sought to apply for adjustment of status and/or cancellation of removal. The BIA denied all relief. It did not specifically deny the motion as untimely, but stated that, even if the statute of limitation were tolled, it would deny the motion because the petitioner was not prima facie eligible for adjustment of status or for cancellation of removal.
As to the petitioner’s request for adjustment of status, the BIA concluded that she was ineligible for an immediate relative petition because the Attorney General had previously found her to have engaged in marriage fraud. See 8 U.S.C. § 1154(c). The BIA also determined that she was not eligible for adjustment of status because she was statutorily precluded from obtaining an approved visa. See id.
The BIA then determined that the petitioner was ineligible for cancellation for removal. The petitioner based her claim for cancellation of removal on the hardship that would befall her grandson and goddaughter if she were removed to Jamaica. The BIA determined that the hardship “to these individuals is not relevant to an application for cancellation of removal.” See 8 U.S.C. § 1229b(l)(D) (specifying that the *813hardship exception applies only to the petitioner’s “spouse, parent, or child”). The BIA concluded by stating that there was little chance “that discretion would be exercised in [the petitioner’s] favor[,] ... given her prior history of marriage fraud.”
Through counsel, the petitioner now seeks review of the BIA’s final order of removal.
II.
We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. § 1252(a)(1), and we review the denial of a motion to reopen for an abuse of discretion. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003).
The petitioner’s primary argument is that the BIA and IJ violated her due process rights by failing to conduct a hearing regarding the merits of her application for an adjustment of status. We have jurisdiction over the due process claim under 8 U.S.C. § 1252(a)(2)(D), and review de novo whether a petitioner’s due process rights were violated. Ezeagwuna, 325 F.3d at 405.
Carter appears to allege that the IJ violated her right to due process in his 2005 decision terminating her conditional permanent resident status. We do not have jurisdiction to review the IJ’s 2005 decision, as it was not a final order of removal. 8 U.S.C. § 1252(a)(1); Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005).
The petitioner also asserts that, on appeal from the IJ’s 2005 decision, the BIA deprived her of due process by failing to conduct a hearing on her claim for adjustment of status based on her second marriage. She asserts that she is eligible to adjust her status and that had a hearing been held, she would have provided the visa that she obtained based on her second marriage. We do not have jurisdiction over the BIA’s 2006 decision, as the petitioner did not file a petition for review of that decision, nor could she do so at this late date. See 8 U.S.C. § 1252(b); Stone v. INS, 514 U.S. 386, 394, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (holding that deportation orders are to be reviewed in a timely manner after issuance, regardless of the later filing of a motion to reopen or reconsider).
To the extent that the petitioner argues that the BIA’s denial of her 2008 motion to reopen was incorrect based upon the determination that she could not establish eligibility for adjustment of status, the BIA did not abuse its discretion. To be eligible for a discretionary grant of adjustment of status, the applicant must be eligible to receive an immigrant visa, be admissible for permanent residency, and demonstrate that an immigrant visa is immediately available to her when her application is filed. See 8 U.S.C. § 1255(a).1 The BIA found that Carter was not eligible for an immediate relative visa because she had previously been found to have engaged in marriage fraud. See 8 U.S.C. § 1154(c) (“[N]o petition shall be approved if ... the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.”). This finding is not in error, as the record demonstrates that: (1) in 1997 the INS denied the petitioner’s first 1-751 petition because she had engaged in marriage fraud, and (2) the IJ and the BIA concluded that this determination was proper. Because the BIA correctly found that the petitioner could not satisfy the *814first prong of establishing eligibility for adjustment of status under § 1255(a), there is no need to discuss whether, as she claims, she meets the remaining requirements for obtaining an adjustment of status.
For the foregoing reasons, we deny the petition for review,
. I note that while this Court lacks jurisdiction to review the discretionary grant or denial of an adjustment of status, the determination of whether a petitioner is eligible for adjustment of status, "is a purely legal question” over which this Court retains jurisdiction. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry J. Moore appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006) and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Moore v. Miller, No. 7:08-cv-00614-gec-mfu, 2009 WL 113258 (W.D.Va. Jan. 15, 2009); (Feb. 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Jones appeals the district court’s order granting in part and denying in part Jones’ motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm *817the district court’s order for the reasons stated there. See United States v. Jones, No. 1:05-cr00287-TSE-1 (E.D. Va. filed June 1, 2009; entered June 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Linwood Bruce Cameron, II, 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. Cameron, No. l:01-er-00372-JAB-l (M.D.N.C. Apr. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Meshach Lomax appeals the district court’s orders denying relief on his 42 U.S.C. § 1983 (2006) complaint and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Lomax v. Walker, No. 8:07-cv-02878-DKC (D. Md. June 2, 2008 & Jan. 22, 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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OPINION
PER CURIAM.
Xue Zhi Chen petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Chen, a native of China, entered the United States in December 2003. He was subsequently charged as removable as an arriving alien without entry documents. He conceded removability and filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He argued that he had been and would be persecuted in China on the basis of his religion. The IJ found Chen not credible and denied relief. The BIA agreed and dismissed the appeal. It noted inconsistencies between Chen’s sworn statement in 2003, his credible fear interview in 2005, and his testimony at his hearing in 2007, and upheld the IJ’s adverse credibility determination. Chen filed a timely petition for review.
We have jurisdiction under 8 U.S.C. § 1252. We must uphold the adverse credibility finding unless any reasonable adjudicator would be compelled to conclude to the contrary.1 Fiadjoe v. Attorney General, 411 F.3d 135, 153 (3d Cir.2005). Chen argues that the IJ should not have based the adverse credibility finding on his conclusion that Chen did not know much about the Mormon faith or on his rejection of Chen’s documents. However, because the BIA did not adopt the opinion of the IJ and rendered its own decision, we review the decision of the BIA and not that of the IJ. Sioe Tjen Wong v. Attorney General, 539 F.3d 225, 230 (3d Cir.2008). In upholding the adverse credibility finding, the BIA relied on the inconsistencies among Chen’s reasons for coming to the United States.
In his sworn statement, Chen indicated that he had no fear of being returned to China and that he came to the United States to work. C.A.R. at 139-140. In his *797credible fear interview, Chen stated that he was persecuted in China as a member of the Buddhist organization Ai Xing. C.A.R. at 133. At his hearing, he testified that he was persecuted as a Baptist in China and had been attending a Mormon church in the United States. C.A.R. at 69, 84. Chen does not dispute the inconsistencies noted by the BIA and admits that he was untruthful. We conclude that a reasonable adjudicator would not be compelled to find Chen credible.2
For the above reasons, we will deny the petition for review.
. Because the BIA concluded that it would uphold the IJ’s adverse credibility determination even under the prior standard, we need not decide whether 8 U.S.C. § 1158(b)(1)(B)(iii) is consistent with due process. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.2009) (canvassing Circuit law on the provision).
. Even if we reviewed and rejected the IJ's concerns about Chen’s understanding of his religion, the record would not compel a finding that Chen was credible.
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OPINION
PER CURIAM.
Petitioner Nano Sukarno entered the United States as a nonimmigrant visitor on August 9, 2000. On May 12, 2003, the Immigration and Naturalization Service served Sukarno, a native and citizen of Indonesia, with a notice to appear charging him as removable for remaining in the country for a time longer than his visa permitted. Sukarno conceded removability as charged, but applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), on the ground that he had suffered past persecution and feared future persecution due to his political activities in Indonesia. Specifically, Sukarno asserted that he was persecuted because of his membership in the Golkar Party (GP) in Muncar, Indonesia.
The IJ found that Sukarno failed to corroborate his claim that he was a member of, or held a leadership position in, the GP and thus his testimony did not establish past persecution. The IJ also held that Sukarno failed to submit any evidence that a member or leader of the GP would be targeted for future persecution. In making that finding, the IJ cited to an electronic encyclopedia (Wikipedia) article the Department of Homeland Security submitted stating that the GP is active and has won more than 20 percent of the vote in recent legislative elections. (A.R.52.) The IJ denied all petitions for relief, determining that the asylum application was untimely. Sukarno appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s decision and dismissed Sukarno’s appeal. Sukarno filed a timely petition for review of the BIA’s decision.
We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
*799In his petition, Sukarno challenges only the BIA’s determination on his withholding of removal claim.1 To be eligible for withholding of removal, Sukarno must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Indonesia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3)(C).
Sukarno challenges the IJ’s reliance on an article from an electronic encyclopedia, arguing that it is an unreliable source for factual information about the GP. We agree with the Government that this claim is waived for Sukarno’s failure to raise it before the BIA.2 See 8 U.S.C. § 1252(d)(1); Zheng v. Gonzales, 422 F.3d 98, 107-08 (3d Cir.2005) (failure to exhaust claims before the BIA bars consideration of those claims before the court of appeals). Even if we were to consider this claim, we would find it meritless. The IJ denied Sukarno’s claim based on his failure to present evidence that he would be singled out for persecution due to his GP activities and not based on the statistics in the encyclopedia article. (A.R.52-53.)
Further, the IJ and BIA’s finding with regard to past persecution is supported by substantial evidence. The IJ held that Sukarno failed to provide any corroborating evidence that he was a member of the GP. The BIA’s rule regarding coiToborating evidence contemplates a three-part inquiry: “1) identification of the facts for which ‘it is reasonable to expect corroboration;’ 2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if [he] has not, 3) an analysis of whether the applicant has adequately explained [his] failure to do so.” Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (citation omitted). Here, since Sukarno based his entire withholding of removal claim on his membership in the GP, it would have been reasonable for him to provide corroboration of his involvement with the party. When asked why he failed to provide supporting documents, Sukarno responded that he did not bring the documents with him. (A.R.102.) The IJ did not find this explanation reasonable given Sukarno’s “leadership position [in the GP], especially in the context of his educational and occupational accomplishments in Indonesia.” (Id. at 51.) Sukarno has made no argument that would cause us to question the IJ’s conclusion.
Moreover, the only incident of harm Sukarno testified to, aside from anonymous threatening letters, was a night-time attack by assailants dressed in ninja outfits on his home while he was out of town. (Id. at 94.) While Sukarno’s wife and child were home at the time of the attack, he did not indicate that the assailants harmed them. (Id.) This account does not compel a conclusion that Sukarno experienced past persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005)(defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”) Finally, as the Government correctly points out, Sukarno’s fear of future persecution is further undermined by the fact that his family remains in Indonesia unharmed. Id. at 537.
*800For these reasons we will deny Sukarno’s petition for review.
. In the initial petition for review, Sukarno indicated that he wished to challenge the IJ's denials of his asylum claim and relief under the CAT. Sukarno's failure to raise these issues in his appellate brief, however, constitutes a waiver of the issues on appeal. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005).
. Indeed, we note that Sukarno relied on information from the article in his appeal before the BIA. (A.R.23.)
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*801OPINION
PER CURIAM.
Yan Qing Chen petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny his petition for review.
Chen, a native and citizen of China, was charged with removability pursuant to INA § 237(a)(1)(A). It is not clear from the record when or where he entered the United States, but he did so without proper documentation. Thereafter, he applied for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”) in October 2005.1 He alleged that he feared returning to China because he and his wife had two U.S.-born children in violation of China’s family planning policies. Following a hearing, the IJ denied relief, determining that Chen failed to meet his burden of proof. He appealed to the BIA, asking that the record be remanded to the IJ for the consideration of additional evidence. The BIA affirmed the IJ’s denial of relief and denied Chen’s motion to remand. Chen timely filed a petition for review.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. To qualify for asylum, Chen must show that he is a “refugee”; in other words, that he is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158. “[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(A). The well-founded fear of persecution standard involves both a subjectively genuine fear of persecution and an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). To establish eligibility for "withholding of removal, an applicant must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.1993).
Because the BIA independently assessed the record, we review only the BIA’s final order of removal. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003). The BIA concluded, based on the evidence in the record, that Chen had not met his burden of demonstrating a well-founded fear of persecution. This finding is subject to review under the substantial evidence standard. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Under this deferential standard of review, we will uphold the findings of the BIA “unless the evidence not only supports a contrary conclusion but compels it.” Id. at 484. We review the BIA’s denial of a motion to reopen for abuse of discretion. Liu v. Attorney Gen., 555 F.3d 145, 148 (3d Cir.2009). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary, irrational, or con *802trary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002).
The BIA determined that Chen failed to cany his burden of proof. Chen’s testimony consisted of the fact that he has two U.S.-born children and that, before he came to the United States, he saw “thousands” of posters and heard “thousands” of broadcasts indicating that if a couple’s first child is a boy, they cannot have any additional children, and if their first child is a girl, they must wait four years before applying for a permit to allow them to have a second child. (A.R.1168-69.) Once they have had a second child, either the husband or the wife must be sterilized. (A.R. 1169.) He further testified that he was not personally aware of anyone who returned to China from the United States with two foreign-born children and was forced to undergo sterilization. (A.R.1171.) The BIA assumed that Chen’s testimony was credible and noted the extensive documentation he submitted in support of his claim, but concluded that it was insufficient to demonstrate an objectively reasonable likelihood of sterilization upon his return to China. We cannot say that the evidence compels a contrary conclusion. See Yu v. Attorney Gen., 513 F.3d 346, 348-49 (3d Cir.2008) (affirming BIA determination that, without additional evidence to the contrary, recent State Department Country Reports indicate that petitioner’s fear of forcible sterilization was not reasonable); Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004) (requiring asylum applicant to demonstrate by “credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution”).
On appeal, Chen argues that BIA’s decision must be vacated as it failed to explicitly consider each document he submitted in support of his claim. We disagree. As we have previously held, the BIA “is not required to “write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.’ ” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir.2006) (quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000) (internal quotations omitted)). The BIA’s opinion clearly acknowledged the voluminous record compiled by Chen and concluded that it was insufficient to carry his burden of proof. Chen has not demonstrated that a contrary conclusion is compelled.2
Next, Chen challenges the BIA’s denial of his motion to remand. While the BIA has noted that motions to remand are not explicitly provided for by the statutory scheme, when such a motion requests relief normally provided for by a motion to reopen or to reconsider, the BIA will treat is as such. See Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). Chen’s motion consisted of one paragraph requesting that the case be remanded to the IJ to allow him to consider and make part of the record over 1,000 pages of background documentation. (A.R.21.) Chen made no *803argument regarding what that evidence would show, or why it was previously unavailable. (Id.) As the BIA noted, the vast majority of the documents attached to his motion pre-dated the IJ’s January 10, 2007 decision. As Chen failed to demonstrate that these documents were material and previously unavailable, the BIA properly exercised its discretion in denying the motion. See 8 C.F.R. § 1003.2(c)(1) (explaining that evidence in support of a motion to reopen must be material and previously unavailable); INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (charging the BIA with determining whether the applicant has offered previously unavailable material evidence and demonstrated prima facie eligibility for relief sought).
We have considered all of Chen’s arguments and conclude that they are without merit. Accordingly, we will deny the petition for review.
. Before the IJ, Chen indicated that he did not wish to pursue his claim for relief under the CAT. (A.R.1151.) Additionally, the BIA found that he waived any such claim by not raising it on appeal. Accordingly, we will not address the merits of that claim.
. We note in particular that Chen maintains that "[w]hen taken with the record evidence, Dr. Aird's expert opinion makes a convincing argument that the Petitioner’s fear that he will be forcibly sterilized is reasonable.... Absent any rebuttal expert affidavit, the BIA had no reason not to accept and give full weight to Dr. Aird's opinion as conclusive proof that the PRC's family planning policy remains coercive and would be applied to the Petitioner.” (Pet'r Br. 31.) However, in Yu v. Attorney General, 513 F.3d 346 (3d Cir.2008), we agreed with the BIA that recent State Department reports tend to cast doubt on the utility of Dr. Aird’s frequently-cited affidavit, which provided only generalized statements regarding China's family planning policies and did not specifically address the issue of couples returning to China with children born overseas. Id. at 348-49.
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OPINION
PER CURIAM.
Ming Qiang Gao petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Gao, a native of China, entered the United States as a visitor in March 2007. He was subsequently charged as removable for overstaying his admission period. He filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He argued that he suffered past pei-secution in China when his wife was forcibly aborted two times and faces future persecution on account of his religion. The IJ found Gao incredible and denied relief. The BIA upheld the adverse credibility determination and dismissed the appeal. It also concluded that even if Gao were credible, husbands of women who had undergone forced abortions were not automatically eligible for relief and that Gao had not shown a well-founded fear of sterilization or other persecution. It further held that Gao had not established a well-founded fear of persecution on account of his religion. Gao filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We may reverse the BIA’s decision only if the record permits but one reasonable conclusion and that was not the one reached by the Board. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To establish eligibility for asylum, Gao must demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). For withholding of removal, he must demonstrate that it is more likely than not that his life would be threatened in China on account of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal under the Convention Against Torture, Gao must demonstrate that it is more likely than not that he *805would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
We agree with the BIA that Gao is not entitled to relief even if he were credible. The spouses of those who have undergone forced abortions are not automatically eligible for asylum. Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir. 2009) (en banc). Moreover, Gao’s detention by police does not rise to the level of persecution. Gomez-Zuluaga v. Attorney General, 527 F.3d 330, 342 (3d Cir.2008) (“[B]rief detentions, where little or no physical harm occurs, generally do not rise to the level of persecution.”). While Gao argues that the IJ should have given Gao an opportunity to elaborate on the details of his detention, he has not explained why he did not present such evidence at his hearing. Nor did he proffer any additional details of his detention before the BIA.
Gao also argues that the BIA failed to consider evidence of the economic persecution he suffered. While he mentioned being fined in his asylum application and at his hearing, Gao did not argue before the BIA that he suffered economic persecution. Thus, this argument is unex-hausted, and we lack jurisdiction to consider it. See Hua Wu v. Attorney General, 571 F.3d 314, 317 (3d Cir.2009). Moreover, while “deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution,” Zhen Hua Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005), there is no evidence that the financial penalties imposed upon Gao meet this standard.
Gao also argues that he will suffer persecution on account of his religion if returned to China. The BIA noted that while Gao asserted that eleven members of his religious organization were arrested, he did not claim that they were persecuted or that the Chinese government was aware of his membership in the organization. In his brief, Gao does not challenge any of these findings.
For the above reasons, we will deny the petition for review.
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OPINION
PER CURIAM.
T. Montgomery Foley appeals the District Court’s decision affirming the Commissioner’s denial of his request for benefits. We will affirm.
In February 2002, Foley filed an application for supplemental security income which the Social Security Agency denied. Foley alleged disability due to back and neck conditions, cervical disc disease, arthritic knees, neck pain, and headaches. After Foley’s applications were denied, he received a hearing before an Administrative Law Judge (“ALJ”). The ALJ denied benefits but the Appeals Council vacated the decision and remanded the case for further evaluation.
In May 2005, the ALJ held a second hearing at which Foley and a vocational expert testified. The ALJ issued a new decision in August 2005, finding that Foley was not disabled. Specifically, the ALJ found that while Foley suffered from severe impairments, his claims of total disability were not credible. At the final step of the five-step sequential evaluation, the ALJ determined that Foley retained the residual functional capacity (RFC) to perform a significant range of light work. See Ramirez v. Barnhart, 372 F.3d 546, 550-51 *807(3d Cir.2004) (describing five-step process). Finally, the ALJ found that Foley was capable of performing a significant number of jobs which exist in the national and regional economy. The Appeals Counsel subsequently denied Foley’s request for review. Foley sought review of the ALJ’s decision in the District Court. The District Court, adopting the Magistrate Judge’s Report and Recommendation over Foley’s objections, affirmed the ALJ’s decision. Foley filed a timely notice of appeal from the District Court’s order.
The District Court had jurisdiction under 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g). We have jurisdiction over Foley’s appeal under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s legal conclusions. Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir.2005). We review the factual findings in the ALJ’s decision for substantial evidence. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.2003) (citations and internal quotation marks omitted).
We agree with the District Court and will adopt its reasoning. In his informal brief, Foley asserts that the ALJ ignored his medical records. Foley’s medical history is summarized in detail in the Magistrate Judge’s Report and Recommendation, the appellant’s brief, and the ALJ’s decision; therefore, we need not repeat it here. While Foley has been diagnosed with mild cervical degenerative disease, foaminal stenosis, and possible facet degeneration, several medical professionals have noted that Foley’s complaints of debilitating pain are inconsistent with the medical evidence. (A.R. at 244, 255-56, 284.) In addition, the ALJ weighed Foley’s complaints against evidence of his failure to take prescribed medication and his non-compliance with medical advice. (Id. at 20.) Finally, as discussed further below, the ALJ properly weighed evidence from numerous medical professionals regarding the severity of Foley’s medical condition. Thus, we reject Foley’s assertion that the ALJ failed to properly consider, discuss and weigh the relevant evidence pertaining to his disability allegations. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir.2001).
