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https://www.courtlistener.com/api/rest/v3/opinions/8474017/
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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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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8474019/
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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 **
Ted Wolfram appeals the district court’s summary judgment in favor of the Commissioner of Social Security’s denial of Wolfram’s application for disability insurance benefits under Title II of the Social Security Act. We reverse.
We review the district court’s order affirming denial of benefits by an administrative law judge (“ALJ”) de novo. Vasquez v. Astrue, 572 F.3d 586, 590 (9th Cir.2009). We may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record as a whole. Id. at 591. Disability claims are evaluated under the familiar five-step inquiry. 20 C.F.R. 404.1520. Here, the ALJ erred at steps two and five.
The ALJ erred at step 2 by failing to provide specific and legitimate reasons for rejecting the opinion of Wolfram’s treating physicians. Generally, more weight is given to the opinion of a treating source than the opinion of a doctor who did not treat the claimant, Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987), and more weight to the opinion of an examining source than a nonexamining source, Pitzer v. Sullivan, 908 F.2d 502, 506 & n. 4 (9th Cir.1990). “The opinion of a nonexamining medical advisor cannot by itself constitute substantial evidence that justifies the rejection of the opinion of an examining or treating physician.” Morgan v. Comm’r Soc. Sec., 169 F.3d 595, 602 (9th Cir.1999). The ALJ must provide “clear and convincing” reasons for rejecting the uncontra-dicted opinion of a treating or examining physician, and even if contradicted by another doctor, the opinion can be rejected only for specific and legitimate reasons supported by substantial evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).
Wolfram’s treating physicians concluded that he was totally and permanently disabled due to his IBS, diverticulosis, incontinence, and anxiety. The ALJ rejected the opinions of the treating physicians, apparently relying on the opinions of non-examining physicians and upon the claimant’s wife’s testimony of his condition in a non-stressful environment. However, the nonexamining agency physicians provided no concrete medical reason for denying the claim, and the claimant’s wife’s testimony did not address the issue of stress. Based on a careful examination of the record, we conclude that the ALJ did not provide justifiable specific, legitimate reasons for rejecting the conclusions of the treating physicians, that claimant could perform no work involving stress.
*243The ALJ also erred at step five in constructing his hypothetical question to the vocational expert because he did not incorporate the appropriate level of stress in the question. In hypothetieals posed to vocational experts, the ALJ must only include those limitations supported by substantial evidence. Robbins v. Social Sec. Admin., 466 F.3d 880, 886 (9th Cir.2006). Yet, the ALJ is also obligated to propound a complete hypothetical question, and if the ALJ fails to do so, the answers cannot amount to substantial evidence. Id. In addition, “[i]f the record does not support the assumptions in the hypothetical, the vocational expert’s opinion has no evidentiary value.” Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir.2001).
The ALJ made two errors in constructing the hypothetical question. First, his determination of claimant’s residual functional capacity made the leap from finding claimant able to perform certain types of non-stressful work, to concluding that the claimant was only unable to perform jobs with high stress. These two standards are not equivalent. A job with medium stress is not a job with high stress, but it is also not “non-stressful work.” The ALJ simply conflated the two standards into one, that of jobs without “high stress levels,” and based his residual functional capacity conclusion on that second, less restrictive, limitation. This is contrary to the evidence provided by claimant’s treating and examining physicians that claimant could not perform stressful work, or any work, and the ALJ did not point to specific and substantial evidence in the record that supports this conflation of standards. Second, the ALJ erred in his assumption about how many bathroom breaks the claimant would require in a moderate stress situation and the claimant’s need for bathroom availability. Therefore, the vocational testimony cannot sustain the ALJ’s conclusion.
In sum, the ALJ erred at step two of the analysis by rejecting the opinion of treating physicians without providing specific, legitimate reasons for doing so, and erred at step five of the analysis by constructing an improper hypothetical question that did not take into account the claimant’s actual functional residual capacity. We must therefore reverse the judgment of the district court, with instructions to remand this case to the agency for redetermination of eligibility for benefits.
REVERSED AND REMANDED WITH INSTRUCTIONS.
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 **
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***
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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ORDER AND JUDGMENT*
WADE BRORBY, Circuit Judge.
