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ORDER
Dossie Sanders pleaded guilty to various drug-trafficking and firearms charges, see 18 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 922(g)(1), 924(c)(1), but reserved the right to appeal the district court’s denial of his three motions to suppress evidence. The district court sentenced him to ninety-eight months’ imprisonment. Sanders filed a notice of appeal, but his appointed counsel now seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she cannot identify any nonfrivolous ground for appeal. We confine our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002), and Sanders’ submission in response, see Cir. R. 51(b). We grant counsel’s motion and dismiss Sanders’ appeal.
Sanders went to the Birds’n Brooks Army Navy Surplus store in Springfield, Illinois, and tried to buy ammunition for a Sig Sauer P229 firearm marked “restricted law enforcement use only.” He requested the wrong type of ammunition and could not produce the Firearm Owner’s Identification (“FOID”) card that Illinois requires for a person to possess a firearm or purchase ammunition, although his wife offered hers. Two employees provided police with his description and license-plate number. Eventually the officers located Sanders at his home and arrested him there. They summoned the store employees to the scene to perform a “showup” identification. The employees identified Sanders, who was in handcuffs at the time.
The officers then applied for a warrant to search Sanders’ house. The warrant that issued did not mention the Sig Sauer P229 described in the application but instead authorized the seizure of “any and all firearms.” The officers who executed the warrant discovered a safe inside Sanders’ bedroom that contained the Sig Sauer P229, three other firearms, fourteen baggies containing a total of 179.6 grams of powder cocaine, nine baggies containing a total of 25.5 grams of cocaine base, 20 grams of marijuana, firearm accessories, and $5,380 in cash. The officers also seized a firearm, ammunition, and $4,465 in cash from the top of a bedroom dresser and another firearm and more ammunition from a bedroom bookshelf. From the kitchen, the officers seized a digital scale, weights, and a bottle of inositol powder.
Sanders then filed three motions to suppress evidence, but the district court denied each one. Sanders pleaded guilty but reserved the right to appeal the district court’s denial of those three motions.
At the outset, we note that Sanders does not wish to withdraw his guilty plea, so counsel properly refrains from examining the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). We also agree with counsel that it is not necessary to examine the reasonableness of Sanders’ sentence, as his plea agreement does not permit him to appeal that issue.
Counsel first considers challenging whether Sanders’ warrantless arrest was supported by probable cause. In the district court, Sanders had argued that the officers lacked sufficient information to be*139lieve he had committed a crime. But the district court disagreed, finding that the officers’ investigation had produced “an abundance” of supporting evidence to arrest Sanders for possession of a stolen firearm, possession of a firearm without a valid FOID card, and being a felon in possession of a firearm. Counsel is correct that pursuing this issue would be frivolous. Given the facts known to the officers when they arrested Sanders, they could reasonably have believed he had committed several crimes. See Shipman v. Hamilton, 520 F.3d 775, 778 (7th Cir. 2008).
Counsel next considers a due-process challenge to the showup identification. In the district court, Sanders had argued that his showup identification was unduly suggestive and unreliable. The district court acknowledged that the showup identification was suggestive but disagreed that the store employees’ identification was unreliable, finding that their opportunity to observe Sanders in the store with a heightened degree of attention ensured the reliability necessary to satisfy due process. As counsel properly notes, testimony concerning even an unduly suggestive showup identification is constitutionally permissible if the identification is nevertheless reliable. United States v. Hawkins, 499 F.3d 703, 707 (7th Cir.2007). And the district court’s factual findings strongly support the conclusion that the store employees’ identification was indeed reliable. We agree that pursuing this issue would be frivolous.
Finally, counsel considers mounting a challenge to the particularity of the search warrant. In the district court, Sanders had argued that the warrant was not sufficiently particularized because its broad authorization to seize “any and all firearms” sanctioned a unrestrained rummaging through the Sanders’ house and permitted seizure of firearms legally possessed by Sanders’ wife. But the district court rejected that argument too, reasoning that Sanders — as a felon — was prohibited from owning any firearms at all and that there was reason to believe Sanders might have other prohibited guns at his house. We agree with counsel that pursuing this issue would be frivolous. If a felon is forbidden to possess any firearms, then a warrant authorizing seizure of any and all firearms from his house is not vague or overbroad; it tells the executing officers precisely what to search for. United States v. Campbell, 256 F.3d 381, 389 (6th Cir.2001). And in any event, Sanders “would have been no better off’ had the warrant been as particularized as he contends, for even then the officers would have executed precisely the same search and uncovered precisely the same evidence. See United States v. Sims, 553 F.3d 580, 584 (7th Cir.2009).
We GRANT the motion to withdraw and DISMISS the appeal.
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ORDER
The defendant appellant Richard Sweit-zer pleaded guilty to conspiring to distribute more than 100 grams of heroin, see 21 U.S.C. §§ 846, 841(a)(1), and received a within-guidelines range sentence of 46 months’ imprisonment. On appeal Sweit-zer argues that the district court failed to consider his arguments for a below-range sentence and erroneously presumed the reasonableness of the guidelines sentence. We affirm the sentence imposed by the district court as we are convinced after review that the court properly considered the § 3553(a) factors and that there is no evidence in the record substantiating that the court presumed that the guidelines were reasonable.
I. Background
Sweitzer, an admitted heroin dealer, was engaged in facilitating the transfer of heroin totaling at least 400 grams but no more than 700 grams between a Milwaukee dealer and a buyer in Chicago. He admitted to engaging in approximately twenty-five such transactions, beginning in 2007. His role as the middle-man consisted of Sweitzer’s acceptance of the cash wire transfers from his Chicago buyer and receiving the drugs from his dealer at a designated location in Milwaukee. He would then meet his Chicago buyer to arrange for the delivery of the heroin. After being implicated by his Milwaukee accomplice, Sweitzer was arrested in Milwaukee. At the time of his arrest, Sweitzer decided to cooperate with the officers and assisted in the arrest of his Chicago accomplice and shared pertinent information with the Milwaukee authorities covering the nature of their relationship. At this time, Sweitzer pleaded guilty to conspiring to distribute more than 100 grams of heroin. See 21 U.S.C. §§ 846, 841(a)(1). The Probation Officer’s presentence investigation report concluded that based on the quantity of heroin, Sweitzer had a base offense level of 28 and proposed a two-level reduction pursuant to U.S.S.G. § 2D1.1(b)(11), he qualified for the safety-valve exception, and a three-level reduction pursuant to U.S.S.G. § 3E1.1 for acceptance of responsibility. Thus, Sweitzer’s offense level of 23 and his Category I criminal history produced a guideline range of 46 to 57 months imprisonment.
The district court imposed a within-guideline sentence of 46 months imprisonment followed by three years of supervised release. At sentencing, the court discussed the lethal effects of heroin use and trafficking and the need for more adequate deterrence. The court also discussed several of Sweitzer’s personal characteristics that were considered in the decision-making process, including Sweitzer’s family, anger problems, drug addiction, and need for counseling at sentencing. The court also referred to Sweitzer’s opportunity to take advantage of the safety valve exception, his lack of criminal history, his cooperation with the police and was satisfied and persuaded “that in this particular case the defendant will be justly punished and deterred, and the public will certainly be fully advised of this Court’s view of ... dealing” with heroin.
II. Analysis
A. Sweitzer’s Arguments for a Below-Range Sentence.
On appeal, Sweitzer insists that the court erroneously failed to consider his *142non-frivolous arguments for a below-range sentence. Initially, Sweitzer argues that the court ignored his argument that quantity-driven drug sentencing is inherently flawed and furthermore that the court must disregard quantity-driven drug sentencing because it is not the product of careful study based on empirical evidence derived from individual sentencing decisions.
“[W]e do not think a judge is required to consider ... an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation.” United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir.2009) (emphasis original); see also United States v. Huffstatler, 571 F.3d 620, 623-24 (7th Cir.2009) (stating that district courts may impose a sentence below the child-pornography guidelines based on a disagreement with them, but district courts are not required to do so). In Aguilar-Huerta, this court reasoned that if a judge is required to delve into the history of a guideline to satisfy himself that the process that produced it was adequate, sentencing hearings will become unmanageable and shift the focus from the defendant’s conduct to the legislative history of the guidelines. Aguilar-Huerta, 576 F.3d at 368. Thus, the court was not required to consider this argument.
Next, Sweitzer argues that the court committed procedural error when it failed to consider his mitigating circumstances under 18 U.S.C. § 3553(a) that distinguished his case from comparable drug cases. He contends, for example, that his case differs from comparable drug cases for three reasons: (1) he had only one customer who personally consumed the heroin; (2) neither he, nor any of the other known participants in the drug ring, used, attempted, or threatened violence or were connected to any firearm or other weapon; and (3) he faced considerable economic pressure as a heroin addict and he was offered a premium to deliver drugs.
Sweitzer argues that the district court failed to consider the § 3553(a) factors during his sentencing. We disagree. The district judge is not required to apply each of the § 3553(a) factors mechanically or in a “checklist fashion, but instead in the form of an adequate statement of the judge’s reasons, consistent with § 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005). The judge did just that here. He certainly considered the nature and circumstances of the offense, § 3553(a)(1), when he observed that heroin trafficking was a serious crime and that Sweitzer’s involvement contributed to the growing demand for the drug. He also considered Sweitzer’s personal history and characteristics, § 3553(a)(1), when he acknowledged that Sweitzer can take advantage of the safety valve exception, had lifelong issues of drug abuse, family problems, and suffered from depression. He added that Sweitzer would benefit from counseling as part of supervision. See also § 3553(a)(2)(D). And he concluded that the 46-month sentence was necessary to protect the public and provide deterrence.
B. Presuming the Reasonableness of the Guidelines.
Sweitzer next asserts that the court improperly applied a presumption of reasonableness to the guidelines. At sentencing, the court made generic statements about the dangers of heroin and the need for more effective deterrence in drug eases. These generic statements, according to Sweitzer, demonstrate the court’s belief that cases involving heroin distribu*143tion must be decided according to the guidelines.
The district court did not apply a presumption of reasonableness to the guidelines. See United States v. Allday, 542 F.3d 571, 572-73 (7th Cir.2008). As Sweit-zer concedes, “nothing about the district court’s remarks upon imposition of [the] sentence include an expressed belief that the guidelines are presumptively reasonable ...” Indeed, the sentencing transcript establishes that the court did not apply a presumption of reasonableness. The court commented on the need for deterrence not in the context of the guidelines, but in responding to Sweitzer’s general request for leniency in drug sentencing. Moreover, the judge’s stated explanation for the sentence shows that he was well aware and appreciated the advisory nature of the guidelines: he considered and referred to Sweitzer’s drug involvement as a young man, his family life, emotional difficulties, lack of a criminal history, decision to cooperate, and the general need for deterrence. See, e.g., 18 U.S.C. § 3553(a)(2)(B); United States v. Gooden, 564 F.3d 887, 891 (7th Cir.2009). Such consideration confirms that the court sentenced Sweitzer on the basis of the § 3553(a) factors, and not a presumption of reasonableness.
Conclusion
We affirm the decision of the district court.
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MEMORANDUM *
The Alliance for the Wild Rockies appeals the summary judgment entered in favor of the United States Forest Service and United States Fish and Wildlife Service on its claims under the Endangered Species Act and the National Forest Management Act relating to the Northeast Yaak Project in Kootenai National Forest in Montana. We affirm.
The Alliance’s contentions mainly center on what it calls the “2006 Rule Set.” However, the “2006 Rule Set” was simply an internal document that is not final agency action. See Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992); Stauffer Chem. Co. v. FDA, 670 F.2d 106, 108 (9th Cir.1982). It is, therefore, irrelevant.
To the extent the appeal can be read to encompass the adequacy of consultation with respect to the 1987 Forest Plan as applied in 2007, we believe that the deci-sional documents for the Northeast Yaak Project — the 2007 ROD, the 2007 Supplemental Biological Assessment, and the Final Supplemental Environment Impact Statement — are sufficient to warrant deference. See Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1080-81 (9th Cir. 2006); Trout Unlimited v. Lohn, 559 F.3d 946, 959 (9th Cir.2009) (“It is not our role to ask whether we would have given more or less weight to different evidence, were we the agency. Assessing a species’ likelihood of extinction involves a great deal of predictive judgment. Such judgments are entitled to particularly deferential review.”). The agencies are not obliged to adopt specific findings of any particular study; rather, “consideration” suffices. Kern, 450 F.3d at 1081. Here, both the 1997 Wakkinen Study and mortality data from 2000-2005 were “considered.” As the Forest Service took note of the Wakki-*169nen Study as well as new evidence of bear mortality, and its human causes — and the Alliance points to no data that was omitted from consideration — we cannot conclude that its final action was arbitrary and capricious. See Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc).
Even if preserved, Alliance’s suggestion on appeal that the agencies should have reconsulted on the 1987 Forest Plan and 1995 Incidental Take Statement in light of new information, see 50 C.F.R. § 402.16(b), fails given that the Forest Service reiniti-ated consultation with the Fish and Wildlife Service on March 23, 2007. The Fish and Wildlife Service then concurred in the Forest Service’s finding of no adverse effect.
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 because I disagree with the majorities’ review of Plaintiff-Appellant’s best available science claim. We review the district court’s grant of summary judgment on Plaintiff-Appellant’s best available science claim de novo, with all facts read in the light most favorable to the non-moving party. Covington v. Jefferson County, 358 F.3d 626, 641 n. 22 (9th Cir. 2004). The Administrative Procedure Act governs our review of agency decisions under the Endangered Species Act and the National Forest Management Act. Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953 (9th Cir.2003). It mandates that agency decisions be set aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a). “An agency’s action is arbitrary and capricious if the agency fails to consider an important aspect of a problem,.... ” Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005).
Section 7 of the Endangered Species Act requires the Forest Service to consult with the Fish and Wildlife Service to ensure that the standards it incorporates in its Forest Plan are “not likely to jeopardize the continued existence of any ... threatened species [such as the CabinetYaak grizzly bear] or result in the destruction or adverse modification of such species....” 16 U.S.C. § 1536(a)(2). Further, “[i]n fulfilling th[is] requirement,” the two agencies “shall use the best scientific and commercial data available.” Id. The procedural guidelines for complying with this requirement specify that “Reinitiation of formal consultation is required ... [i]f new information reveals effects of the action that may affect listed species ... in a manner or to an extent not previously considered[.]” 50 C.F.R. § 402.16; see Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir.1988) (agencies “cannot ignore available biological information”).
Pursuant to section 7 of the Endangered Species Act, the Forest Service then is required to apply the standards developed in the Forest Plan to protect the Cabinet-Yaak grizzly bear to proposed projects such as the Northeast Yaak Project. 16 U.S.C. § 1536(a)(2). By applying these protective standards to proposed projects, the Forest Service “shall, in consultation with [the Fish and Wildlife Service], insure that [the proposed project] ... “is not likely to jeopardize the continued existence of any ... threatened species [such as the Cabinet-Yaak grizzly bear] or result in the destruction or adverse modification of such species....” Id. In doing so, the two agencies again “shall use the best scientific and commercial data available.” Id.
I disagree with my colleagues that the decisional documents for the Northeast Yaak Project reflect sufficient consideration of the best available science. On the contrary, the standards developed in the Forest Service’s 1987 Forest Plan and Fish and Wildlife Service’s 1995 Biological Opinion (“Forest Plan”) did not account for *170“the best scientific ... data available” as required under the Endangered Species Act Section 7 when they were applied to the Forest Service’s Cabinet-Yaak project in 2007. See id. The Forest Plan did not account for “the best scientific ... data available” when applied in 2007, id., because it neither accounted for the 1997 Wakkinen Study1 nor up-to-date population trend data.
For this reason, the “Forest Service cannot go forward with th[e Cabinet-Yaak project] without first complying with the consultation requirements of the [Endangered Species Act].” Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1057 (9th Cir.1994). Accordingly, I dissent.
. The 1997 Wakkinen Study is "the only habitat parameters study based on bears in the [Cabinet-Yaak Project] area.” Cabinet Res. Group v. U.S. Fish and Wildlife Serv., 465 F.Supp.2d 1067, 1089 (D.Mont.2006).
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MEMORANDUM **
Maria De Lourdes Nava-Flores, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo claims of constitutional violations in immigration proceedings. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
Nava-Flores’ contention that the ten-year continuous physical presence requirement violates her due process rights is foreclosed by Padilla-Padilla, v. Gonzales, 463 F.3d 972, 979 (9th Cir.2006).
Nava-Flores’ contention that the BIA erred in not addressing her satisfaction of the physical presence requirement is unavailing because she failed to raise this issue before the BIA.
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 **
Frank and Elaine Kimball appeal the district court’s memorandum order dismissing their complaint, which seeks various forms of tax relief, for want of subject-matter jurisdiction. We have appellate jurisdiction under 28 U.S.C. § 1291, and we affirm. The facts are familiar to the parties, so we do not repeat them here.
As a threshold matter, it was proper for the district court to resolve factual disputes when ruling on the motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979).
The Kimballs assert that a number of statutes not only provided the district court with jurisdiction but also waived the sovereign immunity of the United States. All of their asserted bases for jurisdiction fail. The district court lacked jurisdiction under 28 U.S.C. § 1346(a) for each of the years in question because the Kimballs had either failed to exhaust administrative remedies, pay all of the assessment, or timely sue. See Flora v. United States, 362 U.S. 145, 177, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960) (full payment of assessment required prior to suit in federal district court); I.R.C. (26 U.S.C.) § 7422(a) (administrative claim requirement); id. at § 6511(a) (statute of limitations). Because section 1346(a) is a waiver of sovereign immunity, failure to comply with its prerequisites means that the district court had no jurisdiction to hear the matter. See United States v. Dalm, 494 U.S. 596, 601-02, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990).
The district court lacked jurisdiction under I.R.C. § 7433 because the claims were not filed within the two-year statute of limitations. Accordingly, the district “court lacked jurisdiction to hear” the Kimballs. Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir.1992). The same problem exists under I.R.C. § 7432. Likewise, the Kimballs allege a violation of I.R.C. § 6304, but the remedy for violations of that statute is governed by § 7433.
The Kimballs rely on 28 U.S.C. § 2410 as a basis for jurisdiction. However, this argument was not raised before the district court, and we deem the argument waived. Jurisdiction is lacking under the Declaratory Judgment Act because its coverage explicitly excludes federal tax matters (subject to exceptions not relevant here). 28 U.S.C. § 2201. Injunctive relief is barred by I.R.C. § 7421(a); the Kim-balls’ argument that they are entitled to proceed under § 7426(a) was only presented in their reply brief and is thus waived. *172Section 6330 of the I.R.C. provides for collection due process (“CDP”) hearings, but nothing in the record suggests the Kimballs ever timely requested a CDP hearing and were denied one. The district court lacked jurisdiction over the Kimballs’ claim that the IRS wrongly refused to abate interest under I.R.C. § 6404(e)(1). Hinck v. United States, 550 U.S. 501, 503, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (holding that jurisdiction over that section exists exclusively in the Tax Court). I.R.C. § 6621 does not provide a cause of action or waive the sovereign immunity of the United States. Finally, because the Kimballs did not sue any federal officials in their individual capacities, they cannot bring an action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
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 **
Arthur Duane Jackson appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants violated his Fourteenth Amendment due process rights by denying him postconviction discovery of potentially exculpatory evidence. We have jurisdiction under 28 U.S.C. § 1291. We review de novo an order granting a motion to dismiss for failure to state a claim upon which relief may be granted, Cleghorn v. Blue Shield of Cal., 408 F.3d 1222, 1225 (9th Cir.2005), and we affirm.
Jackson contends that defendants have deprived him of evidence that his criminal conviction was obtained through fraud. He relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires a prosecutor to disclose exculpatory evidence to the defendant before trial. In District Attorney’s Office for the Third Judicial District v. Osborne, — U.S. —, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), the Supreme Court made clear that Brady does not apply after the defendant is convicted and the case is closed. Id. at 2319-20. Rather, to state a due process claim, Jackson must allege that he has a substantive right to postconviction relief under state law, and that the state’s postconviction relief procedures “are fundamentally inadequate to vindicate” that right. Id. at 2320. Because Jackson failed to make these allegations, dismissal was proper.
Jackson’s contention, made for the first time on appeal, that Magistrate Judge Woehrle should have disqualified herself is without merit. Jackson “does not allege any ‘extrajudicial source’ ” for Judge Woehrle’s alleged bias, or “demonstrate such a deep-seated favoritism” on the part of Judge Woehrle “as to make fair judgment impossible.” United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir.1997) (per curiam).
Jackson’s remaining contentions are not persuasive.
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 **
Ernest Lemaefe Tofi appeals from the 108-month sentence imposed following his guilty-plea conviction for attempt to possess with intent to distribute 500 grams or more of cocaine and conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Tofi contends that the district court erred by attributing quantities of cocaine to him based on money seized from a co-conspirator’s safe. The district court did not clearly err in calculating the drug quantity for which Tofi was responsible. See United States v. Alvarez, 358 F.3d 1194, 1212-13 (9th Cir.2004); see also United States v. Kilby, 443 F.3d 1135, 1142 (9th Cir.2006). Tofi’s contentions that the district court improperly shifted the burden of proof from the government, and violated Federal Rule of Criminal Procedure 32 by failing to resolve disputed issues as to drug quantity lack merit. See United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th Cir.1996).
Tofi also contends that the district court erred by failing to reduce his offense level *175based on a third level point for acceptance of responsibility because the government’s failure to move for the reduction was arbitrary, and that the government and district court misapprehended the law. This contention is without merit. See United States v. Espinoza-Cano, 456 F.3d 1126, 1136-38 (9th Cir.2006).
Tofi’s unopposed motion to strike specified portions of the supplemental excerpts of record is granted.
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 *
Laborers Health and Welfare Trust Fund for Northern California (“the Fund”) seeks a judgment enjoining the arbitration proceedings initiated against it by Doctors Medical Center of Modesto (“the Hospital”). The Fund contends that the Hospital’s action is completely preempted by ERISA § 502(a)(1)(B), 29 U.S.C. 1132(a)(1)(B), and that the Hospital’s case must therefore be heard in federal court.
Because § 502 does not completely preempt the Hospital’s state law claims, dismissal was proper.
1. The Fund’s complaint relies entirely on ERISA § 502 for relief.
Section 502(a)(1)(B) provides that
A civil action may be brought — (1) by a participant or beneficiary — ... (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.
The Fund contends that because the Hospital’s arbitration inevitably reduces to a suit for benefits under § 502(a)(1)(B), the Hospital must therefore pursue those benefits in federal court according to the terms of the ERISA plan and § 502(a)(1)(B).