Further, the ALJ acted within his discretion by disregarding Dr. John Sutton’s RFC assessment. (A.R. at 20.) A treating physician’s opinion may be afforded “more or less weight depending upon the extent to which supporting explanations are provided”. Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir.2008) (citation and internal quotations omitted). Dr. Sutton’s opinion was not entitled to much weight inasmuch as his own assessment in June 2004 noted that the objective evidence did not support Foley’s claims of debilitating pain.1 (A.R. at 256.) Moreover, the evaluation of an impartial consultant, Dr. Abu Aziz, supported the ALJ’s RFC assessment. See Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir.2000) (an ALJ may reject a treating physician outright on the basis of contradictory med*808ical evidence.) Therefore, the ALJ’s finding that Foley could perform work requiring a light level of exertion is supported by substantial evidence.
Foley also contends that the ALJ did not properly consider his headaches in making the RFC determination. According to the magistrate judge, the ALJ erred in finding that Foley’s headaches were not severe under step two of the analysis. Specifically, the magistrate judge found that the headaches, in combination with his neck condition, had more than a minimal effect on his ability to work and, thus, constituted a severe impairment. See 20 C.F.R. §§ 416.920(e), 416.921(a). Nevertheless, the magistrate judge held that any error in this regard was harmless inasmuch as Foley’s headaches were connected with his cervical condition, the limitations of which the ALJ adequately addressed in calculating Foley’s RFC.2 Foley, in his Objections to the Magistrate Judge’s Report and Recommendation, argued that the record was replete with multiple references to the extreme nature and scope of his headache disorder, which was not related to his cervical condition. The District Court found that even if Foley’s headaches constituted a separate disorder, that disorder did not constitute a severe impairment because it imposed no functional limitations on his ability to perform work related activities. Foley v. Astrue, 2008 WL 2996519 (W.D.Pa. July 31, 2008).
We agree with the District Comb. To the extent that Foley’s headaches stem from his degenerative cervical condition, the ALJ properly considered that evidence in assessing Foley’s RFC. As to an independent headache condition, at least one doctor has diagnosed Foley with a “headache disorder.” (A.R. at 284) Further, as the district court pointed out, the record indicates that Foley suffered from headaches as a child. (A.R. at 245) A diagnosis alone, however, does not demonstrate disability. See Petition of Sullivan, 904 F.2d 826, 845(3d Cir.1990). Rather, Foley was required to show that his headaches significantly limited his physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 404.1521(a). Dr. McLaughlin, a neurologist who examined Foley, noted that migraines, a cervical disorder, or possible bruxism were the cause of Foley’s headaches. (A.R. at 284) Aside from Foley’s own testimony (which the ALJ found not credible), the record contains no evidence of limitations resulting from his headache disorder that were not already considered in connection with his cervical condition. Thus, we agree with the ALJ that Foley failed to show that his headache disorder, independent of his cervical condition, was a medically severe impairment. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (claimant bears the burden at step two of the sequential evaluation process to prove that he has a severe impairment).
For the reasons set forth above, we will affirm the judgment of the District Court.
. As the appellee points out, Dr. Sutton's RFC assessment was essentially consistent with the AU's RFC assessment. The ALJ found that Foley could lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit, stand and/or walk for two hours at a time; and occasionally climb, balance, stoop or crouch. In comparison, Dr. Sutton placed no limitation on Foley sitting in an 8 hour workday and restricted him to lifting/carrying 20 pounds occasionally and 10 pounds frequently; standing/walking at least 2 hours in an 8 hour workday; limited pushing/pulling with extremities; occasionally balancing, kneeling, crouching or stooping; frequent crawling and never climbing.
. According to the repoi'ts of numerous examining doctors, Foley's headaches were closely related to his cervical pain. (A.R. at 84, 86, 254, 271, 292, 302). Indeed, Foley testified that his headaches began when he started feeling pain in his neck. (Id. at 385).
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OPINION OF THE COURT
PER CURIAM.
Javier Contreras Delgado petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
I.
Delgado, a native and citizen of Colombia, entered the United States as a lawful permanent resident in 1965. The next year, in November 1966, Delgado was convicted of larceny under NJ.Rev.Stat. § 2A:119-1 (repealed) in Union County, New Jersey. Over the course of the following forty years, Delgado was convicted of shoplifting in New Jersey four times— in 1973, 1975, 1999, and 2003.
Delgado subsequently left the United States. When he applied for re-admission as a returning legal permanent resident, he was served with a notice to appear alleging that he was inadmissible for having committed crimes involving moral turpitude in 1999 and 2003. The government later filed additional charges alleging that *810he was subject to removal for the 1966 larceny conviction as well.
At his removal hearing, Delgado conceded removability but sought cancellation of removal under § 240A(a) of the INA.1 The Immigration Judge (“IJ”) denied relief, explaining in a written decision that Delgado was not eligible for cancellation of removal because he had not continuously resided in the country for the requisite seven years. See 8 U.S.C. § 1229b. According to the IJ, under the “stop-time” provision, 8 U.S.C. § 1229b(d)(1), Delgado’s years of residence stopped accruing when he committed his first crime of moral turpitude, and the clock never started anew because there was no evidence that he was lawfully readmitted into the country. On appeal to the BIA, Delgado argued that the offenses for which he had been convicted could not serve as stop-time convictions because shoplifting is not a “crime” under New Jersey law. The BIA rejected this argument and, by order entered March 11, 2008, 2008 WL 762624, dismissed the appeal.
Delgado now petitions for review of the BIA’s order.2
II.
On appeal, Delgado argues that the IJ erred in finding that he had failed to meet the continuous physical presence requirement of Section 240A(a)(2) because, according to Delgado, the seven-year clock should have been reset when he re-entered the United States after his 1973 shoplifting conviction. See Okeke v. Gonzales, 407 F.3d 585 (3d Cir.2005). Delgado also argues that the IJ failed to conduct a hearing, and the BIA failed to remand the matter for a hearing, in violation of his due process rights.
Delgado did not, however, raise either of these arguments in his appeal to the BIA. Instead, Delgado argued only that his convictions for shoplifting could not serve as stop-time convictions because shoplifting is not a “crime” under New Jersey law. (A000008-09; A000015.) Although we recognize a liberal exhaustion policy for immigration petitioners, we have explained that a petitioner will be deemed to have exhausted his administrative remedies only if he makes an effort “to place the Board on notice of a straightforward issue being raised on appeal.” Joseph v. Attorney General of U.S., 465 F.3d 123, 126 (3d Cir.2006) (quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005)) (citing Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004)). Here, Delgado did nothing to alert the BIA that he wanted it to consider his argument that the clock should have been reset when he reentered the country in 1973, nor did he object to the IJ’s failure to hold a hearing on his claims. As a result, the BIA did not consider these arguments, and we do not have jurisdiction to consider them on appeal. See id.
*811III.
Accordingly, we will deny the petition for review.
. Delgado also sought relief in the form of a waiver of removal under former § 212(c) of the INA, but the IJ denied relief and the BIA affirmed. Delgado does not challenge this determination on appeal. (Petitioner's Br. 4.)
. Because this appeal concerns "constitutional claims or questions of law," the prohibition against appellate review of discretionary determinations does not apply. 8 U.S.C. § 1252(a)(2)(D). However, to the extent that Delgado argues that he was entitled to cancellation of removal because the discretionary factors weigh in his favor, we lack jurisdiction. See Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.2003) (concluding that, "for nondiscretionary factors, the Court maintains jurisdiction, but as to discretionary decisions, we lack jurisdiction”).
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*812OPINION
PER CURIAM.
Petitioner Elaine Carter is a native and citizen of Jamaica who seeks review of the Board of Immigration Appeals’s (“BIA”) denial of her motion to reopen her removal proceedings. For the following reasons, we will deny the petition for review.
I.
The petitioner entered the United States as a conditional permanent resident in September 1993 based on her 1991 marriage to Yaqub Muhammed. In September 1995, Muhammed filed a 1-751 petition to remove the conditions to his wife’s residency. The Department of Homeland Security (“DHS”) (then, the Immigration and Naturalization Service) denied the petition in 1997 after determining that the marriage was fraudulent. The DHS then issued the petitioner a notice to appear (“NTA”), charging her with removability due to the termination of her conditional permanent residency status. See 8 U.S.C. § 1227(a)(1)(D)®. In July 1998, an Immigration Judge (“IJ”) found the petitioner removable as charged and determined that the INS properly denied the 1-751 petition. The BIA dismissed the appeal in October 2000.
The petitioner divorced Muhammed and in March 2001 married Herman Carter. The DHS then erroneously granted the petitioner conditional permanent residency based on her marriage to Carter. Mr. Carter filed an 1-130 petition for an alien relative, the couple jointly filed an 1-751 petition to remove the conditions on the petitioner’s residency, and the petitioner filed an 1-485 petition to register as a permanent resident or to adjust her status. In December 2004, the DHS denied the I-751 petition and terminated the petitioner’s status because the Attorney General had previously found that she had engaged in marriage fraud. See 8 U.S.C. § 1154(c). The petitioner was issued another NTA, which charged her with removability under 8 U.S.C. § 1227(a)(1)(D)®. She sought review of the denial of the 1-751 application, but in July 2005 the IJ found that removability had been established by clear and convincing evidence. The IJ also found that the DHS properly terminated the petitioner’s residency status because of the previous finding of marriage fraud. On March 22, 2006, the BIA dismissed Carter’s appeal.
Two years later, on May 8, 2008, the petitioner filed an untimely motion to reopen with the BIA alleging that her previous counsel failed to notify her of the BIA’s 2006 dismissal of her appeal. She also sought to apply for adjustment of status and/or cancellation of removal. The BIA denied all relief. It did not specifically deny the motion as untimely, but stated that, even if the statute of limitation were tolled, it would deny the motion because the petitioner was not prima facie eligible for adjustment of status or for cancellation of removal.
As to the petitioner’s request for adjustment of status, the BIA concluded that she was ineligible for an immediate relative petition because the Attorney General had previously found her to have engaged in marriage fraud. See 8 U.S.C. § 1154(c). The BIA also determined that she was not eligible for adjustment of status because she was statutorily precluded from obtaining an approved visa. See id.
The BIA then determined that the petitioner was ineligible for cancellation for removal. The petitioner based her claim for cancellation of removal on the hardship that would befall her grandson and goddaughter if she were removed to Jamaica. The BIA determined that the hardship “to these individuals is not relevant to an application for cancellation of removal.” See 8 U.S.C. § 1229b(l)(D) (specifying that the *813hardship exception applies only to the petitioner’s “spouse, parent, or child”). The BIA concluded by stating that there was little chance “that discretion would be exercised in [the petitioner’s] favor[,] ... given her prior history of marriage fraud.”
Through counsel, the petitioner now seeks review of the BIA’s final order of removal.
II.
We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. § 1252(a)(1), and we review the denial of a motion to reopen for an abuse of discretion. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003).
The petitioner’s primary argument is that the BIA and IJ violated her due process rights by failing to conduct a hearing regarding the merits of her application for an adjustment of status. We have jurisdiction over the due process claim under 8 U.S.C. § 1252(a)(2)(D), and review de novo whether a petitioner’s due process rights were violated. Ezeagwuna, 325 F.3d at 405.
Carter appears to allege that the IJ violated her right to due process in his 2005 decision terminating her conditional permanent resident status. We do not have jurisdiction to review the IJ’s 2005 decision, as it was not a final order of removal. 8 U.S.C. § 1252(a)(1); Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005).
The petitioner also asserts that, on appeal from the IJ’s 2005 decision, the BIA deprived her of due process by failing to conduct a hearing on her claim for adjustment of status based on her second marriage. She asserts that she is eligible to adjust her status and that had a hearing been held, she would have provided the visa that she obtained based on her second marriage. We do not have jurisdiction over the BIA’s 2006 decision, as the petitioner did not file a petition for review of that decision, nor could she do so at this late date. See 8 U.S.C. § 1252(b); Stone v. INS, 514 U.S. 386, 394, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (holding that deportation orders are to be reviewed in a timely manner after issuance, regardless of the later filing of a motion to reopen or reconsider).
To the extent that the petitioner argues that the BIA’s denial of her 2008 motion to reopen was incorrect based upon the determination that she could not establish eligibility for adjustment of status, the BIA did not abuse its discretion. To be eligible for a discretionary grant of adjustment of status, the applicant must be eligible to receive an immigrant visa, be admissible for permanent residency, and demonstrate that an immigrant visa is immediately available to her when her application is filed. See 8 U.S.C. § 1255(a).1 The BIA found that Carter was not eligible for an immediate relative visa because she had previously been found to have engaged in marriage fraud. See 8 U.S.C. § 1154(c) (“[N]o petition shall be approved if ... the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.”). This finding is not in error, as the record demonstrates that: (1) in 1997 the INS denied the petitioner’s first 1-751 petition because she had engaged in marriage fraud, and (2) the IJ and the BIA concluded that this determination was proper. Because the BIA correctly found that the petitioner could not satisfy the *814first prong of establishing eligibility for adjustment of status under § 1255(a), there is no need to discuss whether, as she claims, she meets the remaining requirements for obtaining an adjustment of status.
For the foregoing reasons, we deny the petition for review,
. I note that while this Court lacks jurisdiction to review the discretionary grant or denial of an adjustment of status, the determination of whether a petitioner is eligible for adjustment of status, "is a purely legal question” over which this Court retains jurisdiction. Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry J. Moore appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006) and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Moore v. Miller, No. 7:08-cv-00614-gec-mfu, 2009 WL 113258 (W.D.Va. Jan. 15, 2009); (Feb. 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Jones appeals the district court’s order granting in part and denying in part Jones’ motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm *817the district court’s order for the reasons stated there. See United States v. Jones, No. 1:05-cr00287-TSE-1 (E.D. Va. filed June 1, 2009; entered June 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence Verline Wilder, Sr., appeals the district court’s order denying his motions to reopen two civil actions that have been closed for more than ten years. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Wilder v. Sebelius, Nos. 1:97-cv-01809-FNS; 1:96-cv-03472-FNS (D.Md. Mar. 4, 2009). Wilder’s motions for rehearing and rehearing en banc, for appointment of counsel, and for an excusable neglect waiver are denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Linwood Bruce Cameron, II, 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. Cameron, No. l:01-er-00372-JAB-l (M.D.N.C. Apr. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Meshach Lomax appeals the district court’s orders denying relief on his 42 U.S.C. § 1983 (2006) complaint and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Lomax v. Walker, No. 8:07-cv-02878-DKC (D. Md. June 2, 2008 & Jan. 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell J. Williams appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Williams v. Jackson, No. 8:07-cv-03661-CMC, 2009 WL 363450 (D.S.C. Feb. 10, 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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PER CURIAM: *
Ignacio Hernandez appeals the sentence imposed following his guilty plea conviction to illegal reentry of a previously deported alien, arguing that his sentence is greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Hernandez argues, for the purpose of preserving the issue for possible Supreme Court review, that his within-guidelines sentence should not be presumed reasonable because U.S.S.G. § 2L1.2 is not empirically based and thus is flawed under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He argues that his sentence is greater than necessary to meet the sentencing goals of § 3553(a) because the Sentencing Guidelines account for his prior conviction both to increase his offense level and to calculate his criminal history score. Hernandez further contends that the guidelines range overstated the seriousness of his offense because his conduct was not violent and that the guidelines range did not properly account for his personal history and characteristics, including his work history and his motive for reentering.
In reviewing a sentence, we “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Hernandez did not raise in the district court his arguments that § 2L1.2 lacked empirical support, that his prior offense was “double counted” in calculating his advisory guidelines range, or that the guidelines range overstated the seriousness of his offense and did not properly account for his personal history and characteristics. We therefore review these arguments for plain error. See *914United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, —— U.S. ——, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008).
This court has rejected the argument that the presumption of reasonableness should not apply to within-guidelines sentences, when the guidelines range was calculated pursuant to § 2L1.2, an “allegedly non-empirically-grounded provision[] of the Guidelines.” United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). Hernandez’s argument that his sentence is unreasonable because the guidelines range was greater than necessary to meet § 3553(a)’s goals as a result of “double counting” also is unavailing. See Duarte, 569 F.3d at 529-31.
Hernandez has not shown an abuse of discretion by the district court. See Gall, 128 S.Ct. at 596-97. Because Hernandez has not shown that his sentence is unreasonable, he has not shown error, plain or otherwise. The district court’s judgment is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The Federal Public Defender appointed to represent Jesus Alberto Perez-Diaz *915(Perez) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 886 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Perez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Juan Antonio Vasquez-Reyes has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Vasquez-Reyes has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Eduardo Alfredo Leza has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. *918738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Leza has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dan Temple, Jr. seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appeal-able unless a circuit justice or judge issues *867a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of ap-pealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude Temple has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We also deny Temple’s motion for rehearing and for a determination of fact and law. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell J. Williams appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Williams v. Jackson, No. 8:07-cv-03661-CMC, 2009 WL 363450 (D.S.C. Feb. 10, 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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PER CURIAM: *
Ignacio Hernandez appeals the sentence imposed following his guilty plea conviction to illegal reentry of a previously deported alien, arguing that his sentence is greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a). Hernandez argues, for the purpose of preserving the issue for possible Supreme Court review, that his within-guidelines sentence should not be presumed reasonable because U.S.S.G. § 2L1.2 is not empirically based and thus is flawed under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He argues that his sentence is greater than necessary to meet the sentencing goals of § 3553(a) because the Sentencing Guidelines account for his prior conviction both to increase his offense level and to calculate his criminal history score. Hernandez further contends that the guidelines range overstated the seriousness of his offense because his conduct was not violent and that the guidelines range did not properly account for his personal history and characteristics, including his work history and his motive for reentering.
In reviewing a sentence, we “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Hernandez did not raise in the district court his arguments that § 2L1.2 lacked empirical support, that his prior offense was “double counted” in calculating his advisory guidelines range, or that the guidelines range overstated the seriousness of his offense and did not properly account for his personal history and characteristics. We therefore review these arguments for plain error. See *914United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, —— U.S. ——, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008).
This court has rejected the argument that the presumption of reasonableness should not apply to within-guidelines sentences, when the guidelines range was calculated pursuant to § 2L1.2, an “allegedly non-empirically-grounded provision[] of the Guidelines.” United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). Hernandez’s argument that his sentence is unreasonable because the guidelines range was greater than necessary to meet § 3553(a)’s goals as a result of “double counting” also is unavailing. See Duarte, 569 F.3d at 529-31.
Hernandez has not shown an abuse of discretion by the district court. See Gall, 128 S.Ct. at 596-97. Because Hernandez has not shown that his sentence is unreasonable, he has not shown error, plain or otherwise. The district court’s judgment is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The Federal Public Defender appointed to represent Jesus Alberto Perez-Diaz *915(Perez) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 886 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Perez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Juan Antonio Vasquez-Reyes has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Vasquez-Reyes has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Eduardo Alfredo Leza has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. *918738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Leza has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
The pending petition for rehearing en banc is DISMISSED as moot in light of the simultaneous filing of a memorandum disposition replacing the previously withdrawn opinion in this matter. The parties may file new petitions as to the memorandum disposition for rehearing or rehearing en banc in accordance with the Federal Rules of Appellate Procedure.
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MEMORANDUM **
General Crook appeals pro se from the district court’s judgment for defendant Universal Songs Polygram (“Universal Songs”) after a bench trial on Crook’s breach of contract claim. Crook also appeals from various orders of the district court, including denials of motions to recuse and for a jury trial. We have jurisdiction pursuant to 28 U.S.C. § 1291. Following a bench trial, we review findings of fact for clear error and conclusions of law de novo. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir.2008) (en bane).
The district court’s factual findings undergirding its ruling that Universal Songs did not breach its contract with Crook are not clearly erroneous. There is evidence in the record that Crook signed a license agreement with Universal Song in 1977, and that Universal Songs sent royalty payments to Crook that complied with the terms of the 1977 agreement. See Husain v. Olympic Airways, 316 F.3d 829, 840 (9th Cir.2002) (“The district court, as the trier of fact in this matter, was in a superior position to appraise and weigh the *104evidence, and its determination regarding the credibility of witnesses is entitled to special deference.”).