Appellant Francisco Santio pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In pleading guilty, Mr. Santio reserved his right to challenge the district court’s ruling on his motion to suppress evidence. On appeal, he contends the district court erred in denying his motion to suppress because law enforcement officers lacked a reasonable and articulable suspicion he engaged in a criminal activity for the purpose of stopping him. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. Factual and Procedural Background The following facts, provided as evidence at the suppression hearing and otherwise supported by the record, surround Mr. Santio’s detention and arrest. At about 3:30 a.m. on May 16, 2007, a South Jordan City, Utah detective, Bret Miller, requested assistance from Jared Nichols, another South Jordan City detective, and Richard Simonelli, a United States deputy marshal, concerning an unoccupied stolen vehicle. Specifically, Detective Miller asked them to stake out the stolen vehicle in case anyone came for it. According to Detective Nichols, he knew the area where the stolen vehicle was parked because it involved a crime area, he had “been there on some stolen vehicles in the past,” and he had been there on different gang unit calls. Detective Nichols and Deputy Simonelli, who are both members of the Salt Lake City Metro Gang Unit, drove separate unmarked police cars and parked on the same street as the stolen vehicle, “blend[ing] in with the rest of the cars on the street.” Detective Nichols parked on the north side of the street, facing west, two houses east of and on the same side of the street as the stolen car; while Deputy Simonelli parked facing east, across the street from the stolen vehicle.
After twenty minutes without any foot traffic, Mr. Santio and a woman walked past Deputy Simonelli’s unmarked car, heading eastbound on the south side of the street, across from the stolen vehicle. Detective Nichols explained that as Mr. San-tio walked down the street in the direction of the stolen vehicle, he “kept looking really fidgety, kept looking around, just very suspicious” and “nervous.” Similarly, Deputy Simonelli described Mr. Santio as “looking back over his shoulder,” “looking around,” and “looking behind him, like he was looking for someone to come up behind him” or to “see if anybody was watching them.” Mr. Santio continued to walk in the direction of the stolen car, and when he was directly across from it, he stopped and looked toward the area of the vehicle. Mr. Santio then sat down on the curb directly across from the vehicle for a minute or two, and, according to Detective Nichols, was then “really looking the area over,” “looking everywhere,” and “looking around like he was looking for someone or looking out over the area.” Detective Nichols found it “very suspicious that [Mr. Santio] was sitting directly across the street from the car” and “felt he had some connection towards the car.” It is not clear whether Mr. Santio noticed the officers’ presence.
*326Mr. Santio then walked away, at which time Detective Nichols noticed he was wearing a long white belt which hung down to his knees. Based on his training and experience, which included eight years in law enforcement and two and one-half years in the metro gang unit, he believed the white belt “possibly could be a part of a gang-type of a flag, a signal they send out.” Similarly, when Mr. Santio earlier walked past him, Deputy Simonelli noticed the white belt and, based on his three years of experience with the metro gang unit, also believed it indicated gang affiliation. He also noticed Mr. Santio was wearing blue jeans and a blue shirt and knew Sureño gang members typically wear all blue. Detective Nichols also noticed Mr. Santio wore baggy pants, which he stated “could conceal anything ... as far as guns, weapons, [or] knives.”
At that time, Detective Nichols attempted to stop Mr. Santio by pulling up behind him in his unmarked car and turning on his emergency lights. At first, Mr. Santio “just kept walking” without turning around, which “raised a flag” for Detective Nichols, but eventually Mr. Santio stopped. While explaining a stolen vehicle was the reason for the stop, Detective Nichols “noticed that [Mr. Santio] had a tattoo of a spiderweb right on his chin,” which he believed could mean Mr. Santio served prison time. Similarly, Deputy Si-monelli noticed the spiderweb tattoo, which he believed could indicate gang affiliation. Detective Nichols then asked Mr. Santio if he “kicked it with anybody” to ascertain whether he was a gang member; Mr. Santio responded his gang name was “Trouble” and “he kicked it with the Southside,” which verified to Detective Nichols that Mr. Santio was a gang member with either the Southside Sureños or Southside Norteños.
Based on his experience, Deputy Simo-nelli was on “alert” for his and Detective Nichols’s safety. Similarly, based on Mr. Santio’s physical characteristics and behavior, Detective Nichols asked Mr. Santio if he had any weapons, to which he replied “he had a couple of pair of scissors,” removed them from his pockets, and threw them on the grass. Detective Nichols then told Mr. Santio to stop reaching into his pockets and patted him down.
While patting Mr. Santio down, Detective Nichols found a gun magazine holding nine .40 caliber bullets in it. He then asked Mr. Santio if he was a convicted felon, to which he responded “yes.” At that time, Detective Nichols handcuffed Mr. Santio. Meanwhile, the woman accompanying Mr. Santio told Deputy Simo-nelli that Mr. Santio had a gun, which, with her help, the officers found hidden by a fence just a few feet away from where Mr. Santio stopped. Later, authorities determined Mr. Santio had nothing to do with the stolen vehicle.