However, as noted by this court in Marin General Hospital v. Modesto & Empire Traction Co., 581 F.3d 941 (9th Cir.2009) allegations that an ERISA plan has entered into a contract with a third party, and that this contract has been breached, do not fall within § 502(a)(1)(B). As in Marin General, the Hospital in this case does not allege that the Fund violated the terms of the ERISA plan itself, but rather that it owed contractual obligations to the Hospital and failed to live up to them.1 As stated in the Hospital’s demand for arbitration, it seeks relief for the Fund’s “[failure to reimburse [sic] hospital pursuant to contract rates for services provided to the patient.” While the Fund contends that it does not in fact owe contractual duties to the Hospital, that question goes only to the merits of the Fund’s claim, not to whether or not the claim falls within § 502(a)(1)(B). Because the Hospital alleges a state contract claim that could not be brought under § 502(a)(1)(B), and relies on an independent legal basis, it is not preempted by § 502(a)(1)(B). See Aetna Health Inc. v. Davila, 542 U.S. 200, 210, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004).
2. The Fund’s complaint for declaratory judgment and injunctive relief relies solely upon § 502(a). While conflict preemption under § 514(a) may or may not provide a basis for the injunctive relief sought by the Fund, the Fund’s complaint fails to allege it. Its cause of action “arises under federal law only [if its] well-pleaded complaint raises issues of federal law.” Met. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Because the Fund fails to plead § 514(a) as a basis for its action in its complaint, that section *177cannot support their request for an injunction.
Because § 502(a) does not completely preempt the Hospital’s state law claims, we AFFIRM the judgment of the district court.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. In the District Court, the Hospital expressly waived any claim based on an assignment of benefits by the patient.
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TALLMAN, Circuit Judge,
dissenting:
I respectfully disagree with the majority’s conclusion that federal subject matter jurisdiction is lacking. This is nothing more than a dispute over medical necessity for an extra day of hospitalization — a typical claim for benefits due under an ERISA plan covering the patient. I believe that the underlying dispute falls squarely within the test articulated by the Supreme Court in Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004), and would conclude that the Hospital’s claims are subject to complete preemption under § 502(a)(1)(B) of the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1)(B). Therefore, I dissent.
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MEMORANDUM *
Appellant Karen Cottey was convicted and sentenced in 2003, after pleading guilty to one count of identity theft pursuant to 18 U.S.C. § 1028(a)(7). Her sentence ordered restitution in the amount of $33,512.00, which was in accord with the parties’ stipulation regarding the amount of taxes she owed on her fraudulent gaming winnings. She paid the restitution in 2005.
Cottey initiated this proceeding in 2007 in an effort to obtain a return of her payment, contending that the 2003 judgment was incorrect because her total gaming losses for the years in question exceeded her winnings. She sought to establish this by filing a motion pursuant to Rule 36 F.R.Cr.P., and later an application for a writ of audita querela. The district court denied both the motion and the application for writ and advised the appellant to seek her remedy by filing a civil action pursuant to 28 U.S.C. § 1346(a)(1). The district court was correct.
Rule 36 is intended to correct clerical errors in a judgment of conviction. The record in this case reflects that the amount of restitution ordered was not a clerical error.
A writ of “audita querela” is available only when there is a legal defense or discharge to the judgment that arose after the entry of judgment, and when the writ would fill a gap in the federal postconviction remedial framework. Doe v. INS, 120 F.3d 200, 203 (9th Cir.1997). Cottey argues that she has a legal defense to the restitution order because the amount of restitution exceeded her actual tax liability. She asserts that she owed no taxes because her gaming losses were greater *179than her winnings. However, she did not present sufficient evidence to prove that assertion, and the IRS has not yet made a final determination of her tax liability for the years in question. Therefore, Cottey failed to show that a defense or discharge arose subsequent to the entry of judgment. The district court appropriately denied the writ and advised Cottey that there is a remedy available to her in the form of an independent civil action for refund. See 28 U.S.C. § 1846(a)(1). Such an action can be expeditiously filed in the district where Cottey lives, see 28 U.S.C. § 1402(a)(1), and if that is in Nevada, at least one district judge is already familiar with the ease.
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 **
Russell D. Ward, a Chapter 7 debtor, appeals pro se from the Bankruptcy Appellate Panel’s (“BAP”) order affirming the bankruptcy court’s summary judgment that Ward’s debt to the Paul Revere Life Insurance Company (“Paul Revere”) was nondischargeable under 11 U.S.C. § 523(a)(2). We have jurisdiction under 28 U.S.C. § 158(d). We review decisions of the BAP de novo, and apply the same standard of review that the BAP applied to the bankruptcy court’s ruling. See Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir.2009). We review de novo the bankruptcy court’s decision to grant summary judgment, id., and we affirm.
Contrary to Ward’s contention, “the Bankruptcy Court has jurisdiction to enter a monetary judgment on a disputed state law claim in the course of making a determination that a debt is nondischargeable.” Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 868 (9th Cir.2005) (internal citation omitted); see 28 U.S.C. § 157(b)(2)(I)-(J) (stating that core proceedings include determinations as to the *181dischargeability of debts and objections to discharges).
The bankruptcy court properly granted summary judgment because Ward failed to raise a triable issue as to whether he intentionally made materially false statements regarding the declared income on which Paul Revere reasonably relied in calculating Ward’s disability payments. See 11 U.S.C. § 523(a)(2)(B) (outlining elements of fraud for exceptions to discharge).
Ward’s contention that Paul Revere’s action was time-barred is unpersuasive because he failed to raise a triable issue as to whether Hope Troilo’s declarations established that Paul Revere was unaware of Ward’s misrepresentations and criminal collusion until 2001, well before the three-year statute of limitations had expired. See CaLCode of Civil Procedure § 338(d) (“The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”).
The bankruptcy court did not abuse its discretion by overruling Ward’s objection to Troilo’s declarations because the declarations established that Troilo was familiar with the contents of Ward’s claim file. See Fed.R.Evid. 803(6) (requiring custodian or other qualified witness to authenticate records); United States v. Ray, 930 F.2d 1368, 1370 (9th Cir.1990) (“A qualified witness can be anyone who understands the record-keeping system involved.”).
Contrary to Ward’s contention, he was not denied his opportunity for de novo review by the district court because he elected to appeal to the BAP. Ward could have appealed the bankruptcy court’s judgment to the district court if he had so elected under 28 U.S.C. § 158(c)(1)(A).
Ward’s contention that he was im-permissibly denied a trial by jury is unavailing because he voluntarily invoked the equitable claim resolution procedures of bankruptcy when he filed his underlying bankruptcy case. See Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015, 1017-18 (9th Cir.1997) (“[T]he bankruptcy court may also render a money judgment in an amount certain without the assistance of a jury.”).
The record belies Ward’s contention that Paul Revere added new theories of fraud in its motion for summary judgment.
Ward’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Rita Haydee Villar-Navarro, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination because Villar-Navarro’s declaration was materially inconsistent with her testimony regarding whether Shining Path guerrillas physically confronted Villar-Navarro after an alleged train bombing and threatened her and her children with death unless she left Peru. See Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003) (petitioner’s omission of a “dramatic, pivotal event” from his asylum application supported adverse credibility determination); Li, 378 F.3d at 964 (adverse credibility determination is supported where at least one of the identified grounds is supported by substantial evidence and goes to the heart of the claim). Villar-Navarro’s explanations for the discrepancy do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000). In the absence of credible testimony, Villar-Navarro’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Villar-Navarro’s CAT claim is based on testimony the IJ found not credible, and there is no evidence in the record that compels a finding that it is more likely than not she would be tortured if returned to Peru, her CAT claim fails. See id. at 1156-57.
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 **
Martin Perez-Valencia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ denial of his motions to reopen. We grant in part and dismiss in part.
We lack jurisdiction to review the BIA’s exercise of its discretion in determining requests for cancellation of removal based upon hardship. See 8 U.S.C. §§ 1229b(b)(1)(D), 1252(a)(2)(B)(i); Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.2009); Romero-Torres v. Ashcroft, 327 F.3d 887, 888, 892 (9th Cir.2003). By the same token, we lack jurisdiction to review denial of Perez’s first motion, which sought reopening based on additional evidence of hardship. That evidence, the BIA determined, still failed to meet the hardship requirement. See Fernandez v. *185Gonzales, 439 F.3d 592, 601, 603 (9th Cir. 2006).1
We do have jurisdiction, however, to consider Perez’s second motion to reopen based upon his claim that he had constitutionally ineffective assistance of counsel. See Torres-Chavez v. Holder, 567 F.3d 1096, 1100-01 (9th Cir.2009). We do not agree with the BIA that Perez presented no evidence that his counsel was inadequate. In fact, he presented substantial evidence to that effect. Moreover, while we agree that a showing of prejudice was required,2 as far as we can determine, the BIA did not actually decide that there was no prejudice, but only that counsel’s “tactical decisions”3 did not cause prejudice. Thus, we grant the petition as to the second motion to reopen, and remand for further consideration by the BIA.4
Petition No. 05-74042 DISMISSED; Petition No. 07-72584 GRANTED. The parties shall bear their own costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. We also note that to the extent that Perez seeks to argue the merits of the BIA’s decision on the appeal from the Immigration Judge's determination, we lack jurisdiction because Perez's appeal to us was filed too late to encompass that decision. See 8 U.S.C. § 1252(b)(1); Membreno v. Gonzales, 425 F.3d 1227, 1229 (9th Cir.2005) (en banc).
. See Torres-Chavez, 567 F.3d at 1100-01; Ray v. Gonzales, 439 F.3d 582, 587-88 (9th Cir.2006); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003).
. We confess that we do not entirely understand what the BIA meant by tactical decisions in this case. Many of the claims of ineffective performance by counsel do not lend themselves to the appellation "tactical.”
.We also grant the petition as to the so-called numerical bar. It might well be influenced by the ultimate decision on ineffective assistance of counsel. See 8 C.F.R. § 1003.2(c)(2); Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.2003) (noting that numerical bars can be tolled in the case of ineffective assistance).
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MEMORANDUM **
Nagi Nassim Shaker, a native and citizen of Egypt, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005), and we deny the petition for review.
We agree with the BIA’s conclusion that Shaker did not establish former counsel’s representation resulted in prejudice, and thus Shaker’s claim of ineffective assistance of counsel fails. See id. at 793-94 (to prevail on an ineffective assistance of counsel claim a petitioner must demonstrate prejudice).
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 *
Appellant Karen Cottey was convicted and sentenced in 2003, after pleading guilty to one count of identity theft pursuant to 18 U.S.C. § 1028(a)(7). Her sentence ordered restitution in the amount of $33,512.00, which was in accord with the parties’ stipulation regarding the amount of taxes she owed on her fraudulent gaming winnings. She paid the restitution in 2005.
Cottey initiated this proceeding in 2007 in an effort to obtain a return of her payment, contending that the 2003 judgment was incorrect because her total gaming losses for the years in question exceeded her winnings. She sought to establish this by filing a motion pursuant to Rule 36 F.R.Cr.P., and later an application for a writ of audita querela. The district court denied both the motion and the application for writ and advised the appellant to seek her remedy by filing a civil action pursuant to 28 U.S.C. § 1346(a)(1). The district court was correct.
Rule 36 is intended to correct clerical errors in a judgment of conviction. The record in this case reflects that the amount of restitution ordered was not a clerical error.
A writ of “audita querela” is available only when there is a legal defense or discharge to the judgment that arose after the entry of judgment, and when the writ would fill a gap in the federal postconviction remedial framework. Doe v. INS, 120 F.3d 200, 203 (9th Cir.1997). Cottey argues that she has a legal defense to the restitution order because the amount of restitution exceeded her actual tax liability. She asserts that she owed no taxes because her gaming losses were greater *179than her winnings. However, she did not present sufficient evidence to prove that assertion, and the IRS has not yet made a final determination of her tax liability for the years in question. Therefore, Cottey failed to show that a defense or discharge arose subsequent to the entry of judgment. The district court appropriately denied the writ and advised Cottey that there is a remedy available to her in the form of an independent civil action for refund. See 28 U.S.C. § 1846(a)(1). Such an action can be expeditiously filed in the district where Cottey lives, see 28 U.S.C. § 1402(a)(1), and if that is in Nevada, at least one district judge is already familiar with the ease.
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 **
Russell D. Ward, a Chapter 7 debtor, appeals pro se from the Bankruptcy Appellate Panel’s (“BAP”) order affirming the bankruptcy court’s summary judgment that Ward’s debt to the Paul Revere Life Insurance Company (“Paul Revere”) was nondischargeable under 11 U.S.C. § 523(a)(2). We have jurisdiction under 28 U.S.C. § 158(d). We review decisions of the BAP de novo, and apply the same standard of review that the BAP applied to the bankruptcy court’s ruling. See Boyajian v. New Falls Corp. (In re Boyajian), 564 F.3d 1088, 1090 (9th Cir.2009). We review de novo the bankruptcy court’s decision to grant summary judgment, id., and we affirm.
Contrary to Ward’s contention, “the Bankruptcy Court has jurisdiction to enter a monetary judgment on a disputed state law claim in the course of making a determination that a debt is nondischargeable.” Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 868 (9th Cir.2005) (internal citation omitted); see 28 U.S.C. § 157(b)(2)(I)-(J) (stating that core proceedings include determinations as to the *181dischargeability of debts and objections to discharges).
The bankruptcy court properly granted summary judgment because Ward failed to raise a triable issue as to whether he intentionally made materially false statements regarding the declared income on which Paul Revere reasonably relied in calculating Ward’s disability payments. See 11 U.S.C. § 523(a)(2)(B) (outlining elements of fraud for exceptions to discharge).
Ward’s contention that Paul Revere’s action was time-barred is unpersuasive because he failed to raise a triable issue as to whether Hope Troilo’s declarations established that Paul Revere was unaware of Ward’s misrepresentations and criminal collusion until 2001, well before the three-year statute of limitations had expired. See CaLCode of Civil Procedure § 338(d) (“The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”).
The bankruptcy court did not abuse its discretion by overruling Ward’s objection to Troilo’s declarations because the declarations established that Troilo was familiar with the contents of Ward’s claim file. See Fed.R.Evid. 803(6) (requiring custodian or other qualified witness to authenticate records); United States v. Ray, 930 F.2d 1368, 1370 (9th Cir.1990) (“A qualified witness can be anyone who understands the record-keeping system involved.”).
Contrary to Ward’s contention, he was not denied his opportunity for de novo review by the district court because he elected to appeal to the BAP. Ward could have appealed the bankruptcy court’s judgment to the district court if he had so elected under 28 U.S.C. § 158(c)(1)(A).
Ward’s contention that he was im-permissibly denied a trial by jury is unavailing because he voluntarily invoked the equitable claim resolution procedures of bankruptcy when he filed his underlying bankruptcy case. See Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015, 1017-18 (9th Cir.1997) (“[T]he bankruptcy court may also render a money judgment in an amount certain without the assistance of a jury.”).
The record belies Ward’s contention that Paul Revere added new theories of fraud in its motion for summary judgment.
Ward’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Rita Haydee Villar-Navarro, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination because Villar-Navarro’s declaration was materially inconsistent with her testimony regarding whether Shining Path guerrillas physically confronted Villar-Navarro after an alleged train bombing and threatened her and her children with death unless she left Peru. See Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003) (petitioner’s omission of a “dramatic, pivotal event” from his asylum application supported adverse credibility determination); Li, 378 F.3d at 964 (adverse credibility determination is supported where at least one of the identified grounds is supported by substantial evidence and goes to the heart of the claim). Villar-Navarro’s explanations for the discrepancy do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000). In the absence of credible testimony, Villar-Navarro’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Villar-Navarro’s CAT claim is based on testimony the IJ found not credible, and there is no evidence in the record that compels a finding that it is more likely than not she would be tortured if returned to Peru, her CAT claim fails. See id. at 1156-57.
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 **
Nagi Nassim Shaker, a native and citizen of Egypt, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005), and we deny the petition for review.
We agree with the BIA’s conclusion that Shaker did not establish former counsel’s representation resulted in prejudice, and thus Shaker’s claim of ineffective assistance of counsel fails. See id. at 793-94 (to prevail on an ineffective assistance of counsel claim a petitioner must demonstrate prejudice).
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 **
Luis Duenes Martinez appeals the district court’s denial.of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Martinez claims that the State violated the Ex Post Facto Clause of the United States Constitution because the credits to be applied to his sentence were limited by a statute that was not effective until after the date of his crimes. See U.S. Const, art. I, § 10, cl. 1. The district court found that because Martinez’s guilty plea was knowing and voluntary, the waiver of his ex post facto claim did not violate his constitutional rights. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s decision to deny a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, and we affirm.
The credit limitation was referenced three times during Martinez’s plea hearing. First, the prosecutor stated:
[I]t is the People’s understanding, and this is an actual condition of the plea ... that he will be required to serve at least 85 percent of his sentence because these are violent felonies ... and that he will receive a prison sentence of twenty-six years top/bottom.
(ER 16-17.) The trial court also informed Martinez that he would “be sentenced to twenty-six years in prison top/bottom” and that he would “be serving 85 percent of that term.” (ER 21-22.) Finally, the prosecutor stated: “I don’t know if it is this Court’s practice to advise regarding credits. It is the People’s belief there is a limitation on credits in this case. The maximum good time he can receive in this case would be a maximum of 15 percent.” (ER 22-23.) The court replied that it “told him that he would have to serve 85 percent of his time.” (ER 23.)
After considering California law and this specific language, the California Court of Appeal determined that the credit limitation was a specified term of the plea bargain. People v. Martinez, No. H025956, 2004 WL 1798118, at *8-9, 2004 LEXIS 7469, at *24 (Cal.Ct.App. Aug. 12, 2004). Federal courts may not second-guess a state appellate court’s construction of a plea agreement and the obligations arising thereunder which “are, within broad bounds of reasonableness, matters of state law....” Ricketts v. Adamson, 483 U.S. 1, *1885 n. 3, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). In California, plea agreements are interpreted using the general rules of contract interpretation. Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir.2003). Here, the California appellate court’s application of state contract law was proper, and the result it reached was reasonable. Therefore, Martinez’s constitutional rights were not violated. In addition, the California appellate court’s determination that Martinez entered into a voluntary, knowing, and intelligent waiver of his ex post facto claim is not contrary to, or an unreasonable application of, federal law. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Thus, under AED-PA, Martinez is not entitled to a writ of habeas corpus on this claim. See 28 U.S.C. § 2254(d)(1).
Martinez’s plea agreement was based on an informed choice to accept a maximum sentence of twenty-six years, which is significantly less than what he could have served if he had been convicted on all counts. Martinez, 2004 WL 1798118, at *17, 2004 LEXIS 7469, at *50. The court carefully questioned Martinez at the plea hearing, ensuring that he knew that an eighty-five percent credit limitation would apply to his sentence, even if he may not have known that the plea agreement waived his right to a possible ex post facto challenge. Martinez’s waiver was intelligent, as he had competent counsel, was aware of the nature of the charge against him, and was not incompetent or otherwise not in control of his mental faculties. See Brady, 397 U.S. at 756, 90 S.Ct. 1463. Accordingly, Martinez’s waiver was effective. See United States v. Ruiz, 536 U.S. 622, 629-30, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002); cf. Rose v. Palmateer, 395 F.3d 1108, 1113 (9th Cir.2005) (holding that a defendant waived his ex post facto claim by agreeing to life imprisonment without the possibility of parole, a sentence not available at the time of the offense under the applicable statute, as an express condition of his plea).
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 **
Plaintiff Marlen Reza appeals the district court’s order granting summary judgment in favor of Defendant International Game Technology (“IGT”), Reza’s former employer, on claims that she was terminated in violation of the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The FMLA did not require IGT to restore Reza to her lead position or to another position because she was unable to perform an essential function of her position. See 29 C.F.R. § 825.216(c). Reza *190could not speak, and there is no genuine dispute that speaking was an essential function of her position. Reza also has not demonstrated that IGT violated 29 C.F.R. § 825.220(c) by using her FMLA-protected leave as a negative factor when it eliminated one of the lead positions. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir.2001). Accordingly, the district court properly granted summary judgment on Reza’s FMLA claim.
The district court also properly granted summary judgment on the ADA claim. IGT sufficiently engaged in the ADA-mandated interactive process with Reza regarding reasonable accommodations for her speaking disability.1 See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir.2001). Reza’s December 2004 discussions with IGT resulted in a reasonable accommodation, an extension of Reza’s medical leave. See id. at 1135-36. In March 2005, IGT offered Reza another accommodation, reassignment to a position on the production line based on the restrictions IGT ascertained from Reza’s doctor. The reassignment was a reasonable accommodation because no accommodation would allow Reza to perform the essential functions of the lead position, and there was no vacant equivalent position to which IGT could reassign Reza. See 42 U.S.C. § 12111(9)(B); Dark v. Curry County, 451 F.3d 1078, 1089 (9th Cir.2006); 29 C.F.R. pt. 1630, app. § 1630.2(o). After Reza rejected that reasonable accommodation, she was no longer a qualified individual under the ADA.2 See 29 C.F.R. § 1630.9(d).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because IGT conceded the issue, we need not decide whether Reza suffered from an ADA-recognized disability. See 42 U.S.C. § 12102(1)(A).
. Additionally, as Reza failed to provide medical evidence supporting her new "smells” condition, IGT was not required to engage in further interactive processes, and Reza was not entitled to accommodation under the ADA. See Allen v. Pac. Bell, 348 F.3d 1113, 1115-16 (9th Cir.2003) (per curiam).
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MEMORANDUM **
Zheng Wang Huang, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Quan v. Gonzales, 428 F.3d 883, 885 (9th Cir.2005), and we grant the petition for review and remand.
The IJ’s adverse credibility determination is not supported by substantial evidence, because the IJ did not identify any actual inconsistencies between Huang’s testimony and his asylum application or the letter from Huang’s wife. See Akinmade v. INS, 196 F.3d 951, 957 (9th Cir. 1999) (non-existent discrepancies identified by the agency do not provide a valid basis for an adverse credibility determination). Further, we conclude that the airport interview notes and credible fear interview notes lack certain important indicia of reliability, and thus, the IJ erred in relying on the notes from these interviews to find Huang not credible. See Singh v. Gonzales, 403 F.3d 1081, 1089-90 (9th Cir. 2005). It is apparent from the record before us that the agency listed all possible reasons to support an adverse credibility determination. See Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir.2009).