The district court did not abuse its discretion when it denied the untimely motion for a jury trial because Crook did not demonstrate that his failure to request a jury trial in a timely manner was anything more than inadvertence. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1086-87 (9th Cir.2002) (providing standard of review and stating: “Zivkovic argues that his untimely demand for a jury trial should be excused because he filed his complaint pro se and was unaware of the requirements of Rule 38(b). However, Zivkovic’s good faith mistake as to the deadline for demanding a jury trial establishes no more than inadvertence, which is not a sufficient basis to grant relief from an untimely jury demand.”).
The district court did not abuse its discretion when it denied the motion to recuse because Crook’s motion failed to identify an extrajudicial source of bias. See United States v. Martin, 278 F.3d 988, 1005 (9th Cir.2002) (stating standard of review and affirming denial of motion to recuse where movant failed to show that there existed any extrajudicial source of bias).
Crook’s remaining contentions lack merit.
AFFIRMED.
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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert C. Lightburn appeals the district court’s order entering judgment in Olin Wooten’s favor on Wooten’s specific performance and unjust enrichment claims against Lightburn. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See Wooten v. Lightburn, 579 F.Supp.2d 769 (W.D.Va.2008). 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 **
General Crook appeals pro se from the district court’s judgment for defendant Universal Songs Polygram (“Universal Songs”) after a bench trial on Crook’s breach of contract claim. Crook also appeals from various orders of the district court, including denials of motions to recuse and for a jury trial. We have jurisdiction pursuant to 28 U.S.C. § 1291. Following a bench trial, we review findings of fact for clear error and conclusions of law de novo. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir.2008) (en bane).
The district court’s factual findings undergirding its ruling that Universal Songs did not breach its contract with Crook are not clearly erroneous. There is evidence in the record that Crook signed a license agreement with Universal Song in 1977, and that Universal Songs sent royalty payments to Crook that complied with the terms of the 1977 agreement. See Husain v. Olympic Airways, 316 F.3d 829, 840 (9th Cir.2002) (“The district court, as the trier of fact in this matter, was in a superior position to appraise and weigh the *104evidence, and its determination regarding the credibility of witnesses is entitled to special deference.”).
The district court did not abuse its discretion when it denied the untimely motion for a jury trial because Crook did not demonstrate that his failure to request a jury trial in a timely manner was anything more than inadvertence. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1086-87 (9th Cir.2002) (providing standard of review and stating: “Zivkovic argues that his untimely demand for a jury trial should be excused because he filed his complaint pro se and was unaware of the requirements of Rule 38(b). However, Zivkovic’s good faith mistake as to the deadline for demanding a jury trial establishes no more than inadvertence, which is not a sufficient basis to grant relief from an untimely jury demand.”).
The district court did not abuse its discretion when it denied the motion to recuse because Crook’s motion failed to identify an extrajudicial source of bias. See United States v. Martin, 278 F.3d 988, 1005 (9th Cir.2002) (stating standard of review and affirming denial of motion to recuse where movant failed to show that there existed any extrajudicial source of bias).
Crook’s remaining contentions lack merit.
AFFIRMED.
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 **
Joaquin Rosas-Reyes, 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 motion to continue and ordering him removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue and we review de novo claims of due process violations. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion or violate due process in denying RosasReyes’ motion to continue because the IJ had previously granted a continuance, and Rosas-Reyes’ eligibility for adjustment of status was speculative. See id. at 1247 (denial of a motion to continue was not an abuse of discretion where proceedings had previously been continued and relief was not immediately available to petitioner); see also Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process claim).
Contrary to Rosas-Reyes’ contention, the IJ’s interpretation of the hardship standard falls within the broad range authorized by the statute. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004-1006 (9th Cir.2003).
We lack jurisdiction over Rosas-Reyes’ other due process contentions because he did not raise them to the BIA and failed to exhaust his administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provid*106ed by 9 th Cir. R. 36-3.
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MEMORANDUM **
Rene Bello-Rodrigues, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing his motion to remand and 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 review de novo claims of constitutional violations in immigration proceedings, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we review for abuse of discretion the denial of a motion to remand, Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that Bello-Rodrigues failed to show exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
Bello-Rodrigues’ contention that the IJ violated due process by failing to include hardship to his daughter Stacey is not persuasive. Moreover, he has not established prejudice from the alleged violation. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (requiring prejudice to prevail on a due process challenge). Similarly, his bias claim fails because the proceedings were not so fundamentally unfair that he was prevented from reasonably presenting his case. See id.
Bello-Rodrigues’ contention that the BIA violated its own regulations by allowing a single BIA member to decide the case is not persuasive. See 8 C.F.R. § 1003.1(e)(5)-(6).
Finally, the evidence Bello-Rodrigues presented with his motion to remand concerned the same basic hardship grounds as his application for cancellation of removal. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006). We therefore lack jurisdiction to review the BIA’s discretionary determination that the evidence would not alter the IJ’s prior hardship determination. See id. at 600.
PETITION FOR REVIEW DISMISSED in part; 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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*109AMENDED MEMORANDUM *
AT & T Mobile LLC (formerly Cingular Wireless, LLC, herein “Cingular”) appeals the district court’s order denying Cingular’s motion to compel arbitration on the ground that the provision in Cingular’s consumer cell phone contract requiring consumers to waive the right to bring a class action and to consent to arbitration is unconscionable under California law. The plaintiff, Jonathan C. Kaltwasser, brought a putative class action in federal district court in California against Cingular for alleged violations of the California Business and Professions Code and the Consumer Legal Remedies Act and for breach of contract.
Cingular filed a motion to compel arbitration under the Federal Arbitration Act pursuant to the terms of its contract with Kaltwasser. The district court denied the motion. We review the denial of a motion to compel arbitration de novo. Shroyer v. New Cingular Wireless Servs., Inc., 498 F.3d 976, 981 (9th Cir.2007). We review the district court’s choice of law determination de novo. United States v. Orr Water Ditch Co., 391 F.3d 1077, 1080 (9th Cir.2004). We have jurisdiction under 9 U.S.C. § 16(a)(1)(B), (a)(3), and we affirm.
“Federal courts sitting in diversity must apply the forum state’s choice of law rules to determine the controlling substantive law.” Fields v. Legacy Health Sys., 413 F.3d 943, 950 (9th Cir.2005) (internal quotation marks and citation omitted). Therefore, the district court did not err in finding that California had more of an interest in the enforcement of this contract than Virginia. California applies the principles set forth in § 187 of the Restatement in determining the enforceability of a contractual choice-of-law provision. Nedlloyd Lines B.V. v. Sup.Ct. of San Mateo County, 3 Cal.4th 459, 11 Cal.Rptr.2d 330, 834 P.2d 1148 (1992). First, although Virginia is where Kaltwasser currently receives his wireless service bills, it is neither where the contract was formed nor the state whose laws Kaltwasser alleges Cingular violated in its advertising that enticed him to enter into the contract.
Second, Virginia law disfavors class action lawsuits. Forrest v. Verizon Commc’ns, Inc., 805 A.2d 1007, 1011 (D.C.2002). Thus, Virginia law is in conflict with California law, which generally finds class action waivers unconscionable. Discover Bank v. Sup.Ct., 36 Cal.4th 148, 161, 30 Cal.Rptr.3d 76, 113 P.3d 1100, 1108-09 (2005).
Third, the choice of law provision in the contract is ambiguous. We therefore construe it against Cingular because it drafted the ambiguous phrase. Cal. Civ.Code § 1654; see also Bank of the West v. Superior Court, 2 Cal.4th 1254, 1264-65, 833 P.2d 545, 551-52 (Cal.1992).
Cingular argues that the revised arbitration agreement controls over the original agreement. Because Kaltwasser effectively rejected the revised arbitration agreement, it is only the original agreement that is applicable here. The class action waiver in the original arbitration agreement has been held to be unconscionable as a matter of California law. See Shroyer, 498 F.3d at 981; see also Discover Bank, 36 Cal.4th at 161, 30 Cal.Rptr.3d 76, 113 P.3d 1100. The arbitration provision specifically provides that if the class action waiver is found to be void, then the entire arbitration provision is null and void.
*110Finally, California unconscionability law is neither expressly nor impliedly preempted by the Federal Arbitration Act. 9 U.S.C. § 2; Shroyer, 498 F.3d at 987-91.
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 **
Victoria Johnson appeals two rulings by the district court in favor of the defendants, North Idaho College (NIC) and one of its former instructors, Donald Friis. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we affirm in part and reverse in part.
We review de novo a district court’s decision to grant a motion to dismiss for lack of subject matter jurisdiction, as well as its decision to grant summary judgment. See Amerco v. N.L.R.B., 458 F.3d 883, 886 (9th Cir.2006); Dreiling v. America Online, Inc., 578 F.3d 995, 1000-01 (9th Cir.2009).
The district court properly granted the motion to dismiss Johnson’s state law tort claims against NIC. Johnson’s complaint to the Idaho Human Rights Commission satisfied the Idaho Tort Claims Act’s notice requirement only with respect ■ to claims “arising under” the Idaho Human Rights Act (“IHRA”), i.e., her gender discrimination and sexual harassment claims. See Idaho Code § 67-5907A. Johnson’s other tort claims, including those for assault, battery, negligent and intentional infliction of emotional distress, and negligent supervision, hiring, and retention, do not arise under the IHRA. Accordingly, notice to the Idaho Human Rights Commission of her discrimination *112and harassment claims did not satisfy the Idaho Tort Claims Act’s notice requirements with regards to these other claims. See id.
Moreover, Johnson’s administrative grievance filed with NIC did not constitute adequate notice of her state law tort claims because it did not clearly apprise NIC that she “intended to go a step farther by bringing a tort claim.” Pounds v. Denison, 120 Idaho 425, 816 P.2d 982, 984 (1991); see also Huff v. Uhl, 103 Idaho 274, 647 P.2d 730, 732 (1982). Thus, Johnson failed to satisfy the Idaho Tort Claims Act with respect to her claims other than sexual harassment and discrimination, and the district court lacked subject matter jurisdiction over such claims.
The district court also properly granted the motion to dismiss Johnson’s state law tort claims against Friis. Although Johnson asserted her claims against Friis in his individual capacity, she failed to plead clear facts in the amended complaint to overcome the statutory presumption that a government employee acts within the scope and course of his employment while employed by the government and at the place of his employment. See Idaho Code § 6-903(e); Anderson v. Spalding, 137 Idaho 509, 50 P.3d 1004, 1013 (2002); Overman v. Klein, 103 Idaho 795, 654 P.2d 888, 890-91 (1982). Johnson therefore had to timely file notice of her tort claims against Friis with NIC, and, for the reasons stated above, she failed to do so.
The district court properly granted NIC summary judgment on Johnson’s Title IX sexual harassment claim. To be liable under Title IX, an institution must manifest deliberate indifference to gender discrimination in its midst—that is, it must both have “actual knowledge” of the discrimination and fail to respond adequately. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). No matter how “actual knowledge” is defined, no reasonable juror could conclude that NIC had notice of Friis’s conduct prior to February 2005. Moreover, there is no evidence that NIC manifested deliberate indifference to Friis’s behavior once it was on notice. The evidence is undisputed that NIC promptly investigated Johnson’s allegations and forced Fri-is to resign in short order. See, e.g., Oden v. N. Marianas Coll, 440 F.3d 1085, 1089 (9th Cir.2006).
However, we agree with Johnson that the district court erred in granting NIC summary judgment on her IHRA claims, on the basis that it does not provide for respondeat superior liability. The IHRA provides a private right of action for money damages against “educational institution[s]” that discriminate on the basis of gender, Idaho Code § 67-5909(7), and defines “educational institution” to include “an agent of an educational institution.” Id. § 67-5902(10). Such language provides for respondeat supeñor liability. See Gebser, 524 U.S. at 284, 118 S.Ct. 1989 (citing 42 U.S.C. § 2000e-2(a)).
The district court improperly discounted the clear language of the IHRA, based on a purported “conflict” between the language of § 67-5902(10) and the IHRA’s preamble, which indicates that the statute shall execute “the policies embodied in the federal Civil Rights Act of 1964.” Idaho Code § 67-5901(1). We see no conflict. As recognized by the Idaho Supreme Court in Bowles v. Keating, 100 Idaho 808, 606 P.2d 458, 461 (1979), the preamble to the IHRA expresses the policy that the IHRA parallels Title VII. See Idaho Code § 67-5901(1) & n. 1. Title VII uses near-identical language to that provided in § 67-5901(10), and likewise permits respondeat superior liability. See generally *113Gebser, 524 U.S. at 285-88, 118 S.Ct. 1989. Consequently, we reverse the decision of the district court granting summary judgment to NIC on Johnson’s IHRA claim and remand for further proceedings on that claim.
Each party to bear its own costs.
AFFIRMED IN PART, REVERSED AND REMANDED 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 *
Plaintiffs-Appellants Ron Strolberg, Charles Hawkins, and others (Appellants) appeal the district court’s grant of summary judgment in favor of the United States Marshals Service (USMS) and other federal agencies and officials in the one remaining claim in Appellants’ action, which alleges that their medical disqualifications from Court Security Officer (CSO) positions violated the Due Process Clause. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we do not supply them here except as necessary to explain our decision.
There is a constitutionally protected property interest in continued employment when an employee may only by discharged for cause, but when an “employee serves at will, he or she has no reasonable expectation of continued employment, and thus no property right.” Dyack v. N. Mariana Islands, 317 F.3d 1030, 1033 (9th Cir.2003). In this case, the collective bargaining agreement governing Appellants’ employment states that “no Employee shall be dismissed or suspended without just cause, unless the company is directed by the U.S. government to remove the Employee from working under the Employer’s contract with the U.S. government, or if the Employee’s credentials are denied or terminated by the U.S.M.S ....” (emphasis added). This provision creates a hybrid employment contract, with both at-will and for-cause portions. See Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 476 (9th Cir.1991).
Appellants in this case were terminated after they were medically disqualified. Therefore, the at-will provision of the contract governs their termination because “the Employee’s credentials [were] denied or terminated by the U.S.M.S.” Since their termination was governed by the at-will provision, Appellants had no constitutionally protected property interest, and we affirm the district court.
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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PREGERSON, J.,
dissenting:
I dissent. The protection of the federal judiciary is the responsibility of the United States Marshals Service (“USMS”). See 28 U.S.C. § 566(e)(1)(A) (“The United States Marshals Service is authorized to— (A) provide for the personal protection of *115Federal jurists, court officers, witnesses, and other threatened persons in the interests of justice where criminal intimidation impedes oh the functioning of the judicial process or any other official proceeding.The USMS is authorized to outsource its duty to protect the federal judiciary to private contractors. Private contractors, such as Akal Security, generally hire former military and law enforcement officers to serve as Court Security Officers (“CSO”). The USMS is authorized to deputize CSOs to provide courtroom security for the federal judiciary. See 28 C.F.R. § 0.112(c) (“The Director, United States Marshal Service, is authorized to deputize ... [sjelected employees of private security companies [to provide] courtroom security for the Federal judiciary....”).
Appellants are CSOs who, without an evidentiary hearing, have been medically disqualified for further service by the USMS. The USMS is the constructive employer of the CSOs because the USMS exercises ultimate control over the terms and conditions of their employment. Accordingly, CSOs should receive the same benefits as Deputy U.S. Marshals who are employed directly by USMS.
Deputy U.S. Marshals in the competitive service are entitled to specific procedural protections when facing removal or other adverse employment actions. See 5 U.S.C. § 7513. These protections include: (1) written notice; (2) the opportunity to answer orally and in writing; (3) the right to be represented by an attorney; (4) the right to a written decision with specific reasons; and (5) the right to appeal to the Merit Systems Protection Board. 5 U.S.C. § 7513.
The Merit Systems Protection Board provides a full evidentiary hearing for federal employees, like Deputy U.S. Marshals, who are subject to adverse employment actions. See 5 U.S.C. § 1204(b) (giving authority to any Board member or designee to administer oaths, examine witnesses, take depositions, receive evidence, and issue subpoenas); 5 C.F.R. §§ 1201.51-1201.58 (providing detailed regulations regarding Board hearings, including preparing the record, making motions, and determining the burden and degree of proof).
In short, when it comes to protecting the federal judiciary, CSOs are the functional equivalent of Deputy U.S. Marshals and are joint employees of USMS and Akal. Therefore, they should be afforded the same procedural protections as Deputy U.S. Marshals when faced with an adverse employment action, including a full evidentiary hearing before the Merit Systems Protection Board. To hold otherwise would be fundamentally unfair. Accordingly, I dissent.
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MEMORANDUM **
Duane Jensen, a corrections officer employed by the Las Vegas Metropolitan Police Department (“LVMPD”), appeals from two orders of the district court: the first, striking one of his exhibits and granting summary judgment to the defendants; the second, awarding the defendants $10,000 in attorneys’ fees pursuant to 42 U.S.C. § 1988. We affirm the first, but reverse the second.
Jensen brought suit against the LVMPD and Sargeant Patrick Kelly under § 1983 for retaliation in violation of the First Amendment. He also asserted several state law claims. Jensen alleges that, because he helped an inmate file a complaint against two corrections officers who reportedly attacked another inmate with pepper spray, the defendants retaliated against him by subjecting him to a baseless Internal Affairs investigation, denying him overtime, and giving him less desirable work assignments.
The district court’s grant of summary judgment is reviewed de novo. See Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir.2009). We must determine, viewing the evidence in the light most favorable to the plaintiff, whether there are any genuine issues of material fact precluding summary judgment and whether the district court correctly applied substantive law. Id. Attorneys’ fees awards made pursuant to 42 U.S.C. § 1988 are reviewed for abuse of discretion. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir.2006).
1. Summary Judgment Order
The First Amendment shields a public employee from retaliation if he speaks as a private citizen on a matter of public concern. See Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). Speech made pursuant to an official duty is not protected. Id. There is no genuine issue of fact as to whether Jensen spoke pursuant to his official duties; LVMPD Standard Operating Procedure (“SOP”) 14.00.00 specifically required him to help inmates file complaints against other corrections officers. See Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir.2006). Furthermore, aside from his own bare allegations, the only evidence that Jensen has intro*118duced that suggests that the Internal Affairs investigation against him was punishment for helping an inmate file a complaint is the fact that defendant Patrick Kelly has never initiated such an investigation against any other corrections officer. This fact alone is too thin a reed to support a plausible inference of retaliation. See Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All other evidence suggests that defendant Kelly filed an Internal Affairs complaint against Jensen after hearing from several sources allegations that Jensen had purchased a Rolex watch from an inmate’s girlfriend, in violation of LVMPD policy. And LVMPD records do not bear out Jensen’s claim that he was denied overtime and given less desirable work assignments after he helped an inmate file a formal complaint. Consequently, Jensen’s First Amendment retaliation claim fails.
Jensen also asserts state law claims for abuse of process, malicious prosecution, and emotional distress. Abuse of process requires that the plaintiff prove that the defendant had “an ulterior purpose for bringing a legal action other than resolving a dispute.” Las Vegas Fetish & Fantasy Halloween Ball, Inc. v. Ahern Rentals, Inc., 182 P.3d 764 (Nev.2008). There are no specific facts in the record that plausibly suggest that defendant Kelly had an ulterior motive for initiating the Internal Affairs investigation against Jensen. Malicious prosecution requires that the defendant initiate a criminal prosecution against the plaintiff, LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877, 880 (2002), and emotional distress requires extreme and outrageous conduct by the defendant, Jordan v. State ex rel. DMV & Pub. Safety, 121 Nev. 44, 110 P.3d 30, 52 (2005); Jensen has shown neither. Therefore, we also affirm the district court’s decision to grant summary judgment to the defendants on Jensen’s state law claims.
Jensen argues that the district court should not have struck an exhibit, a caricature of Jensen portraying him as a rat, that was included with his opposition to summary judgment. Even if Jensen had been allowed to submit his proposed exhibit, his § 1983 and state law claims would still fail, because harmless error analysis applies, Fed.R.Civ.P. 61. It is unlikely that the result would have been altered had the exhibit been admitted. Accordingly, we do not disturb the district court’s decision to strike.
2. Attorneys’ Fees Award
After granting the defendants’ motion for summary judgment, the district court found that Jensen’s lawsuit was frivolous and awarded the defendants $10,000 in attorneys’ fees. The district court relied on 42 U.S.C. § 1988(b), which provides that in a § 1983 suit “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” On its face, § 1988 does not distinguish between prevailing plaintiffs and prevailing defendants. However, the Supreme Court has interpreted § 1988 to mean that prevailing plaintiffs should recover attorneys fees unless special circumstances would render such an award unjust, but prevailing defendants can recover fees only where the plaintiffs suit was frivolous. See Thomas v. City of Tacoma, 410 F.3d 644, 647-48 (9th Cir.2005) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)). “A case may be deemed frivolous only when the result is obvious or the ... arguments of error are wholly without merit.” Gibson v. Office of Atty. Gen., State of Cal., 561 F.3d 920, 925 (9th Cir.2009) (internal quotations removed).