On June 13, 2007, an indictment issued, charging Mr. Santio with one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, both in violation of 18 U.S.C. § 922(g)(1). Mr. Santio filed a motion to suppress the firearm and ammunition obtained as a result of his stop and seizure. After a hearing on the motion, where Detective Nichols and Deputy Simo-nelli proffered the foregoing testimony, the district court issued a written decision denying Mr. Santio’s motion. It determined that “[b]ased on the totality of circumstances, Detective Nichols and Deputy Si-monelli had a reasonable suspicion that Mr. Santio was involved in criminal activity [sufficient] to justify the initial stop.” In making this determination, the district court found: (1) the police observed Mr. Santio and his female companion walking *327in a high crime neighborhood where stolen vehicles had been of concern in the past; (2) they were walking in this high crime neighborhood very late at night, at 3:30 a.m.; (3) Mr. Santio’s long white belt was a possible indicium of gang involvement; (4) both officers “credibly testified” Mr. San-tio was acting in a suspicious manner, leading both of them to believe he was involved with the stolen vehicle; and (5) Mr. San-tio’s behavior, including his walking toward and then sitting directly across from the stolen vehicle, indicated an interest in or connection with the vehicle.
With respect to the search of Mr. San-tio’s person, the district court found the officers “had ample reason to believe [he] might be armed and dangerous.” It based its determination on Mr. Santio’s: (1) gang affiliation and moniker “Trouble”; (2) baggy pants, which could conceal guns, knives, or other weapons; (3) spiderweb tattoo on his face; and, “most importantly,” (4) admission he was carrying weapons when asked and voluntary removal of two pair of scissors from his pockets. The district court explained that once the officers “knew Mr. Santio was carrying weapons, they had an undeniable concern for safety to justify the minimal intrusion of the search.”
Following the district court’s denial of his motion to suppress, Mr. Santio entered a conditional guilty plea to Count One for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After Mr. Santio pled guilty, a federal probation officer prepared a presentence report in conjunction with the 2007 United States Sentencing Guidelines, which resulted in a recommended advisory guideline range of thirty to thirty-seven months imprisonment. Mr. Santio’s only objection concerned an error in the presentence report, which was corrected by the probation officer. The district court then sentenced Mr. Santio to thirty-four months imprisonment and thirty-six months supervised release. Mr. Santio is not appealing either his sentence or the search of his person.
II. Discussion
In appealing his conviction, Mr. Santio argues the district court erred in denying his motion to suppress evidence because the police lacked a reasonable and articula-ble suspicion he was engaged in criminal activity for the purpose of stopping or detaining him. In support of his argument, Mr. Santio claims that while “[t]he district court relied on five factors to support its finding,” “[n]one of these factors standing alone, provides a lawful basis for the investigative detention.” Instead, he claims “all of the factors relied on by the district court are consistent with lawful behavior.” In making this argument, Mr. Santio relies primarily on our decision in United States v. Davis, 94 F.3d 1465 (10th Cir.1996), contending that, like that case, no specific factual basis existed for suspecting him of committing a particular crime at the time the officers detained him. In response, the government argues the district court properly denied Mr. San-tio’s motion to suppress based on the five factors it articulated.
In reviewing the district court’s denial of Mr. Santio’s motion to suppress, we examine a district court’s “factual findings for clear error and view the evidence in the light most favorable to the government.” United States v. DeJear, 552 F.3d 1196, 1200 (10th Cir.), cert. denied, — U.S. —, 129 S.Ct. 2418, 173 L.Ed.2d 1322 (2009). However, “[w]e review de novo the reasonableness of a search or seizure under the Fourth Amendment.” Id. Additionally, “[t]he credibility of witnesses, the weight accorded to evidence, and the reasonable inferences drawn therefrom fall *328within the province of the district court.” Id.
The Supreme Court, in Terry v. Ohio, established a law enforcement officer “may-in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” United States v. Treto-Haro, 287 F.3d 1000, 1004 (10th Cir.2002) (quoting Terry, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Under the Fourth Amendment, an investigative detention ... is reasonable if it is ... justified at its inception and ... reasonably related in scope to the circumstances which justified the interference in the first place.” DeJear, 552 F.3d at 1200 (quotation marks and citation omitted). “A detention is justified at its inception if the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime.” Id. (quotation marks and citation omitted). Reasonable suspicion may exist where an officer has “a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotation marks and citation omitted). However, “[ijnchoate suspicions and unparticularized hunches are not sufficient.” DeJear, 552 F.3d at 1200 (quotation marks and citation omitted). “Nevertheless, the level of suspicion required for reasonable suspicion is considerably less than proof by a preponderance of the evidence or that required for probable cause.” Id. (quotation marks and citations omitted).
We determine whether reasonable suspicion exists from the totality of the circumstances. See Arvizu, 534 U.S. at 273, 122 S.Ct. 744. A “determination that reasonable suspicions exists ... need not rule out the possibility of innocent conduct.” Id. at 277, 122 S.Ct. 744. Thus, behavior susceptible to innocent interpretation may create reasonable suspicion depending on the totality of the circumstances confronting an officer. See Oliver v. Woods, 209 F.3d 1179, 1187-88 (10th Cir.2000). When determining if a detention is supported by reasonable suspicion, we “defer to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.” United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001) (quotation marks and citations omitted).