Accordingly, we grant the petition for review and remand to the agency to assess Huang’s claims, deeming his testimony credible. See id.; see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
*193PETITION FOR REVIEW GRANTED; 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammad Gondel and Saleem Iqbal Gondel appeal from the district court’s order dismissing their complaint for failure to state a claim upon which relief may be granted. We have reviewed the record and the briefs filed by the parties and we find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Gondel v. PMIG 1020, LLC, No. 1:08-cv-01768-CCB, 2009 WL 248681 (D.Md. 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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MEMORANDUM **
Zheng Wang Huang, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Quan v. Gonzales, 428 F.3d 883, 885 (9th Cir.2005), and we grant the petition for review and remand.
The IJ’s adverse credibility determination is not supported by substantial evidence, because the IJ did not identify any actual inconsistencies between Huang’s testimony and his asylum application or the letter from Huang’s wife. See Akinmade v. INS, 196 F.3d 951, 957 (9th Cir. 1999) (non-existent discrepancies identified by the agency do not provide a valid basis for an adverse credibility determination). Further, we conclude that the airport interview notes and credible fear interview notes lack certain important indicia of reliability, and thus, the IJ erred in relying on the notes from these interviews to find Huang not credible. See Singh v. Gonzales, 403 F.3d 1081, 1089-90 (9th Cir. 2005). It is apparent from the record before us that the agency listed all possible reasons to support an adverse credibility determination. See Soto-Olarte v. Holder, 555 F.3d 1089, 1095 (9th Cir.2009).
Accordingly, we grant the petition for review and remand to the agency to assess Huang’s claims, deeming his testimony credible. See id.; see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
*193PETITION FOR REVIEW GRANTED; 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 **
In these consolidated petitions for review, Efrain Gonzalez and his family, natives and citizens of Mexico, seek review of the Board of Immigration Appeals’ (“BIA”) orders denying their motion to reopen and their motion to reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petitions for review.
The BIA did not abuse its discretion by denying petitioners’ motion to reopen, because the BIA considered the evidence they submitted and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law.”).
In their opening brief, petitioners fail to address and therefore have waived any challenge to the BIA’s denial of their motion to reconsider. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived).
PETITIONS FOR REVIEW DENIED.
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:
Cornelius A. Tucker appeals the district court’s order denying his motion for release on bail pending disposition of his 28 U.S.C. § 2254 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Tucker v. Johnson, No. 7:09-cv-00171-sgw-mfu (W.D.Va. June 22, 2009). Tucker has also moved in this court for release pending appeal; we deny the motion. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
Quan Fu Li and his wife, Aiwu Zhang, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009), and we dismiss in part and grant in part the petition for review.
Preliminarily, we reject the government’s contention that Li’s derivative claim should be denied where the lead asylum applicant, Zhang, did not petition for review of the agency’s decision, because this court’s records show that on April 29, 2009, the court sua sponte amended the docket to reflect that this petition for review also seeks review of the BIA’s decision regarding petitioner Aiwu Zhang.
We decline to consider the evidence petitioners attached to their opening brief because our review is limited to the administrative record underlying the BIA’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en bane).
To the extent petitioners contend ineffective assistance of counsel, this court lacks jurisdiction to review the claim because it was not raised before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). A motion to reopen before the BIA is the proper method for raising an ineffective assistance of counsel claim.
The IJ’s various implausibility findings related to petitioners’ forced abortions and Christianity claim are not supported by substantial evidence because they are based on impermissible speculation and conjecture. See Li v. Holder, 559 F.3d 1096, 1103-07 (9th Cir.2009) (adverse credibility determination “riddled with speculation” not supported by substantial evidence); see also Ding v. Ashcroft, 387 F.3d 1131, 1138 (9th Cir.2004). In addition, Zhang testified consistently regarding when and why the family planning officials wanted to sterilize her husband, see Paramasamy v. Ashcroft, 295 F.3d 1047, 1052-*19754 (9th Cir.2002), petitioners were not given an opportunity to explain the apparent inconsistency regarding how often they attend church in the United States, see Soto-Olarte, 555 F.3d at 1091-92, and a review of the record shows that Zhang’s testimony about her forced abortions did not lack specificity, see Zheng v. Ashcroft, 397 F.3d 1139, 1147 (9th Cir.2005).
Further, substantial evidence does not support the IJ’s credibility finding with regard to Zhang’s voluntary return to China, because she explained she returned to visit her dying mother, cf. Loho v. Mukasey, 531 F.3d 1016, 1018-19 (9th Cir.2008), and the IJ’s inconsistency findings regarding Li’s passport are minor and do not relate to the heart of petitioners’ claims, see Akinmade v. INS, 196 F.3d 951, 955-56 (9th Cir.1999). Finally, because none of the IJ’s adverse credibility findings are supported, corroboration is not required. See Kaur v. Ashcroft, 379 F.3d 876, 889-90 (9th Cir.2004). Thus, substantial evidence does not support the IJ’s adverse credibility determination. See Li, 559 F.3d at 1102-03.
We therefore grant the petition for review and remand to the BIA for further proceedings on an open record. Soto-Olarte, 555 F.3d at 1093-96; see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Each party shall bear their own costs for this petition for review.
PETITION FOR REVIEW DISMISSED 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 **
Javier Castro-Garcia, a native and citizen of Mexico, petitions for review of the *198Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether a state statutory crime constitutes a crime involving moral turpitude, Galeana-Men-doza v. Gonzales, 465 F.3d 1054, 1057 (9th Cir.2006), and we grant the petition for review and remand.
The BIA concluded that Castro-Garcia was ineligible for cancellation of removal because his conviction under California Penal Code § 243(e) was a crime involving moral turpitude. Subsequent to the BIA’s order, we held that a conviction under § 243(e) is not categorically a crime involving moral turpitude. See id. at 1061. Because “the government has not asked us to apply the modified categorical approach, we consider only whether the categorical approach is satisfied.” See Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir.2008) (internal quotation omitted).
We therefore grant the petition for review and remand for the BIA to address in the first instance the IJ’s alternative finding that Castro-Garcia was ineligible for cancellation of removal because he was unable to demonstrate good moral character as a result of having been confined to a penal institution for an aggregate period of 180 days or more. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION FOR REVIEW 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 *
Jesus Garcia-Villalba appeals the district court’s denial of his motion to suppress. The facts are known to the parties and need not be repeated here, except as necessary to explain our decision.1
I
Agent Hackett did not coerce Garcia-Villalba’s confession by summarizing the status of the investigation before delivering the Miranda warnings. There is no evidence whatsoever “of any psychological or physical pressure” on Garcia-Villalba, “or of overreaching of any kind.” United States v. Davis, 527 F.2d 1110, 1111 (9th Cir.1975). We have never held that an officer may not accurately summarize the status of an investigation to a suspect, and we decline to do so here.
Nor did Agent Hackett violate Garcia-Villalba’s Fifth Amendment right to counsel by telling him that “his cooperation would be most valuable to us if others didn’t know he was cooperating.” In context, it is clear that Hackett’s statement had nothing to do with discouraging Jesus from contacting counsel. Rather, Hackett was responding to Jesus’ concerns that other traffickers would discover that he was cooperating. Hackett testified: “[Jesus] indicated he didn’t want other people to know that he was cooperating.... He was concerned that — it was my understanding that he was concerned that other *201traffickers might find out that he was cooperating. ...”
Finally, the delay in bringing Garcia-Villalba before a magistrate was not unreasonable or unnecessary. See Corley v. United States, — U.S. -, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (“A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.”) (citing Fed.R.Crim.P. 5(a)(1)(A) (2007)). Hackett arrested Garcia-Villalba in the early evening and brought him before a magistrate promptly the next morning.
Accordingly, the district court’s denial of Garcia-Villalba’s motion to suppress is
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 3Ó-3.
. We have disposed of issues regarding the district court's denial of Armando Garcia-Villalba's motions to suppress in a separate opinion filed concurrently with this memorandum disposition.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny L. Blackmon petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion seeking documents from his criminal case. He seeks an order from this court directing the district court to act. We find there has been no undue delay in the district court. Accordingly, we deny the mandamus petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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MEMORANDUM *
Jesus Garcia-Villalba appeals the district court’s denial of his motion to suppress. The facts are known to the parties and need not be repeated here, except as necessary to explain our decision.1
I
Agent Hackett did not coerce Garcia-Villalba’s confession by summarizing the status of the investigation before delivering the Miranda warnings. There is no evidence whatsoever “of any psychological or physical pressure” on Garcia-Villalba, “or of overreaching of any kind.” United States v. Davis, 527 F.2d 1110, 1111 (9th Cir.1975). We have never held that an officer may not accurately summarize the status of an investigation to a suspect, and we decline to do so here.
Nor did Agent Hackett violate Garcia-Villalba’s Fifth Amendment right to counsel by telling him that “his cooperation would be most valuable to us if others didn’t know he was cooperating.” In context, it is clear that Hackett’s statement had nothing to do with discouraging Jesus from contacting counsel. Rather, Hackett was responding to Jesus’ concerns that other traffickers would discover that he was cooperating. Hackett testified: “[Jesus] indicated he didn’t want other people to know that he was cooperating.... He was concerned that — it was my understanding that he was concerned that other *201traffickers might find out that he was cooperating. ...”
Finally, the delay in bringing Garcia-Villalba before a magistrate was not unreasonable or unnecessary. See Corley v. United States, — U.S. -, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (“A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.”) (citing Fed.R.Crim.P. 5(a)(1)(A) (2007)). Hackett arrested Garcia-Villalba in the early evening and brought him before a magistrate promptly the next morning.
Accordingly, the district court’s denial of Garcia-Villalba’s motion to suppress is
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 3Ó-3.
. We have disposed of issues regarding the district court's denial of Armando Garcia-Villalba's motions to suppress in a separate opinion filed concurrently with this memorandum disposition.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chavis Dushawn Flowe 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. Flowe, No. 3:00-cr-00169-FDW-1 (W.D.N.C. July 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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MEMORANDUM **
Mandeep Kaur, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Gu v. Gonzales, 454 F.3d 1014, 1018-19 (9th Cir.2006), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the IJ’s conclusion that Kaur did not suffer past persecution because the mistreatment she suffered during her two-day detention did not rise to the level of persecution. See id. at 1019-21. Further, substantial evidence also supports the IJ’s conclusion that Kaur did not establish her fear of returning to India was objectively reasonable. See Molina-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir.2002). Accordingly, Kaur’s asylum claim fails.
Because Kaur failed to establish eligibility for asylum, she necessarily failed to meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence supports the agency’s denial of CAT relief, because Kaur failed to establish that it is more likely than not that she would be tortured if she returned to India. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004).
Finally, we lack jurisdiction to review Kaur’s humanitarian asylum claim because she failed to exhaust the issue before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (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 provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Lorena Cortez Mendoza, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s April 14, 2005, order denying Cortez Mendoza’s motion to reconsider because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
The petition for review is timely only as to the BIA’s October 31, 2006, order denying Cortez Mendoza’s motion to reopen. In her opening brief, Cortez Mendoza fails to address and therefore waives any challenge to this order. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bassam Dahmah, a native and citizen of Syria, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceed*207ings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for review.
The BIA did not abuse its discretion in denying Dahmah’s motion to reopen based on changed circumstances or to apply for adjustment of status because the motion was filed over two years after the BIA’s final order, see 8 C.F.R. § 1003.2(c)(2), and Dahmah failed to present sufficient evidence of changed circumstances in Syria to qualify for the regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (requiring circumstances to “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 reject Dahmah’s contentions that the BIA failed to consider evidence of changed circumstances in Syria or provide an adequate explanation for its determination because the BIA provided a reasoned explanation for why Dahmah did not establish changed circumstances, and considered the important aspects of Dahmah’s claim in its decision. See Fernandez v. Gonzales, 439 F.3d 592, 603-04 (9th Cir.2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Newdimar Garda-Lima, a native and citizen of Brazil, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cere-*208zo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review for substantial evidence factual findings. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We deny the petition.
We agree with the IJ’s conclusion that Garcia-Lima was not a member of a particular social group, and we conclude that substantial evidence supports the finding that she did not show that she had been or would be persecuted in Brazil on account of any protected ground. See Ochoa v. Gonzales, 406 F.3d 1166, 1170-72 (9th Cir. 2005). Accordingly, Garcia-Lima’s asylum and withholding of removal claims fail.
We reject Garcia-Lima’s claim that the IJ violated her due process rights by failing to address her political opinion claim, because the IJ stated that Garcia-Lima applied for relief on the basis of her political opinion and concluded that she did not demonstrate a nexus to a protected ground. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to establish a due process violation).
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 **
Lorena Cortez Mendoza, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s April 14, 2005, order denying Cortez Mendoza’s motion to reconsider because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
The petition for review is timely only as to the BIA’s October 31, 2006, order denying Cortez Mendoza’s motion to reopen. In her opening brief, Cortez Mendoza fails to address and therefore waives any challenge to this order. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Blanca Estela Samano De Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“U”) decision denying her application for cancellation of removal and her motion to continue. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam), and we deny the petition for review.
The agency did not abuse its discretion in denying Samano De Hernandez’s motion for a continuance where Samano De Hernandez did not demonstrate good cause. See 8 C.F.R. § 1003.29 (an IJ may grant a motion for continuance for good cause shown); see also SandovaV-Luna, 526 F.3d at 1247.
It follows that the agency did not violate due process by denying Samano De Hernandez’s motion to continue. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
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 **
Bassam Dahmah, a native and citizen of Syria, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceed*207ings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for review.
The BIA did not abuse its discretion in denying Dahmah’s motion to reopen based on changed circumstances or to apply for adjustment of status because the motion was filed over two years after the BIA’s final order, see 8 C.F.R. § 1003.2(c)(2), and Dahmah failed to present sufficient evidence of changed circumstances in Syria to qualify for the regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (requiring circumstances to “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 reject Dahmah’s contentions that the BIA failed to consider evidence of changed circumstances in Syria or provide an adequate explanation for its determination because the BIA provided a reasoned explanation for why Dahmah did not establish changed circumstances, and considered the important aspects of Dahmah’s claim in its decision. See Fernandez v. Gonzales, 439 F.3d 592, 603-04 (9th Cir.2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Shanni Kumar, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion *210the denial of a motion to reopen, Iturnbarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003), and we deny the petition for review.
The BIA did not abuse its discretion in denying Kumar’s untimely motion to reopen because the motion was supported only by general articles related to political unrest in Fiji and provided insufficient information relating specifically to Kumar. See 8 C.F.R. § 1003.2(e)(3)(ii); see also Konstantinova v. INS, 195 F.3d 528, 530 (9th Cir.1999) (evidence introduced in support of motion to reopen based on changed country conditions was “too general” to demonstrate well-founded fear of future persecution).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Chamnong Chitcharuek, a native and citizen of Thailand, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). 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 the petition for review.
Substantial evidence supports the BIA’s denial of Chitcharuek’s withholding of removal claim because he failed to establish that the harassment and discrimination he experienced in Thailand on account of his homosexuality, even considered cumulatively, rose to the level of persecution, see id. at 1016-18, and he did not demonstrate a clear probability of future persecution, see Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th Cir.2003).
Substantial evidence also supports the BIA’s denial of CAT protection because Chitcharuek failed to demonstrate it is more likely than not he would be tortured if returned to Thailand. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir. 2006). We reject Chitcharuek’s contention that the BIA’s denial of his CAT claim did not sufficiently identify its reasoning or basis. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000); see also Larita-Mar-tinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.2000) (requiring alien to overcome presumption that BIA considered all the relevant evidence).
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 **
Sri Agustini, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), and denying her motion for reconsideration. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion for reconsideration, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we review for substantial evidence factual findings, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003). We deny the petition for review.
Substantial evidence supports the agency’s finding that Agustini’s experiences in Indonesia, where she was never physically harmed, did not rise to the level of past persecution. See id. at 1014-18. Substantial evidence also supports the agency’s finding that even as a member of a disfavored group, Agustini was unable to demonstrate a well-founded fear of future persecution. Cf. Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004). Moreover, the record does not compel the conclusion that there is a pattern or practice of persecution of Chinese Christian women in Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1060-62 (9th Cir.2009).
*213Because Agustini did not establish asylum eligibility, it necessarily follows that she did not satisfy the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence also supports the agency’s denial of CAT relief because Agustini did not demonstrate that is more likely than not she would be tortured if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.
The BIA did not abuse its discretion in denying the motion to reconsider because the motion failed to identify any errors of fact or law in the BIA’s prior order dismissing the appeal from the IJ’s denial of asylum, withholding of removal, and CAT relief. See 8 C.F.R § 1003.2(b)(1).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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MEMORANDUM **
Andre Chandra, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applica*209tion for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.2000), and we deny the petition for review.
The record does not compel the conclusion that changed or extraordinary circumstances excused the untimely filing of Chandra’s asylum application. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per curiam).
With regard to withholding of removal, we do not address the IJ’s past persecution finding because the IJ also found that, even assuming past persecution, changed country conditions in Indonesia rebutted Chandra’s presumption of a clear probability of future persecution. Because Chandra’s counsel, Edward Weisz, neglected to challenge this alternative dispositive determination in his opening brief, we do not address this issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in 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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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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ORDER
The petitioner 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 petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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MEMORANDUM **
Mario Garcia Gonzales, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence the agency’s continuous physical presence determination, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006), and we review de novo claims of constitutional violations in immigration proceedings, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
Substantial evidence supports the agency’s determination that Garcia Gonzales did not meet the continuous physical presence requirement where he testified that he departed the United States for Mexico in 1992 for over one year. See 8 U.S.C. *214§ 1229b(d)(2) (departure of greater than 90 days breaks continuous physical presence).
Garcia Gonzales’ contention that the agency’s application of the ten-year continuous physical presence requirement violated his due process rights is unavailing. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 978-79 (9th Cir.2006).
We do not consider Garcia Gonzales’ contentions regarding hardship and moral character because his failure to establish continuous physical presence is dispositive. See 8 U.S.C. § 1229b(b)(1)(A).
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 **
Nancy Edith Alfonso Vargas, a native and citizen of Colombia, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000), and we deny the petition for review.
Substantial evidence supports the IJ’s finding that the repeated threats petitioner received from guerillas on account of her political opinion did not amount to past persecution. See id. at 936 (“Threats themselves are sometimes hollow and, while uniformly unpleasant, often do not effect significant actual suffering or harm.”). Further, the record does not compel the conclusion that petitioner has a well-founded fear of future persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1153-54 (9th Cir.2005). Accordingly, petitioner’s asylum claim fails.
Substantial evidence supports the IJ’s denial of withholding of removal because petitioner failed to demonstrate a clear probability of persecution if returned to Colombia. See Lim, 224 F.3d at 937-39.
Finally, substantial evidence supports the IJ’s denial of CAT relief because petitioner did not establish that it is more likely than not she would be tortured if returned to Colombia. See Kumar v. Gonzales, 444 F.3d 1043, 1055-56 (9th Cir. 2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Jose Manuel Rosales-Avalos appeals from his guilty-plea conviction and 46-month sentence for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Rosales-Avalos’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. The appellant has not filed a pro se supplemental brief, but has filed a request to relieve counsel and proceed in propia persona. The government has filed a letter indicating that it does not intend to file an answering brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED. The appellant’s request to proceed in propia persona is DENIED. We REMAND to the district court for the limited purpose of correcting the judgment to strike the erroneous references to a plea agreement and an appeal waiver.
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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SUMMARY ORDER
Plaintiff-Appellant Paul Koziel, pro se, appeals from the judgment of the United *471States District Court for the Southern District of New York (Preska, Acting C.J.), sua sponte dismissing his complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), (iii), and Federal Rule of Civil Procedure 12(h)(3). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the district court’s sua sponte dismissal of the complaint under § 1915(e) for failure to state a claim and asserting claims against defendants immune from suit. See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001). We also review de novo the district court’s dismissal of Appellant’s action for lack of subject matter jurisdiction. See S.E.C. v. Berger, 322 F.3d 187, 191 (2d Cir.2003).
Under the Rooker-Feldman doctrine, lower federal courts lack subject matter jurisdiction in “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Appellant’s complaint satisfies all four criteria for the application of the Rooker-Feldman doctrine: (1) Appellant was found liable for parking violations in a state court and ordered to pay a fine; (2) he complains of the injury caused by the state court judgment; (3) the state court determination was rendered before this action was commenced; and (4) Appellant seeks to have that judgment vacated, requesting on appeal that “the whole case is thrown out or that the parking bureau rehears it with competent counsel representing [Appellant].” Insofar as Appellant seeks to challenge the state procedures for appealing a decision as violating his due process rights, that claim is inextricably intertwined with the judgment of the state court. See Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 86-87 (2d Cir. 2005) (citation omitted)(“Rooker-Feldman bars a federal claim, whether or not raised in state court, that asserts injury based on a state judgment and seeks review and reversal of that judgment; such a claim is ‘inextricably intertwined’ with the state judgment.”).
Moreover, we note that the district court properly found that Appellant’s complaint did not, in any event, state a claim for a violation of a statutory or constitutional right. Although we disfavor sua sponte dismissals without giving pro se litigants an opportunity to amend, see McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), we find no possibility in this case that even an amended complaint would succeed in stating a valid claim.
We have considered all of Appellant’s remaining arguments on appeal and find them to be without merit.
Accordingly, there is no basis on which to challenge the judgment of the district court, and it is hereby AFFIRMED.
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SUMMARY ORDER
Appellant David Trautenberg seeks review of two orders of the district court (Daniels, J.). The first dismissed his complaint with prejudice pursuant to Fed. R.Civ.P. 12(b)(6), and the second denied his motions for reconsideration and for leave to amend. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Trautenberg worked as a retail financial consultant for Citigroup subsidiary Salo-mon Smith Barney (together, “Citigroup”). In 2002, Citigroup became the subject of numerous regulatory investigations regarding the alleged dissemination of false and misleading research, conflicts of interest between its research analysts and investment banking business, and other misconduct. As a result, Citigroup became the focus of numerous civil litigations, with Paul, Weiss, Rifkind, Wharton, Garrison LLP, undertaking Citigroup’s representation. Between 2002 and 2004, Citigroup paid Paul Weiss in excess of $100 million in fees. Trautenberg was named as an individual defendant in several of these litigations. Paul Weiss eventually assumed Trautenberg’s defense in those liti-gations in addition to the representation of Citigroup.
In June 2003, Citigroup and Trauten-berg began negotiating a separation agreement, wherein Trautenberg would end his employment and leave his book of business behind. Trautenberg alleges that in connection with the various lawsuits, Paul Weiss lawyers extensively interviewed Trautenberg and obtained, subject to the attorney-client privilege, substantial amounts of information directly related to Trautenberg’s employment at Citigroup, including knowledge about Trautenberg’s personal financial, business and family situation. In September, 2003, Trautenberg hired two attorneys to represent him in connection with his separation from Citigroup. Trautenberg alleges that using SSB’s own internal model for recruiting brokers from competitors, his book of business was valued at over $25 million.