*119The law on First Amendment retaliation claims is not completely settled, particularly on the question of how to determine when a public employee is speaking pursuant to an official duty rather than as a private citizen. See Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (parties stipulated that speech was made pursuant to an official duty, therefore the Court had “no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate”). In light of this uncertainty, the district court abused its discretion when it found that Jensen’s First Amendment claim was frivolous and “wholly without merit.” Gibson, supra. We reverse the district court’s order granting the defendants’ motion for attorneys fees.
AFFIRMED IN PART, REVERSED 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 **
Robert J. Knight appeals the district court’s order denying his motion to vacate an arbitration decision issued by a panel appointed by the National Association of Securities Dealers (“NASD”). The panel dismissed Knight’s claims for breach of an implied contract and other causes of action arising from the termination of his employment with Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”). We must determine whether the arbitration panel exceeded its authority or manifestly disregarded the law when it issued its decision in favor of Merrill Lynch. See 9 U.S.C. § 10(a); Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 997-98 (9th Cir.2003) (en bane). We see no such error and, accordingly, we affirm.
Knight contends that the arbitration panel exceeded its authority by not holding an adequate hearing on his claims pursuant to the NASD Code of Arbitration Procedure and the parties’ arbitration agreement. After Merrill Lynch moved to dismiss Knight’s claims as untimely under the applicable statutes of limitations under California law, the panel held two telephonic conferences. Knight points to the fact that the two hearings held by the arbitration panel were telephonic, no witnesses were sworn, no witnesses were cross-examined, no documents were formally received into evidence, and only counsel for the parties, but not the parties themselves, attended. We do not agree with Knight that the arbitration panel exceeded its authority when it conducted the hearings in this manner. Neither the NASD Code of Arbitration nor the parties’ arbitration agreement defines the requirements of a hearing, and the arbitration panel reasonably decided to conduct the hearings telephonically without live witness testimony and cross-examination. There were no material factual issues in dispute between the parties. The disputed, material legal issues — the applicability of California’s statutes of limitations in arbitration and the proper limitations periods — could be fairly resolved without live witness testimony. Although Knight did not participate in the telephonic hearings, he was not precluded from doing so. Importantly, he was represented by counsel at both hearings. The arbitration panel did not exceed its authority in determining the manner in which it conducted the hearings on Knight’s claims.1 See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002).
Knight also contends that the arbitration panel manifestly disregarded state and federal law by applying California statutes of limitations to his claims. We disagree. Section 10304(c) of the NASD Code of Arbitration specifically contemplates the application of state and federal statutes of limitations, and the arbitration panel cor*121rectly applied the California statutes of limitations to all of Knight’s claims. The panel also correctly concluded that Knight’s claim for breach of an implied contract was barred by California’s two-year statute of limitations applicable to claims not founded upon an instrument in writing. The arbitration panel properly rejected Knight’s argument that his implied contract claim was based on a written contract because Knight failed to identify any document that supported his claims. The two documents that Knight provided — his written employment agreement and employment manual — both explicitly provided that Knight’s employment was at-will.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Mr. Knight also criticizes the arbitration panel for not following an advisory script during the hearings, not maintaining transcripts of the hearings, and not requiring a mutual exchange of witness and exhibit lists before the hearings. Mr. Knight never raised these criticisms with the arbitration panel, and he has not shown that he has suffered any prejudice by the panel's decision not to conduct the hearings in such a manner.
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MEMORANDUM **
Luis Enrique Bojorquez-Soto appeals from the 87-month sentence imposed following his guilty-plea conviction for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(ii)(II). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Bojorquez-Soto contends that the district court violated Federal Rule of Criminal Procedure 32 by failing to rule on a disputed fact in the presentence report. The record reflects that the district court sufficiently resolved the dispute. See United States v. Karterman, 60 F.3d 576, 583 (9th Cir.1995).
AFFIRMED.
This disposidon is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Daniel Serrano-Lemus, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Cruz-Navarro v. INS, 232 F.3d 1024, 1028 (9th Cir.2000), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the BIA’s determination that, even if Serrano-Lemus testified credibly, he did not establish past persecution from the one death threat he received while in the mili*123tary. See id. at 1028-30. Substantial evidence also supports the BIA’s determination that Serrano-Lemus did not establish a well-founded fear of future persecution based on his earlier military service. See Lolong v. Gonzales, 484 F.3d 1173, 1179-81 (9th Cir.2007) (State Department Reports constitute substantial evidence supporting BIA’s determination of no well-founded fear).
Because Serrano-Lemus failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Cruz-Navarro, 232 F.3d at 1031.
Finally, we lack jurisdiction to review Serrano-Lemus’s challenge to the IJ’s denial of voluntary departure. See 8 U.S.C. §§ 1229c(f), 1252(a) (2) (B) (i).
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 **
In these consolidated appeals, Hugo Collazos-Munoz appeals from the amended judgments modifying his restitution amounts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand to correct the judgments.
Collazos-Munoz contends that the district court erred by aggregating the total amount of restitution with regard to his two conspiracy convictions, thereby obligating him to pay more than he actually owes. We are unable to tell from the judgments how much restitution is attributable to each case. We remand with instructions to amend the judgments to list the specific amount of restitution owed in each case. See United States v. Doe, 374 F.3d 851, 854 (9th Cir.2004). The district court may, in its discretion, choose to eliminate the restitution in its case number CR-00-00105-RHW.
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 *
Plaintiffs-Appellants Ron Strolberg, Charles Hawkins, and others (Appellants) appeal the district court’s grant of summary judgment in favor of the United States Marshals Service (USMS) and other federal agencies and officials in the one remaining claim in Appellants’ action, which alleges that their medical disqualifications from Court Security Officer (CSO) positions violated the Due Process Clause. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we do not supply them here except as necessary to explain our decision.
There is a constitutionally protected property interest in continued employment when an employee may only by discharged for cause, but when an “employee serves at will, he or she has no reasonable expectation of continued employment, and thus no property right.” Dyack v. N. Mariana Islands, 317 F.3d 1030, 1033 (9th Cir.2003). In this case, the collective bargaining agreement governing Appellants’ employment states that “no Employee shall be dismissed or suspended without just cause, unless the company is directed by the U.S. government to remove the Employee from working under the Employer’s contract with the U.S. government, or if the Employee’s credentials are denied or terminated by the U.S.M.S ....” (emphasis added). This provision creates a hybrid employment contract, with both at-will and for-cause portions. See Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 476 (9th Cir.1991).
Appellants in this case were terminated after they were medically disqualified. Therefore, the at-will provision of the contract governs their termination because “the Employee’s credentials [were] denied or terminated by the U.S.M.S.” Since their termination was governed by the at-will provision, Appellants had no constitutionally protected property interest, and we affirm the district court.
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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PREGERSON, J.,
dissenting:
I dissent. The protection of the federal judiciary is the responsibility of the United States Marshals Service (“USMS”). See 28 U.S.C. § 566(e)(1)(A) (“The United States Marshals Service is authorized to— (A) provide for the personal protection of *115Federal jurists, court officers, witnesses, and other threatened persons in the interests of justice where criminal intimidation impedes oh the functioning of the judicial process or any other official proceeding.The USMS is authorized to outsource its duty to protect the federal judiciary to private contractors. Private contractors, such as Akal Security, generally hire former military and law enforcement officers to serve as Court Security Officers (“CSO”). The USMS is authorized to deputize CSOs to provide courtroom security for the federal judiciary. See 28 C.F.R. § 0.112(c) (“The Director, United States Marshal Service, is authorized to deputize ... [sjelected employees of private security companies [to provide] courtroom security for the Federal judiciary....”).
Appellants are CSOs who, without an evidentiary hearing, have been medically disqualified for further service by the USMS. The USMS is the constructive employer of the CSOs because the USMS exercises ultimate control over the terms and conditions of their employment. Accordingly, CSOs should receive the same benefits as Deputy U.S. Marshals who are employed directly by USMS.
Deputy U.S. Marshals in the competitive service are entitled to specific procedural protections when facing removal or other adverse employment actions. See 5 U.S.C. § 7513. These protections include: (1) written notice; (2) the opportunity to answer orally and in writing; (3) the right to be represented by an attorney; (4) the right to a written decision with specific reasons; and (5) the right to appeal to the Merit Systems Protection Board. 5 U.S.C. § 7513.
The Merit Systems Protection Board provides a full evidentiary hearing for federal employees, like Deputy U.S. Marshals, who are subject to adverse employment actions. See 5 U.S.C. § 1204(b) (giving authority to any Board member or designee to administer oaths, examine witnesses, take depositions, receive evidence, and issue subpoenas); 5 C.F.R. §§ 1201.51-1201.58 (providing detailed regulations regarding Board hearings, including preparing the record, making motions, and determining the burden and degree of proof).
In short, when it comes to protecting the federal judiciary, CSOs are the functional equivalent of Deputy U.S. Marshals and are joint employees of USMS and Akal. Therefore, they should be afforded the same procedural protections as Deputy U.S. Marshals when faced with an adverse employment action, including a full evidentiary hearing before the Merit Systems Protection Board. To hold otherwise would be fundamentally unfair. Accordingly, I dissent.
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MEMORANDUM **
Duane Jensen, a corrections officer employed by the Las Vegas Metropolitan Police Department (“LVMPD”), appeals from two orders of the district court: the first, striking one of his exhibits and granting summary judgment to the defendants; the second, awarding the defendants $10,000 in attorneys’ fees pursuant to 42 U.S.C. § 1988. We affirm the first, but reverse the second.
Jensen brought suit against the LVMPD and Sargeant Patrick Kelly under § 1983 for retaliation in violation of the First Amendment. He also asserted several state law claims. Jensen alleges that, because he helped an inmate file a complaint against two corrections officers who reportedly attacked another inmate with pepper spray, the defendants retaliated against him by subjecting him to a baseless Internal Affairs investigation, denying him overtime, and giving him less desirable work assignments.
The district court’s grant of summary judgment is reviewed de novo. See Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir.2009). We must determine, viewing the evidence in the light most favorable to the plaintiff, whether there are any genuine issues of material fact precluding summary judgment and whether the district court correctly applied substantive law. Id. Attorneys’ fees awards made pursuant to 42 U.S.C. § 1988 are reviewed for abuse of discretion. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir.2006).
1. Summary Judgment Order
The First Amendment shields a public employee from retaliation if he speaks as a private citizen on a matter of public concern. See Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). Speech made pursuant to an official duty is not protected. Id. There is no genuine issue of fact as to whether Jensen spoke pursuant to his official duties; LVMPD Standard Operating Procedure (“SOP”) 14.00.00 specifically required him to help inmates file complaints against other corrections officers. See Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir.2006). Furthermore, aside from his own bare allegations, the only evidence that Jensen has intro*118duced that suggests that the Internal Affairs investigation against him was punishment for helping an inmate file a complaint is the fact that defendant Patrick Kelly has never initiated such an investigation against any other corrections officer. This fact alone is too thin a reed to support a plausible inference of retaliation. See Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All other evidence suggests that defendant Kelly filed an Internal Affairs complaint against Jensen after hearing from several sources allegations that Jensen had purchased a Rolex watch from an inmate’s girlfriend, in violation of LVMPD policy. And LVMPD records do not bear out Jensen’s claim that he was denied overtime and given less desirable work assignments after he helped an inmate file a formal complaint. Consequently, Jensen’s First Amendment retaliation claim fails.
Jensen also asserts state law claims for abuse of process, malicious prosecution, and emotional distress. Abuse of process requires that the plaintiff prove that the defendant had “an ulterior purpose for bringing a legal action other than resolving a dispute.” Las Vegas Fetish & Fantasy Halloween Ball, Inc. v. Ahern Rentals, Inc., 182 P.3d 764 (Nev.2008). There are no specific facts in the record that plausibly suggest that defendant Kelly had an ulterior motive for initiating the Internal Affairs investigation against Jensen. Malicious prosecution requires that the defendant initiate a criminal prosecution against the plaintiff, LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877, 880 (2002), and emotional distress requires extreme and outrageous conduct by the defendant, Jordan v. State ex rel. DMV & Pub. Safety, 121 Nev. 44, 110 P.3d 30, 52 (2005); Jensen has shown neither. Therefore, we also affirm the district court’s decision to grant summary judgment to the defendants on Jensen’s state law claims.
Jensen argues that the district court should not have struck an exhibit, a caricature of Jensen portraying him as a rat, that was included with his opposition to summary judgment. Even if Jensen had been allowed to submit his proposed exhibit, his § 1983 and state law claims would still fail, because harmless error analysis applies, Fed.R.Civ.P. 61. It is unlikely that the result would have been altered had the exhibit been admitted. Accordingly, we do not disturb the district court’s decision to strike.
2. Attorneys’ Fees Award
After granting the defendants’ motion for summary judgment, the district court found that Jensen’s lawsuit was frivolous and awarded the defendants $10,000 in attorneys’ fees. The district court relied on 42 U.S.C. § 1988(b), which provides that in a § 1983 suit “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” On its face, § 1988 does not distinguish between prevailing plaintiffs and prevailing defendants. However, the Supreme Court has interpreted § 1988 to mean that prevailing plaintiffs should recover attorneys fees unless special circumstances would render such an award unjust, but prevailing defendants can recover fees only where the plaintiffs suit was frivolous. See Thomas v. City of Tacoma, 410 F.3d 644, 647-48 (9th Cir.2005) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)). “A case may be deemed frivolous only when the result is obvious or the ... arguments of error are wholly without merit.” Gibson v. Office of Atty. Gen., State of Cal., 561 F.3d 920, 925 (9th Cir.2009) (internal quotations removed).
*119The law on First Amendment retaliation claims is not completely settled, particularly on the question of how to determine when a public employee is speaking pursuant to an official duty rather than as a private citizen. See Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (parties stipulated that speech was made pursuant to an official duty, therefore the Court had “no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate”). In light of this uncertainty, the district court abused its discretion when it found that Jensen’s First Amendment claim was frivolous and “wholly without merit.” Gibson, supra. We reverse the district court’s order granting the defendants’ motion for attorneys fees.
AFFIRMED IN PART, REVERSED 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 **
Robert J. Knight appeals the district court’s order denying his motion to vacate an arbitration decision issued by a panel appointed by the National Association of Securities Dealers (“NASD”). The panel dismissed Knight’s claims for breach of an implied contract and other causes of action arising from the termination of his employment with Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”). We must determine whether the arbitration panel exceeded its authority or manifestly disregarded the law when it issued its decision in favor of Merrill Lynch. See 9 U.S.C. § 10(a); Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 997-98 (9th Cir.2003) (en bane). We see no such error and, accordingly, we affirm.
Knight contends that the arbitration panel exceeded its authority by not holding an adequate hearing on his claims pursuant to the NASD Code of Arbitration Procedure and the parties’ arbitration agreement. After Merrill Lynch moved to dismiss Knight’s claims as untimely under the applicable statutes of limitations under California law, the panel held two telephonic conferences. Knight points to the fact that the two hearings held by the arbitration panel were telephonic, no witnesses were sworn, no witnesses were cross-examined, no documents were formally received into evidence, and only counsel for the parties, but not the parties themselves, attended. We do not agree with Knight that the arbitration panel exceeded its authority when it conducted the hearings in this manner. Neither the NASD Code of Arbitration nor the parties’ arbitration agreement defines the requirements of a hearing, and the arbitration panel reasonably decided to conduct the hearings telephonically without live witness testimony and cross-examination. There were no material factual issues in dispute between the parties. The disputed, material legal issues — the applicability of California’s statutes of limitations in arbitration and the proper limitations periods — could be fairly resolved without live witness testimony. Although Knight did not participate in the telephonic hearings, he was not precluded from doing so. Importantly, he was represented by counsel at both hearings. The arbitration panel did not exceed its authority in determining the manner in which it conducted the hearings on Knight’s claims.1 See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002).
Knight also contends that the arbitration panel manifestly disregarded state and federal law by applying California statutes of limitations to his claims. We disagree. Section 10304(c) of the NASD Code of Arbitration specifically contemplates the application of state and federal statutes of limitations, and the arbitration panel cor*121rectly applied the California statutes of limitations to all of Knight’s claims. The panel also correctly concluded that Knight’s claim for breach of an implied contract was barred by California’s two-year statute of limitations applicable to claims not founded upon an instrument in writing. The arbitration panel properly rejected Knight’s argument that his implied contract claim was based on a written contract because Knight failed to identify any document that supported his claims. The two documents that Knight provided — his written employment agreement and employment manual — both explicitly provided that Knight’s employment was at-will.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Mr. Knight also criticizes the arbitration panel for not following an advisory script during the hearings, not maintaining transcripts of the hearings, and not requiring a mutual exchange of witness and exhibit lists before the hearings. Mr. Knight never raised these criticisms with the arbitration panel, and he has not shown that he has suffered any prejudice by the panel's decision not to conduct the hearings in such a manner.
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MEMORANDUM **
Luis Enrique Bojorquez-Soto appeals from the 87-month sentence imposed following his guilty-plea conviction for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(ii)(II). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Bojorquez-Soto contends that the district court violated Federal Rule of Criminal Procedure 32 by failing to rule on a disputed fact in the presentence report. The record reflects that the district court sufficiently resolved the dispute. See United States v. Karterman, 60 F.3d 576, 583 (9th Cir.1995).
AFFIRMED.
This disposidon is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Daniel Serrano-Lemus, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Cruz-Navarro v. INS, 232 F.3d 1024, 1028 (9th Cir.2000), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the BIA’s determination that, even if Serrano-Lemus testified credibly, he did not establish past persecution from the one death threat he received while in the mili*123tary. See id. at 1028-30. Substantial evidence also supports the BIA’s determination that Serrano-Lemus did not establish a well-founded fear of future persecution based on his earlier military service. See Lolong v. Gonzales, 484 F.3d 1173, 1179-81 (9th Cir.2007) (State Department Reports constitute substantial evidence supporting BIA’s determination of no well-founded fear).
Because Serrano-Lemus failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Cruz-Navarro, 232 F.3d at 1031.
Finally, we lack jurisdiction to review Serrano-Lemus’s challenge to the IJ’s denial of voluntary departure. See 8 U.S.C. §§ 1229c(f), 1252(a) (2) (B) (i).
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 **
Varduhi Hovakimyan, her husband, Gar-abet Osapian, and their children, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen based on ineffective assistance of counsel and changed country conditions. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and review de novo ineffective assistance of counsel claims. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We grant in part, deny in part, and dismiss in part the petition for review, and remand.
The BIA erred when it failed fully to address Hovakimyan’s ineffective assistance of counsel claim based on prior counsel’s failure to raise on appeal the immigration judge’s finding that Hovakimyan had filed a frivolous asylum application. See Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir.2005) (remanding for failure to address petitioner’s equitable tolling argument); Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (BIA is “not free to ignore arguments raised by a petitioner”). We remand for the BIA to reconsider Hovakimyan’s ineffective assistance of counsel claim and to consider whether prior counsel’s performance warrants equitable tolling of the 90-day deadline on Hovakimyan’s motion to reopen. See Iturribarria, 321 F.3d at 899 (motions deadline tolled until petitioner meets with new counsel and reviews file); see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
The BIA did not abuse its discretion in determining that Hovakimyan failed to provide sufficient evidence of changed circumstances in Armenia. See 8 C.F.R. § 1003.2(e)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”).
We lack jurisdiction to review the BIA’s refusal to exercise its sua sponte power to grant motions to reopen. See Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir.2009).
The parties shall bear them own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part; DISMISSED in part; 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 **
Ronaq Singh, a native and citizen of India, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003), and we deny the petition for review.
*127Substantial evidence, including Singh’s own testimony, supports the BIA’s determination that, even if Singh’s testimony was credible and he established past persecution, the government established by a preponderance of the evidence that it is reasonable for Singh to relocate. See 8 C.F.R. § 1208.13(b)(l)(i)(B); Gonzalez-Hernandez, 336 F.3d at 998-99. Accordingly, Singh’s asylum claim fails.
Because Singh failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Gonzalez-Hernandez, 336 F.3d at 1001 n. 5.