In this case, the district court articulated five factors it considered in determining that “[b]ased on the totality of the circumstances, Detective Nichols and Deputy Si-monelli had a reasonable suspicion that Mr. Santio was involved in criminal activity [sufficient] to justify the initial stop.” First, it noted the police observed Mr. Santio and his female companion walking in a high crime neighborhood where stolen vehicles, like the one at issue, had been of concern in the past. Presence in a high crime area is “among the relevant contextual considerations in a Terry analysis,” even though such presence “standing alone is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); see also DeJear, 552 F.3d at 1201.
Not only were Mr. Santio and his companion walking in a high crime neighborhood, but the district court found they did so very late at night — at 3:30 in the morning. The time of the detention, including the late hour of the night or early hour of the morning, is a factor we consider in determining whether reasonable suspicion exists. See United States v. Clarkson, 551 F.3d 1196, 1202 (10th Cir.2009); Gallegos *329v. City of Colorado Springs, 114 F.3d 1024, 1029 (10th Cir.1997).
In addition, the district court found Mr. Santio wore a long white belt, which the officers believed, based on their experience in the metro gang unit, was a possible indicium of gang involvement. Mr. Santio also sported blue clothing, which one of the officers believed also indicated gang affiliation. Although gang affiliation or prior criminal conduct cannot, standing alone, create a reasonable suspicion to support a search or seizure, under certain circumstances it may be an appropriate factor in determining if reasonable suspicion exists for a detention or search. See DeJear, 552 F.3d at 1201 (indicating the fact officer had previously seen people standing outside home wearing colors affiliated with local gangs was an appropriate factor, when considered as part of the totality of the circumstances, to support reasonable suspicion for detention); United States v. Garcia, 459 F.3d 1059, 1067 (10th Cir.2006) (holding that “[a]lthough not necessarily determinative by itself, ... gang connection further supports the reasonableness of a weapons frisk”); see also United States v. Feliciano, 45 F.3d 1070, 1074 (7th Cir. 1995) (holding that “[kjnowledge of gang association and recent relevant criminal conduct, while of doubtful evidentiary value in view of the strictures against proving guilt by association or by a predisposition based on past criminal acts, is a permissible component of the articulable suspicion required for a Terry stop”).
Next, the district court found both officers credibly testified Mr. Santio was acting in a suspicious manner, leading both of them to believe he was involved with the stolen vehicle. The conduct leading to this belief included the fact that as Mr. Santio walked down the street in the direction of the stolen vehicle, he “kept looking really fidgety, kept looking around, just very suspicious,” and was “looking back over his shoulder,” “looking around,” and “looking behind him, like he was looking for someone to come up behind him” or to “see if anybody was watching them.” This suspicious behavior intensified as Mr. Santio sat across from the stolen vehicle, when he was “really looking the area over” and “looking everywhere.”
We have held “nervousness is a sufficiently common-indeed natural-reaction to confrontation with the police” and has “limited significance in determining whether reasonable suspicion exists” unless the nervousness “is unusually severe or persistent, or accompanied by other, more probative, grounds for reasonable suspicion.” United States v. Santos, 403 F.3d 1120, 1127 (10th Cir.2005) (quotation marks and citations omitted). In this case, no police interaction precipitated Mr. Santio’s nervous behavior, so no natural reaction to a confrontation with the metro gang unit officers is at issue. Even if Mr. Santio knew of their presence, his nervous behavior involved an inordinately persistent and unusually prolonged amount of looking around the area while walking in the direction of the stolen vehicle, approaching it, and then sitting across the street from it. Not only did he display this type of nervous behavior, but, as discussed by the district court, his nervousness was accompanied by other probative grounds for reasonable suspicion. Thus, in this instance, Mr. Santio’s nervousness clearly constituted a pertinent factor for consideration by an experienced law enforcement officer staking out the stolen vehicle.
Mr. Santio contends his nervous behavior can be explained by the fact he was with a woman in a high crime area late at night, and “may have been looking around the area for rival gang members.” However, as previously discussed, behavior susceptible to innocent interpretation may *330create reasonable suspicion depending on the totality of the circumstances confronting the officer, see Oliver, 209 F.3d at 1188, and we defer to the ability of trained officers to distinguish between innocent and suspicious actions, see Zubia-Melen-dez, 263 F.3d at 1162. Thus, while simply “looking around” may not alone garner much weight, it may be considered under a totality of circumstances analysis, as it was here.