Trautenberg alleges that at some point in late 2003 or early 2004, while continuing to represent him in various litigation matters, Paul Weiss began secretly advising Citigroup regarding Trautenberg’s termination. Trautenberg objected to Paul Weiss’s involvement, but alleges Paul Weiss told him that he would be “better off’ with Paul Weiss involved. Trauten-berg alleges that as a result of Paul Weiss’ misconduct, he lost substantial negotiating leverage and was forced to end his employment with Citigroup for a $5 million separation payment, substantially less than the $25 million that his book of business was worth.
We review a district court’s decision on the motions for reconsideration and amendment for abuse of discretion. Jones v. N.Y. State Division of Military and *474Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1999) (denial of motion for leave to amend); Devlin v. Transp. Communications Int’l Union, 175 F.3d 121, 131-32 (2d Cir.1999) (motion for reconsideration pursuant to Fed.R.Civ.P. 59(a)).
Given that Trautenberg did not move for leave to replead in opposition to Paul Weiss’ motion to dismiss his original complaint with prejudice, the district court did not abuse its discretion by failing to grant him, sua sponte, leave to replead. See Horoshko v. Citibank, N.A., 373 F.3d 248, 249 (2d Cir.2004) (plaintiffs’ contention “that the District Court abused its discretion in not permitting an amendment that was never requested is frivolous”); Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 89 (2d Cir.1999) (“we will not deem it an abuse of the district court’s discretion to order a case closed when leave to amend has not been sought”) (internal quotation and citation omitted).
“A party seeking to file an amended complaint post-judgment must first have the judgment vacated or set aside pursuant to Fed.R.Civ.P. 59(e) or 60(b).” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008). “Unless there is a valid basis to vacate the previously entered judgement, it would be contradictory to entertain a motion to amend the complaint.” Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d Cir.1991). “Of course, in view of the provision in Rule 15(a) that ‘leave [to amend] shall be freely given when justice so requires,’ it might be appropriate in a proper case to take into account the nature of the proposed amendment in deciding whether to vacate the previously entered judgment.” Id. (internal citation omitted); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)(internal citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal citation omitted).
To state a claim for breach of fiduciary duty, plaintiff must allege “(1) the existence of. a fiduciary relationship; (2) a knowing breach of a duty that relationship imposes; and (3) damages suffered.” Carruthers v. Flaum, 388 F.Supp.2d 360, 381 (S.D.N.Y.2005). The district court correctly found that Trautenberg failed to state a claim for breach of fiduciary duty because (1) standing alone, Paul Weiss’s disciplinary rule violation does not create a cause of action for breach of fiduciary duty, see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 9-10, 865 N.Y.S.2d 14 (1st Dept.2008) (stating that “any act of disloyalty by counsel will also comprise a breach of fiduciary duty owed to the client” and citing “Code of Professional Responsibility DR 5-105 [22 NYCRR 1200.24]”); and (2) Trautenberg failed to plead facts sufficient to support his allegations that “but for” the actions of Paul Weiss, he would not have sustained damages. By undertaking to represent Citigroup in its negotiations with Trautenberg, Paul Weiss arguably took on a position adverse to its own client in violation of its ethical obligations. New York state law, however, does not provide Trautenberg ■with a claim to obtain legal redress for this ethical breach. The allegations of the proposed Amended Complaint fail to identify *475what information Paul Weiss obtained from Trautenberg that Citigroup would not otherwise have access to. Even if we were to assume arguendo that the proposed Amended Complaint properly pleaded a breach of fiduciary duty, the proposed Amended Complaint fails to adequately plead causation. For the same reasons, Trautenberg’s proposed cause of action for constructive fraud also fails.
We have examined the remainder of Trautenberg’s claims and we find them without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.
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SUMMARY ORDER
Appellant Norman B. Calvert, pro se, appeals from orders of the United States District Court for the Eastern District of New York dismissing appellant’s petition for a writ of audita querela — which the District Court construed, in the alternative, as a petition for a writ of error coram nobis — and denying his motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
The writs of audita querela and error coram nobis have been abolished in civil cases, but they “remain available in very limited circumstances with respect to criminal convictions.” United, States v. La-Plante, 57 F.3d 252, 253 (2d Cir.1995). Coram, nobis relief is available where “[ (1) ] there are circumstances compelling such action to achieve justice, [ (2) ] sound reasons exist for failure to seek appropriate earlier relief, and [ (3) ] the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting of the writ.” Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (internal quotation marks omitted). A writ of audita querela “is probably available where there is a legal, as contrasted with an equitable, objection to a conviction that has arisen subsequent to the conviction and that is not redressable pursuant to another post-conviction remedy.” United States v. Richter, 510 F.3d 103, 104 (2d Cir.2007) (internal quotation marks omitted).
We review de novo a district court’s denial of a writ of audita querela. Id. at 104. For a writ of error coram nobis, we review the legal standards that a district court applies de novo, and we review a denial of the writ for abuse of discretion. See Fleming, 146 F.3d at 90. “A district court has abused its discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (citation, alteration, and quotation marks omitted).
We agree with the District Court that appellant is not entitled to relief under either writ. First, as we have already decided appellant’s speedy trial claim in his direct appeal, that claim cannot be relitigated. See Chin v. United, States, 622 F.2d 1090, 1092 (2d Cir.1980).
Second, with respect to appellant’s arguments regarding the sufficiency of his criminal complaint, appellant has demonstrated neither that a new objection has arisen since his conviction nor that “sound reasons” exist for his procedural default. Fleming, 146 F.3d at 90. Although appellant claims that he only recently noticed the complained-of defect, appellant does not dispute that the evidence was available to him throughout his criminal proceedings and previous collateral attacks. In any event, the claim provides no basis for relief, as “[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.” United States v. Crews, *477445 U.S. 463, 474, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).
We additionally hold that the District Court did not abuse its discretion in denying appellant’s Rule 60(b) motion, as appellant demonstrated no “exceptional circumstances” that would justify setting aside the denial of his petition. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008).
We have carefully considered appellant’s remaining claims and find them to be without merit.
CONCLUSION
For the reasons set forth above, the orders of the district court are AFFIRMED.
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SUMMARY ORDER
Petitioner-Appellant ISC Holding AG (“ISC Holding”) appeals from an April 3, 2009 memorandum and order of the district court denying its petition to compel arbitration pursuant to the Asset Management Facilitation Agreement (“AMFA”), a purported agreement between ISC Holding and Respondent-Appellee Nobel Biocare Investments N.V. (“Nobel Biocare”) dated January 21, 2008. The district court found that because the dispute could not be arbitrated before the American Arbitration Association, and because the AMFA’s alternative specification that disputes could be resolved in “any other U.S. court” meant a judicial court in the United States, the agreement was not an enforceable agreement to arbitrate. Because we find that the clause purporting to bind the parties to submit disputes “to binding arbitration through The American Arbitration Association or to any other U.S. court” is ambiguous, we vacate and remand. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
We review de novo a district court’s denial of a motion to compel arbitration. Arciniaga v. General Motors Corp., 460 F.3d 231, 234 (2d Cir.2006); Jacobs v. USA Track & Field, 374 F.3d 85, 88 (2d Cir.2004).
We have held that “arbitration is a matter of contract, and ... parties cannot be compelled to arbitrate issues that they have not specifically agreed to submit to arbitration.” Shaw Group Inc. v. Triplefine Int’l Corp., 322 F.3d 115, 120 (2d Cir.2003) (internal citations and quotation marks omitted). Thus, “[njotwithstanding the strong federal policy favoring arbitration as an alternative means of dispute resolution,” we will “treat agreements to arbitrate like any other contract.” U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 146 (2d Cir.2001). Without a meeting of the minds such that an enforceable agreement to arbitrate was formed, we will not compel arbitration. Dreyfuss v. Etelecare Global Solutions-US Inc., 349 Fed.Appx. 551, 2009 WL 3004111, at *3 (2d Cir.2009).
Under “familiar rules of contract interpretation,” when “an agreement is clear and complete,” its meaning “is determined by reference only to the contract’s terms.” JA Apparel Corp. v. Abboud, 568 F.3d 390, 404 (2d Cir.2009) (Sack, J., concurring) (internal quotation marks omitted) (applying New York contract law). However, “[w]hen a contract term is reasonably susceptible to more than one interpretation ... it is ambiguous as to the parties’ intent.” Id. (internal quotation marks omitted). A word or phrase in a contract is ambiguous when it is “capable *482of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” Hugo Boss Fashions, Inc. v. Fed. Ins. Co., 252 F.3d 608, 617 (2d Cir.2001) (internal quotation marks omitted) (applying New York contract law).
“The objective of contract interpretation is to give effect to the expressed intentions of the parties.” Record Club of Am., Inc. v. United Artists Records, Inc., 890 F.2d 1264, 1271 (2d Cir.1989) (applying New York contract law). When “the contract language creates ambiguity, extrinsic evidence as to the parties’ intent may properly be considered.” JA Apparel Corp., 568 F.3d at 397. See also 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 30:7 (4th ed. 1999) (“Where a written contract is ambiguous, a factual question is presented as to the meaning of its provisions, requiring a factual determination as to the intent of parties in entering the contract. Thus, the fact finder must interpret the contract’s terms, in light of the apparent purpose of the contract as a whole, the rules of contract construction, and extrinsic evidence of intent and meaning.”)1
The purported arbitration clause in the contract at issue reads:
22. Arbitration:2 In the event of disputes concerning any aspect of the Agreement, including claim of breach, remedy shall first be sought by communication between parties. If such communication fails to resolve the dispute then the parties agree in advance to have the dispute submitted to binding arbitration through The American Arbitration Association or to any other U.S. court. The prevailing party shall be entitled to attorney’s fees and costs. The arbitration may be entered as a judgment in any court of competent jurisdiction. The arbitration shall be conducted based upon the Rules and Regulations of the International Chamber of Commerce (ICC 500).
Based on this clause, ISC Holding argues that Nobel Biocare agreed to arbitrate any dispute arising pursuant to the purported contract at issue. It urges us to interpret the phrase “any other U.S. court” to mean a court of arbitration and to hold that the agreement binds Nobel Biocare to arbitrate the present dispute. Nobel Biocare instead contends that even if it had entered into the AMFA and this agreement were otherwise binding — which Nobel Bio-care says it is not — “any other U.S. court” may be reasonably interpreted only to mean a judicial court in the United States. It asks us to affirm the district court.
We find that it is not clear from the text of the purported contract, considering the agreement as a whole, whether “any other U.S. court” refers to, as ISC Holding contends, a court of arbitration or, as Nobel Biocare maintains, a judicial court. The use of the word “other” implies that “US court” is related to its antecedent, “The American Arbitration Association.” However, it is also true that, as the district court found, a “US court” is *483not necessarily a “US arbitral court.” Although “court” is used elsewhere in the agreement, it does not resolve this ambiguity. We therefore find that the purported arbitration clause at issue is ambiguous and, accordingly, vacate and remand to the district court for further proceedings consistent with this order. We leave Nobel Biocare’s alternative argument regarding personal jurisdiction to be resolved by the district court in the first instance.
For the foregoing reasons, the judgment of the district court is hereby VACATED and REMANDED for proceedings consistent with this order.
. To the extent that Swiss law applies to the dispute over the enforceability of the purported arbitration clause, our analysis would not change. Nobel Biocare has asserted, and ISC Holding has not contested, that "Swiss law principles of contract interpretation are similar to principles of contract interpretation under New York law.”
. The contract specifies that paragraph “headings are not part of this Agreement and shall not be used in the interpretation of this Agreement.”
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SUMMARY ORDER
Petitioner Galleh Jalloh, a native and citizen of Sierra Leone, seeks review of a June 25, 2007 order of the BIA affirming the January 12, 2004 decision of Immigration Judge (“IJ”) Terry A. Bain denying Jalloh’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Galleh Jalloh, No. A 95 381 435 (B.I.A. Jun. 25, 2007), aff'g No. A 95 381 435 (Immig. Ct. N.Y. City Jan. 12, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
*487Where, as here, the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). We review de novo questions of law and the application of law to undisputed facts. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The IJ accurately noted that Jalloh testified that he had been a member of the “APC” party in Sierra Leone, but when asked to clarify what that acronym stood for, Jalloh replied, “Sierra Leone People Party.” After his attorney asked if he was involved in any other organizations, Jalloh revised his earlier answer and stated that he was actually involved with the “SLPP” and that he had made a mistake in his previous response. Although Jalloh sought to explain this inconsistency by testifying that he did not speak English well and was not educated, the BIA and the IJ appropriately rejected that explanation, given that he had the benefit of an interpreter during his hearing and never contended that there were translation problems. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (emphasizing that the agency need not credit an applicant’s explanations for inconsistent testimony unless those explanations would compel a reasonable factfinder to do so). Because this inconsistency involved the heart of his claim that he was persecuted in Sierra Leone on account of his political opinion, it properly supported the agency’s adverse credibility determination. See Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003).1
Similarly, the IJ correctly observed an inconsistency between Jalloh’s testimony that his wife informed him that the rebels shot and killed his mother, and his two written applications stating that his wife informed him that the rebels killed his father and his mother was missing. Given that this discrepancy cast doubt on his claim that he and his family members were persecuted in Sierra Leone, it supported the agency’s adverse credibility determination. See id.
In further support of the adverse credibility determination, the IJ identified several more minor discrepancies in Jalloh’s testimony regarding where rebels took him after he was abducted and when his father had joined the Sierra Leone People’s Party. The IJ also drew an adverse inference from Jalloh’s inability in his testimony to specifically identify the Revolutionary United Front (“RUF”) as the *488group that abducted him, even though he had named that group in both of his written asylum applications. While such discrepancies might not be substantial on their own, when weighed together the agency properly deemed them consequential. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006).
Given that substantial evidence supports the agency’s adverse credibility determination, the agency’s denial of Jalloh’s applications for asylum, withholding of removal, and CAT relief was proper because each claim rested on the same core factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006); see also Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Thus, we need not address the BIA’s additional finding that Jalloh failed to establish that he was detained by the RUF on account of his political opinion.
We have considered Jalloh’s additional arguments and find them to be without merit. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, Jalloh’s pending motion for a stay of removal is hereby DENIED.
. The Secaida-Rosáles v. INS line of cases has been superseded in part by amendments to the statutory standard imposed by the Real ID Act. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (per curiam) ("[W]e conclude that our previous holding [in Secaida-Rosales] ... has been abrogated by ... the Real ID Act. For cases filed after May 11, 2005, the effective date of the Act, an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the 'totality of the circumstances' establishes that an asylum applicant is not credible.” (quoting 8 U.S.C. § 1158(b)(l)(B)(iii) (citations omitted))). However, as Jalloh filed his applications before May 11, 2005, Secai-da-Rosales is still applicable in this case. See, e.g., Balachova v. Mukasey, 547 F.3d 374, 380 n. 2 (2d Cir.2008).
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MEMORANDUM **
Mario Garcia Gonzales, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence the agency’s continuous physical presence determination, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir.2006), and we review de novo claims of constitutional violations in immigration proceedings, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
Substantial evidence supports the agency’s determination that Garcia Gonzales did not meet the continuous physical presence requirement where he testified that he departed the United States for Mexico in 1992 for over one year. See 8 U.S.C. *214§ 1229b(d)(2) (departure of greater than 90 days breaks continuous physical presence).
Garcia Gonzales’ contention that the agency’s application of the ten-year continuous physical presence requirement violated his due process rights is unavailing. See Padilla-Padilla v. Gonzales, 463 F.3d 972, 978-79 (9th Cir.2006).
We do not consider Garcia Gonzales’ contentions regarding hardship and moral character because his failure to establish continuous physical presence is dispositive. See 8 U.S.C. § 1229b(b)(1)(A).
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 **
Nancy Edith Alfonso Vargas, a native and citizen of Colombia, petitions for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000), and we deny the petition for review.
Substantial evidence supports the IJ’s finding that the repeated threats petitioner received from guerillas on account of her political opinion did not amount to past persecution. See id. at 936 (“Threats themselves are sometimes hollow and, while uniformly unpleasant, often do not effect significant actual suffering or harm.”). Further, the record does not compel the conclusion that petitioner has a well-founded fear of future persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1153-54 (9th Cir.2005). Accordingly, petitioner’s asylum claim fails.
Substantial evidence supports the IJ’s denial of withholding of removal because petitioner failed to demonstrate a clear probability of persecution if returned to Colombia. See Lim, 224 F.3d at 937-39.
Finally, substantial evidence supports the IJ’s denial of CAT relief because petitioner did not establish that it is more likely than not she would be tortured if returned to Colombia. See Kumar v. Gonzales, 444 F.3d 1043, 1055-56 (9th Cir. 2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Cesar S. Contreras appeals from the 120-month sentence imposed following modification pursuant to 18 U.S.C. *217§ 3582(c)(2). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Contreras’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed. However, the appellant has filed a motion opposing the motion to withdraw and, alternatively, requesting appointment of new counsel.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
The appellant’s motion is DENIED.
Counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*217ed by 9 th Cir. R. 36-3.
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SUMMARY ORDER
Petitioner Shu Ying Zhu, a native and citizen of the People’s Republic of China, seeks review of an October 15, 2007 order of the BIA denying her motion to reopen. In re Shu Ying Zhu, No. A079 228 212 (B.I.A. Oct. 15, 2007). We assume the *580parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Zhu’s untimely and number-barred motion to reopen because we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish either materially changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). While Zhu argues that the BIA erred in rejecting an unauthenticated village committee letter as evidence of changed circumstances, we deem such argument waived because Zhu asserts that argument in the first instance in her reply brief. See McCarthy v. S.E.C., 406 F.3d 179, 186 (2d Cir.2005) (holding that “arguments not raised in an appellant’s opening brief, but only in his reply brief, are not properly before an appellate court even when the same arguments were raised in the trial court”); Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Regardless, the BIA reasonably questioned the reliability of her evidence in light of the adverse credibility determination that was made in her underlying proceedings. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146^8 (2d Cir.2007) (holding that the BIA did not abuse its discretion in denying a motion to reopen supported by allegedly unavailable evidence regarding changed country conditions where there had been a previous adverse credibility finding in the underlying asylum hearing).
Because the failure to establish changed country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Zhu’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Ya Duan Lin, a native and citizen of the People’s Republic of China, seeks review of the October 11, 2007 order of the BIA denying her untimely motion to reopen and the February 29, 2008 order of the BIA denying her motion to reconsider. In re Ya Duan Lin, No. A077 854 144 (B.I.A. Oct. 11, 2007, Feb. 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of motions to reopen and reconsider for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not abuse its discretion in denying Lin’s motions.
*582The BIA reasonably found that Lin failed to demonstrate that it made any legal or factual error in denying her untimely motion to reopen. See 8 C.F.R. § 1003.2(b)(1); see also Jin Ming Liu, 439 F.3d at 111. Moreover, we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish either materially changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”).
Lin asserts that in the BIA’s denial of her motion to reopen, it discussed a 2005 State Department country report that she never submitted, and that its discussion of this report suggests that the agency did not consider the entirety of her supporting documents. However, while Lin did not submit the 2005 country report that the BIA referenced in its decision, Lin cited to it in her motion to reopen. Thus, any error is harmless, particularly where, in denying her motion to reconsider, the BIA properly noted and addressed the evidence Lin submitted with her motion to reopen. See Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir.2006). We decline to consider the documents contained in Lin’s Special Appendix as they were not included in the administrative record below. See 8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir.2007).
Because the failure to establish changed country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Lin’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Xiu Qun Chen, a native and citizen of the People’s Republic of China, seeks review of a November 30, 2007 order of the BIA denying her motion to reopen. In re Xiu Qun Chen, No. A077 318 274 (B.I.A. Nov. 30, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shoo v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Chen’s untimely and number-barred motion to reopen because we have previously reviewed the BIA’s consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish either materially changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider *584evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). While Chen argues that the BIA’s analysis of her evidence was inadequate, we have rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Jian Hui Shoo, 546 F.3d at 169, and will “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Here, the BIA considered Chen’s evidence and reasonably questioned the reliability of the unauthenticated village committee letter because Chen was found to be not credible in her underlying proceedings. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-48 (2d Cir.2007) (finding that the BIA’s refusal to credit an unauthenticated document was not error when its rejection of the document was based substantially on legitimate credibility concerns and contrary evidence as opposed to being based solely on lack of authentication).
Because the failure to establish changed country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Chen’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169. Chen’s argument that she is entitled to file a successive asylum application based on the birth of her children in the United States fails under Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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OPINION
PER CURIAM.
Michael Curtis Reynolds appeals pro se from the District Court’s denial of his motion seeking recusal. The District Court also dismissed Reynolds’s habeas petition without prejudice in an earlier decision, which included a separate request for re-cusal. Because the appeal is lacking in arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).
In November 2008, Reynolds filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which he challenges the legality of his federal criminal conviction. Attached to his petition was a letter in which Reynolds also sought recusal of Judge McClure. The court denied Reynolds’s request for recusal and found that Reynolds’s habeas petition was an unauthorized second or successive habeas petition. The District Court also noted that Reynolds has a direct appeal pending before this Court and therefore, his instant petition under § 2241 was premature. See C.A. 07-3210. For these reasons, the *586court dismissed Reynolds’s petition without prejudice.
In December 2008, Reynolds filed a Motion for Recusal Amendment for Judge McClure, alleging bias against him in the instant case, as well as two other cases. Reynolds reasserted the merits of his ha-beas petition as well as cited various denials by Judge McClure in other pending cases as a basis for recusal. The District Court relied on its previous dismissal of Reynolds’s habeas petition to deny Reynolds’s recusal motion as moot. Reynolds timely appealed.
We have appellate jurisdiction over this appeal under 28 U.S.C. § 1291. Under 28 U.S.C. § 1915(e)(2)(B), an appeal must be dismissed if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The District Court did not err in dismissing Reynolds’s § 2241 petition. A federal prisoner may proceed under § 2241 only if the remedy provided by 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir.1997). Even if Reynolds had filed a § 2255 motion, however, he would be unable to show that he is entitled to relief at this time, as he currently has a direct appeal pending in this Court. Accordingly, because he is in the process of challenging the legality of his detention via direct appeal and these claims have not yet been resolved, the instant challenge to his conviction and sentence is premature. Reynolds must wait until this Court disposes of his direct appeal before he pursues any other available avenues for relief.