Substantial evidence also supports the agency’s denial of CAT protection because Singh failed to demonstrate it is more likely than not he will be tortured if returned to India. See 8 C.F.R. § 1208.16(c)(3)(ii); see also Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
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 **
Kamal Agni, a native and citizen of Morocco, petitions for review of the Board of Immigration Appeals’ (“BIA”) determination that he is removable pursuant to 8 U.S.C. § 1227(a)(2)(E)® and (E)(ii). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.1
Agni’s conviction under section 9A.36.041 of the Revised Code of Washington for fourth degree domestic violence *133assault does not make him removable under § 1227(a)(2)(E)(i) because the record of conviction does not establish that Agni admitted to using the requisite amount of force to satisfy the federal definition of “a crime of violence.” See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124-25 (9th Cir.2006) (en banc) (explaining that under § 1227(a)(2)(E)(i), the conviction must be a federal “crime of violence” that is committed against a person in a domestic relationship with the defendant); Suazo Perez v. Mukasey, 512 F.3d 1222, 1226-27 (9th Cir.2008) (holding that section 9A.36.041 is not categorically a “crime of violence,” and that the modified categorical approach requires the record to show that the defendant admitted to facts satisfying the federal definition).
However, Agni is removable under § 1227(a)(2)(E)(ii). Under the modified categorical approach, the record of conviction shows that Agni was enjoined under a “protection order ... issued for the purpose of preventing violent or threatening acts of domestic violence.” 8 U.S.C. § 1227(a)(2)(E)(ii). In his guilty plea, Agni admitted that the order was issued to protect his domestic partner. Furthermore, facts set forth in the Certification for the Determination of Probable Cause— a document that was expressly incorporated into the plea agreement with Agni’s consent — establish that the order was issued as a result of Agni’s domestic violence assault conviction and that it required him to maintain a distance of 500 feet from his domestic partner. See Suazo Perez, 512 F.3d at 1226-27 (noting that a petitioner’s decision to incorporate documents into his guilty plea made them “an explicit statement ‘in which the factual basis for the plea was confirmed by the defendant’”) (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir.2005)). Thus, we conclude that the no-contact order was “issued for the purpose of preventing violent or threatening acts of domestic violence.” 8 U.S.C. § 1227(a)(2)(E)(ii).
We also conclude that the record of conviction shows that Agni violated the portion of the order involving “ ‘protection against credible threats of violence, repeated harassment, or bodily injury.’ ” Alanis-Alvarado v. Holder, 558 F.3d 833, 839 (9th Cir.2009) (quoting 8 U.S.C. § 1227(a)(2)(E)(ii)). The Certification for the Determination of Probable Cause demonstrates that Agni violated the portion of the order requiring him to maintain a distance of 500 feet from his partner, which though not necessarily violent in and of itself, nonetheless “involves protection against” violence, threats or harassment. Id. at 839-40 (explaining that an injunction against, for example, making a telephone call to the protected person “involves” protection against harassment, threats or violence within the meaning of § 1227(a)(2)(E)(ii)); see also Szalai v. Holder, 572 F.3d 975, 982 (9th Cir.2009) (concluding that the petitioner’s violation of a “restraining order’s 100 yard stay away provision” involved protection against threats of violence, harassment, or bodily injury).
PETITION DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The parties are familiar with the facts of this case, so we repeat them here only as necessary.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM **
Zilbert Simonyan, a native of Iran and citizen of Armenia, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s order denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review.
Substantial evidence supports the BIA’s adverse credibility determination because Simonyan’s statement during his port of entry interview that he did not fear harm from the Armenian government was inconsistent with his testimony that the government threatened him and the BIA could reasonably conclude that there was a valid discrepancy between the interview and Simonyan’s testimony. See id. at 963 (9th Cir.2004).
Simonyan does not raise any arguments in his opening brief regarding the denial of CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues which are not specifically raised *126and argued in a party’s opening brief are waived).
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 **
Ronaq Singh, a native and citizen of India, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003), and we deny the petition for review.
*127Substantial evidence, including Singh’s own testimony, supports the BIA’s determination that, even if Singh’s testimony was credible and he established past persecution, the government established by a preponderance of the evidence that it is reasonable for Singh to relocate. See 8 C.F.R. § 1208.13(b)(l)(i)(B); Gonzalez-Hernandez, 336 F.3d at 998-99. Accordingly, Singh’s asylum claim fails.
Because Singh failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Gonzalez-Hernandez, 336 F.3d at 1001 n. 5.
Substantial evidence also supports the agency’s denial of CAT protection because Singh failed to demonstrate it is more likely than not he will be tortured if returned to India. See 8 C.F.R. § 1208.16(c)(3)(ii); see also Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
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 **
Kurniawaty, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003), and we deny in part and grant in part the petition for review.
Substantial evidence does not support the IJ’s adverse credibility determination, because the IJ failed to point to inconsistencies in Kurniawaty’s testimony or offer other specific, cogent reasons for her disbelief of Kurniawaty’s Chinese ethnicity. See Garrovillas v. INS, 156 F.3d 1010, 1013-16 (9th Cir.1998); see also 8 C.F.R. § 1208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”).
Substantial evidence supports the BIA’s finding that Kurniawaty failed to establish she suffered past persecution in Indonesia. See Nagoulko, 333 F.3d at 1016-18. In analyzing Kurniawaty’s future fear, the BIA declined to apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir.2004), to Kurniawaty’s withholding of removal claim. Intervening case law holds the disfavored group analysis does apply. See Wakkary v. Holder, 558 F.3d 1049, 1062-65 (9th Cir.2009). Accordingly, we remand to the BIA, deeming Kurniawaty’s testimony credible, see Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96 (9th Cir.2009), for consideration of whether Kurniawaty is entitled to withholding of removal under Sael and Walcka'ry.
We reject Kurniawaty’s contention that the BIA violated due process by failing to consider the evidence submitted on appeal because she has not overcome the presumption that the BIA reviewed the record. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; 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 **
Richard Taylor appeals the district court’s grant of summary judgment on his Federal Tort Claims Act (“FTCA”) action against the United States. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court’s grant of summary judgment, a decision which we review de novo. McDonald v. Sun Oil Co., 548 F.3d 774, 778 (9th Cir.2008).
In conducting a summary judgment analysis, we must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, the plaintiff has tendered evidence that he volunteered to do tree-trimming on government-owned land; that the government accepted his offer and provided him with some benefits in exchange; that he requested the government provide a mechanical lift, or “cherry picker,” for safety reasons and it refused; that he offered to rent a “cherry picker” if the government would reimburse him and it refused; and that the government summoned him to do the work, with requests increasing in number and scale over time. As to the incident in question, several government agents called him to remove a particular tree and urged him to complete the task quickly because they wanted to install a camera to monitor a golf tee as soon as possible.
*131The FTCA imposes liability on the United States “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA calls for application “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
Under California law, “[a]s a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” Knight v. Jewett, 3 Cal.4th 296, 315, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Cal.1992) (en banc). The affirmative defense of primary assumption of risk provides one exception to this rule. See Neighbarger v. Irwin Industries, Inc., 8 Cal.4th 532, 541, 34 Cal.Rptr.2d 630, 882 P.2d 347 (Cal.1994). In California, primary assumption of risk completely bars a plaintiffs recovery where a court finds as a matter of public policy that the defendant lacked a duty to protect the plaintiff from a particular risk of harm. Id. The doctrine turns on “the nature of the activity or sport in which the defendant is engaged” and “the relationship of the defendant and the plaintiff to that activity or sport.” Knight, 3 Cal.4th at 309, 11 Cal.Rptr.2d 2, 834 P.2d 696. California courts have recognized primary assumption of risk in two contexts: occupational injuries implicating the “firefighter’s rule” and recreational sports injuries. Id. at 309 n. 5, 11 Cal.Rptr.2d 2, 834 P.2d 696.
Taylor’s claim does not satisfy the requirements of primary assumption of risk in either context. First, the nature of tree-cutting and Taylor’s status as a volunteer render the firefighter’s rule inapplicable, as does the absence of a public policy rationale for the doctrine in this case. Second, Taylor’s tree-trimming activities do not qualify as a recreational sport or similar activity. Applying the doctrine of primary assumption of risk in this context would involve extending the rule beyond the contours heretofore established in California as matters of law and. policy. We decline to do so here. The appropriate analysis for this case is secondary assumption of risk, not primary assumption of risk. Knight, 3 Cal.4th at 315, 11 Cal.Rptr.2d 2, 834 P.2d 696. The district court erred in granting summary judgment based on primary assumption of risk.
We need not, and do not, reach any other question presented by the parties.
REVERSED 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 **
Kamal Agni, a native and citizen of Morocco, petitions for review of the Board of Immigration Appeals’ (“BIA”) determination that he is removable pursuant to 8 U.S.C. § 1227(a)(2)(E)® and (E)(ii). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.1
Agni’s conviction under section 9A.36.041 of the Revised Code of Washington for fourth degree domestic violence *133assault does not make him removable under § 1227(a)(2)(E)(i) because the record of conviction does not establish that Agni admitted to using the requisite amount of force to satisfy the federal definition of “a crime of violence.” See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1124-25 (9th Cir.2006) (en banc) (explaining that under § 1227(a)(2)(E)(i), the conviction must be a federal “crime of violence” that is committed against a person in a domestic relationship with the defendant); Suazo Perez v. Mukasey, 512 F.3d 1222, 1226-27 (9th Cir.2008) (holding that section 9A.36.041 is not categorically a “crime of violence,” and that the modified categorical approach requires the record to show that the defendant admitted to facts satisfying the federal definition).
However, Agni is removable under § 1227(a)(2)(E)(ii). Under the modified categorical approach, the record of conviction shows that Agni was enjoined under a “protection order ... issued for the purpose of preventing violent or threatening acts of domestic violence.” 8 U.S.C. § 1227(a)(2)(E)(ii). In his guilty plea, Agni admitted that the order was issued to protect his domestic partner. Furthermore, facts set forth in the Certification for the Determination of Probable Cause— a document that was expressly incorporated into the plea agreement with Agni’s consent — establish that the order was issued as a result of Agni’s domestic violence assault conviction and that it required him to maintain a distance of 500 feet from his domestic partner. See Suazo Perez, 512 F.3d at 1226-27 (noting that a petitioner’s decision to incorporate documents into his guilty plea made them “an explicit statement ‘in which the factual basis for the plea was confirmed by the defendant’”) (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir.2005)). Thus, we conclude that the no-contact order was “issued for the purpose of preventing violent or threatening acts of domestic violence.” 8 U.S.C. § 1227(a)(2)(E)(ii).
We also conclude that the record of conviction shows that Agni violated the portion of the order involving “ ‘protection against credible threats of violence, repeated harassment, or bodily injury.’ ” Alanis-Alvarado v. Holder, 558 F.3d 833, 839 (9th Cir.2009) (quoting 8 U.S.C. § 1227(a)(2)(E)(ii)). The Certification for the Determination of Probable Cause demonstrates that Agni violated the portion of the order requiring him to maintain a distance of 500 feet from his partner, which though not necessarily violent in and of itself, nonetheless “involves protection against” violence, threats or harassment. Id. at 839-40 (explaining that an injunction against, for example, making a telephone call to the protected person “involves” protection against harassment, threats or violence within the meaning of § 1227(a)(2)(E)(ii)); see also Szalai v. Holder, 572 F.3d 975, 982 (9th Cir.2009) (concluding that the petitioner’s violation of a “restraining order’s 100 yard stay away provision” involved protection against threats of violence, harassment, or bodily injury).
PETITION DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The parties are familiar with the facts of this case, so we repeat them here only as necessary.
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM **
In these consolidated appeals, Brian Lee Cox appeals from the consecutive 24-month sentences imposed following revocation of the concurrent terms of supervised release he was serving following guilty-plea convictions for bank robbery and escape. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Cox contends that the district court erred by imposing a sentence at the statutory maximum, well above the advisory Guidelines range, without sufficient consideration of the 18 U.S.C. § 3553(a) factors. He also contends that his sentence is substantively unreasonable. The record reflects that the district court’s explanation for imposing the sentence was sufficient, and that Cox’s sentence is reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Nevada state prisoner Jimmy Lee Nelson appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely filed. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Nelson contends that he is entitled to equitable tolling of the AEDPA’s one-year limitation period. He also contends that the district court abused its discretion when it denied Nelson’s request for an evidentiary hearing on this claim.
We agree with the district court’s conclusion that Nelson’s medical records do not establish a basis for equitable tolling or for an evidentiary hearing. Nelson failed to demonstrate that his mental and physical medical conditions constitute extraordinary circumstances that made it impossible for him to file his federal habeas petition within AEDPA’s one-year filing deadline, or that he diligently pursued his case. See Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir.2007). Moreover, the district court did not abuse its discretion when it denied Nelson’s request for an evidentiary hearing. See 28 U.S.C. § 2254(c)(2); Williams v. Woodford, 384 F.3d 567, 591 (9th Cir.2004) (no evidentiary hearing is warranted where “the documentary evidence submitted fully presented the relevant facts of [petitioner’s] claim” and where an evidentiary hearing “would not offer any reasonable chance of altering [the district court’s] view of the facts.”).
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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*138MEMORANDUM **
Osmar Jimenez-Barrera petitions for review of a Board of Immigration Appeals (“BIA”) dismissal of an appeal of a denial of a motion to reopen by an immigration judge (“IJ”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review.
Jimenez-Barrera was ordered removed in absentia by an IJ. His new counsel filed a motion to reopen and a motion to stay proceedings, which were denied by the IJ, and a motion for reconsideration. While the reconsideration motion was pending, the government removed Jimenez-Barrera to El Salvador. The IJ subsequently denied the motion to reconsider. Jimenez-Barrera appealed the IJ’s decision. The government notified the BIA that it had removed Jimenez-Barrera from the country and requested dismissal of the appeal. The BIA dismissed the appeal, citing 8 C.F.R. § 1003.4 and the doctrine of mootness.
The BIA erred in relying on 8 C.F.R. § 1003.4. That regulation states in relevant part that:
Departure from the United States of a person who is the subject of deportation or removal proceedings ... subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.
By its terms, the regulation applies only to departures occurring “subsequent to the taking of an appeal.” Here, Jimenez-Barrera was forcibly removed before filing an appeal, so the regulation by its plain terms does not apply to his case.
The government concedes that § 1003.4 does not apply, but argues that there are other regulations that might apply. In reviewing a decision of the BIA, however, we consider only the basis for decision given by the BIA, not the analysis the government wishes the BIA would have employed. Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004). Our precedent requires that we must decline to invent a new basis for sustaining the BIA’s decision, and we express no opinion on the viability of the government’s new argument.
The other rationale given by the BIA for dismissal of the appeal is that the appeal was rendered moot by the government’s removal of Jimenez-Barrera, citing In re Luis-Rodriguez, 22 I. & N. Dec. 747 (BIA 1999). Luis held that “where a controversy has become so attenuated or where a change in the law or an action by one of the parties has deprived an appeal or motion of practical significance, considerations of prudence may warrant dismissal of an appeal or denial of a motion as moot.” Id. at 753 (emphasis added). Luis does not stand for the proposition that a forcible removal of a petitioner from the United States by the government automatically moots a pending appeal. In fact, the holding in Luis was that the departure of the petitioner in that case did not moot the appeal. Id. at 754; see also Matter of Bulnes-Nolasco, 25 I. & N. Dec. 57 (BIA 2009) (holding that an alien’s departure based on an in absentia removal order does not necessarily deprive an IJ of jurisdiction to decide a motion to reopen); In re Morales, 21 I. & N. Dec. 130, 147 (BIA 1995) (noting that removal does not necessarily render an appeal moot); Matter of *139Keyte, 20 I. & N. Dec. 158, 159 (BIA 1990) (“The departure pending appeal of an alien who has been stopped at the border and ordered excluded is not necessarily incompatible with a design to prosecute the appeal to a conclusion”).
It is reversible error where the Board fails to exercise its own discretion, contrary to existing regulations. Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005). The BIA’s finding of forcible removal was insufficient, by itself, to support its determination that the appeal was moot under the Luis “practical significance” standard. Because it failed to consider whether the forcible removal of Jimenez-Barrera actually “deprived [his] appeal ... of practical significance,” the BIA abused its discretion dismissing the appeal.
The government does not respond to petitioner’s argument that the appeal still had practical significance after Jimenez-Barrera’s removal. It relies only on the regulations pertaining to withdrawal of appeal after departure. However, this conflation was specifically rejected by the BIA in Luis wherein the BIA devoted considerable analysis differentiating between the two bases for dismissal. 22 I. & N. Dec. 747 at 752-54.
Because the BIA relied on an inapplicable regulation and an erroneous legal conclusion that forcible removal automatically and categorically renders a pending appeal moot, we must grant the petition and remand for further proceedings. We need not, and do not, reach any other issue urged by the parties.
PETITION GRANTED; REMANDED.
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 ***
Patricia and Daniel Fierle appeal from the district court’s order dismissing their complaint pursuant to the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in applying the Colorado River factors. See Holder v. Holder, 305 F.3d 854, 870 (9th Cir.2002). As a threshold requirement, the federal and state court actions must be “substantially similar.” Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir.1989); see Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“[Pjarallel state-court litigation [must] be an adequate vehicle for the complete and prompt resolution of the issues between the parties.”). Regardless of the Nevada Supreme Court’s ultimate decision, all of the Fierles’ claims are in some way before *142it. Thus, the district court’s finding that the parallel state and federal actions were substantially similar was not an abuse of discretion.
The district court’s balancing of the other Colorado River factors is also consistent with applicable law. Particularly, the piecemeal litigation factor weighs in favor of abstention because the state court has already ruled on an issue, and a parallel federal action would be duplicative. As the state court proceeding has progressed further, the order in which jurisdiction was obtained by the concurrent forums weighs in favor of abstention as well. Finally, the Fierles’ decision to appeal the dismissal and file a new duplicative claim in federal court, rather than refile their complaint in state court, raises concerns of forum shopping, and the district court correctly weighed this factor in favor of abstention.
Nevertheless, “district courts must stay, rather than dismiss, an action when they determine that they should defer to the state court proceedings under Colorado River.” Coopers & Lybrand v. Sun-Diamond Growers of CA, 912 F.2d 1135, 1138 (9th Cir.1990). Because a stay avoids “speculative and difficult questions of state preclusion and limitations law,” Attwood v. Mendocino Coast Dist. Hosp., 886 F.2d 241, 244 (9th Cir.1989), the district court should have granted a stay, rather than a dismissal, after determining that the Colorado River doctrine applies.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART AND REMANDED WITH INSTRXJCTXONS TO STAY THE MATTER.
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:
Troy Dean Bush appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bush, No. 5:03-cr-00037-RLV-14 (W.D.N.C. June 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 **
Nevada state prisoner Jimmy Lee Nelson appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely filed. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Nelson contends that he is entitled to equitable tolling of the AEDPA’s one-year limitation period. He also contends that the district court abused its discretion when it denied Nelson’s request for an evidentiary hearing on this claim.
We agree with the district court’s conclusion that Nelson’s medical records do not establish a basis for equitable tolling or for an evidentiary hearing. Nelson failed to demonstrate that his mental and physical medical conditions constitute extraordinary circumstances that made it impossible for him to file his federal habeas petition within AEDPA’s one-year filing deadline, or that he diligently pursued his case. See Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir.2007). Moreover, the district court did not abuse its discretion when it denied Nelson’s request for an evidentiary hearing. See 28 U.S.C. § 2254(c)(2); Williams v. Woodford, 384 F.3d 567, 591 (9th Cir.2004) (no evidentiary hearing is warranted where “the documentary evidence submitted fully presented the relevant facts of [petitioner’s] claim” and where an evidentiary hearing “would not offer any reasonable chance of altering [the district court’s] view of the facts.”).
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 **
Oregon state prisoner Gary W. Clarkson appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Clarkson contends that his trial counsel’s performance was deficient because the attorney: (1) failed to demonstrate during trial that the victim’s mother improperly coached the victim; (2) failed to obtain a medical expert to rebut the testimony of the prosecution’s expert; and (3) failed to object to the introduction of a taped interview of the victim.
We agree with the district court’s conclusion that Clarkson failed to show that his trial counsel’s performance fell below an objective standard of reasonableness, or that any deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, Clarkson failed to provide sufficient evidence to rebut the presumption of correctness accorded to the state court’s determination of factual issues under 28 U.S.C. § 2254(e)(1), or to show that the state court’s determination of factual issues was unreasonable in light of the evidence before it. See 28 U.S.C. § 2254(d)(2). Moreover, the state court’s decision was not contrary to or an unreasonable application of clearly estab*137lished federal law. See 28 U.S.C. § 2254(d)(1).