Finally, the district court considered the fact Mr. Santio walked toward, and then sat directly across from, the stolen vehicle for two minutes, which it determined indicated an interest in or connection with the vehicle. Again, behavior susceptible to innocent interpretation may create reasonable suspicion depending on the totality of the circumstances. See Oliver, 209 F.3d at 1188. In this case, the officers were on a stake out to watch for anyone who may have had an interest in a stolen vehicle for the purpose of finding out who stole it. The fact Mr. Santio walked toward, sat across from, and looked toward the stolen vehicle before moving on, was sufficient for the district court to find an indication of his interest in or connection with the stolen vehicle, especially when coupled with his behavior in continuously looking around in a suspicious or evasive manner. Thus, based on the totality of the circumstances and in viewing the evidence in the light most favorable to the government, we conclude the district court did not err in finding a reasonable suspicion existed that Mr. Santio was involved in criminal activity sufficient to justify the initial stop.
In arguing the circumstances involved in this case do not support a reasonable suspicion for his stop, Mr. Santio relies heavily on our decision in United States v. Davis. While we recognize some similarities in the circumstances presented here with those in that case, our decision in Davis does not change our conclusion the district court did not err in denying Mr. Santio’s motion to suppress.
In Davis, officers on patrol arrived in an area where gunshots reportedly had been fired. See 94 F.3d at 1467. One of those officers had previously investigated two shootings in the area, had been involved in eight arrests involving drugs and/or firearms in the same area, and knew of active gang presence there. Id. In addition, the officers were aware that one building in the area housed a business known as a “juice joint” because it illegally sold liquor without a license while also operating legal activities involving dominoes and pool play. Id. While investigating the report of gunshots in the area, the officers observed four occupants in a vehicle parked just north of the juice joint and saw the defendant exit the vehicle. Id. As he exited the vehicle, he made eye contact with one of the officers, broke that eye contact, and began walking toward the juice joint with his hands in his pockets. Id. The officer recognized him, knew he was an ex-convict acquitted of a gang-related homicide, and had information he had been selling narcotics. Id. At that time, the officers told the defendant to stop and take his hands out of his pockets, but he continued walking in the same direction and manner until he was physically forced to stop. Id. Ultimately, officers found a firearm in the back seat of his vehicle. Id.
In Davis, we determined the district court erred in denying the defendant’s motion to suppress evidence of the firearm because the officers did not have a reasonable, articulable suspicion of criminal activity. Id. at 1468. In making that determination, we found neither the defendant’s presence in a high crime area nor his approaching a business offering both illegal and legitimate activities was enough, standing alone, to conclude he engaged in *331criminal conduct. Id. We also concluded his conduct in breaking eye contact and walking away from the officers did not provide “a particularized and objective basis” for stopping him. Id. Finally, we found that neither having his hands in his pockets on a December night nor knowledge of his prior criminal record, standing alone, justified an investigative stop. After considering each of these factors separately, we considered the totality of the circumstances presented and determined the government failed to show any specific factual basis for suspecting the defendant committed the crime of unlawfully carrying a firearm, including, for example, a lack of evidence he had a suspicious bulge in his coat pockets, they received a tip from an informer, or the defendant made any threatening movement toward the officers. Id. at 1469-70.
Like Davis, certain circumstances involved here, standing alone, are insufficient to suggest a reasonable and articu-lable suspicion of criminal activity. As previously discussed, these circumstances include Mr. Santio’s presence in a high crime area, the time of night, and his gang affiliation. As we also pointed out, some nervous behavior when in the presence of a police officer generally is not enough to indicate involvement in criminal activity. However, simply because these circumstances, standing alone, are not sufficient to implicate criminal activity does not mean they may not be considered under the totality of the circumstances, as the district court did here and we did in Davis.
In addition, unlike the defendant in Davis, Mr. Santio’s behavior implicated a reasonable and articulable suspicion he was involved in the very criminal activity the officers were investigating; i.e., the stolen vehicle and Mr. Santio’s seemingly discernable interest in that vehicle. Mr. Santio’s behavior included not only his walking toward the stolen vehicle, but his stopping and sitting across from it, looking toward the area where it was parked, and his display of extreme and prolonged signs of nervousness, regardless of whether he could see the officers in the dark, seated in their unmarked vehicles. This conduct is different from Davis, where the defendant: (1) merely approached a building housing, in part, a legitimate pool and dominoes business which was not specifically the subject of the gunshots being investigated; (2) only showed negligible nervous behavior by breaking eye contact and walking away from the visible presence of police officers, and (3) otherwise displayed no sign he was carrying a gun or involved in the gunshots at issue. Thus, when considering the totality of the circumstances here, including Mr. Santio’s extreme, prolonged nervous behavior, his seemingly conspicuous interest in the stolen vehicle, the lateness of night, his presence in a high crime area, and his apparent gang affiliation, we conclude, unlike we did in Davis, that a specific and articulable factual basis existed for suspecting he committed the crime in question.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of Mr. Santio’s motion to suppress evidence and his conviction.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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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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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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*442Judgment
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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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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*465SUMMARY ORDER
Appellant Ellen Mariani’s (“Mariani”) husband, Louis Mariani, was a passenger on one of the planes flown into the World Trade Center on September 11, 2001. In 2001, Mariani filed a wrongful death and survival suit in the Southern District of New York against a number of parties, individually and on behalf of her husband’s estate. Mariani v. United Air Lines, No. 01-cv-11628 (AKH), 2001 WL 34134941 (S.D.N.Y. filed Dec. 20, 2001). In 2003, Louis Mariani’s daughter (Mariani’s stepdaughter), Lauren Peters (“Peters”), filed her own wrongful death and survival action in the Southern District of New York, individually and on behalf of Louis Mariani’s estate (the “Peters suit” or “Peters action”). Peters v. UAL Corp., No. 03-cv-6940(AKH) (S.D.N.Y. filed Sept. 10, 2003). Both suits were assigned to Judge Heller-stein in the Southern District.