Furthermore, it is well settled that a court’s rulings in a particular case, standing alone, will not support a request for recusal. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). A litigant’s mere dissatisfaction also does not form an adequate basis for recusal. See Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.2000). Rather, to show bias or partiality, a movant must show that a judge displays a deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Reynolds does meet this standard, and in fact, a review of the dockets in the other matters in which Judge McClure has presided indicates that Reynolds deluged the court with numerous filings. Judge McClure’s rulings against Reynolds’s motions do not demonstrate any such favoritism or antagonism, as much of what Reynolds filed was later contradicted by his subsequent filings or was otherwise meritless. See Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163, 167 (3d Cir.1993). As such, the District Court properly denied Reynolds’s requests for recusal. In light of the fact that the court already dismissed Reynolds’s ha-beas petition, his subsequent request for recusal in a closed matter was properly deemed moot.
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). In addition, Reynolds’s motion for certificate of no contest is denied as appellee’s lack of a response does not necessarily deem the matter uncontested under the Local Rules. Responses to matters listed for summary action are not required. See L.A.R. 27.3.
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OPINION
PER CURIAM.
Chandan S. Vora appeals from an order of the United States District Court for the Western District of Pennsylvania dismissing pursuant to 28 U.S.C. § 1915(e)(2)(B) her “petition for removal” filed on June 9, 2009.
Vora filed a “petition for removal” in the District Court seeking that all charges against her be dismissed. She sought federal court oversight of and protection from “conspirators,” including Cambria County police officers and the magisterial district court, who allegedly preyed on her obvious *588disability and issued false citations against her, demanding that she pay overdue fines and costs to the county despite her inability to pay.1 She claimed that racial and religious bigotry and disregard for her age of 74 years, her handicapped condition, and her gender motivated these charges. In her petition, Vora attached a police criminal complaint dated April 29, 2009, filed by Johnstown Police Officer Killinger, which charged Vora with loitering and prowling at nighttime, disorderly conduct, interfering with the contents of a trash receptacle and scattering rubbish. She also included a summons and notice of a preliminary hearing before District Judge Michael Musulin regarding the aforementioned complaint and several letters from the Cambria Court of Common Pleas concerning past due court ordered costs, fines and fees.
The District Court concluded that the “Petition for Removal” sought to attack state court proceedings over which the District Court had no jurisdiction. Vora filed a timely motion to vacate, in which she reasserted, inter alia, that she was struck by Officer Killinger on April 29, 2009, and that she suffered a perforated ear drum as a result.2 She attached a medical report dated June 10, 2009. (See Motion to Vacate at 12.) The District Court denied the motion. This timely appeal followed.
Vora has been granted leave to proceed in forma pauperis on appeal. Because her appeal from the dismissal of her petition for removal lacks arguable merit, we will dismiss it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000).
After reviewing the District Court pleadings and notice of appeal, we conclude as a matter of law that her petition was correctly denied. Vora petitioned for removal, presumably under the civil rights removal statute, 28 U.S.C. § 1443. The civil rights removal statute applies only to the removal of state court proceedings. Id.; see also 28 U.S.C. § 1447(a). We doubt that any of the proceedings Vora seeks to remove qualifies as a state court proceeding. Even if we assume arguendo that the civil rights removal statute applies to the Johnstown Police complaint, the summons to a preliminary hearing before a district judge, and the letters concerning overdue costs, fines and fees, Vora’s rambling, generalized, and unsupported allegations do not meet the specific criteria for § 1443 removal. See City of Greenwood v. Peacock, 384 U.S. 808, 827, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Ronan v. Stone, 396 F.2d 502, 503 (1st Cir.1968).
Having found no legal merit to this cause, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). Vora’s motions for injunction, “to move the case,” and for a stay are denied.
. Vora believes that the appellees are well aware that her physically disabled condition and her overall health condition "are extremely bad” because her "neurologic pains,” she believes, "are much worse than [the type of pain associated with] cancer.” (See Petition for removal, at 2.) She attached to her petition a copy of a medical report from 2005. (Id. at 86.)
. We note that Vora’s allegations that Officer Killinger assaulted her in April 2009 and continues to harass her by using his cruiser to prevent her from passing on the street and sidewalk, although troubling, were not raised in a complaint filed pursuant to § 1983.
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OPINION
PER CURIAM.
Archie Tindell, an inmate at the State Correctional Institution at Fayette, appeals from orders by the District Court granting defendants’ motions to dismiss and for summary judgment. For substantially the same reasons as given by the District Court, we will affirm.
I.
In 2007, Tindell filed a complaint alleging various causes of action pursuant to 42 U.S.C. § 1983 against numerous named defendants. Tindell alleged that several *593incidents provided the basis for relief under the First, Fourth, Eighth, and Fourteenth Amendments, as well as under the state constitution and state law.
First, Tindell alleges that his cell was searched without justification and his legal property was improperly removed without due process of law and in violation of the Fourth Amendment. Tindell claims that the search occurred in retaliation for pending civil litigation against prison officials, was racially motivated, and because defendants were engaged in a conspiracy against him. Tindell argues that the improper seizure of his legal materials denied him access to the courts. Tindell also alleges that in the course of seizing property from his cell, a prison officer used excessive force in removing him from his cell.
Second, Tindell asserts that prison officials and medical staff were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Tin-dell, an insulin-dependent diabetic, was sent to the prison’s medical facility where he was force fed by medical staff. Tindell alleges that he was placed in a “hard cell” after he requested that his sugar level be tested. He asserts that this incident violated his rights under the Equal Protection Clause of the Fourteenth Amendment and his right to due process.
Third, Tindell alleges that he was denied due process when misconduct charges were filed against him. He alleges that the hearing examiners conspired against him by delaying his hearing and by denying his requests for “video cameras under exculpable evidence.”
Defendants filed two motions to dismiss: one on behalf of defendant Herbik and one on behalf of all remaining defendants (“DOC” defendants). Tindell did not respond to either. Based on a report by the Magistrate Judge, the District Court dismissed many of the named defendants from Tindell’s suit and all but two of his claims. The two claims that survived dismissal were a retaliation claim against defendants Leggett, Crumb, Ruvo, Caldwell, and Kremposky, and an excessive force claim against defendant Crumb. In addition, the District Court denied Tindell’s motion to amend because the court could discern no new claims in the proposed amended complaint, and denied his motion to remand.
After discovery, defendants filed a motion for summary judgment and provided evidence demonstrating that no genuine issue existed. The Magistrate Judge issued a second report recommending a grant of summary judgment in favor of defendants, which the District Court adopted and denied Tindell relief. Tindell timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm if Tin-dell’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. Our review is plenary. See Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 519 (3d Cir.2007) (motion to dismiss); Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006) (summary judgment).
II.
We consider first the District Court’s order dismissing Tindell’s claims against defendant Herbik, and dismissing claims against the remaining state defendants stemming from the cell search, confiscation of legal property, misconduct charges, and medical treatment. Dismissal is proper if a party fails to allege sufficient factual matter, which, if accepted as true, could “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, *594550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
First, Tindell fails to state a claim for relief when he alleges that the cell search and confiscation of his legal property violated his constitutional rights. Prisoners do not have a right to privacy and freedom from unreasonable searches during incarceration. See Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Doe v. Delie, 257 F.3d 309, 316 (3d Cir.2001). Seizure of Tindell’s legal property thus cannot constitute a Fourth Amendment violation. Nor is there a due process violation if a meaningful post-deprivation remedy for the loss is available. Hudson, 468 U.S. at 533, 104 S.Ct. 3194. We have previously held that the prison’s grievance program and internal review provide an adequate post-deprivation remedy to satisfy due process. Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d Cir.2000). Tindell has not shown that this post-deprivation procedure was not meaningful. To the extent that Tindell claims that his delayed misconduct hearing deprived him of due process,1 he does not state a claim for relief. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Wolff v. McDonnell, 418 U.S. 539, 565-72, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (setting forth due process protections for prison disciplinary hearings). Tindell also does not state a claim for relief when he alleges that hearing examiners denied his requests for “video cameras.” See Wolff, 418 U.S. at 566-67, 94 S.Ct. 2963.
Tindell also fails to allege a violation under the First Amendment. Although he asserted that some legal property was confiscated, he does not set forth any facts showing that this resulted in an “actual injury.” See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). His claims are insufficient to show that he was denied access to the courts. Id. Although not addressed by the District Court, Tindell also alleges that some of the items confiscated were his religious materials. To the extent he asserts a First Amendment violation, he fails to allege with any specificity how the removal of these items substantially burdened his ability to observe a central religious belief or practice. See Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989).
Additionally, Tindell’s bare conelusory allegations are insufficient to sustain a conspiracy claim. See D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir.1992) (“[mjere conelusory allegations of deprivations of constitutional rights” are insufficient to state a conspiracy claim (citation omitted)); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989) (allegations supporting a conspiracy claim under civil RICO must be sufficiently specific).
Tindell’s claims of deliberate indifference were also properly dismissed. He argues that the course of treatment was improper, which does not state a claim under the Eighth Amendment. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (“mere disagreement as to the proper medical treatment” is insufficient to state a constitutional violation). He also failed to allege some basis for concluding that defendants had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). His allegations neither provide a *595basis to conclude that his due process rights were violated in the course of his medical treatment nor show how the medical staff violated the Equal Protection Clause. His state law medical malpractice claim must also be dismissed for failure to present the elements necessary to establish a prima facie case of negligence. See Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888, 891 (1990) (listing elements of medical malpractice claim).
Tindell’s general claims against defendants who act as supervisors were also properly dismissed. He failed to allege any personal involvement and instead premised liability on a theory of respondeat superior. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). To the extent that Tindell alleged a state law tort claim, sovereign immunity protects the DOC defendants from being sued in their official capacities in federal court. See 42 Pa. Cons.Stat. Ann. § 8521(b); Chittister v. Dep’t of Community & Economic Dev., 226 F.3d 223, 226-27 (3d Cir.2000).
Finally, after reviewing Tindell’s motion to amend, we agree that the District Court properly denied him leave to file the proposed amended complaint, as it was no different than the original complaint. Denial of his motion to remand was also proper. See 28 U.S.C. § 1441.
III.
We consider next the District Court’s order granting summary judgment on the remaining two claims: (1) that the cell search was retaliatory and (2) that it involved the use of excessive force. Summary judgment will be affirmed if the record demonstrates that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
To show retaliation, a prisoner must demonstrate that he was engaged in constitutionally protected conduct, that the prison officials caused him to suffer “adverse action,” and that his constitutionally protected conduct was a motivating factor in the officials’ decision to discipline him. Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir.2002) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001)). However, prison officials may still prevail by proving that they would have made the same decision even if the prisoner were not engaging in constitutionally protected conduct. Rauser, 241 F.3d at 334.
Although there is a dispute over whether Tindell’s cell property exceeded institutional rules, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007) (relying on a videotape in assessing summary judgment evidence). Here, defendants provided a video showing officers removing all of the personal, nonessential property from Tindell’s cell. The video shows that defendants removed two full boxes, in addition to various other items, including a tall stack of books. Defendants also attest that Tindell refused orders to remove excess property and come into property compliance with the institutional rules. Tindell does not present any evidence to show that defendants acted with a retaliatory motive aside from his own personal beliefs. Because defendants provided evidence to show that they would have made the same decision regardless of whether Tindell had pending litigation, summary judgment was proper.
To determine whether the force used by a prison official amounts to a constitutional violation, “the core judicial inquiry is ... *596whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In evaluating whether an officer used excessive force, courts will look to several factors including the need for force, the relationship between the need and amount of forced used, the extent of injuries inflicted, the extent of the threat to the safety of staff and inmates, and any efforts to temper the severity of the forceful response. Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir.2002).
Here, the videotape refutes Tin-dell’s assertion that defendant Crumb used excessive force when confiscating Tindell’s excess property. Crumb gave Tindell a direct order, Tindell resisted, and he was further directed to comply. When Tindell continued to disobey, Crumb used the amount of force necessary to control Tin-dell’s movement. The video shows that Tindell did not suffer any physical distress, and a medical report indicates that he had no visible swelling or injuries on his right wrist, although he did complain of shoulder pain. Again, viewing the evidence in the light most favorable to Tindell, no reasonable finder of fact could view the video of the incident and determine that Crumb acted maliciously and sadistically. Rather, a reasonable jury would have to conclude that force was reasonable under the circumstances and, therefore, summary judgment was proper on this claim.
IV.
As the appeal presents no substantial question, we will summarily affirm the District Court judgment. Tindell’s motion for appointment of counsel is denied.
. It is unclear whether Tindell’s allegations relate to misconduct charges filed based on the cell search or another incident.
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OPINION
PER CURIAM.
Kevin L. Twillie filed a pro se complaint against various field offices of the Federal Bureau of Investigation (“F.B.I.”). In his complaint, he alluded generally to “retaliation tactics” and “harassment.” He then described the circumstances that precipitated his arrest for indecent assault in Pennsylvania, his sentence for the crime, his decision to go to California after his sentencing, and his subsequent arrest and extradition to Pennsylvania. Twillie also noted his efforts in Pennsylvania to get his belongings and luggage from a California storage facility and to have a commercial tax preparer reissue him a check. He alleged that the F.B.I. was somehow involved in efforts to try to hit him and make him a paraplegic, that F.B.I. agents or informants are in “group sessions” in which he participates, and that field offices of the F.B.I. are spreading rumors that he likes boys instead of women. Seemingly related to his claim of rumormongering, he stated that he guesses that a woman who invited him to her house to watch her son after he met her at a rib festival was an F.B.I. agent. Twillie sought $5,000,000 in “punitive damages” from several F.B.I. field offices, most of which were not named as defendants in his complaint.
The defendants filed a motion to dismiss Twillie’s complaint, arguing that the District Court lacked subject matter jurisdiction and that the allegations were frivolous, nonsensical, and otherwise failed to state a claim against them. The District Court granted the motion and dismissed the complaint. The District Court construed the complaint as alleging, under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), a claim of harassment and retaliation against the F.B.I. Noting that a Bivens claim cannot be maintained against a federal agency such as the F.B.I., the District Court dismissed the suit for failure to state a claim upon which relief can be granted. The District Court held that any amendment to state a Bivens claim against the defendants would be futile, so the District Court denied Twillie leave to amend.
Twillie subsequently filed the following one-line “claim”: “I would like to state that my claim is, due to everything I documented my civil rights were violated, and my amendments, so I would like relief granted.” The District Court construed *598Twillie’s claim as a motion for reconsideration and denied it.
Twillie appeals the District Court’s judgment. He filed a two-page informal brief in which he implied that the District Court did not liberally construe his complaint; cited the Fourteenth Amendment; claimed that his rights are being violated every day by U.S. officers; stated that his belongings were taken from the basement of an apartment building in 1992 or 1993 by an F.B.I. informant; and further stated that an F.B.I. field office is defaming him by saying that he did not graduate from high school and that he is schizophrenic.
After Twillie filed his brief, the defendants filed a motion for summary affir-mance of the District Court’s judgment. In their motion, the defendants argue that there is no basis in law or fact to disagree with the District Court’s ruling. They claim that Twillie’s implication that the District Court did not liberally construe the complaint is frivolous. They contend that Twillie waived any Fourteenth Amendment claim by not raising it in the District Court (and that it is also without merit if taken on its face, as the Fourteenth Amendment applies to actions by a state not a federal actor, and also without merit if it were taken as an effort to assert a claim under the Fifth Amendment). The defendants similarly contend that the claims relating to the removal of belongings in 1992 or 1993 cannot be raised for the first time on appeal and could not survive a motion to dismiss.
We will grant the defendants’ motion and summarily affirm the judgment of the District Court because no substantial question is presented on appeal. L.A.R. 27.4; I.O.P. 10.6. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s dismissal of a complaint for failure to state a claim upon which relief can be granted. See Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir.2004). We review a decision to deny leave to amend, as well as a denial of a motion for reconsideration, for abuse of discretion. See Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985); Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.2000).
The District Court did not err in dismissing the complaint against the defendants. Despite Twillie’s claim to the contrary, the District Court explicitly and obviously construed Twillie’s claims liberally, affording him the allowances due a pro se litigant. See Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Similarly construing the complaint liberally, we agree with the District Court that Twillie presented claims against a federal agency, not against individual officers or agents of a federal agency. A claim against a federal agency cannot be raised under Bivens. See Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (citing FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), for the proposition that Bivens has not been extended to claims against federal agencies).
Furthermore, there is an alternative basis for the District Court’s judgment in the record. See Erie Telecomms, v. Erie, 853 F.2d 1084, 1089 (3d Cir.1988) (holding that we may affirm on an alternative basis supported by the record). To survive a motion to dismiss, a complaint must “ ‘state a claim to relief that is plausible on its face.’ ” See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable interference that the defendant is liable for the misconduct *599charged.” Id. (citing Twombly). To determine plausibility, we consider the context of the claims and draw on our judicial experience and common sense. See id. at 1950.
In this case, we need not accept as true Twillie’s general allusions to “retaliation tactics” and “harassment.” See Iqbal, 129 S.Ct. at 1949. We look to the factual allegations he presented in support of his legal conclusions. See id. at 1950. On review, we conclude that his allegations, rife with suppositions (he even uses the word “guess” in presenting one aspect of his claim) and lacking in specificity, are simply not plausible. The facts he pleads, even construed liberally, do not allow us to infer more than the mere possibility of misconduct, which does not show us that he is entitled to relief. See id. at 1950.
The District Court, in dismissing Twil-lie’s complaint, did not abuse its discretion in denying leave to amend because an amendment would have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). As the District Court stated, Twillie could not amend his claim to state a claim under Bivens against the F.B.I. because a claim against the F.B.I. cannot be made under Bivens. See supra. Furthermore, it is not apparent how Twillie could transform his implausible claims into plausible claims. To the extent that Twillie makes us aware, through his informal brief, of claims that he would have wanted to present in an amendment, we note that those claims are similarly speculative and implausible.
Furthermore, the District Court did not abuse its discretion in denying Twillie’s motion for reconsideration because the one-sentence “claim” did not serve “to correct manifest errors of law or fact or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985).
In short, the District Court properly dismissed Twillie’s complaint, denied leave to amend, and denied Twillie’s subsequent motion for reconsideration. Furthermore, there is no substantial question presented on appeal. Accordingly, we grant the Ap-pellees’ motion for summary action, and we will summarily affirm the District Court’s judgment.
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McKEE, Circuit Judge.
Jack Hayes appeals the district court’s order of summary judgment in favor of defendants on Hayes’ suit alleging illegal age discrimination under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. We will affirm.
Inasmuch as we are writing primarily for the parties who are familiar with the factual and procedural background of this case, we need not set forth the facts. We have reviewed the thoughtful Opinion of the Hon. Dennis M. Cavanaugh, that was filed August 12, 2008, 2008 WL 3821777, in which Judge Cavanaugh explains why he concluded based upon the uncontested evidence, that the defendants are entitled to judgment as a matter of law. Judge Cava-naugh concluded that plaintiff had not established a prima facie case of discrimination under the NJLAD, because he had not satisfied his burden of establishing that he was qualified for the job that he was fired from. Judge Cavanaugh disagreed with plaintiffs argument that he had established his qualifications because it was uncontested that plaintiff had been performing the job for more than thirty years prior to termination. See Zive v. Stanley Roberts, 182 N.J. 436, 867 A.2d 1133 (2005).
In reviewing a motion for summary judgment, all of the evidence must, of course, be viewed in the light most favorable to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As we have just noted, plaintiff had been employed in his position with the defendant for more than thirty years. The district court dismissed that factor stating: “[ejven so, Plaintiff cannot produce evidence that he was actually performing his job adequately prior to the termination.” JA16. We disagree.
We certainly understand that a reasonable fact finder could conclude that Hayes was not qualified since he had been barred from visiting stores that had an account with the employer when he was fired. The district court concluded that Hayes could therefore not perform his duties and was thus not qualified for his job. That finding led the court to conclude that Hayes had not established a prima facie case of employment discrimination. Even though that conclusion is eminently reasonable given Hayes’ conduct, we must nevertheless conclude that a reasonable fact finder could also conclude that Hayes was qualified for his job based solely on his 36 years of continued employment. See Zive, supra. Accordingly, since we must interpret the evidence in the light most favorable to the plaintiff as the nonmoving party, we conclude that Hayes did establish a prima facie case of age discrimination.
*601However, the district court also reasoned that, even assuming arguendo, Hayes was qualified and therefore established a prima facie case, he did not come forward with sufficient evidence to allow a reasonable fact finder to conclude that the employer’s professed reason for terminating him was a pretext for age discrimination. We agree with that alternative holding.
The uncontested evidence of plaintiffs rude, sexist, insulting and vulgar comments and behavior clearly establishes a nondiscriminatory basis for terminating him. In fact, on this record, it is clear that this appeal of the district court’s dismissal of Hayes’ employment discrimination claim is as frivolous as the claim itself.
For the reasons set forth above, we will affirm the district court’s dismissal of plaintiff’s claim of discrimination.
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MEMORANDUM **
Jaime Edver Castillo Zamora, his wife Silvia Veronica Ramirez de Castillo, and their daughter, all natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their application for withholding of removal and cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, and we review de novo the agency’s legal determinations. See Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s findings that the harm Castillo Zamora suffered during a robbery did not constitute past persecution on account of a protected ground, and that he was unable to demonstrate a clear probability of future persecution on account of a protected ground. See Ochave v. INS, 254 F.3d 859, 865-67 (9th Cir.2001). Accordingly, Castillo Zamora’s withholding of removal claim fails.
The BIA did not err in concluding that Castillo Zamora’s daughter was ineligible for cancellation of removal because she lacked a qualifying relative. See 8 U.S.C. § 1229b(b)(1)(D).
Castillo Zamora’s contentions that the BIA legally erred by applying an improper hardship standard and by failing to consider relevant hardship factors are not supported by the record. “Because the [agency] applied the correct legal standard in this case, and because we may not proceed further to examine its application of the facts of this case to the ‘exceptional and extremely unusual hardship’ standard,” we dismiss the petition as to Castillo Zamora’s and Ramirez de Castillo’s cancellation of removal claims. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir.2009).
Petitioners’ motion to amend the record is granted.
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 **
Maria Guadalupe Bracamontes-Hernan-dez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision denying her application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the petition for review.
Braeamontes-Hernandez fails to raise and therefore waives any challenge to the IJ’s dispositive determination that she failed to establish the requisite continuous physical presence. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). We therefore do not consider Bracamontes-Hernandez’s contentions regarding hardship. See 8 U.S.C. § 1229b(b)(1)(A).
*220This court’s review is limited to the administrative record. See 8 U.S.C. § 1252(b)(4)(A).