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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*138MEMORANDUM **
Osmar Jimenez-Barrera petitions for review of a Board of Immigration Appeals (“BIA”) dismissal of an appeal of a denial of a motion to reopen by an immigration judge (“IJ”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition for review.
Jimenez-Barrera was ordered removed in absentia by an IJ. His new counsel filed a motion to reopen and a motion to stay proceedings, which were denied by the IJ, and a motion for reconsideration. While the reconsideration motion was pending, the government removed Jimenez-Barrera to El Salvador. The IJ subsequently denied the motion to reconsider. Jimenez-Barrera appealed the IJ’s decision. The government notified the BIA that it had removed Jimenez-Barrera from the country and requested dismissal of the appeal. The BIA dismissed the appeal, citing 8 C.F.R. § 1003.4 and the doctrine of mootness.
The BIA erred in relying on 8 C.F.R. § 1003.4. That regulation states in relevant part that:
Departure from the United States of a person who is the subject of deportation or removal proceedings ... subsequent to the taking of an appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial decision in the case shall be final to the same extent as though no appeal had been taken.
By its terms, the regulation applies only to departures occurring “subsequent to the taking of an appeal.” Here, Jimenez-Barrera was forcibly removed before filing an appeal, so the regulation by its plain terms does not apply to his case.
The government concedes that § 1003.4 does not apply, but argues that there are other regulations that might apply. In reviewing a decision of the BIA, however, we consider only the basis for decision given by the BIA, not the analysis the government wishes the BIA would have employed. Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir.2004). Our precedent requires that we must decline to invent a new basis for sustaining the BIA’s decision, and we express no opinion on the viability of the government’s new argument.
The other rationale given by the BIA for dismissal of the appeal is that the appeal was rendered moot by the government’s removal of Jimenez-Barrera, citing In re Luis-Rodriguez, 22 I. & N. Dec. 747 (BIA 1999). Luis held that “where a controversy has become so attenuated or where a change in the law or an action by one of the parties has deprived an appeal or motion of practical significance, considerations of prudence may warrant dismissal of an appeal or denial of a motion as moot.” Id. at 753 (emphasis added). Luis does not stand for the proposition that a forcible removal of a petitioner from the United States by the government automatically moots a pending appeal. In fact, the holding in Luis was that the departure of the petitioner in that case did not moot the appeal. Id. at 754; see also Matter of Bulnes-Nolasco, 25 I. & N. Dec. 57 (BIA 2009) (holding that an alien’s departure based on an in absentia removal order does not necessarily deprive an IJ of jurisdiction to decide a motion to reopen); In re Morales, 21 I. & N. Dec. 130, 147 (BIA 1995) (noting that removal does not necessarily render an appeal moot); Matter of *139Keyte, 20 I. & N. Dec. 158, 159 (BIA 1990) (“The departure pending appeal of an alien who has been stopped at the border and ordered excluded is not necessarily incompatible with a design to prosecute the appeal to a conclusion”).
It is reversible error where the Board fails to exercise its own discretion, contrary to existing regulations. Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005). The BIA’s finding of forcible removal was insufficient, by itself, to support its determination that the appeal was moot under the Luis “practical significance” standard. Because it failed to consider whether the forcible removal of Jimenez-Barrera actually “deprived [his] appeal ... of practical significance,” the BIA abused its discretion dismissing the appeal.
The government does not respond to petitioner’s argument that the appeal still had practical significance after Jimenez-Barrera’s removal. It relies only on the regulations pertaining to withdrawal of appeal after departure. However, this conflation was specifically rejected by the BIA in Luis wherein the BIA devoted considerable analysis differentiating between the two bases for dismissal. 22 I. & N. Dec. 747 at 752-54.
Because the BIA relied on an inapplicable regulation and an erroneous legal conclusion that forcible removal automatically and categorically renders a pending appeal moot, we must grant the petition and remand for further proceedings. We need not, and do not, reach any other issue urged by the parties.
PETITION GRANTED; REMANDED.
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 **
Petitioner Nodar Skhvitaridze (“Skhvitaridze”), a native and citizen of Georgia, appeals the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) order denying asylum and withholding of removal. Skhvitaridze sought asylum and withholding of removal on the basis of his fear of persecution.
We have jurisdiction under 8 U.S.C. § 1252. We conclude that the IJ erred in requiring corroborating evidence and that the error was not harmless. Therefore, we grant the petition and remand.
The law in this circuit is well settled that “an alien’s testimony, if unrefuted and credible, direct and specific, is sufficient to establish the facts testified without the need for any corroboration.” Ladha v. INS, 215 F.3d 889, 901 (9th Cir.2000), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc); see also Cordon-Garcia v. INS, 204 F.3d 985, 992 (9th Cir.2000) (stating that “this court does not require corroborative evidence”). “When an alien credibly testifies to certain facts, those facts are deemed true, and the question remaining to be answered becomes whether these facts, and their reasonable inferences, satisfy the elements of the claim for relief. No further corroboration is required.” Ladha, 215 F.3d at 900.
Having found petitioner credible, the IJ erred in requiring corroborating evidence. The corroborating evidence related to some of Skhvitaridze’s most compelling testimony, and the IJ’s error was not harmless as the government argues. In finding that Skhvitaridze’s fear of persecution was not objectively reasonable, the IJ pointed to the changed country conditions in Georgia. In considering the significance of the changed conditions, the IJ failed to give full consideration to Skhvitaridze’s testimony. We therefore grant the petition and remand to the agency to determine whether, giving full weight to Skhvitaridze’s credible testimony, Skhvitaridze has an objective fear of persecution.
PETITION FOR REVIEW GRANTED 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 ***
Patricia and Daniel Fierle appeal from the district court’s order dismissing their complaint pursuant to the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in applying the Colorado River factors. See Holder v. Holder, 305 F.3d 854, 870 (9th Cir.2002). As a threshold requirement, the federal and state court actions must be “substantially similar.” Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir.1989); see Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“[Pjarallel state-court litigation [must] be an adequate vehicle for the complete and prompt resolution of the issues between the parties.”). Regardless of the Nevada Supreme Court’s ultimate decision, all of the Fierles’ claims are in some way before *142it. Thus, the district court’s finding that the parallel state and federal actions were substantially similar was not an abuse of discretion.
The district court’s balancing of the other Colorado River factors is also consistent with applicable law. Particularly, the piecemeal litigation factor weighs in favor of abstention because the state court has already ruled on an issue, and a parallel federal action would be duplicative. As the state court proceeding has progressed further, the order in which jurisdiction was obtained by the concurrent forums weighs in favor of abstention as well. Finally, the Fierles’ decision to appeal the dismissal and file a new duplicative claim in federal court, rather than refile their complaint in state court, raises concerns of forum shopping, and the district court correctly weighed this factor in favor of abstention.
Nevertheless, “district courts must stay, rather than dismiss, an action when they determine that they should defer to the state court proceedings under Colorado River.” Coopers & Lybrand v. Sun-Diamond Growers of CA, 912 F.2d 1135, 1138 (9th Cir.1990). Because a stay avoids “speculative and difficult questions of state preclusion and limitations law,” Attwood v. Mendocino Coast Dist. Hosp., 886 F.2d 241, 244 (9th Cir.1989), the district court should have granted a stay, rather than a dismissal, after determining that the Colorado River doctrine applies.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART AND REMANDED WITH INSTRXJCTXONS TO STAY THE MATTER.
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 ***
DeShann Traylor (“Traylor”) appeals, pursuant to a conditional plea agreement, the district court’s denial of his motion to suppress evidence obtained through a wiretap. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s denial of the motion to suppress, United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.2002), and the determination of “whether [the] application for [the] wiretap order is supported by a full and complete statement of the facts in compliance with 18 U.S.C. § 2518(1)(c),” United States v. Rivera, 527 F.3d 891, 898 (9th Cir.2008) (citations omitted), cert. denied, — U.S. —, 129 S.Ct. 654, 172 L.Ed.2d 631 (2008). However, we review “the issuing judge’s conclusion that the wiretap was necessary” for abuse of discretion. Id. at 898 (citation omitted). We affirm the district court’s denial of the suppression motion.
In reviewing a finding of necessity, “we employ a common sense approach to evaluate the reasonableness of the government’s good faith efforts to use traditional investigative tactics or its decision to forgo such tactics based on the unlikelihood of their success or the probable risk of danger involved with their use.” United States v. Reed, 575 F.3d 900, 909 (9th Cir.2009) (citations and internal marks omitted).
The district court that authorized the wiretap application did not abuse its discretion when it determined that the government had established that the wiretap was necessary. The government sought the wiretap over four years after it first began interviewing confidential informants and 23 months after its investigation, which used multiple techniques including surveillance and controlled buys by confidential informants, began in earnest. See Rivera, 527 F.3d at 902-03 (finding necessity where the government did not seek wiretap as initial step in 19-month investigation and numerous techniques were used and considered). Although one confidential informant had made numerous controlled purchases from the targets, continued use of the informant would not have achieved the ultimate goals of the investigation, which included uncovering the organization of the conspiracy, identifying *144the suppliers and major customers of the conspiracy, and discovering the roles and identities of all of the participants. See United States v. Torres, 908 F.2d 1417, 1422 (9th Cir.1990) (stating that, in the context of drug conspiracies, the Ninth Circuit has “consistently upheld findings of necessity where traditional investigative techniques lead only to apprehension and prosecution of the main conspirators, but not to apprehension and prosecution of suppliers, major buyers or other satellite conspirators”). Despite a year-and-a-half of increasing purchases from the targets, this informant still had nothing more than a buyer/seller relationship with the targets and had not become an inside member of the conspiracy. See United States v. Bennett, 219 F.3d 1117, 1121-23 (9th Cir.2000) (finding necessity even though informant was a “drug customer” able to make monitored drug buys because informant was not an “involved member of the drug-trafficking organization” and therefore was unable to penetrate the organization or identify suppliers and other members of the organization).
It is unlikely that the various investigative efforts suggested by Traylor would have achieved the goals of the investigation. Moreover, even if such efforts may have aided the investigation, wiretap evidence will not be suppressed merely because a defendant, with the benefit of hindsight, suggests alternative ways that the government could have pursued its investigation. United States v. Carneiro, 861 F.2d 1171, 1178 (9th Cir.1988) (citations omitted).
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 **
Joe Daniels appeals from the 170-month sentence imposed following his guilty-plea conviction for drug crimes in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Daniels contends that the district court improperly determined that he was ineligible for “safety valve” relief pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The district court did not clearly err in *147finding that Daniels failed to provide to the government all relevant information concerning the conduct for which he was sentenced. See United States v. Ajugwo, 82 F.3d 925, 929-30 (9th Cir.1996); 18 U.S.C. § 3553(f)(5).
Daniels also contends that the district court failed properly to consider the sentencing factors of 18 U.S.C. § 3553(a) when it sentenced him. The record reflects that the district court did not commit procedural error and that Daniels’s sentence is substantively reasonable. See Rita v. United States, 551 U.S. 338, 356-58, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
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 **
Brice Huttinger appeals from the 210-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Huttinger contends that the district court failed adequately to consider the sentencing factors of 18 U.S.C. § 3553(a) and failed to explain the sentence. The record belies these contentions. United States v. Carty, 520 F.3d 984, 991-92 (9th Cir.2008) (en banc).
Huttinger also contends that the sentence is substantively unreasonable. In light of the totality of the circumstances and the 3553(a) factors, the sentence was not unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Cherer, 513 F.3d 1150, 1161 (9th Cir.2008) (recognizing it is insufficient to reverse a sentencing decision because the appellate court might reasonably have concluded that a different sentence was appropriate).
AFFIRMED.
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 **
Eric Genaro Pakas-Cardenas appeals from the 46-month sentence imposed following his guilty-plea conviction for illegal re-entry of a deported alien, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Pakas-Cardenas contends that the district court procedurally erred by failing to explain how it considered the sentencing factors of 18 U.S.C. § 3553(a). The district court’s explanation was sufficient under Rita v. United States, 551 U.S. 338, 358-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) because this was a conceptually simple case, and the record is clear that the district court considered Pakas-Cardenas’s arguments and believed that Pakas-Cardenas’s personal circumstances “were simply not different enough to warrant a different sentence[,]” id. at 359, 127 S.Ct. 2456.
Pakas-Cardenas also contends that his sentence was substantively unreasonable. In light of the totality of the circumstances and the 3553(a) factors, the sentence was not unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
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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*146MEMORANDUM **
Justin Matthew Fletcher appeals from the 150-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, and possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 922(j). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Fletcher contends that the district court procedurally erred by failing adequately to explain the sentence imposed and failing explicitly to address his arguments that a difficult childhood and mental health problems warranted a lower sentence. Fletcher also contends that the sentence is substantively unreasonable. The record reflects that the district court adequately explained the sentence, and considered Fletcher’s arguments at the sentencing hearing. See United States v. Perez-Perez, 512 F.3d 514, 516-17 (9th Cir.2008). Further, in light of the totality of the circumstances and the sentencing factors of 18 U.S.C. § 3553(a), the sentence is not unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
AFFIRMED.
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 **
Joe Daniels appeals from the 170-month sentence imposed following his guilty-plea conviction for drug crimes in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Daniels contends that the district court improperly determined that he was ineligible for “safety valve” relief pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. The district court did not clearly err in *147finding that Daniels failed to provide to the government all relevant information concerning the conduct for which he was sentenced. See United States v. Ajugwo, 82 F.3d 925, 929-30 (9th Cir.1996); 18 U.S.C. § 3553(f)(5).
Daniels also contends that the district court failed properly to consider the sentencing factors of 18 U.S.C. § 3553(a) when it sentenced him. The record reflects that the district court did not commit procedural error and that Daniels’s sentence is substantively reasonable. See Rita v. United States, 551 U.S. 338, 356-58, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
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 **
Brice Huttinger appeals from the 210-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Huttinger contends that the district court failed adequately to consider the sentencing factors of 18 U.S.C. § 3553(a) and failed to explain the sentence. The record belies these contentions. United States v. Carty, 520 F.3d 984, 991-92 (9th Cir.2008) (en banc).
Huttinger also contends that the sentence is substantively unreasonable. In light of the totality of the circumstances and the 3553(a) factors, the sentence was not unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Cherer, 513 F.3d 1150, 1161 (9th Cir.2008) (recognizing it is insufficient to reverse a sentencing decision because the appellate court might reasonably have concluded that a different sentence was appropriate).
AFFIRMED.
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 **
Roberto Charles Ysassi, Jr. appeals from the 115-month sentence imposed on remand for resentencing following his jury-trial conviction for bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Ysassi contends that he was denied his Sixth Amendment right to self-representation during the resentencing hearing. The record reflects that Ysassi’s request to proceed pro se was improperly denied, but that the error was harmless. See United States v. Maness, 566 F.3d 894, 897 (9th Cir.2009). Ysassi’s contention that the district court should have conducted a new Faretta canvass at the resentencing hearing is without merit because both the magistrate judge and the district court conducted full Faretta hearings confirming his knowing and intelligent waiver of counsel *150prior to authorizing Ysassi to represent himself in the case.
AFFIRMED.
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 **
Sergio Louis Chavez appeals from the 71-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Chavez contends that the district court erred in applying a two-level enhancement, pursuant to United States Sentencing Guidelines § 3C1.2, for reckless endangerment during flight. We disagree. The record reflects that Chavez attempted to flee police by running into a store while carrying a loaded firearm, and then quickly disposed of the firearm near employees and customers. Based on these facts, the *151district court did not clearly err in applying the § 3C1.2 enhancement. See United States v. Reyes-Oseguera, 106 F.3d 1481, 1482-84 (9th Cir.1997) (reviewing for clear error the district court’s factual determination that defendant’s conduct constituted reckless endangerment under § 3C1.2 and holding that the adjustment is proper if the defendant’s behavior while resisting arrest recklessly creates a substantial risk to other persons).
Chavez also contends that the district court procedurally erred by failing adequately to consider the sentencing factors of 18 U.S.C. § 3553(a), and that the sentence is substantively unreasonable. The record reflects that the district court did not procedurally err, and the sentence is not unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).
AFFIRMED.
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 *
Plaintiff-Appellee, Spencer Recovery Centers, Inc. (“Spencer”), filed wrongful denial of benefits claims against Defendants-Appellants Eval Company Medical Plan and Marukyo USA Inc. Health Plan (the “Plans”) under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1381. The district court found that the Plans wrongfully denied the benefit claims, and it ordered the Plans to pay the claims. The *154district court also ordered the Plans to pay pre-judgment interest and attorneys’ fees and costs. We have jurisdiction under 28 U.S.C. § 1291, and we affirm for the reasons stated by the district court.
Spencer has also requested attorneys’ fees and costs associated with this appeal pursuant to 29 U.S.C. § 1132(g). We ordinarily grant a prevailing beneficiary in an ERISA action reasonable attorneys’ fees and costs, absent special circumstances cautioning against such a grant. See Canseco v. Construction Laborers Pension Trust for S. Cal., 93 F.3d 600, 609-610 (9th Cir.1996) (recognizing our discretionary power to award fees under 29 U.S.C. § 1132(g)(1)). In this case, Spencer is standing in the shoes of the Plans’ beneficiaries, as their assignee of and successor in interest. Spencer has prevailed on appeal, and there are no special circumstances warranting the denial of the request. Accordingly, we grant Spencer’s request for attorneys’ fees and costs and refer the case to the Appellate Commissioner for a determination of the reasonable amount of fees and costs.
Judgment of the district court AFFIRMED. Spencer’s request for attorneys fees and costs associated with this appeal GRANTED.
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 **
Roberto Charles Ysassi, Jr. appeals from the 115-month sentence imposed on remand for resentencing following his jury-trial conviction for bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Ysassi contends that he was denied his Sixth Amendment right to self-representation during the resentencing hearing. The record reflects that Ysassi’s request to proceed pro se was improperly denied, but that the error was harmless. See United States v. Maness, 566 F.3d 894, 897 (9th Cir.2009). Ysassi’s contention that the district court should have conducted a new Faretta canvass at the resentencing hearing is without merit because both the magistrate judge and the district court conducted full Faretta hearings confirming his knowing and intelligent waiver of counsel *150prior to authorizing Ysassi to represent himself in the case.
AFFIRMED.
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 **
Sergio Louis Chavez appeals from the 71-month sentence imposed following his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Chavez contends that the district court erred in applying a two-level enhancement, pursuant to United States Sentencing Guidelines § 3C1.2, for reckless endangerment during flight. We disagree. The record reflects that Chavez attempted to flee police by running into a store while carrying a loaded firearm, and then quickly disposed of the firearm near employees and customers. Based on these facts, the *151district court did not clearly err in applying the § 3C1.2 enhancement. See United States v. Reyes-Oseguera, 106 F.3d 1481, 1482-84 (9th Cir.1997) (reviewing for clear error the district court’s factual determination that defendant’s conduct constituted reckless endangerment under § 3C1.2 and holding that the adjustment is proper if the defendant’s behavior while resisting arrest recklessly creates a substantial risk to other persons).
Chavez also contends that the district court procedurally erred by failing adequately to consider the sentencing factors of 18 U.S.C. § 3553(a), and that the sentence is substantively unreasonable. The record reflects that the district court did not procedurally err, and the sentence is not unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).
AFFIRMED.
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 **
Patricia Watson appeals from the district court’s grant of summary judgment to her employer, Las Vegas Valley Water District, in this Americans with Disabilities Act (“ADA”) and Title VII action on claims of employment discrimination and retaliation. We have jurisdiction under 28 U.S.C. § 1291 to review the final decision of the district court. We review de novo, Snead v. Metropolitan Property & Casualty Insurance Co., 237 F.3d 1080, 1087 (9th Cir.2001), and affirm.
The district court properly concluded that Watson’s claims under the ADA and Title VII were time-barred. The alleged discriminatory act occurred on October 14, 2003, when Las Vegas Valley Water District sent Watson the letter communicating its decision to terminate her employment. See Delaware State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Neither Watson’s November 19, 2003 letter requesting reasonable accommodations, nor Las Vegas Valley Water District’s November 20, 2003 letter reiterating its termination decision, constituted a separate discriminatory act. Id. From the date of the discriminatory act, *175Watson had 300 days to file an administrative charge with the Equal Employment Opportunity Commission (“EEOC”). 42 U.S.C. § 2000e-5(e)(l). Watson did not file an intake form with the EEOC until August 11, 2004, two days after the deadline. See Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1175 (9th Cir.1999) (“[A] detailed, signed intake form ... may serve as a charge to initiate administrative proceedings.”). Thus, Watson’s ADA and Title VII claims are time-barred.