On December 1, 2004, Mariani and Peters entered into an agreement in New Hampshire Probate Court in which Maria-ni agreed to resign as administrator of Louis Mariani’s estate and to allow a neutral administrator to replace her. The new administrator, according to the agreement, was to act to dismiss with prejudice the suit filed by Mariani in the Southern District and to continue the Peters suit. The agreement also provided that both Mariani and Peters agreed to cooperate with the estate’s counsel in the remaining New York action. John C. Ransmeier was appointed administrator pursuant to the procedure set forth in the agreement.
On March 22, 2005, the New Hampshire Probate Court held a hearing on an emergency motion by Peters to enforce the Probate Court agreement. Peters alleged that Mariani was not cooperating with the estate attorneys because, according to Peters, Mariani believed that under the agreement Mariam could remain as plaintiff with respect to her own individual claims in the Southern District suit that she had commenced. The Probate Court noted that, at the time of the Probate Court agreement, the Peters action included a claim personal to Mariani, namely for loss of consortium, which fact “substantiates the proposition that all claims in the first [Mariani’s] suit would be dismissed so that the same claims could be pursued in the second [Peters] suit.” The Probate Court explicitly held that the estate administrator was authorized to dismiss with prejudice Mariani’s Southern District suit in its entirety. The Probate Court also indicated that, under New Hampshire law, Mariani’s loss of consortium claim was encompassed by the wrongful death claim asserted in the Peters action. On April 1, 2005, counsel in the Peters action wrote a letter to the district court requesting dismissal of the Mariani suit and substitution of Ransmeier as administrator in the Peters suit. On April 4, 2005, the district court dismissed the Mariani action with prejudice and substituted Ransmeier as administrator. Mariani did not appeal the dismissal. More than two years later, on September 17, 2007, the New York district court ordered the case brought by Mariani closed, noting in the Order that the Peters suit was brought on behalf of Louis Maria-ni’s estate. On the same day, the district court ordered the Peters action closed pursuant to a settlement agreement among the parties to the consolidated September 11th litigation. Shortly thereafter, counsel representing the September 11th plaintiffs wrote to the district court asking for clarification: “While none of the legal representatives of the fourteen estates seeks restoration to your trial calendar, I have been made aware of one beneficiary in the matter of Ransmeier v. United Airlines et al, 03 Civ. 6940(AKH) [the Peters suit] who may wish to seek relief from this Court’s Order. I would like to afford that *466beneficiary, if so desired and if that beneficiary has standing to do so, the opportunity to seek any relief before the court removes this matter from the trial docket.” The district court granted the enlargement counsel requested for this purpose.
On October 29, 2007, the district court denied an application by Bruce Leichty for pro hac vice status as counsel for Mariani, because, “[p]ursuant to [the] order of April 4, 2005, the person for whom the attorney seeks admission lacks legal status as a party.” On October 31, 2007, Mariani filed a motion “to intervene in and reopen Case No. 03 Civ 6940 [the Peters suit], or alternatively. reopen that case plus 01 Civ 11628 [the original Mariani suit].” In her motion, Mariani alleged she entered into the 2004 Probate Court agreement with Peters because she was advised to do so by her attorneys, but that she was unaware of its details, did not read it, and would not have signed it had she understood her own action would be dismissed. On November 5, 2007, the district court denied the motion to reopen and intervene, noting that Mariani’s counsel’s pro hac vice motion had been denied and stating that, “[a]s noted in ... Orders of April 4, 2005, and October 29, 2007, Ms. Mariani has no legal status in this action. The matters raised in Ms. Mariani’s motion must be raised before the probate court. This Court does not sit to review decisions of the probate court.” Mariani appealed.