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 **
Sylvester Kwesi Monyor Naabeh appeals from his jury-trial conviction and two *222concurrent 22-month sentences for transportation of illegal aliens for the purpose of commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(l)(A)(ii), (a)(l)(B)(i), and his jury-trial conviction and concurrent 12-month sentence for assault of a federal officer, in violation of 18 U.S.C. § 111(a)(1). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Naabeh’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED. We VACATE and REMAND the term of supervised release for Count 3 because it exceeds the statutory maximum term set forth in 18 U.S.C. § 3583(b)(3). We AFFIRM the judgment in all other respects.
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 **
Nevada state prisoner Kingston Wone-gie Range appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Range contends that trial counsel was ineffective in failing to cross-examine the victim regarding prior inconsistent statements and to present an investigator’s report concerning these statements. However, counsel thoroughly developed these inconsistencies through cross-examination of other witnesses and in closing argument. Accordingly, the district court did not err in concluding that Range failed to establish either deficient performance or resulting prejudice under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
Range further contends that the district court erred in failing to grant an evidentiary hearing regarding alleged new evidence. However, because Range failed to “allege facts which, if proven, would entitle him to relief,” Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.2003), he was not entitled to an evidentiary hearing.
We construe Range’s briefing of uncertified issues as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
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 **
Paul Armenta-Bueno appeals from the two concurrent 70-month sentences imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846, and possession -with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Armenta-Bueno’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Sylvester Kwesi Monyor Naabeh appeals from his jury-trial conviction and two *222concurrent 22-month sentences for transportation of illegal aliens for the purpose of commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(l)(A)(ii), (a)(l)(B)(i), and his jury-trial conviction and concurrent 12-month sentence for assault of a federal officer, in violation of 18 U.S.C. § 111(a)(1). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Naabeh’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED. We VACATE and REMAND the term of supervised release for Count 3 because it exceeds the statutory maximum term set forth in 18 U.S.C. § 3583(b)(3). We AFFIRM the judgment in all other respects.
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 **
Nevada state prisoner Kingston Wone-gie Range appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Range contends that trial counsel was ineffective in failing to cross-examine the victim regarding prior inconsistent statements and to present an investigator’s report concerning these statements. However, counsel thoroughly developed these inconsistencies through cross-examination of other witnesses and in closing argument. Accordingly, the district court did not err in concluding that Range failed to establish either deficient performance or resulting prejudice under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
Range further contends that the district court erred in failing to grant an evidentiary hearing regarding alleged new evidence. However, because Range failed to “allege facts which, if proven, would entitle him to relief,” Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.2003), he was not entitled to an evidentiary hearing.
We construe Range’s briefing of uncertified issues as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
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 **
Paul Armenta-Bueno appeals from the two concurrent 70-month sentences imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846, and possession -with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Armenta-Bueno’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Manuel Alb arenga Hernandez appeals from the 146-month sentence imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Hernandez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. The appellant has filed a pro se supplemental brief, and the government has filed an answering brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Tricor America, Inc. (“Tricor”) appeals from the grant of summary judgment in favor of Illinois Union Insurance Company (“Illinois Union”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Illinois Union denied Tricor’s claim for coverage under the Business and Management Indemnity Policy (the “Policy”) it issued Tricor. In the underlying lawsuit, Tricor’s employees, a putative class of courier drivers, sued Tricor for labor law violations. The district court properly concluded as a matter of law that the Policy did not provide coverage for the underlying action.
Because the courier drivers named only Tricor, the only coverage available was pursuant to subsection A.3. of the Policy. That subsection excludes any claim “involving any employment or employment-related matters brought by or on behalf of ... an applicant for employment with the Company or any of the Directors and Officers.” Endorsement Number 1, § 2.a.c. The term “Directors and Officers” is defined in subsection B.4. and, properly construed, includes all past, present, and future employees of Tricor.
*227Trieor disputes the district court’s reading, claiming, first, that because the three “Directors and Officers” subdefinitions are linked with the word “and,” they should be read in the conjunctive. This reading leads to absurd results, however, including no coverage for outside directors and the requirement that all “duly-elected directors and officers” must simultaneously serve in positions “the functional equivalent of directors and officers” of a foreign Trieor subsidiary. Therefore, we agree with the district court that the word “and” must be read as “or” to effectuate the mutual intent of the parties. See Universal Sales Corp. v. Cal. Press Mfg. Co., 20 Cal.2d 751, 775-76, 128 P.2d 665 (1942) (“[TJhere is almost an unanimity of holding to the effect that the terms ‘and’ and ‘or’ may be construed as interchangeable when necessary to effect the apparent meaning of the parties.”).
Second, Trieor seeks to limit the exclusion to only lawsuits brought by an “applicant for employment with Trieor.” This construction would also lead to absurd results because Endorsement Number 1 is plainly intended broadly to exclude coverage for any lawsuits “alleging, based upon, arising out of, attributable to, directly or indirectly resulting from, in consequence of, or in any way involving” employment-related matters, and the number of and exposure to such lawsuits is likely to be greater from past, future, and current employees as opposed to mere applicants. Finally, we note that the provision’s specific exclusion of suits brought by applicants for employment, in addition to those brought by Directors and Officers, was necessary to effectuate the complete exclusion of all employment-related lawsuits because rejected applicants for Trieor employment do not fall within the definition of Directors and Officers in subsection B.4.
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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OPINION
PER CURIAM.
Derrick Rankine, proceeding pro se, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) order of removal. We will summarily deny the petition for review because it does not raise a substantial question.
Derrick Rankine is a native and citizen of Jamaica. He was admitted to the United States as a lawful permanent resident in 1993. A notice to appear was issued in 2008 charging that Rankine was subject to removal for having committed the aggravated felonies of rape and a crime of violence for which the term of imprisonment is at least one year.
Rankine proceeded pro se at his immigration hearing. The Government submitted evidence showing that Rankine was convicted of rape and related offenses in 2001 in Pennsylvania state court. He received consecutive sentences of ten to twenty years in prison for rape and five to ten years in prison for aggravated indecent assault. The IJ found Rankine removable as charged. The IJ rejected Rankine’s argument that he had become a United States national based on his military service here. Noting that it did not appear that Rankine was eligible for any form of relief from removal, the IJ ordered his removal to Israel or Jamaica, the coun*603tries Rankine had designated should he be removed.
The BIA dismissed Rankine’s appeal, stating that it agreed with the IJ that Rankine’s conviction involved the aggravated felonies of rape and a crime of violence having a prison term of at least one year. The BIA also rejected Rankine’s argument that he was not removable because he is a United States national. Finally, the BIA denied a motion to reopen filed by Rankine asserting that he had filed another petition for post-conviction relief in Pennsylvania state court. The BIA explained that Rankine’s conviction was affirmed on direct appeal and that the pursuit of post-conviction remedies did not alter the finality of Rankine’s conviction for immigration law purposes.
Rankine filed a pro se petition for review, a motion for a stay of removal, and a motion for appointment of counsel. The Government moves to dismiss the petition for review or, in the alternative, requests that we summarily deny the petition for review.
The Government argues that the Court should dismiss the petition for review for lack of jurisdiction because Rankine, an aggravated felon, raises no constitutional claims or questions of law for our review. See 8 U.S.C. §§ 1252(a)(2)(C),(D). We disagree. Rankine’s argument that he is innocent of the crime underlying the removal charges and is seeking post-conviction relief presents a legal question as to whether the pendency of his post-conviction motions negates the finality of his conviction for immigration removal purposes. Rankine also asserts that the IJ denied him due process at his hearing. We thus deny the Government’s motion to dismiss.
Although we conclude that we have jurisdiction over the petition for review, we agree with the Government that the petition for review does not present a substantial question. As noted by the BIA, the pursuit of post-conviction remedies does not alter the finality of Rankine’s conviction for immigration law purposes. Pa-redes v. U.S. Attorney General, 528 F.3d 196, 198-99 (3d Cir.2008). Thus, unless and until Rankine’s rape conviction is overturned as a result of his collateral motions, that conviction properly served as the basis for the charges of removability. Id.
In addition to asserting that he was wrongly convicted, Rankine argued in his brief to the BIA that the IJ violated his due process rights by not allowing him to testify about his claim of innocence, by not holding a hearing on his motion to compel discovery of documents related to his state court criminal proceedings, and by forcing him to proceed without counsel. These claims lack merit. Rankine may not collaterally challenge his state court conviction in his immigration proceedings. Drakes v. I.N.S., 330 F.3d 600, 601 (3d Cir.2003). Thus, any testimony to that effect would have been irrelevant. In addition, the record reflects that Rankine received copies of the conviction documents submitted by the Government to support the charges of removability. He was not entitled to other documents related to his criminal proceedings.
The record also reflects that on September 24, 2008, at his initial hearing before Immigration Judge Jeffrey Romig, Rankine stated that he wished to represent himself. Shortly thereafter, Rankine filed a motion for appointed counsel. On October 16, 2008, Immigration Judge Romig denied the motion, explaining that there is no right to appointed counsel in immigration proceedings and advising Rankine that, if he did not obtain counsel by the time of his next hearing, he should be prepared to represent himself. At his *604next hearing, which was held on March 4, 2009, before IJ Andrew Arthur, Rankine stated that he had asked for a lawyer, but he was not provided counsel. The IJ told Rankine he did not have a right to appointed counsel and provided a list of lawyers who Rankine might contact for representation. Rankine’s next hearing was held on May 6, 2009. Rankine told the IJ that he had not found a lawyer. The IJ asked Rankine how he wished to proceed, and Rankine replied that he would represent himself because he did not know if he could find a lawyer. The IJ then told Rankine his rights and proceeded with his hearing. Rankine did not request more time to find counsel. Based on these facts, Rankine was not denied his right to due process.
To the extent Rankine maintains that he is a national of the United States, there is no legal support for Rankine’s contention that he became a United States national based on his performance of military service. As recognized by the BIA and IJ, we have held that one must complete the process of becoming a naturalized citizen to be deemed a United States national. Salim v. Ashcroft, 350 F.3d 307, 309-10 (3d Cir.2003). Rankine stated at his hearing that he had not been naturalized or taken the oath of allegiance following an application for naturalization. Finally, to the extent Rankine challenges his removability as an aggravated felon, there is no question that his rape conviction constitutes the aggravated felony of rape under 8 U.S.C. § U01(a)(43)(A).1
Accordingly, we will deny the petition for review.2
. Because Rankine is removable on this basis, it is unnecessary to address the additional charge of removability under § 1101(a)(43)(F). To the extent Rankine asserted in the administrative proceedings that he is eligible for cancellation of removal, he is not eligible for this form of relief because he is an aggravated felon. Garcia v. Attorney General, 462 F.3d 287, 291 (3d Cir.2006).
. Rankine's motion for a stay of removal and motion for appointment of counsel are denied.
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OPINION
PER CURIAM.
George William Blood and Srikanth Ra-ghunathan appeal from the District Court’s order denying their attempt to file a joint law suit. For the following reasons, we will summarily affirm in part and dismiss in part.
I. Background
Appellants are both inmates at the Federal Prison Camp at Lewisburg. In their joint complaint, Appellants assert that Lewisburg staff received and opened their legal mail without them present and did not give them the opportunity to view documents contained in their mail. According to the complaint, Lewisburg staff opened Raghunathan’s mail twice and Blood’s mail once. The complaint also lists two instances when Lewisburg staff “received and opened Plaintiffs’ legal mail, not in the presence of inmate and then delivered to inmate through the regular mail system.”1 *606Appellants alleged that the officials’ actions violated federal and prison regulations and requested a preliminary injunction preventing Lewisburg officials from receiving or possessing their legal materials.
The District Court Clerk issued an administrative order requiring each Appellant to file a separate complaint and to file his own in forma pauperis (IFP) motion and authorization form. In a letter to the District Court, Appellants explained that they would file only one IFP motion and authorization to withdraw the filing fee from Raghunathan’s account. The Magistrate Judge issued an order stating that if Appellants failed to file separate complaints and IFP motions within thirty days, the action would be dismissed. Appellants filed objections with the District Court to the Magistrate Judge’s order. The District Court, affirming and clarifying the Magistrate Judge’s order, found that the Appellants improperly attempted to join their causes of action and directed Raghunathan to file an amended individual complaint within fifteen days of the order asserting only claims specific to him. In the same order, the District Court indicated to Blood that he must file a separate amended complaint with claims pertaining only to him and that he must file his own IFP application and authorization form. The District Court, however, clarified that dismissal is not an appropriate sanction for misjoinder. Appellants filed a timely joint notice of appeal challenging the District Court’s order. After Raghunathan failed to file an amended complaint within fifteen days, the District Court dismissed the complaint. Raghunathan then filed a motion for extension of time to file an amended complaint and a stay of the proceedings pending this appeal. One week later, Ra-ghunathan filed an amended complaint containing only his claims. The District Court re-opened the case and granted Ra-ghunathan’s request for a stay. Blood did not file an individual complaint.
II. Jurisdiction
With few exceptions, our jurisdiction is limited to final orders of the District Court. See 28 U.S.C. § 1291. While an order dismissing a complaint without prejudice is normally not final within the meaning of § 1291, it “will be treated as a final order if the plaintiff has elected to stand upon the original complaint.” Frederica v. Home Depot, 507 F.3d 188, 192 (3d Cir.2007). Here, the District Court indicated that Raghunathan had to file an amended individual complaint within fifteen days and Blood also had to file his own separate complaint in order to proceed with his claims.2 We recently faced the question of whether such an order is “final and appealable” in Hagan v. Rogers, 570 F.3d 146 (3d Cir.2009). In Hagan, we held that an order denying joinder and allowing leave to amend individually was final and appealable because there was nothing the plaintiff could do to cure the defect in the dismissed complaint. Id. at 152. Similarly, Blood can do nothing to cure the defect in the joint complaint inasmuch as filing an individual pleading would have “effectively conceded the joinder issue.” Id. Therefore, we will exercise jurisdiction over his appeal of the District Court’s order.
*607We, however, do not have jurisdiction over Raghunathan’s appeal. Raghunathan, like the plaintiffs in Hagan, requested, and was granted, a stay of the District Court’s order pending the outcome of this appeal. Raghunathan, unlike the prisoners in Hagan, elected to file an amended individual complaint. Therefore, he has not stood on the original joint complaint and he may not appeal the District Court’s order at this time. Accordingly, we dismiss his appeal for a lack of jurisdiction.
III. Blood’s Joinder Claim
We review the District Court’s order denying joinder for an abuse of discretion. Id. Under that standard, a District Court “abuses its discretion when its decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Id. (internal quotation marks and citations omitted).
Pursuant to Fed.R.Civ.P. Rule 20, plaintiffs may file a joint action if: A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and B) any question of law or fact common to all plaintiffs will arise in the action. Fed.R.Civ.P. 20(a).
Here, Blood and Raghunathan’s claims center around prison officials’ withholding of legal documents. In their complaint, Raghunathan and Blood listed separate legal proceedings which they assert prison officials are disrupting through their postal interference.3 As the District Court pointed out, Raghunathan and Blood must show actual injury in order to support a claim for denial of court access stemming from interference with legal mail. See Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir.1997). Under these circumstances, joinder would be impractical as the interference arose from separate occurrences and proving an actual injury would necessarily require a separate factual inquiry into each plaintiffs respective civil and criminal proceedings. Thus, the District Court did not abuse its discretion in denying Blood’s request to file jointly.
In Blood’s filings in this Court, he asserts that various provisions of the Prison Litigation Reform Act (PLRA) are unconstitutional. Blood did not raise most of these claims in District Court, and he cannot raise them for the first time on appeal. See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir.1994) (“This court has consistently held that it will not consider issues that are raised for the first time on appeal.”). Blood, however, did argue that 28 U.S.C. § 1915 is unconstitutional because it discriminates against indigent prisoners. This claim is meritless. See Nicholas v. Tucker, 114 F.3d 17, 20 (2d Cir.1997) (Section 1915’s filing fee requirements are rationally related to a legitimate government interest: deterring frivolous inmate lawsuits).4
Accordingly, because Blood’s appeal presents us with no substantial question, we will summarily affirm the District *608Court’s order. See 3rd Cir. L.A.R. 27.4 and I.O.P. 10.6. We dismiss Raghuna-than’s appeal for lack of appellate jurisdiction.
. As the District Court noted, the wording of this clause uses both singular and plural *606nouns and therefore it is unclear whether the events involved both Blood and Raghunathan.
. Thus while we agree with the District Court that dismissal is not an appropriate sanction for misjoinder, see Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir.1972), as we explain further below, Blood’s non-compliance with the District Court’s order effectively dismissed his complaint.
. Blood asserts that he is a pro se litigant in cases in the United States District Court for the District of Delaware and the United States District Court for the Middle District of Tennessee. Raghunathan asserts that he is a pro se litigant in two criminal cases apparently unrelated to Blood’s cases.
. Blood also argues that he and Raghunathan should only be required to pay one filing fee. Even if the District Court had exercised its discretion to allow joinder, this argument would be foreclosed by our opinion in Hagan. Hagan, 570 F.3d at 155-56 (the PLRA requires each joined IFP litigant to pay a full individual filing fee).
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MEMORANDUM **
Manuel Alb arenga Hernandez appeals from the 146-month sentence imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Hernandez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. The appellant has filed a pro se supplemental brief, and the government has filed an answering brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Tricor America, Inc. (“Tricor”) appeals from the grant of summary judgment in favor of Illinois Union Insurance Company (“Illinois Union”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Illinois Union denied Tricor’s claim for coverage under the Business and Management Indemnity Policy (the “Policy”) it issued Tricor. In the underlying lawsuit, Tricor’s employees, a putative class of courier drivers, sued Tricor for labor law violations. The district court properly concluded as a matter of law that the Policy did not provide coverage for the underlying action.
Because the courier drivers named only Tricor, the only coverage available was pursuant to subsection A.3. of the Policy. That subsection excludes any claim “involving any employment or employment-related matters brought by or on behalf of ... an applicant for employment with the Company or any of the Directors and Officers.” Endorsement Number 1, § 2.a.c. The term “Directors and Officers” is defined in subsection B.4. and, properly construed, includes all past, present, and future employees of Tricor.
*227Trieor disputes the district court’s reading, claiming, first, that because the three “Directors and Officers” subdefinitions are linked with the word “and,” they should be read in the conjunctive. This reading leads to absurd results, however, including no coverage for outside directors and the requirement that all “duly-elected directors and officers” must simultaneously serve in positions “the functional equivalent of directors and officers” of a foreign Trieor subsidiary. Therefore, we agree with the district court that the word “and” must be read as “or” to effectuate the mutual intent of the parties. See Universal Sales Corp. v. Cal. Press Mfg. Co., 20 Cal.2d 751, 775-76, 128 P.2d 665 (1942) (“[TJhere is almost an unanimity of holding to the effect that the terms ‘and’ and ‘or’ may be construed as interchangeable when necessary to effect the apparent meaning of the parties.”).
Second, Trieor seeks to limit the exclusion to only lawsuits brought by an “applicant for employment with Trieor.” This construction would also lead to absurd results because Endorsement Number 1 is plainly intended broadly to exclude coverage for any lawsuits “alleging, based upon, arising out of, attributable to, directly or indirectly resulting from, in consequence of, or in any way involving” employment-related matters, and the number of and exposure to such lawsuits is likely to be greater from past, future, and current employees as opposed to mere applicants. Finally, we note that the provision’s specific exclusion of suits brought by applicants for employment, in addition to those brought by Directors and Officers, was necessary to effectuate the complete exclusion of all employment-related lawsuits because rejected applicants for Trieor employment do not fall within the definition of Directors and Officers in subsection B.4.
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 **
Kimberly D. Angst appeals a judgment affirming the Administrative Law Judge’s (“ALJ”) denial of supplemental security disability income under Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. Our review is de novo, and “[w]e may set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.2009) (citation and internal quotation marks omitted).
Angst’s treating physician did not testify at the hearing before the ALJ. The medical report at issue in this appeal is a March 7, 2006, questionnaire assessment prepared by the treating physician’s nurse practitioner, who saw Angst frequently. A nurse practitioner “acting as an agent” for the treating doctor can be an acceptable medical source. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.1996). Without changing this medical assessment, the treating physician signed it, after it had been rejected by the ALJ, but before it was submitted to the Appeals Council. See 20 C.F.R. § 404.970(b) (“If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision.”). The ALJ rejected the questionnaire assessment because its recital of Angst’s subjec*229tive, severe limitations was contradicted by other examining doctors’ conclusions, which were supported by objective, clinical evidence. Therefore, the ALJ provided “specific and legitimate reasons supported by substantial evidence in the record” for not relying on the questionnaire assessment prepared by the nurse practitioner, although not yet signed by the treating physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (citation and internal quotation marks omitted).
By contrasting Angst’s testimony regarding the severity of her pain and impairments with her daily activities, the ALJ gave “clear and convincing reasons” for his “adverse credibility finding” regarding Angst’s ability to work. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.2007). “Where, as here, the ALJ has made specific findings justifying a decision to disbelieve an allegation and those findings are supported by substantial evidence in the record, our role is not to second-guess that decision.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999) (citation, internal quotation marks, and ellipsis omitted).
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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RYMER, Circuit Judge,
concurring.
I agree that the district court’s denial of Angst’s appeal should be affirmed, but I write separately because I believe that neither the district court nor we should consider evidence that was not before the ALJ when the ALJ made his decision. Dr. Rowe’s signed opinion was only presented to the Appeals Council when Angst sought review of the ALJ’s decision. The Appeals Council considered this additional evidence, found that it did not provide a basis for changing the ALJ’s decision, and denied review.1 Thus, the ALJ’s decision was the Commissioner’s final action. 20 C.F.R. § 416.1481.
The Social Security Act, 42 U.S.C. § 405(g), provides federal courts with jurisdiction to review the Commissioner’s final actions. Section 405(g) makes clear that a federal court may affirm, modify, remand, or reverse the ALJ’s decision only on the basis of the pleadings and transcript of the record — or, if “new” evidence is put in play, a court may order the ALJ to consider it if the evidence is material (i.e., there is a reasonable possibility it would change the ALJ’s decision2) and there is good cause for failing to incorporate it into the record before the ALJ. No such showing was made here, therefore federal court review is limited to the record on which the ALJ rendered his decision.
I realize that we considered new evidence presented to the Appeals Council in Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993) — but the government didn’t contend the court should not consider the new evidence on appeal, § 405(g) wasn’t argued, and we didn’t mention it. 8 F.3d at 1451-52. Consequently, the effect of § 405(g) on consideration of evidence not presented to the ALJ remains open. I would follow the Seventh Circuit’s approach in Eads v. Secretary of DHHS, 983 F.2d 815 (7th *230Cir.1993), and hold that when the decision being reviewed is the decision of the ALJ, “[t]he correctness of that decision depends on the evidence that was before him.” Id. at 817.3 Otherwise, we become ALJs, mired in an Alice in Wonderland exercise of pretending that evidence the real ALJ didn’t know existed was really before him.