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 **
Mel M. Marin appeals pro se from the district court’s judgment affirming the bankruptcy court’s judgment in an adversary proceeding concerning the disposition of money from the sale of Chapter 11 debtor Milivoj Marinkovie’s home, and from the bankruptcy court’s order denying his motion for leave to sue the bankruptcy trustee. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo the district court’s decision, Cunning v. Rucker (In re Rucker), 570 F.3d 1155, 1159 (9th Cir.2009), and we affirm.
The bankruptcy court properly concluded that the adversary proceeding was a core proceeding because it concerned whether the estate included money from the sale and whether Marin had a valid lien. See Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 617 (9th Cir.1993) (explaining that determinations about the nature and extent of the bankruptcy estate constitute core proceedings, and that “[a] proceeding is not removed from the jurisdiction of the bankruptcy court solely because the resolution may be affected by state law”); see also 28 U.S.C. § 157(b)(2) (listing examples of core proceedings).
The bankruptcy court properly concluded that, regardless of whether the home was held in trusts, the trusts were revocable, and the money held by the bankruptcy trustee from the sale of the home was property of the bankruptcy estate. See Abele v. Phoenix Suns Ltd. P’ship (In re Harrell), 73 F.3d 218, 219 (9th Cir.1996) (per curiam) (stating that the bankruptcy estate “includes ‘all legal or equitable interests of the debtor in property as of the commencement of the case,”’) and that courts look to state law to determine the existence and scope of a debtor’s interest in property (quoting 11 U.S.C. § 541(a)(1)); Zanelli v. McGrath, 166 Cal.App.4th 615, 82 Cal.Rptr.3d 835, 850 (2008) (explaining that, under California law, property in a revocable trust is deemed property of the settlor).
The bankruptcy court properly concluded that Marin did not have a secured interest in the sale proceeds. Assuming Marin had an equitable mortgage on the property, he did not present evidence at trial that his interest was recorded, and thus the bankruptcy trustee’s interest had priority over his interest. See Robertson v. Peters (In re Weisman), 5 F.3d 417, 419-20 (9th Cir.1993) (explaining that the Bankruptcy Code grants the trustee status as a hypothetical bona fide purchaser of real property from the debtor; state law determines whether the trustee’s status as a bona fide purchaser prevails over the rights of others; and, under California law, a conveyance of real property must be recorded to be valid against a subsequent purchaser); Cal. Civ.Code § 1215 (providing that a lien is a conveyance under California law). Assuming Marin had a lien on the sale proceeds, he did not present evidence at trial that he perfected his lien, and thus the bankruptcy trustee’s interest had priority over his interest. See Neilson v. Chang (In re First T.D. & Inv., Inc.), 253 F.3d 520, 526 (9th Cir.2001) (explaining that the Bankruptcy Code grants the trustee status as a hypothetical creditor with a judgment lien on the estate property and that the trustee takes priority over *158security interests unperfected under state law); Cal. Com.Code §§ 9102(42), 9310(a), 9312(b)(3), 9313(a), 9501(a)(2).
Marin lacks standing to raise the California homestead exemption on behalf of the debtor. See Fox v. Smoker (In re Noblit), 72 F.3d 757, 758-59 (9th Cir.1995) (explaining that the homestead exemption is provided for the benefit of the debtor only, and thus creditors lack standing to raise the exemption).
The bankruptcy court did not abuse its discretion by denying leave to sue the trustee. See Curry v. Castillo (In re Castillo), 297 F.3d 940, 947 (9th Cir.2002) (“The Trustee is immune for actions that are functionally comparable to those of judges, i.e., those functions that involve discretionary judgment”).
Marin’s remaining contentions are unpersuasive.
Eva Marinkovie’s “Motion to Join Appeal” is denied.
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 **
Clifford Epperson, Sr., a former Nevada state prisoner, appeals pro se from the district court’s judgment dismissing under 28 U.S.C. § 1915A his 42 U.S.C. § 1983 action alleging violations of his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We affirm.
The district court properly dismissed Epperson’s access to courts claim because Epperson failed to allege an actual injury. See Lewis v. Casey, 518 U.S. 343, 351-53, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (explaining that there is no “abstract, freestanding right to a law library or legal assistance,” and that, to establish an actual injury, a prisoner must demonstrate that his efforts to pursue a nonfrivolous legal claim were hindered).
The district court did not abuse its discretion by denying Epperson’s request for appointment of counsel because Epperson did not demonstrate exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).
We do not consider the factual allegations stated for the first time in Epperson’s appellate briefs. See United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (“[Fjacts not presented to the district court are not part of the record on appeal.”).
Epperson’s remaining contentions are unpersuasive.
AFFIRMED.
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 ***
Michelle Merillat, a thirty-four year old individual with a high school education but no past relevant work experience, appeals the decision of the district court affirming the Commissioner of Social Security’s final decision denying disability benefits to her under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq., and § 1381, et seq. The ALJ found that Merillat was capable of performing work that exists in substantial numbers in the national economy and thus that she was not disabled.
In her appeal, Merillat argues that the ALJ erred: (1) in finding her not credible; (2) in rejecting the testimony of the lay witnesses; (3) in formulating an improperly vague residual functional capacity determination; (4) in rejecting the testimony of counselor Patricia Thompson; and (5) in not giving significant weight to the opinion of examining psychologist Jane Starbird, Ph.D., expressed in her March 20, 2005 assessment. We are not persuaded that Merillat’s claims of error have merit and find that the ALJ’s decision is supported by substantial evidence.
First, the ALJ did not err in his findings concerning Merillat’s credibility. He noted that despite Merillat’s claim that her mental impairments made her unable to perform work activities, the record showed that her symptoms were controlled with medication and that when she was compliant, her limitations ranged consistently from mild to moderate. The ALJ also found that Merillat’s current activities *166were inconsistent with her claimed level of limitation. He specifically noted that, despite her claims of social anxiety, Merillat worked part-time through 2003, lived independently and did her own grooming and hygiene, cared for and home-schooled her son, performed household chores, prepared meals, ran errands, took walks, and shopped for groceries (sometimes alone). The ALJ also noted Merillat’s social relationships, which indicated that she was comfortable meeting and interacting with new people. The ALJ’s conclusion that Merillat’s ability to perform these daily activities was inconsistent with the level of limitation Merillat claimed, a legitimate ground upon which to discredit her testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir.2008) (citing Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996)), is supported by substantial evidence.
The ALJ’s adverse credibility determination is further supported by evidence suggesting that Merillat was motivated by secondary gain, i.e., was malingering. Affirmative evidence of malingering supports an adverse credibility finding. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.2006). The ALJ cited the observations of the counselor who treated Merillat, observed Merillat’s behavior, and expressly noted that Merillat’s “primary goal at this point would be to obtain social security disability, and it may be that improved functioning would not be seen as making progress toward that goal.” These observations by a treating counselor reasonably support an inference that Merillat was not motivated to work as opposed to collect benefits.
Second, Merillat argues that the ALJ committed error when he rejected the lay witness testimony of Sharon Shiel and April Denkers, because neither was trained to critically evaluate whether Merillat’s complaints were exaggerated or inconsistent with objective evidence and neither had demonstrated vocational expertise. The ALJ rejected their testimony that Merillat was unable to do work primarily due to Merillat’s excessive worrying, obsessive-compulsive behaviors, social phobia and depression. The ALJ should have considered this lay testimony to the extent that it was offered to show the severity of Merillat’s impairment and how that impairment affected her ability to work. See Bruce v. Astrue, 557 F.3d 1113, 1115-16 (9th Cir.2009) (“The ALJ [is] required to consider and comment upon competent lay testimony, as it concerned how [claimant’s] impairments impact [her] ability to work.”). However, any error was harmless as the ALJ noted that the testimony of Shiel and Denkers suggested that Merillat did well on the job and engaged in daily activities that were full-ranged and independent. The ALJ also pointed out that there was more reliable evidence in the record from examining medical professionals, which is an acceptable reason for rejecting lay testimony. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.2001) (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984)).
Third, the ALJ did not err in his formulation of Merillat’s residual functional capacity. Merillat seizes upon a single phrase from the residual capacity assessment finding as a whole — that Merillat’s “competence and productivity at the work site is variable” — and argues that the entire residual functional capacity assessment was impermissibly vague. This phrase, however, came directly from Dr. Starbird’s January 2005 medical source statement. Moreover, all of the limitations found by the ALJ were presented to the vocational expert, who determined that a person with those limitations could work as a library clerk, small-products assem*167bier, or laundry folder. The inclusion of the assessment that Merillat’s competence and productivity at the work site “is variable” did not render the overall residual functional capacity assessment vague or incomprehensible. The vocational expert had no difficulty understanding the assessment when presented with it at the hearing and was able to testify regarding the jobs within the national economy that could be performed by someone with those limitations and having claimant’s age, education, and work experience.
Fourth, the ALJ’s rejection of the opinion of Patricia Thompson, a supervising counselor, was not error. Thompson’s opinion was based on a single meeting that Merillat had with another counselor. Thompson opined that Merillat exhibited debilitating anxiety and recommended that she be granted disability benefits, which would enhance her opportunity to engage in therapy for treatment. Under the regulations, Thompson qualifies as an “other source,” rather than an “acceptable medical source.” 20 C.F.R. §§ 404.1513(d), 416.913(d). As such, the ALJ is to evaluate her testimony based on such factors as how often she saw the claimant and the consistency of her opinion with other evidence in the record, and the ALJ may give more weight to opinions from acceptable medical sources. SSR 06-03p. While the ALJ did not expressly state the weight, or lack of weight, he was giving to Thompson’s opinion, he properly considered her limited ability to observe Merillat and was entitled to give greater weight to other evidence in the record, including opinions from acceptable medical sources.
Finally, Merillat contends that the ALJ erred in discounting the March 2005 opinion of examining psychologist Jane Starbird, Ph.D. Dr. Starbird provided two written opinions, a January 2005 Comprehensive Psychodiagnostic Exam/Report on the Agency-supplied form, and a March 2005 “Medical Source Assessment (Mental)” on a form questionnaire supplied by Merillat’s counsel. The ALJ gave significant weight to Dr. Starbird’s January 2005 opinion but did not give significant weight to her subsequent March 2005 opinion.
The ALJ gave several reasons for disregarding the March 2005 assessment opinion, including that he found the counsel-provided form to be misleading, slanted towards dysfunction, and biased by counsel’s payment to Dr. Starbird for the assessment. These reasons for disregarding Dr. Starbird’s March 2005 opinion are not persuasive. The form does not appear slanted, nor does the fact that counsel paid Dr. Starbird a modest fee for completing the questionnaire suggest, by itself, that her opinion was colored by the payment. Nevertheless, there is substantial evidence that supports the ALJ’s rejection of Dr. Starbird’s March 2005 opinion in favor of her January 2005 opinion.
Generally, Dr. Starbird’s two assessments are more similar to each other than they are different, but the differences are material. Based on the capacity assessments contained in Dr. Starbird’s January 2005 assessment, the vocational expert testified that there were at least three different jobs existing in significant numbers in the national economy that a person of Merillat’s age, education, and work experience could perform. When presented with the capacity assessments contained in Dr. Starbird’s March 2005 assessment, however, the vocational expert testified that she would not be able to do any substantial gainful activity within the national economy. The ALJ was thus faced with somewhat conflicting capacity assessments by the same examining psychologist, the conflicts being significant enough to cause the vocational expert to express different opin*168ions on the availability of jobs that Merillat could perform.
Faced with inconsistent medical opinions, the ALJ had the responsibility to resolve the conflict. It was neither erroneous nor unreasonable for the ALJ to resolve the conflict by adopting the January 2005 assessment and its accompanying six-page narrative report, which was also consistent with other medical evidence in the record. Accordingly, the ALJ did not err in doing so.
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 **
Petitioner Cruz Martinez-Castillo petitions for review of the affirmance by the Board of Immigration Appeals (“BIA”) of a decision by an immigration judge denying the petition for cancellation of removal.
Because Martinez-Castillo raises a colorable issue of violation of his due process rights, we have jurisdiction over the due process claim raised in the petition for review. Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003) (en banc); Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir.2001).
However, we do not have appellate jurisdiction over his petition for review insofar as it seeks review of the IJ’s adverse credibility findings because Martinez-Castillo failed to raise that issue before the BIA. Failure to exhaust administrative remedies on an issue prevents this court from exercising judicial review of the question. Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir.2001).
Although Martinez-Castillo claimed in his appeal before the BIA that the IJ violated Martinez-Castillo’s due process rights and denied him his right to a full *169and fair hearing by an impartial judge, the BIA did not address these claims in its decision. “[T]he BIA errs when it fails on appeal to consider and decide claims that the IJ proceedings suffered from procedural irregularity.” Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007). When the BIA affirms the IJ without considering a petitioner’s procedural due process claims, remand is the only appropriate remedy. See id. at 1165 (“When a petitioner raises a claim based on a purported procedural defect of the proceedings before the IJ, the only administrative entity capable of independently addressing that claim is the BIA.”); see, e.g., Torres v. Holder, 325 Fed.Appx. 540 (9th Cir.2009) (z’emanding the case for the BIA to consider the petitioner’s contention that the IJ’s bias violated his due process rights); Santillan v. Holder, 321 Fed.Appx. 668, 668-69 (9th Cir.2009) (remanding the case because the “BIA erroneously failed to address petitioners’ contentions that the IJ violated due process in denying them ... cancellation of removal”).
Therefore, we grant the petition in part and remand it to the BIA so that the BIA may decide the claims the petitioner raised in his brief to the BIA, but which the BIA did not address in its opinion.
PETITION GRANTED IN PART; DISMISSED IN PART; 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 **
James E. Baker appeals from the 15-month sentence imposed following his guilty-plea conviction for failure to disclose material information/federal job training program, in violation of 18 U.S.C. § 1001(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Baker contends that the district court erred by applying a six-level upward adjustment, pursuant to U.S.S.G. § 2B1.1, for amount of loss. The record reflects that the district court’s factual findings with respect to the amount of loss were supported by a preponderance of the evidence. See United States v. Armstead, 552 F.3d 769, 776 (9th Cir.2008) (applying preponderance standard).
Baker also contends that the sentence imposed did not comport with the requirements of 18 U.S.C. § 3553(a). This contention lacks merit. The district court conducted a well-reasoned and thorough evaluation of the § 3553(a) factors prior to imposing a sentence within the Guidelines range. The district court did not procedurally err and the sentence imposed is substantively reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Mel M. Marin appeals pro se from the district court’s judgment affirming the bankruptcy court’s judgment in an adversary proceeding concerning the disposition of money from the sale of Chapter 11 debtor Milivoj Marinkovie’s home, and from the bankruptcy court’s order denying his motion for leave to sue the bankruptcy trustee. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo the district court’s decision, Cunning v. Rucker (In re Rucker), 570 F.3d 1155, 1159 (9th Cir.2009), and we affirm.
The bankruptcy court properly concluded that the adversary proceeding was a core proceeding because it concerned whether the estate included money from the sale and whether Marin had a valid lien. See Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 617 (9th Cir.1993) (explaining that determinations about the nature and extent of the bankruptcy estate constitute core proceedings, and that “[a] proceeding is not removed from the jurisdiction of the bankruptcy court solely because the resolution may be affected by state law”); see also 28 U.S.C. § 157(b)(2) (listing examples of core proceedings).
The bankruptcy court properly concluded that, regardless of whether the home was held in trusts, the trusts were revocable, and the money held by the bankruptcy trustee from the sale of the home was property of the bankruptcy estate. See Abele v. Phoenix Suns Ltd. P’ship (In re Harrell), 73 F.3d 218, 219 (9th Cir.1996) (per curiam) (stating that the bankruptcy estate “includes ‘all legal or equitable interests of the debtor in property as of the commencement of the case,”’) and that courts look to state law to determine the existence and scope of a debtor’s interest in property (quoting 11 U.S.C. § 541(a)(1)); Zanelli v. McGrath, 166 Cal.App.4th 615, 82 Cal.Rptr.3d 835, 850 (2008) (explaining that, under California law, property in a revocable trust is deemed property of the settlor).
The bankruptcy court properly concluded that Marin did not have a secured interest in the sale proceeds. Assuming Marin had an equitable mortgage on the property, he did not present evidence at trial that his interest was recorded, and thus the bankruptcy trustee’s interest had priority over his interest. See Robertson v. Peters (In re Weisman), 5 F.3d 417, 419-20 (9th Cir.1993) (explaining that the Bankruptcy Code grants the trustee status as a hypothetical bona fide purchaser of real property from the debtor; state law determines whether the trustee’s status as a bona fide purchaser prevails over the rights of others; and, under California law, a conveyance of real property must be recorded to be valid against a subsequent purchaser); Cal. Civ.Code § 1215 (providing that a lien is a conveyance under California law). Assuming Marin had a lien on the sale proceeds, he did not present evidence at trial that he perfected his lien, and thus the bankruptcy trustee’s interest had priority over his interest. See Neilson v. Chang (In re First T.D. & Inv., Inc.), 253 F.3d 520, 526 (9th Cir.2001) (explaining that the Bankruptcy Code grants the trustee status as a hypothetical creditor with a judgment lien on the estate property and that the trustee takes priority over *158security interests unperfected under state law); Cal. Com.Code §§ 9102(42), 9310(a), 9312(b)(3), 9313(a), 9501(a)(2).
Marin lacks standing to raise the California homestead exemption on behalf of the debtor. See Fox v. Smoker (In re Noblit), 72 F.3d 757, 758-59 (9th Cir.1995) (explaining that the homestead exemption is provided for the benefit of the debtor only, and thus creditors lack standing to raise the exemption).
The bankruptcy court did not abuse its discretion by denying leave to sue the trustee. See Curry v. Castillo (In re Castillo), 297 F.3d 940, 947 (9th Cir.2002) (“The Trustee is immune for actions that are functionally comparable to those of judges, i.e., those functions that involve discretionary judgment”).
Marin’s remaining contentions are unpersuasive.
Eva Marinkovie’s “Motion to Join Appeal” is denied.
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 **
Wilfred Trego appeals the district court’s grant of summary judgment in favor of the Commissioner of Social Security upholding the denial of Disability Insurance Benefits and Supplemental Security Income under Title II and XVI of the Social Security Act. Trego argues the district court erred by finding the Administrative Law Judge’s (ALJ’s) denial of benefits was supported by substantial evidence. We agree with Trego, reverse the district court, and remand for calculation of benefits.
Trego first argues the ALJ erred by relying on the opinion of Dr. Burris, a non-examining physician, to reject a finding of disability when Dr. Burris’s opinion was contradicted by Trego’s treating physician, Dr. Rajan. This court has set forth the following standard for evaluating a non-examining doctor’s opinion that is contradicted by a treating doctor:
Opinions of a nonexamining, testifying medical advisor may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it. The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir.1999) (internal quotation marks and citation omitted).
In arguing this court should disregard Dr. Rajan’s opinion, the Commissioner relies upon the district court’s finding that Dr. Rajan’s isolated statement was expressly based on Trego’s own self-reported, subjective pain which the ALJ had found to be unreliable. We find no basis to conclude that Dr. Rajan’s report was based only on Trego’s self-reported pain. To the contrary, Dr. Rajan’s statement that Trego “is unable to sit still for more than a few minutes secondary to his pain” is listed in the “Assessment and Plan” portion of Dr. Rajan’s report as opposed to the “Subjective” portion. Moreover, the ALJ did not discuss Dr. Rajan’s assessment that Trego is unable to sit still for more than a few minutes. Thus, the district court erred in affirming the ALJ on the basis that Dr. Rajan’s opinion was *160unreliable. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.2006) (“[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.”).
Trego also correctly notes that Dr. Burris provides no explanation for his opinion that Trego was capable of sedentary work. As noted by this court in Ryan v. Commissioner of Social Secmity, “[t]he weight afforded a non-examining physician’s testimony depends ‘on the degree to which they provide supporting explanations for their opinions.’ ” 528 F.3d 1194, 1201 (9th Cir.2008) (quoting 20 C.F.R. § 404.1527(d)(3)). Here, Dr. Burris’s assessment was similar to the non-examining physicians’ assessments in Ryan, as they all essentially consist of a series of boxes checked on a form. See id. In sum, the ALJ has not met her burden of “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” Morgan, 169 F.3d at 600-01.
We also conclude that the ALJ erred by rejecting Trego’s testimony as to the severity of his pain. Both parties accept the ALJ’s finding that Trego presented objective medical evidence that could reasonably be expected to produce his back pain. Trego, however, disputes the ALJ’s finding that there were clear and convincing reasons for disbelieving his testimony regarding the severity of his back pain. We agree with Trego.