Following briefing by the parties, the New Hampshire Supreme Court, on July 28, 2009, issued an unpublished order vacating a portion of a 2008 Probate Court’s order authorizing Ransmeier to settle all claims asserted in the Peters action. The New Hampshire Supreme Court held that an administrator has authority to settle a wrongful death case, but that the Air Transportation Safety and System Stabilization Act (“ATSSSA”), 49 U.S.C. § 40101 note et seq., provides a federal cause of action for damages from the September 11th airplane crashes premised upon the law of the state where the crash occurred — here, New York. The New Hampshire Supreme Court said that it could not rule on the applicability of New Hampshire law to Mariani’s loss of consortium claim, which she argues is individual to her and independent of the estate claims, because it is for the Southern District of New York to apply New York choice-of-law rules to determine what state’s law applies in determining the scope of the 2004 New Hampshire Probate Court agreement.1 The New Hampshire Supreme Court vacated the Probate Court order only to the extent it held that the administrator had the authority to settle the loss of consortium claim along with those claims indisputably under the estate’s control.
The December 1, 2004 Probate Court agreement between Mariani and Peters is clear, however. Mariani agreed that the neutral administrator would “take the necessary actions to dismiss with prejudice the lawsuit brought by Ellen Mariani against United Airlines, et al., now pending in the U.S. District Court for the Southern District of New York ... [No.] 01 Civ. 11628(AKH).” She also agreed that the administrator would pursue the Peters action in its entirety, and that she would “cooperate fully with the *467Estate’s counsel in pursuit of the New York [Peters] action.” Paragraph 53 of the Complaint in the Peters action, dated September 9, 2003, clearly indicates Peters’s intent to recover damages for loss of consortium on behalf of the beneficiaries of Louis Mariani’s estate. With these facts in mind, we cannot conclude that the district court abused its discretion in denying Mariani’s motion to reopen and for intervention and joinder. If Mariani would challenge the Probate Court agreement, she must do so in the Probate Court.
Accordingly, the district court’s order denying Appellant Mariani’s motion to reopen, intervene, or be joined as a plaintiff in interest is hereby AFFIRMED. Appel-lee’s motion under Federal Rule of Appellate Procedure 38 for a finding of frivolousness is DENIED. Any other outstanding motions are DENIED as moot.
. Curiously, while New Hampshire law appears to provide that an administrator can pursue a loss of consortium claim as part of a spouse's wrongful death action, subject to a $150,000 cap on the award, N.H.Rev.Stat. § 556:12(11); Tanner v. King, 102 N.H. 401, 157 A.2d 643 (1960), New York law does not allow loss of consortium claims as part of a wrongful death action in most cases, Liff v. Schildkrout, 49 N.Y.2d 622, 633, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980).
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JUDGMENT
PER CURIAM.
Upon consideration of the record from the United States District Court for the District of Columbia and the briefs and arguments of the parties, it is
ORDERED AND ADJUDGED that the judgment of the district court be affirmed.
Appellant Marcus Pinkney appeals his conviction and sentence. He requests that his case be remanded to the district court for an evidentiary hearing to determine whether his trial counsel was ineffective or, barring such claim, that his case be remanded for resentencing.
To prevail on a claim of ineffective assistance of counsel, Pinkney must show (1) that his counsel’s performance was deficient, i.e., the performance fell below an objective standard of reasonableness, and (2) that he suffered prejudice as a result of that deficient performance. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We find that Pinkney has failed to establish a prima facie case as to Strickland’s first prong, that his counsel’s performance was constitutionally deficient. Since the court need not “address both components of the inquiry if the defendant makes an insufficient showing on one,” id. at 697, 104 S.Ct. 2052, we need not reach Strickland’s second prong concerning prejudice. In the D.C. Circuit, when a defendant raises an ineffective assistance claim on appeal for the first time, our general practice is to remand for a factual hearing, unless the record conclusively shows that appellant is entitled to no relief. See United States v. Harris, 491 F.3d 440, 443 (D.C.Cir.2007). We conclude that the record below conclusively shows that Pinkney cannot prevail on his ineffectiveness claim. We also find *449that Pinkney is not entitled to a remand for resentencing as the district court did all that was necessary on sentencing.
We 'will therefore not disturb the findings of the district court.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed R.App. P. 41(b); D.C.Cir. R. 41.
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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
This lawsuit, filed ten years ago, arises out of a school assignment in which Antonio Peck and the rest of his kindergarten class were required to create posters, for display at an assembly, reflecting what they had learned in class about environmental conservation.
Antonio’s first poster consisted of religious imagery, featuring a bearded man in prayer and a sign reading “Prayer Changes Things.” Defendants required Antonio to redo his poster because it did not reflect what was taught in class, was (in the defendants’ estimation) not his own work, and potentially suggested that the school was teaching religion to kindergartners.
Antonio’s second poster showed, inter alia, two children engaged in recycling; on the lower left-hand corner of the poster was the same image of the bearded man at prayer. When defendants displayed this second poster at the assembly, the corner was folded over to conceal the picture of the bearded man.