In short: a claimant who wishes to challenge the ALJ’s decision based on evidence that was not before the ALJ may only ask a federal court to remand and order the ALJ to consider the new evidence. Federal courts may grant such a request only when the claimant shows there is a reasonable possibility the additional evidence would change the ALJ’s decision and she had good cause for failing to submit the evidence to the ALJ in the first place. 42 U.S.C. § 405(g). When, as in this case, these conditions are not met, the district court’s review, and ours, is limited to the evidence upon which the ALJ’s decision was based.
. The Appeals Council considers new and material evidence only where it relates to the period on or before the date of the ALJ hearing decision, and reviews the case if it finds that the ALJ’s "action, findings, or conclusion is contrary to the weight of the evidence currently of record.” 20 C.F.R. §§ 404.970, 416.1470. This standard is different from— and looser than — the regulation that guides the federal courts in their determinations, so we cannot simply assume that if the Appeals Council considered new evidence as part of the record before it, we should, too.
. Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir.1984).
. The First, Third, Sixth, and Eleventh Circuits are in accord. See Mills v. Apfel, 244 F.3d 1, 5 (1st Cir.2001); Matthews v. Apfel, 239 F.3d 589, 592-93 (3d Cir.2001); Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir.1998); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993). However, the Second, Fourth, Fifth, Eighth, and Tenth Circuits have held that courts should consider new evidence not presented before the ALJ when the Appeals Council considers that evidence in denying review. See Higginbotham v. Banhart, 405 F.3d 332, 336 (5th Cir.2005); Perez v. Chater, 77 F.3d 41, 45 (2d Cir.1996); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994); Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992); Wilkie v. Sec'y of Dept. of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.1991).
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MEMORANDUM***
Rahmaiuiiah Mosammen, his wife, Faw-zia Mosammen, and their son, Mohdyosuf Mosammen, all natives and citizens of Afghanistan, petition for review of the Board of Immigration Appeals’ denial of an application for asylum,1 and withholding of removal.2 We deny the petition.3
The BIA’s determination that an alien is not eligible for asylum must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (citation omitted). “It can be reversed only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). When an alien seeks to overturn the BIA’s adverse determination, “he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817; see also Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). When an asylum *232claim is involved, an alien must show either past persecution, or a well-founded fear of future persecution that is “both subjectively genuine and objectively reasonable.” Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc).
Here, the asylum claims fail. The Mosammens did not present evidence that would compel a finding of past persecution or a well-founded fear of future persecution connected to a protected ground— here religion or political opinion. See 8 U.S.C. § 1101(a)(42)(A); Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000). While they complain of the laws passed and the acts of the Taliban when that group controlled Afghanistan, they had been out of that country for many years when the Taliban came to power, and none of those acts were directed at them personally. Moreover, the State Department 2002 Country Report showed that the Taliban had fallen and, while there is evidence of discrimination against women, discrimination alone is not persecution. See Fisher, 79 F.3d at 962-63 (clothing restrictions); see also Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir.2006) (economic harm); Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir.2004) (loss of employment); Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (persecution is an extreme concept).
Moreover, because the Mosammens have not met the eligibility requirements for a consideration of asylum, they have not met the standards for withholding of removal. See Farah, 348 F.3d at 1156, Ghaly, 58 F.3d at 1429. Thus, that avenue of relief also fails.4
Petition DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. 8 U.S.C. § 1158.
. 8 U.S.C. § 1231(b)(3). We note that the Mosammens have not presented arguments on appeal regarding relief under the Convention Against Torture. Thus, that issue is not properly before us. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005).
.The government asserts that we do not have jurisdiction over the Mosammens' claim of past persecution because the claim was not exhausted. However, because the claim was sufficiently raised before the BIA, it was exhausted. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000).
. The Mosammens suggest that the Immigration Judge erred when he did not inform Mrs. Mosammen that she could file a petition for asylum separate from that of her husband. See 8 C.F.R. § 1240.33(a). Even if we assume that the IJ erred, no prejudice is shown because the family was represented by counsel and, clearly, knew that separate petitions were possible, and because it is plain that Mrs. Mosammen's concerns were considered by the IJ in reaching his decision.
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MEMORANDUM **
Magdalena Siudy (“Siudy”) appeals the district court’s judgment declaring Renata Piatek (“Piatek”) to be the sole owner of property in Buckley, Washington (the “Property”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1
The district court did not abuse its discretion in concluding that Siudy was properly served by publication pursuant to Washington Revised Code § 4.28.100. See Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir.2002). Section 4.28.100 does not require the mailing of documents abroad in order to effect service of process in the technical sense, and therefore the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163, does not apply. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699-701, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Moreover, service under section 4.28.100 was proper because the action challenged Siudy’s ownership of property situated in Washington state. See Wash. Rev.Code § 4.28.100(3), (6).
Neither did the district court abuse its discretion in admitting evidence regarding assets from Piatek’s marriage to Stan Piatek (“Stan”), as such evidence assisted in determining the character of the Property. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004). Moreover, the district court did not exceed the scope of its in rem jurisdiction because it did not adjudicate ownership of any item other than the Property. See Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The judgment merely declares that Siudy has no ownership interest in the Property and that title is vested solely with Piatek.
Finally, the district court did not abuse its discretion by proceeding without joining Stan as a party because he was neither *234“required” nor “indispensable” under Rule 19 of the Federal Rules of Civil Procedure. Despite participating as a witness throughout the proceedings in the district court, Stan at no time claimed an interest in the Property. See United States v. Bowen, 172 F.3d 682, 688-89 (9th Cir.1999). Moreover, the district court was able to accord complete relief between the existing parties in Stan’s absence. See Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprenticeship and Training Comm., 662 F.2d 534, 537 (9th Cir.1981). Finally, nothing in the record suggests that the district court could not “in equity and good conscience” proceed without Stan, especially since neither Stan nor Siudy ever asked the court to join him. Fed. R.Civ.P. 19(b); see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 110, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).
AFFIRMED.
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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MEMORANDUM **
Tara and Donald Sadler (the “Sadlers”) appeal from the district court’s grant of summary judgment in favor of State Farm on their claims of bad faith and alleged violations of Washington’s Consumer Protection Act (“CPA”).1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.2
The district court properly concluded as a matter of law that State Farm did not have a duty to preapprove Tara’s surgery under the personal injury protection (“PIP”) provision of the Sadlers’ automobile insurance policy. The PIP does not require preapproval for medical treatment, explicitly allows State Farm to obtain an independent medical examination (“IME”), and indicates that payment is to be made as medical expenses are incurred. Further, there is no Washington law recognizing an implied duty to preauthorize treatment under a PIP. Because State Farm had no implied duty to preapprove Tara’s surgery, State Farm cannot be charged with any harm flowing from Tara’s decision to await the outcome of the IME before proceeding with treatment.
The district court also properly granted State Farm summary judgment on the Sadlers’ related claim that State Farm had acted in bad faith by requesting and then delaying the IME. The undisputed facts show that State Farm had a contractual right to obtain the IME, that as soon as State Farm learned of Tara’s request for surgery it scheduled an IME, and that the IME report was completed about thirty-six days thereafter. The Sadlers cite no evidence indicating that State Farm’s handling of the IME was atypical, contrary to law, or otherwise unreasonable, unfounded or frivolous. See, e.g., Overton v. Consol. Ins. Co., 145 Wash.2d *236417, 38 P.3d 322, 329 (2002) (en banc) (to prevail on a claim of bad faith, an insured must show that the insurer’s conduct was “unreasonable, frivolous, or unfounded”).
Finally, the district court properly granted summary judgment as to the Sadlers’ CPA claims. These claims fail as a matter of law due to the Sadlers’ failure to establish the requisite injury to business or property. See Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 719 P.2d 531, 535 (1986) (en banc). Because the Sadlers’ arguments under the CPA are premised on the loss of Tara’s job, and because a job loss is a personal injury, not an injury to business or property under the CPA, the district court correctly granted summary judgment to State Farm. See Ambach v. French, 216 P.3d 405, 407-11 (Wash. 2009)(en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The Sadlers alleged claims for breach of fiduciary duty, breach of the duty of good faith, and negligence. We refer to these claims collectively as the Sadlers’ claims for “bad faith.” See Tank v. State Farm Fire & Casualty Co., 105 Wash.2d 381, 715 P.2d 1133, 1136 (1986) (en banc) (discussing good faith duties of insurers).
. The parties are familiar with the facts and we repeat them here only as necessary to explain our decision.
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MEMORANDUM **
Flying J, Inc. appeals the district court’s order dismissing its action against Thomas J. Pistacchio, Delores Pistacchio, Central California Kenworth, Inc., John R. Lawson, and Lawson Rock & Oil, Inc. We affirm.
Flying J is collaterally estopped from proving causation on any of its claims in light of the determinations made by the California Court of Appeal in Flying J., Inc. v. California Transportation Commission, No. F049247, 2007 WL 926648 (Cal.Ct.App. Apr. 24, 2007). We are guided by the preclusion law of California, and conclude that its threshold requirements are met. See Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1225 (1990) (requiring that the issues are identical, must have been actually litigated in the former proceeding, and must *238have been necessarily decided in a decision that is final and on the merits).
Although Flying J points out that the former proceeding was in the nature of a mandamus seeking to invalidate the CTC’s disapproval of a proposed conveyance to Flying J, whereas this proceeding seeks recovery for alleged improprieties and conspiratorial conduct by Pistacchio and Lawson, both actions arise out of the same events pertaining to Lawson’s asserted conflict of interest and its effect on the CTC’s 2008 and 2004 hearings. There is no dispute the Court of Appeal decision was final and on the merits. Likewise, the issues upon which this action turns were actually litigated and resolved by the Court of Appeal. As the court put it, “the most salient aspect of this case” is the fact that CTC reconsidered the proposed conveyance of the 20.5 acres to Flying J and refused to approve it in February 2004 when Lawson was no longer a member. Flying J., 2007 WL 926648 at *7. Thus, Flying J’s “argument about what it deems to be bias or impermissible interest of Lawson simply no longer mattered after the Commission decided in February of 2004, at the request of Flying J, to reconsider anew the proposed conveyance on its merits.” Id. Further, the court found that CTC had discretion to conclude that the proposed conveyance would not be an “exchange” under its regulations, and the Commission was unwilling to approve the conveyance given how undervalued it was. Id. at *9. Finally, the court held the superior court’s ruling that the February 2004 reconsideration cured any conflict of interest in the February 2003 proceeding was not error.1 Id. at *11.
Flying J could not show that CTC’s 2004 reconsideration failed to cure 2003 improprieties, or that Flying J was entitled to conveyance of the 20-acre parcel (which was conditioned on approval from the CTC), without contradicting these core determinations. Accordingly, Flying J is precluded from now establishing that the conduct alleged caused it harm.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Flying J. argues on appeal that these issues, even if litigated, were not necessary to the decision. However, this point is waived as it was not pursued in district court. In any event, we cannot say the issues were "entirely unnecessary” to the judgment. Lucido, 272 Cal.Rptr. 767, 795 P.2d at 1226; Zevnik v. Superior Court, 159 Cal.App.4th 76, 70 Cal. Rptr.3d 817, 821 (2008).
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Petitioner’s motion for voluntary dismissal is hereby granted. A certified copy of this order shall constitute the mandate of this court.
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MEMORANDUM **
Plaintiffs James I. Kuroiwa, Jr., Patricia A. Carroll, Toby M. Kravet, Garry P. Smith, Earl F. Arakaki, and Thurston Twigg-Smith appeal the district court’s judgment on the pleadings in then- action alleging breaches of trust and constitutional claims against Defendants Linda Lingle, Georgina Kawamura, Russ K. Saito, Laura H. Thielen, Sandra Lee Kunimoto, Theodore E. Liu, Brennon Morioka, Haunani Apoliona, Walter M. Heen, Rowena Akana, Donald B. Cataluña, Robert K. Lindsey, Jr., Colette Y. Machado, Boyd P. Moss-man, Oswald Stender, and John D. Waihee IV. Plaintiffs’ lawyer, H. William Burgess, appeals the district court’s imposition of sanctions against him under Federal Rule of Civil Procedure 11. Burgess also appeals the district court’s denial of his motion for Rule 11 sanctions against Defendants’ lawyers. Reviewing de novo the judgment on the pleadings, Knappenberger v. City of Phoenix, 566 F.3d 936, 939 (9th Cir.2009), and reviewing for abuse of discretion the imposition of Rule 11 sanctions, as well as a refusal to do so, Holgate v. Baldwin, 425 F.3d 671, 675 (9th Cir. 2005), we affirm.
1. The district court correctly held that Plaintiffs’ claims are foreclosed by Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007). Although we remanded in Arakaki to allow the plaintiffs to present an alternative theory of standing, if any exists, Plaintiffs here raise only theories of standing that we rejected in Arakaki. Our decision in Arakaki is binding on us. See generally Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc).
2. The district court did not abuse its discretion in imposing Rule 11 sanctions *241against Burgess. The filing of the complaint was “both baseless and made without a reasonable and competent inquiry.” Holgate, 425 F.3d at 676 (internal quotation marks and emphases omitted). As discussed above, Arakaki is binding on us and on the district court. The district court reasonably concluded that the complaint’s failure to allege a different theory of standing rendered the complaint frivolous. Because Burgess was the counsel of record in Arakaki, the second prong of the inquiry is plainly met.
3. The district court did not abuse its discretion in denying the motion for sanctions against Defendants’ lawyers. The district court correctly concluded that the motion was, itself, “wholly frivolous.” Kuroiwa v. Lingle, No. CV-08-00153-JMS-KSC, 2008 WL 4056137, at *5 (D.Haw. Aug.27, 2008) (unpublished order granting OHA Defendants’ motion for Rule 11 sanctions and denying Plaintiffs’ motion for Rule 11 sanctions).
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 **
Napoleon T. Annan-Yartey appeals from a district court judgment in favor of Officer Pierre, City Defendants and Private Defendants1 on his claims under 42 U.S.C. § 1983 and related state laws following an incident in which he was arrested by the Honolulu police. We have jurisdiction under 28 U.S.C. § 1291. We conclude that Annan-Yartey’s numerous contentions lack merit We affirm.
The facts of the case are known to the parties, and we do not repeat them below.
I
Annan-Yartey argues that the district court erred in dismissing or granting summary judgment on most of his claims.2 We review de novo and may affirm on any basis supported by the record. See Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004) (12(b)(6) dismissal); Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir.2004) (summary judgment).
§ 1933 Claims against Officer Pierre
The district court correctly granted summary judgment in favor of Officer Pierre on the § 1983 claims. As to Count 1 (§ 1983 — arrest), the record indicates that Officer Pierre had probable cause to arrest Annan-Yartey, and he did not use excessive force in arresting Annan-Yartey. See Gregory v. County of Maui, 523 F.3d 1103, 1106-07 (9th Cir.2008) (citing the balancing test from Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and affirming a grant of sum*246mary judgment). Moreover, Officer Pierre was entitled to qualified immunity. See Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir.2005); Jensen v. City of Oxnard, 145 F.3d 1078, 1085 (9th Cir.1998).
As to Count 2 (§ 1983 — detention and confinement), Annan-Yartey failed to cite any conduct that would create a genuine issue of material fact for trial regarding his claim of malicious and false detention and confinement. Thus, summary judgment was properly granted.
As to Count 3 (§ 1983 — strip search), Annan-Yartey did not present any evidence that Officer Pierre was personally involved in the strip search, and Officer Pierre denies any involvement with An-nan-Yartey after he was released to the officers at the CRD. Thus, summary judgment was properly granted.
As to Count 4 (§ 1983 — conspiracy), the record indicates that Annan-Yartey failed to cite any conduct by Officer Pierre that would create a genuine issue of material fact regarding his conspiracy allegations. Thus, summary judgment was properly granted.
As to Count 5 (§ 1983 — refusing or neglecting to prevent), summary judgment was properly granted because Officer Pierre is not liable for this claim as an employee of City Defendants.
§ 1983 Claims against City Defendants
The district court correctly granted summary judgment in favor of City Defendants on the § 1983 claims. As to Counts 1 and 2 (§ 1983 — arrest; detention and confinement), the record indicates that An-nan-Yartey failed to make any allegations of fact to establish that the Honolulu Police Department had a formal policy or custom in place pursuant to which a city employee could have committed a constitutional violation. See Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992). Additionally, Annan-Yartey did not suffer a constitutional tort. See, e.g., Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992) (citing City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Thus, Annan-Yartey failed to establish municipal liability as to Counts 1 and 2. See Gillette, 979 F.2d at 1346-47.
As to Count 3 (§ 1983 — strip search), the record indicates that Annan-Yartey failed to make any allegations of fact to establish that (1) the Hawaii Police Department had a formal policy or custom in place pursuant to which a city employee could have committed a constitutional violation; (2) the individual who allegedly committed the constitutional tort was an official with final policy-making authority; or (3) an official with final policy-making authority ratified a subordinate’s allegedly unconstitutional decision or action. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, summary judgment was properly granted.
As to Count 4 (§ 1983 — conspiracy), the record indicates that Annan-Yartey failed to cite any conduct by City Defendants that would create a genuine issue of material fact regarding his conspiracy allegations. Thus, summary judgment was properly granted.
Count 5 (§ 1983 — refusing or neglecting to prevent) was tried by a jury, which returned a verdict in favor of City Defendants. Because Annan-Yartey does not appeal that jury verdict, we do not review it here.
§ 1983 Claims against Private Defendants
The district court correctly dismissed the § 1983 claims against Private Defendants. The record indicates that *247Private Defendants cannot be liable under § 1983 because they did not “conspire[ ] or enter[] joint action with a state actor.” See Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.2002).
Counts 6 and 9 — Malicious Prosecution; False Arrest and Imprisonment
The district court correctly granted summary judgment on Annan-Yartey’s claims of malicious prosecution, false arrest and false imprisonment because the record indicates that there was probable cause to arrest and imprison Annan-Yartey. See Reed v. City & County of Honolulu, 76 Hawai’i 219, 873 P.2d 98, 109 (1994) (“The determination of probable cause is a defense to the common law claims of false arrest, false imprisonment, and malicious prosecution.”).
Count 7 — Malicious Abuse of Process
The district court correctly granted summary judgment on Annan-Yartey’s claim of malicious abuse of process because (1) the record does not indicate any genuine issue of material fact surrounding the reasonableness of Officer Pierre’s arrest and detention of Annan-Yartey, thus precluding an abuse of process claim; and (2) the record indicates that Annan-Yartey failed to allege an ulterior purpose specific to the allegedly unreasonable strip search. See Young v. Allstate Ins. Co., 119 Hawai’i 403, 198 P.3d 666, 676 (2008) (elements of abuse of process claim).
Count 8 — Violation of Hawaii Civil Rights Act
The district court correctly dismissed and granted judgment on Annan-Yartey’s claims under Count 8. First, a “Hawaii Civil Rights Act” does not exist. Second, the record indicates that Annan-Yartey fails to state a claim under Hawaii’s anti-discrimination statutes. See Haw.Rev. Stat. § 489-3.
Counts 10 and 11 — Assault; Battery
The district court correctly granted summary judgment on Annan-Yartey’s claims of assault and battery because the record indicates that he failed to allege malice for either claim, and he failed to allege any facts that would rise to the level of assault or battery (with the possible exception of the strip search alleged under the battery claim). See Towse v. State, 64 Haw. 624, 647 P.2d 696, 702-03 (1982).
The battery claim based on the strip search was tried by a jury, which returned a verdict in favor of City Defendants. Because Annan-Yartey does not appeal that jury verdict, we do not review it here.
Count 12 — Conspiracy
The district court correctly granted summary judgment on Annan-Yartey’s conspiracy claim because he fails to establish an underlying actionable claim. See Weinberg v. Mauch, 78 Hawai’i 40, 890 P.2d 277, 286 (1995) (“[T]here can be no civil claim based upon a conspiracy alone.”) (internal quotation marks omitted).
Count 13 — Intentional Infliction of Emotional Distress
The district court correctly granted summary judgment on Annan-Yartey’s claim of intentional infliction of emotional distress. Absent from the record are any “outrageous” acts sufficient for liability, with the possible exception of the strip search. See Enoka v. AIG Haw. Ins., 109 Hawai’i 537, 128 P.3d 850, 872 (2006) (elements of IIED claim).
The intentional infliction of emotional distress claim based on the strip search was tried by a jury, which returned a verdict in favor of City Defendants. Because Annan-Yartey does not appeal that jury verdict, we do not review it here.
*248II
The district court did not abuse its discretion in its disposition of the pre-trial motions. See Jorgensen v. Cassiday, 320 F.3d 906, 913 (9th Cir.2003) (“The district court is given broad discretion in supervising the pretrial phase of litigation ....” (quotation omitted)); Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002) (stating that it is an abuse of discretion to not reopen discovery only “if the movant can show how allowing additional discovery would have precluded summary judgment” (quotation omitted)); Willis v. Pac. Mar. Ass’n, 244 F.3d 675, 684 n. 2 (9th Cir.2001) (“A district court judge has the discretion, when considering a motion for summary judgment, to determine whether or not to hold an oral hearing.”); Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir.2000) (“A district court acts within its discretion to deny leave to amend when amendment would be futile....”); Rand v. Rowland, 154 F.3d 952, 956-58 (9th Cir.1998) (en banc) (district court need not advise a non-prisoner pro se litigant of the requirements of Fed R. Civ. P. 56).
Annan-Yartey’s remaining allegations lack merit.
City Defendants’ motion to strike An-nan-Yartey’s reply brief is denied as moot.
Annan-Yartey’s motion to expedite is denied as moot.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. City Defendants consist of the Honolulu Police Department, Police Chief Correa and the City and County of Honolulu, collectively. Private Defendants consist of Cades and Schutte LLP, Ernest Nomura, Safeguard Services, Inc. and Safeguard guards, collectively.
. Annan-Yartey does not appeal the judgment against him on the three claims against City Defendants tried by a jury. We do not address them here.
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MEMORANDUM ***
Defendants Dominic Davis (“Davis”), Harlon Jordan (“Jordan”), and Kurt Myrie (“Myrie”) appeal their convictions and My-rie his sentence for conspiracy to commit bank robbery, armed bank robbery, and brandishing a firearm during and in relation to a crime of violence, all arising in connection with the June 2006 robbery of the Colonial Bank in Las Vegas, Nevada. We affirm.