In her analysis, the ALJ listed four reasons for rejecting Trego’s testimony as to the degree of his impairments and limitations. First, the ALJ found that “the objective medical evidence and the claimant’s own statements do not support a conclusion that he has had disabling limitations in his ability to function.” The ALJ cited four pieces of evidence in support of this finding:
• “[Trego] told Dr. Raniolo on March 18, 2003, that he had been doing fairly well except for a recent cold and had no complaints.... ”
• “[Trego] told Dr. DeYoung on October 1, 2004, that he had been doing pretty well since his bypass surgery.... ”
• “[Trego] told Dr. Rajan on November 4, 2005, that he had only had chest pain once since his bypass surgery, and he believed that was secondary to a panic attack....”
• “[Trego] testified at the hearing that he has had no heart symptoms since his June 2002 surgery. His diabetes and hypertension are under good control with medications.”
The context of these statements demonstrates that none are inconsistent with Trego’s testimony as to the severity of his back pain. Each of these statements was made in the context of discussing Trego’s heart problems. The ALJ erred in requiring Trego to reaffirm that he was suffering from back pain when the physicians were concerned with Trego’s heart condition.
Second, the ALJ relied on Trego’s statement that at rest his back pain is a 2 or 3 on a 0 to 10 scale. The ALJ, however, did not take into account Trego’s entire statement as reported by Dr. De Young: “[Trego] has had low lumbar pain that he describes as a 10 out of 10 if he overexerts himself. Generally at rest he has pain that is about a 2 or 3 out of 10 on the pain scale. He indicates that when he exerts himself and that pain increases, it is like a ‘fireball in there.’ ” The ALJ erred by using this statement to discredit Trego, as it makes clear that Trego experiences severe pain when he exerts himself. Given that the relevant inquiry in this case concerns whether Trego can perform work-related tasks, the ALJ should not have *161confined her analysis to Trego’s pain when he is “at rest.”
Third, the ALJ cited Trego’s statement that Vicodin helps his pain. This admission, however, does not reasonably lead to the conclusion that he is not suffering from debilitating pain.
Fourth, “with regard to activities of daily living,” the ALJ relied on Trego’s statements that “he goes to the grocery store on a bicycle every one to two days. He can ride a bike but cannot walk far. He reported on November 4, 2005, that he rode his bike four miles from his home to the clinic visit without any chest pain or shortness of breath.” The ALJ’s reasoning is contrary to Gonzalez v. Sullivan, which holds that an ALJ must link a claimant’s testimony about his daily activity to a finding that his testimony regarding excess pain lacks credibility. 914 F.2d 1197, 1201 (9th Cir.1990). Merely pointing out that Trego was able to engage is some activity does not undermine Trego’s testimony that he lies down two hours each day for relief from back pain, and that he cannot sit or stand for more than fifteen minutes.
Because the ALJ erred in rejecting Trego’s testimony and Dr. Rajan’s opinion, the court concludes no further proceedings as to Trego’s disability status are warranted in this case. The vocational expert at Trego’s hearing testified that a person who had to lay down two hours out of a typical workday could not perform any work. Accordingly, Trego is disabled under Title II and XVI of the Social Security Act, and this case is remanded with instructions to remand to the Commissioner for calculation of benefits. See Orn v. Astrue, 495 F.3d 625, 640 (9th Cir.2007) (“When an ALJ’s reasons for rejecting the claimant’s testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant’s testimony, we remand for a calculation of benefits.” (internal quotation marks omitted)).
REVERSED 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 **
Geraldine Kay Smith appeals pro se from the Bankruptcy Appellate Panel’s *163(“BAP”) judgment affirming the bankruptcy court’s orders dismissing her adversary proceeding for lack of prosecution and denying her motion for reconsideration. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo the BAP’s decision, Simpson v. Burkart (In re Simpson), 557 F.3d 1010, 1014 (9th Cir.2009), and we affirm.
The bankruptcy court properly concluded that service of the adversary complaint on Attorney James W. Gardner was not sufficient service on defendants because the record does not establish that Gardner had express or implied authority to accept service of process on their behalf. See Rubin v. Pringle (In re Focus Media Inc.), 387 F.3d 1077, 1081, 1083 (9th Cir.2004) (explaining that the critical inquiry in determining whether an attorney is authorized to accept service of process is whether “the client acted in a manner that expressly or impliedly indicated the grant of such authority,” and reviewing de novo whether service of process is sufficient (citation omitted)); Beneficial Cal., Inc. v. Villar (In re Villar), 317 B.R. 88, 93-94 (B.A.P. 9th Cir.2004) (concluding that an attorney’s representation of a corporation in an action giving rise to a judicial lien did not establish implied authority by the attorney to accept service on behalf of the corporation for a motion to avoid the judicial lien in a bankruptcy case).
The bankruptcy court did not abuse its discretion by dismissing the adversary proceeding because Smith failed (1) to serve the complaint properly after receiving an extension of time and two warnings that failure to prosecute would result in dismissal; and (2) to rebut the presumption of prejudice to defendants caused by her unreasonable delay. See Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451-55 (9th Cir.1994) (discussing factors that a court must consider before dismissing an action for failure to prosecute, and reviewing dismissal for an abuse of discretion).
The bankruptcy court did not abuse its discretion by denying Smith’s motion for reconsideration because Smith did not present newly discovered evidence, demonstrate clear error, or show an intervening change in controlling law. See 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999) (setting forth grounds for reconsideration under Federal Rule of Civil Procedure 59(e), and concluding that the district court did not abuse its discretion by declining to address an issue raised for the first time in a motion for reconsideration); see also Fed. R. Bankr.P. 9023 (applying Rule 59(e) to bankruptcy proceedings).
The parties’ other contentions, including appellee’s contentions regarding mootness, are unpersuasive.
Smith’s request for judicial notice is denied.
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 ***
Michelle Merillat, a thirty-four year old individual with a high school education but no past relevant work experience, appeals the decision of the district court affirming the Commissioner of Social Security’s final decision denying disability benefits to her under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq., and § 1381, et seq. The ALJ found that Merillat was capable of performing work that exists in substantial numbers in the national economy and thus that she was not disabled.
In her appeal, Merillat argues that the ALJ erred: (1) in finding her not credible; (2) in rejecting the testimony of the lay witnesses; (3) in formulating an improperly vague residual functional capacity determination; (4) in rejecting the testimony of counselor Patricia Thompson; and (5) in not giving significant weight to the opinion of examining psychologist Jane Starbird, Ph.D., expressed in her March 20, 2005 assessment. We are not persuaded that Merillat’s claims of error have merit and find that the ALJ’s decision is supported by substantial evidence.
First, the ALJ did not err in his findings concerning Merillat’s credibility. He noted that despite Merillat’s claim that her mental impairments made her unable to perform work activities, the record showed that her symptoms were controlled with medication and that when she was compliant, her limitations ranged consistently from mild to moderate. The ALJ also found that Merillat’s current activities *166were inconsistent with her claimed level of limitation. He specifically noted that, despite her claims of social anxiety, Merillat worked part-time through 2003, lived independently and did her own grooming and hygiene, cared for and home-schooled her son, performed household chores, prepared meals, ran errands, took walks, and shopped for groceries (sometimes alone). The ALJ also noted Merillat’s social relationships, which indicated that she was comfortable meeting and interacting with new people. The ALJ’s conclusion that Merillat’s ability to perform these daily activities was inconsistent with the level of limitation Merillat claimed, a legitimate ground upon which to discredit her testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir.2008) (citing Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996)), is supported by substantial evidence.
The ALJ’s adverse credibility determination is further supported by evidence suggesting that Merillat was motivated by secondary gain, i.e., was malingering. Affirmative evidence of malingering supports an adverse credibility finding. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.2006). The ALJ cited the observations of the counselor who treated Merillat, observed Merillat’s behavior, and expressly noted that Merillat’s “primary goal at this point would be to obtain social security disability, and it may be that improved functioning would not be seen as making progress toward that goal.” These observations by a treating counselor reasonably support an inference that Merillat was not motivated to work as opposed to collect benefits.
Second, Merillat argues that the ALJ committed error when he rejected the lay witness testimony of Sharon Shiel and April Denkers, because neither was trained to critically evaluate whether Merillat’s complaints were exaggerated or inconsistent with objective evidence and neither had demonstrated vocational expertise. The ALJ rejected their testimony that Merillat was unable to do work primarily due to Merillat’s excessive worrying, obsessive-compulsive behaviors, social phobia and depression. The ALJ should have considered this lay testimony to the extent that it was offered to show the severity of Merillat’s impairment and how that impairment affected her ability to work. See Bruce v. Astrue, 557 F.3d 1113, 1115-16 (9th Cir.2009) (“The ALJ [is] required to consider and comment upon competent lay testimony, as it concerned how [claimant’s] impairments impact [her] ability to work.”). However, any error was harmless as the ALJ noted that the testimony of Shiel and Denkers suggested that Merillat did well on the job and engaged in daily activities that were full-ranged and independent. The ALJ also pointed out that there was more reliable evidence in the record from examining medical professionals, which is an acceptable reason for rejecting lay testimony. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.2001) (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984)).
Third, the ALJ did not err in his formulation of Merillat’s residual functional capacity. Merillat seizes upon a single phrase from the residual capacity assessment finding as a whole — that Merillat’s “competence and productivity at the work site is variable” — and argues that the entire residual functional capacity assessment was impermissibly vague. This phrase, however, came directly from Dr. Starbird’s January 2005 medical source statement. Moreover, all of the limitations found by the ALJ were presented to the vocational expert, who determined that a person with those limitations could work as a library clerk, small-products assem*167bier, or laundry folder. The inclusion of the assessment that Merillat’s competence and productivity at the work site “is variable” did not render the overall residual functional capacity assessment vague or incomprehensible. The vocational expert had no difficulty understanding the assessment when presented with it at the hearing and was able to testify regarding the jobs within the national economy that could be performed by someone with those limitations and having claimant’s age, education, and work experience.
Fourth, the ALJ’s rejection of the opinion of Patricia Thompson, a supervising counselor, was not error. Thompson’s opinion was based on a single meeting that Merillat had with another counselor. Thompson opined that Merillat exhibited debilitating anxiety and recommended that she be granted disability benefits, which would enhance her opportunity to engage in therapy for treatment. Under the regulations, Thompson qualifies as an “other source,” rather than an “acceptable medical source.” 20 C.F.R. §§ 404.1513(d), 416.913(d). As such, the ALJ is to evaluate her testimony based on such factors as how often she saw the claimant and the consistency of her opinion with other evidence in the record, and the ALJ may give more weight to opinions from acceptable medical sources. SSR 06-03p. While the ALJ did not expressly state the weight, or lack of weight, he was giving to Thompson’s opinion, he properly considered her limited ability to observe Merillat and was entitled to give greater weight to other evidence in the record, including opinions from acceptable medical sources.
Finally, Merillat contends that the ALJ erred in discounting the March 2005 opinion of examining psychologist Jane Starbird, Ph.D. Dr. Starbird provided two written opinions, a January 2005 Comprehensive Psychodiagnostic Exam/Report on the Agency-supplied form, and a March 2005 “Medical Source Assessment (Mental)” on a form questionnaire supplied by Merillat’s counsel. The ALJ gave significant weight to Dr. Starbird’s January 2005 opinion but did not give significant weight to her subsequent March 2005 opinion.
The ALJ gave several reasons for disregarding the March 2005 assessment opinion, including that he found the counsel-provided form to be misleading, slanted towards dysfunction, and biased by counsel’s payment to Dr. Starbird for the assessment. These reasons for disregarding Dr. Starbird’s March 2005 opinion are not persuasive. The form does not appear slanted, nor does the fact that counsel paid Dr. Starbird a modest fee for completing the questionnaire suggest, by itself, that her opinion was colored by the payment. Nevertheless, there is substantial evidence that supports the ALJ’s rejection of Dr. Starbird’s March 2005 opinion in favor of her January 2005 opinion.
Generally, Dr. Starbird’s two assessments are more similar to each other than they are different, but the differences are material. Based on the capacity assessments contained in Dr. Starbird’s January 2005 assessment, the vocational expert testified that there were at least three different jobs existing in significant numbers in the national economy that a person of Merillat’s age, education, and work experience could perform. When presented with the capacity assessments contained in Dr. Starbird’s March 2005 assessment, however, the vocational expert testified that she would not be able to do any substantial gainful activity within the national economy. The ALJ was thus faced with somewhat conflicting capacity assessments by the same examining psychologist, the conflicts being significant enough to cause the vocational expert to express different opin*168ions on the availability of jobs that Merillat could perform.
Faced with inconsistent medical opinions, the ALJ had the responsibility to resolve the conflict. It was neither erroneous nor unreasonable for the ALJ to resolve the conflict by adopting the January 2005 assessment and its accompanying six-page narrative report, which was also consistent with other medical evidence in the record. Accordingly, the ALJ did not err in doing so.
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8473616/
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MEMORANDUM ***
Tamara Lusardi (“Lusardi”) appeals the district court’s decision affirming the Commissioner of Social Security’s final decision denying disability insurance benefits to her under Title II of the Social Security Act, 42 U.S.C. § 401, et seq.
The issues presented on this appeal are: (1) whether the ALJ erred in giving minimal weight to a portion of the opinion of a treating physician; (2) whether the ALJ erred in failing to develop the record regarding Lusardi’s depression and anxiety; (3) whether the ALJ erred in forming his residual functional capacity determination; and (4) whether the ALJ erred in relying on vocational expert testimony. We are not persuaded that Lusardi’s claims of error have merit and find that the ALJ’s decision is supported by substantial evidence.
First, Lusardi specifically challenges the ALJ’s rejection of the opinion of Dr. Zoubek, a treating physician, that Lusardi’s limitations would likely require her to be absent from work three days per month. Although the parties’ briefs do not explain why this level of absenteeism is significant, the vocational expert considered it a critical factor in determining whether Lusardi had the ability to perform a significant number of jobs in the national economy.
Lusardi argues that the ALJ erred in failing to consider the factors he was required by regulation to consider when assessing the weight to give to Dr. Zoubek’s *172opinion and further erred in failing to state clear and convincing reasons, or specific and legitimate reasons, supported by substantial evidence, to justify giving minimal weight to the opinion.
The ALJ did not expressly address all of the factors listed in 20 C.F.R. § 404.1527(d)(1) — (6) in determining the weight to be given to Dr. Zoubek’s opinion regarding Lusardi’s likely excessive absenteeism. However, in his decision, the ALJ specifically stated that he considered the § 404.1527(d) factors. His opinion also shows that he knew Dr. Zoubek was a specialist (urologist), considered the infrequency of Lusardi’s visits to Dr. Zoubek, noted the lack of support for the opinion in the medical records, and found an inconsistency between Dr. Zoubek’s opinion concerning Lusardi’s likely absenteeism and other opinions he had rendered.
One of the ALJ’s stated reasons for giving minimal weight to Dr. Zoubek’s opinion regarding anticipated absenteeism is that the opinion was not supported by the doctor’s own treatment notes and the medical record. The ALJ noted that there was nothing within Dr. Zoubek’s records to support a conclusion that Lusardi might be subject to excessive work absenteeism. His recoi'ds consistently reflect that hex-condition was stable and well-controlled. At the time of the opinion, he believed it necessary to examine Lusardi only twice per year, which the ALJ noted was “a level of treatment hardly consistent with debilitating symptoms.” The ALJ also noted that “no other medical sorn-ce remotely suppox-ts his conclusion.” The ALJ’s conclusion is based on the medical x-ecord as a whole. Lusardi has not pointed to any evidence in the medical record bearing on the absenteeism issue.
Rejecting an opinion on the basis that it is not supported by the doctor’s own treatment notes or by clinical findings is permissible. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005); Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir.1989). The ALJ’s stated reason fox-giving minimal weight to Dr. Zoubek’s absenteeism opinion was clear and convincing and supported by substantial evidence. Thex-efox-e, the ALJ committed no error in his treatment of Dr. Zoubek’s conclusory opinion concerning Lusardi’s level of anticipated absenteeism.
Second, Lusardi has failed to establish that the ALJ erred in failing to develop the record regarding Lusardi’s depression and anxiety. While the ALJ has a duty to fully and fairly develop the x-ecord, the duty ax-ises only where there is ambiguous evidence or when the x-ecord is inadequate to allow for the proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.2001) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.2001)). Lusardi has not established that the record was ambiguous ox- inadequate to enable the ALJ to make a proper evaluation. Dr. Wood’s psychodiagnostic evaluation included major depx-ession but noted no functional limitations. The agency psychologists who reviewed the record detex-mined that Lusardi’s impairment was not severe and imposed mild to no functional limitations. This evidence was sufficient to enable the ALJ to make a determination, based on substantial evidence, that the mental impairments were not severe. The ALJ did not err in failing to develop the record.
Third, Lusardi has failed to establish that the ALJ failed to follow the requirements of SSR 96-8p in formulating Lusardi’s residual functional capacity. Lusardi contends that the ALJ failed to consider the opinions of Dx-s. Zoubek and Webster, failed to incorporate functional limitations arising from her depression, and failed to *173incorporate the opinion evidence offered by her mother, Ms. Green.
The ALJ was not required to discuss every piece of medical evidence. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.2003) (citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir.1998)). However, if the ALJ rejects significant probative evidence, he must explain why. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). Here, with regard to Dr. Zoubek, the residual functional capacity determined by the ALJ appears to be based upon the significant limitations contained within Dr. Zoubek’s responses to a questionnaire about functional limitations. The ALJ expressly noted, for example, that the limitation to “simple, routine work” was imposed because of mental limitations resulting from pain symptoms and Lusardi’s medications. Lusardi has not demonstrated that the ALJ’s failure to expressly address Dr. Zoubek’s opinions regarding “concentration, stamina, and pace” means that Dr. Zoubek’s opinions were not incorporated into the residual functional capacity.
Lusardi also contends that the ALJ did not consider Dr. Webster’s opinion that Lusardi had difficulty sitting for long periods, likely greater than 5 to 10 minutes. While the ALJ included a sit/stand option every 30 minutes limitation in the residual functional capacity findings, he did not adopt the 5 to 10 minute sitting limitation. Whether the ALJ was required to explain why he rejected the 5 to 10 minute sitting limitation suggested by Dr. Webster depends on whether the opinion constitutes “significant probative evidence.” Vincent, 739 F.2d at 1395. The district court observed that Dr. Webster’s suggested limitation of an ability to sit for only 5 to 10 minutes was not significant or probative evidence because the claimant herself testified to an ability to sit for longer periods of time. In addition, Dr. Webster’s statement that it “sounds like she has difficulty sitting for greater than 5 to 10 minutes,” was based solely on Lusardi’s subjective reports. Thus, while it may have made a better record for the ALJ to have explained his reasons for not addressing Dr. Webster’s assessment of a limitation on Lusardi’s ability to sit, there was no requirement for the ALJ to have done so under Vincent.
With regard to the failure to address any limitations due to Lusardi’s depression and anxiety, Lusardi again has not established any error. Substantial evidence in the record supports a determination that Lusardi’s mental condition did not constitute a severe limitation, and the ALJ expressly took into account mental limitations when he limited her to simple, routine work.
Similarly, with regard to the testimony of Lusardi’s mother, Ms. Green, Lusardi has failed to establish any error in not addressing the limitations identified by Ms. Green that Lusardi contends are consistent with disability: constant pain, limited sitting abilities, walking limited to one block and memory and concentration abilities reduced by medications. The ALJ disregarded Ms. Green’s testimony because it did not support the level of limitations and symptoms claimed by Lusardi, testimony which the ALJ had already determined not to be credible. The ALJ noted that Ms. Green testified to various activities in which Lusardi was able to participate, and noted further that the limitations which Ms. Green identifies “find little support in the medical record.” See Bayliss, 427 F.3d at 1211 (holding that an ALJ may reject lay witness opinions that are unsupported by the medical record).
Finally, Lusardi has failed to establish that the hypothetical posed to the vocational expert was incomplete. Lusar*174di’s argument is expressly premised on what Lusardi contends were errors made by the ALJ in determining Lusardi’s limitations, none of which are persuasive. The ALJ’s hypothetical was properly tailored to the limitations the ALJ found were applicable to Lusardi. His reliance on the vocational expert’s resulting testimony was not error. See Magallanes, 881 F.2d at 757 (“[T]he ALJ is ‘free to accept or reject these restrictions ... as long as they are supported by substantial evidence.’ ”) (quoting Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir.1986)).
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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01-04-2023
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11-05-2022
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