I. Appeal Nos. 08-10205 and 08-10233 (Defendants Davis and Jordan)
A. Special Verdict Forms
The district court properly instructed the jury on the crimes charged and on the various theories of liability (e.g., substantive liability, aiding and abetting, Pinkerton1). The court did not abuse its discretion or violate due process by denying the request for a special verdict form to ascertain on which theory the jury convicted because the theory underlying the conviction made no practical difference. Moreover, contrary to defendants’ suggestion, under the instructions given, the jury could not have convicted if it believed Myrie’s testimony. Even under an aiding and abetting theory for Count 2, the jury would have to find that defendants directly facilitated or encouraged the use or carrying of a firearm in connection with the bank robbery, thus necessarily rejecting Myrie’s testimony that the other defendants did not even know about the robbery until the police stopped the car and the contents of the trash bag were scattered.
Nor did the district court need a special verdict form to determine whether the jury found the defendants brandished a firearm; “brandishing” is a sentencing factor, not an element of the crime, and is properly found by the court rather than the jury. See Harris v. United States, 536 U.S. 545, 567-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002); United States v. *251Washington, 462 F.3d 1124, 1137-40 (9th Cir .2006).
B. Prosecutorial Misconduct
With the exception of an isolated statement about stealing the sense of security from the bank tellers (to which the court sustained counsel’s objection), the remaining statements in summation of the closing were not the sort of improper appeals to “make a statement,” “protect the community” or “preserve civil order” that we have found objectionable. See United States v. Leon-Reyes, 177 F.3d 816, 823 (9th Cir.1999). Rather, the prosecutor’s closing argument was acceptable argument based on reasonable inferences from the evidence that the case against defendants was too strong to believe Myrie’s testimony and, therefore, the jury should not let the defendants “off the hook.” See United States v. Sullivan, 522 F.3d 967, 982 (9th Cir.2008) (prosecutor has “considerable leeway” to strike hard blows based on evidence). In any event, even if the comments were improper, they were harmless beyond a reasonable doubt in light of the significant evidence against the defendants, who were caught red-handed with the money within minutes of the robbery. United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir.2005).
C. Evidence of Federal Insurance
There was sufficient evidence that Colonial Bank was FDIC insured on the date of the robbery. In addition to submitting a 1998 insurance certificate, a bank employee testified that the branch was FDIC insured on the day of the robbery. United States v. Ware, 416 F.3d 1118, 1121 n. 2 (9th Cir.2005); cf. United States v. Holloway, 259 F.3d 1199, 1201-02 (9th Cir.2001) (where no witness testified that the credit union was insured at the time of the robbery).
II. Appeal No. 08-10206 (Defendant Myrie)
A. Double Jeopardy
The district court did not err by sentencing Myrie for violations of both 18 U.S.C. § 2113(d) and 18 U.S.C. § 924(c). We have previously concluded that imposing consecutive sentences under both statutes does not violate the Double Jeopardy Clause. United States v. Browne, 829 F.2d 760, 766-67 (9th Cir.1987).
B. “Brandishing” Under § 924(c)
The district court did not clearly err in sentencing Myrie for brandishing a firearm based on his guilty plea and factual admissions during the plea colloquy. At the change of plea hearing, Myrie clearly admitted that “at the bank, [he] pulled out [his] gun in a threatening matter, [he] brandished the gun.” United States v. Beaudion, 416 F.3d 965, 968 (9th Cir.2005) (a firearm is brandished if openly displayed for the purpose of intimidation).
C. Confrontation Clause
The district court did not violate the Confrontation Clause by basing an upward departure on hearsay evidence regarding Myrie’s past criminal conduct. As Myrie acknowledges, we have previously held that the Confrontation Clause does not apply to sentencing. United States v. Littlesun, 444 F.3d 1196, 1199-1200 (9th Cir.2006). The evidence presented to the court had the requisite “minimal indicia of reliability” and was, therefore, properly considered. Id.
D. Due Process and Reasonableness
The district court did not violate due process or Myrie’s right to a jury trial by increasing Myrie’s criminal history based on uncharged conduct. Judicial *252factfinding does not violate the Sixth Amendment under an advisory guideline system. See United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir.2005) (en banc). The court did not violate due process by finding by clear and convincing evidence that Myrie had participated in three uncharged robberies, especially in light of the significant proof of Myrie’s involvement (including robbery photographs depicting Myrie, which were independently reviewed by the sentencing judge).
The district court did not arbitrarily increase Myrie’s criminal history, but appeared to follow the approach suggested by United States v. Azure, 536 F.3d 922, 932 (8th Cir.2008): “to assign hypothetical criminal history points to the conduct that did not result in convictions, and then determine what the appropriate criminal history category would be.” Finally, to the extent Myrie claims his sentence is unreasonable, the district court adequately considered the sentencing factors in 18 U.S.C. § 3553(a) and adequately explained its reasons for imposing Myrie’s sentence. See United States v. Carty, 520 F.3d 984 (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.
. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).
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MEMORANDUM***
Kurt B. Williams appeals the district court’s denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.
(1) Williams contends that the prosecutor’s plea bargaining position — including a plea offer acceptance deadline— and ancillary actions violated his constitutional rights and deprived him of effective assistance of counsel as a matter of “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Lockyer v. Andrade, 538 U.S. 63, 71-76, *254123 S.Ct. 1166, 1172-75, 155 L.Ed.2d 144 (2003); Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000); Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009). We disagree. In the first place, no clearly established Supreme Court law indicates that Williams has a general constitutional right to discovery,1 or to a plea bargain,2 or that a prosecutor is required to facilitate his consideration of the prosecution’s plea bargaining positions or offers,3 or that a prosecutor cannot take a harsh or unpleasant position, including revocation of the plea offer.4 Beyond that, the record shows that the prosecutor did, indeed, give a good deal of information to defense counsel. In short, the prosecutor’s plea bargaining actions and inactions did not violate clearly established Supreme Court law.5
But, says Williams, the prosecutor’s position somehow denied him effective assistance of counsel because, as a matter of clearly established Supreme Court law, it was highly unlikely that any lawyer would provide effective assistance of counsel to his client under the circumstances. See United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984). We disagree. What Williams overlooks is the fact that counsel had time to investigate and to counsel him on his choices. See id. at 649, 666-67, 104 S.Ct. at 2041, 2051; see also Wright v. Van Patten, 552 U.S. 120, 124-25, 128 S.Ct. 743, 746, 169 L.Ed.2d 583 (2008) (per curiam) (holding that no clearly established Supreme Court law indicated that an appearance of counsel by telephone at a plea hearing made it unlikely that counsel could be effective). Defense counsel’s comfort level does not define the prosecutor’s obligations.
Williams does not assert any particular instance in which counsel was ineffective and, thus, does not actually attempt to meet the general standard for claims of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).6
In short, the state courts did not violate clearly established Supreme Court law when they found no violation of a constitutional right, despite Williams’ claim that he should have had further time to consider a plea offer (maybe even to accept it) rather than having to go to trial for his crime. See Weatherford, 429 U.S. at 561, 97 S.Ct. at 846 (noting the novelty of an argument “that constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty.”).
(2) Williams also asserts that the district court erred when it did not permit him to amend his habeas corpus petition to allege prosecutorial vindictiveness. The district court denied the motion to amend on the basis that the proposed amendment would be futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). We agree *255with Williams that the district court’s given reason — his failure to plead the very language of 28 U.S.C. § 2254(d) rendered his pro se claim futile — was incorrect. See Mayle v. Felix, 545 U.S. 644, 649, 125 S.Ct. 2562, 2566, 162 L.Ed.2d 582 (2005); Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008). However, we can affirm on any ground supported by the record,7 and on this record it is pellucid that Williams’ claim of prosecutorial vindictiveness was futile. See Nunes v. Ramirez-Palmer, 485 F.3d 432, 441-42 (9th Cir.2007) (setting out the burdens for prosecutorial vindictiveness claims). Moreover, Williams did not spell out any persuasive justification for his untimely attempt to amend. See Bonin, 59 F.3d at 845.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977).
. Id. at 560-61, 97 S.Ct. at 846.
. United States v. Ruiz, 536 U.S. 622, 629-31, 122 S.Ct. 2450, 2455-56, 153 L.Ed.2d 586 (2002). A defendant is not required to have "complete knowledge of the relevant circumstances" in order to plead. Id. at 630, 122 S.Ct. at 2456.
. See Bordenkircher v. Hayes, 434 U.S. 357, 363-64, 98 S.Ct. 663, 667-68, 54 L.Ed.2d 604 (1978).
. Similarly, the state trial court did not violate clearly established Supreme Court law when it did not order the prosecutor to keep a plea offer open.
. The one possible claim suggesting an instance of ineffective assistance — statements by counsel at the plea hearing — has been waived on appeal.
. Yee v. Duncan, 463 F.3d 893, 897 (9th Cir. 2006).
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MEMORANDUM **
Rogelio Rocha-Garcia, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We lack jurisdiction to review moral character determinations based on discretionary factors. 8 U.S.C. § 1252(a)(2)(B)(i); Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir.1997). The IJ made an adverse moral character determination about Rocha-Garcia based on Rocha-Garcia’s failure to submit electronic fingerprints, a discretionary factor. Because this determination is dis-positive on the issue of cancellation of removal regardless of the other arguments raised by Rocha-Garcia, we lack jurisdiction to review this petition.
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM:
Frank L. Butler, III, appointed counsel for William K. Capps in this direct criminal appeal, has moved to withdraw from further representation and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record confirms that there are no issues of arguable merit on appeal. Therefore, counsel’s motion to withdraw is GRANTED, and Capps’s conviction and sentence are AFFIRMED.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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RYMER, Circuit Judge,
concurring.
I agree that the district court’s denial of Angst’s appeal should be affirmed, but I write separately because I believe that neither the district court nor we should consider evidence that was not before the ALJ when the ALJ made his decision. Dr. Rowe’s signed opinion was only presented to the Appeals Council when Angst sought review of the ALJ’s decision. The Appeals Council considered this additional evidence, found that it did not provide a basis for changing the ALJ’s decision, and denied review.1 Thus, the ALJ’s decision was the Commissioner’s final action. 20 C.F.R. § 416.1481.
The Social Security Act, 42 U.S.C. § 405(g), provides federal courts with jurisdiction to review the Commissioner’s final actions. Section 405(g) makes clear that a federal court may affirm, modify, remand, or reverse the ALJ’s decision only on the basis of the pleadings and transcript of the record — or, if “new” evidence is put in play, a court may order the ALJ to consider it if the evidence is material (i.e., there is a reasonable possibility it would change the ALJ’s decision2) and there is good cause for failing to incorporate it into the record before the ALJ. No such showing was made here, therefore federal court review is limited to the record on which the ALJ rendered his decision.
I realize that we considered new evidence presented to the Appeals Council in Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993) — but the government didn’t contend the court should not consider the new evidence on appeal, § 405(g) wasn’t argued, and we didn’t mention it. 8 F.3d at 1451-52. Consequently, the effect of § 405(g) on consideration of evidence not presented to the ALJ remains open. I would follow the Seventh Circuit’s approach in Eads v. Secretary of DHHS, 983 F.2d 815 (7th *230Cir.1993), and hold that when the decision being reviewed is the decision of the ALJ, “[t]he correctness of that decision depends on the evidence that was before him.” Id. at 817.3 Otherwise, we become ALJs, mired in an Alice in Wonderland exercise of pretending that evidence the real ALJ didn’t know existed was really before him.
In short: a claimant who wishes to challenge the ALJ’s decision based on evidence that was not before the ALJ may only ask a federal court to remand and order the ALJ to consider the new evidence. Federal courts may grant such a request only when the claimant shows there is a reasonable possibility the additional evidence would change the ALJ’s decision and she had good cause for failing to submit the evidence to the ALJ in the first place. 42 U.S.C. § 405(g). When, as in this case, these conditions are not met, the district court’s review, and ours, is limited to the evidence upon which the ALJ’s decision was based.
. The Appeals Council considers new and material evidence only where it relates to the period on or before the date of the ALJ hearing decision, and reviews the case if it finds that the ALJ’s "action, findings, or conclusion is contrary to the weight of the evidence currently of record.” 20 C.F.R. §§ 404.970, 416.1470. This standard is different from— and looser than — the regulation that guides the federal courts in their determinations, so we cannot simply assume that if the Appeals Council considered new evidence as part of the record before it, we should, too.
. Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir.1984).
. The First, Third, Sixth, and Eleventh Circuits are in accord. See Mills v. Apfel, 244 F.3d 1, 5 (1st Cir.2001); Matthews v. Apfel, 239 F.3d 589, 592-93 (3d Cir.2001); Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir.1998); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993). However, the Second, Fourth, Fifth, Eighth, and Tenth Circuits have held that courts should consider new evidence not presented before the ALJ when the Appeals Council considers that evidence in denying review. See Higginbotham v. Banhart, 405 F.3d 332, 336 (5th Cir.2005); Perez v. Chater, 77 F.3d 41, 45 (2d Cir.1996); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994); Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992); Wilkie v. Sec'y of Dept. of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.1991).
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MEMORANDUM***
Rahmaiuiiah Mosammen, his wife, Faw-zia Mosammen, and their son, Mohdyosuf Mosammen, all natives and citizens of Afghanistan, petition for review of the Board of Immigration Appeals’ denial of an application for asylum,1 and withholding of removal.2 We deny the petition.3
The BIA’s determination that an alien is not eligible for asylum must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (citation omitted). “It can be reversed only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). When an alien seeks to overturn the BIA’s adverse determination, “he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817; see also Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). When an asylum *232claim is involved, an alien must show either past persecution, or a well-founded fear of future persecution that is “both subjectively genuine and objectively reasonable.” Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc).
Here, the asylum claims fail. The Mosammens did not present evidence that would compel a finding of past persecution or a well-founded fear of future persecution connected to a protected ground— here religion or political opinion. See 8 U.S.C. § 1101(a)(42)(A); Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000). While they complain of the laws passed and the acts of the Taliban when that group controlled Afghanistan, they had been out of that country for many years when the Taliban came to power, and none of those acts were directed at them personally. Moreover, the State Department 2002 Country Report showed that the Taliban had fallen and, while there is evidence of discrimination against women, discrimination alone is not persecution. See Fisher, 79 F.3d at 962-63 (clothing restrictions); see also Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir.2006) (economic harm); Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir.2004) (loss of employment); Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (persecution is an extreme concept).
Moreover, because the Mosammens have not met the eligibility requirements for a consideration of asylum, they have not met the standards for withholding of removal. See Farah, 348 F.3d at 1156, Ghaly, 58 F.3d at 1429. Thus, that avenue of relief also fails.4
Petition DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. 8 U.S.C. § 1158.
. 8 U.S.C. § 1231(b)(3). We note that the Mosammens have not presented arguments on appeal regarding relief under the Convention Against Torture. Thus, that issue is not properly before us. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.2005).
.The government asserts that we do not have jurisdiction over the Mosammens' claim of past persecution because the claim was not exhausted. However, because the claim was sufficiently raised before the BIA, it was exhausted. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000).
. The Mosammens suggest that the Immigration Judge erred when he did not inform Mrs. Mosammen that she could file a petition for asylum separate from that of her husband. See 8 C.F.R. § 1240.33(a). Even if we assume that the IJ erred, no prejudice is shown because the family was represented by counsel and, clearly, knew that separate petitions were possible, and because it is plain that Mrs. Mosammen's concerns were considered by the IJ in reaching his decision.
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MEMORANDUM **
Magdalena Siudy (“Siudy”) appeals the district court’s judgment declaring Renata Piatek (“Piatek”) to be the sole owner of property in Buckley, Washington (the “Property”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1
The district court did not abuse its discretion in concluding that Siudy was properly served by publication pursuant to Washington Revised Code § 4.28.100. See Rio Props. v. Rio Int’l Interlink, 284 F.3d 1007, 1014 (9th Cir.2002). Section 4.28.100 does not require the mailing of documents abroad in order to effect service of process in the technical sense, and therefore the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163, does not apply. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699-701, 108 S.Ct. 2104, 100 L.Ed.2d 722 (1988). Moreover, service under section 4.28.100 was proper because the action challenged Siudy’s ownership of property situated in Washington state. See Wash. Rev.Code § 4.28.100(3), (6).
Neither did the district court abuse its discretion in admitting evidence regarding assets from Piatek’s marriage to Stan Piatek (“Stan”), as such evidence assisted in determining the character of the Property. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004). Moreover, the district court did not exceed the scope of its in rem jurisdiction because it did not adjudicate ownership of any item other than the Property. See Shaffer v. Heitner, 433 U.S. 186, 199, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The judgment merely declares that Siudy has no ownership interest in the Property and that title is vested solely with Piatek.
Finally, the district court did not abuse its discretion by proceeding without joining Stan as a party because he was neither *234“required” nor “indispensable” under Rule 19 of the Federal Rules of Civil Procedure. Despite participating as a witness throughout the proceedings in the district court, Stan at no time claimed an interest in the Property. See United States v. Bowen, 172 F.3d 682, 688-89 (9th Cir.1999). Moreover, the district court was able to accord complete relief between the existing parties in Stan’s absence. See Eldredge v. Carpenters 46 N. Cal. Counties Joint Apprenticeship and Training Comm., 662 F.2d 534, 537 (9th Cir.1981). Finally, nothing in the record suggests that the district court could not “in equity and good conscience” proceed without Stan, especially since neither Stan nor Siudy ever asked the court to join him. Fed. R.Civ.P. 19(b); see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 110, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).
AFFIRMED.
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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MEMORANDUM **
Tara and Donald Sadler (the “Sadlers”) appeal from the district court’s grant of summary judgment in favor of State Farm on their claims of bad faith and alleged violations of Washington’s Consumer Protection Act (“CPA”).1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.2
The district court properly concluded as a matter of law that State Farm did not have a duty to preapprove Tara’s surgery under the personal injury protection (“PIP”) provision of the Sadlers’ automobile insurance policy. The PIP does not require preapproval for medical treatment, explicitly allows State Farm to obtain an independent medical examination (“IME”), and indicates that payment is to be made as medical expenses are incurred. Further, there is no Washington law recognizing an implied duty to preauthorize treatment under a PIP. Because State Farm had no implied duty to preapprove Tara’s surgery, State Farm cannot be charged with any harm flowing from Tara’s decision to await the outcome of the IME before proceeding with treatment.
The district court also properly granted State Farm summary judgment on the Sadlers’ related claim that State Farm had acted in bad faith by requesting and then delaying the IME. The undisputed facts show that State Farm had a contractual right to obtain the IME, that as soon as State Farm learned of Tara’s request for surgery it scheduled an IME, and that the IME report was completed about thirty-six days thereafter. The Sadlers cite no evidence indicating that State Farm’s handling of the IME was atypical, contrary to law, or otherwise unreasonable, unfounded or frivolous. See, e.g., Overton v. Consol. Ins. Co., 145 Wash.2d *236417, 38 P.3d 322, 329 (2002) (en banc) (to prevail on a claim of bad faith, an insured must show that the insurer’s conduct was “unreasonable, frivolous, or unfounded”).
Finally, the district court properly granted summary judgment as to the Sadlers’ CPA claims. These claims fail as a matter of law due to the Sadlers’ failure to establish the requisite injury to business or property. See Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 719 P.2d 531, 535 (1986) (en banc). Because the Sadlers’ arguments under the CPA are premised on the loss of Tara’s job, and because a job loss is a personal injury, not an injury to business or property under the CPA, the district court correctly granted summary judgment to State Farm. See Ambach v. French, 216 P.3d 405, 407-11 (Wash. 2009)(en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The Sadlers alleged claims for breach of fiduciary duty, breach of the duty of good faith, and negligence. We refer to these claims collectively as the Sadlers’ claims for “bad faith.” See Tank v. State Farm Fire & Casualty Co., 105 Wash.2d 381, 715 P.2d 1133, 1136 (1986) (en banc) (discussing good faith duties of insurers).
. The parties are familiar with the facts and we repeat them here only as necessary to explain our decision.
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MEMORANDUM **
Flying J, Inc. appeals the district court’s order dismissing its action against Thomas J. Pistacchio, Delores Pistacchio, Central California Kenworth, Inc., John R. Lawson, and Lawson Rock & Oil, Inc. We affirm.
Flying J is collaterally estopped from proving causation on any of its claims in light of the determinations made by the California Court of Appeal in Flying J., Inc. v. California Transportation Commission, No. F049247, 2007 WL 926648 (Cal.Ct.App. Apr. 24, 2007). We are guided by the preclusion law of California, and conclude that its threshold requirements are met. See Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223, 1225 (1990) (requiring that the issues are identical, must have been actually litigated in the former proceeding, and must *238have been necessarily decided in a decision that is final and on the merits).
Although Flying J points out that the former proceeding was in the nature of a mandamus seeking to invalidate the CTC’s disapproval of a proposed conveyance to Flying J, whereas this proceeding seeks recovery for alleged improprieties and conspiratorial conduct by Pistacchio and Lawson, both actions arise out of the same events pertaining to Lawson’s asserted conflict of interest and its effect on the CTC’s 2008 and 2004 hearings. There is no dispute the Court of Appeal decision was final and on the merits. Likewise, the issues upon which this action turns were actually litigated and resolved by the Court of Appeal. As the court put it, “the most salient aspect of this case” is the fact that CTC reconsidered the proposed conveyance of the 20.5 acres to Flying J and refused to approve it in February 2004 when Lawson was no longer a member. Flying J., 2007 WL 926648 at *7. Thus, Flying J’s “argument about what it deems to be bias or impermissible interest of Lawson simply no longer mattered after the Commission decided in February of 2004, at the request of Flying J, to reconsider anew the proposed conveyance on its merits.” Id. Further, the court found that CTC had discretion to conclude that the proposed conveyance would not be an “exchange” under its regulations, and the Commission was unwilling to approve the conveyance given how undervalued it was. Id. at *9. Finally, the court held the superior court’s ruling that the February 2004 reconsideration cured any conflict of interest in the February 2003 proceeding was not error.1 Id. at *11.
Flying J could not show that CTC’s 2004 reconsideration failed to cure 2003 improprieties, or that Flying J was entitled to conveyance of the 20-acre parcel (which was conditioned on approval from the CTC), without contradicting these core determinations. Accordingly, Flying J is precluded from now establishing that the conduct alleged caused it harm.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Flying J. argues on appeal that these issues, even if litigated, were not necessary to the decision. However, this point is waived as it was not pursued in district court. In any event, we cannot say the issues were "entirely unnecessary” to the judgment. Lucido, 272 Cal.Rptr. 767, 795 P.2d at 1226; Zevnik v. Superior Court, 159 Cal.App.4th 76, 70 Cal. Rptr.3d 817, 821 (2008).
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