Antonio, by and through his parents, sued under 42 U.S.C. § 1983, arguing that defendants violated the Establishment *479Clause and his rights to free speech, the free exercise of religion, and equal protection when they covered up the religious image on the second poster. Over the course of ten years, various claims and defendants have been dismissed; all that remains is a free speech claim for declaratory and injunctive relief1 against the Baldwinsville Central School District and Principal Robert Creme and Superintendent Theodore Gilkey in their official capacities.2
We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The Court requested that the parties submit supplemental letter-briefs on the issue of, inter alia, whether Amtonio has standing to bring his claim. Having studied those briefs, we conclude that he does not.
Constitutional standing requires that litigants raise an actual case or controversy before availing themselves of the federal courts. See City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). “Because the standing issue goes to this Court’s subject matter jurisdiction, it can be raised sua sponte.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco, 433 F.3d 181, 198 (2d Cir.2005).
“A plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir.1998) (citing Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660); see also Golden v. Zwickler, 394 U.S. 103, 109-10, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). To do so, the plaintiff “must demonstrate both a likelihood of future harm and the existence of an official policy or its equivalent.” Shain v. Ellison, 356 F.3d 211, 216 (2d Cir.2004) (emphasis in original); see also Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660.
In light of this precedent, we conclude that Antonio lacks standing for declaratory and prospective injunctive relief. See, e.g., Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660; Golden, 394 U.S. at 109-10, 89 S.Ct. 956; Shain, 356 F.3d at 216; Curtis v. City of New Haven, 726 F.2d 65, 68 (2d Cir.1984). He points to no policy or custom (or an equivalent) suggesting that any defendant regularly violates students’ free speech rights. See Shain, 356 F.3d at 216. Nor has he offered a reason to believe that he faces a “reasonable likelihood” of future harm. Id. at 215.
For these reasons, we hereby VACATE the judgment of district court and REMAND with instructions for the district court to DISMISS the complaint for lack of subject-matter jurisdiction.
. In his original complaint, Antonio also sought damages. In his brief to this Court, however, he asks for declaratory and injunc-tive relief only. He has therefore waived any claim for damages. See Norton v. Sam's Club, 145 F.3d 114, 117-18 (2d Cir.1998).
. Defendants Creme and Gilkey are no longer employed as principal and superintendent, respectively. Accordingly, pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Principal Mary R. Schilz and Superintendent Jeanne Dangle are automatically substituted as parties in their official capacities.
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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
Appellant Michael Ikelionwu appeals from his resentencing on March 3, 1994 by the Eastern District of New York (Nicker-son, J.). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Following a jury trial in 1992, Ikelionwu was convicted on seven counts of a criminal indictment, including Count 1, continuing criminal enterprise, 21 U.S.C. § 848(a) and Count 2, conspiring to import, possess, and distribute heroin, 21 U.S.C. §§ 841, 846. On September 18, 1992, Ikelionwu was sentenced to 360 months on each of these two counts, with the sentences to run concurrently. Ikelionwu appealed, and in April 1993 this Court affirmed the judgment; (2) affirmed most of the sentence; but (3) remanded for resentencing on Count 2, which was a lesser included offense of Count 1, such that only one sentence should have been imposed, not two. The district court vacated the sentence on Count 1, but left intact the sentence of 360 months imprisonment. At the direction of the district court, the clerk filed a notice of appeal on behalf of Ikelionwu.
In November 1994, Ikelionwu’s appeal was dismissed for failure to file a brief. Ikelionwu contends he missed the briefing deadline because the briefing schedule was sent to the wrong address, so he never received it. Ikelionwu filed numerous motions seeking to reinstate his appeal, and on January 16, 2008, this Court granted the motion, recalled the mandate and reinstated the appeal. On May 19, 2008, this Court ordered counsel be appointed.
On his counseled appeal, Ikelionwu argues that his due process rights were violated by the 15-year delay in his appeal from the judgment and sentence issued on September 3, 1993, and that his rights to contest his sentence have been prejudiced by this undue delay. He also seeks an order of this court stating he still has the ability to file a motion pursuant to 28 U.S.C. § 2255. Pro se, Ikelionwu argues his conviction should be overturned because (1) his indictment did not reference drug quantity in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (2) the district court did not require the jury to determine drug quantity, also in violation of Apprendi.
Ikelionwu’s counseled arguments are barred by the mandate rule, which prevents an appellant from relitigating issues that were waived, or that were decided by the appellate court on the first appeal, on an appeal from resentencing. United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir.2002). “The law of the case ordinarily *485prohibits a party, upon resentencing or an appeal from that resentencing, from raising issues that he or she waived by not litigating them at the time of the initial sentencing.” Quintieri, 806 F.3d at 1229. Here, on Ikelionwu’s first appeal, he challenged his conviction on multiple grounds, all of which were rejected by this court. The only grounds found to have any merit was the sentence on Count 2, which the government conceded needed to be vacated because the conspiracy charge was a lesser included offense of the continuing criminal enterprise charge, for which appellant was also convicted and for which he was also sentenced. The case was remanded “for the two counts to be combined and a single sentence imposed. Otherwise, we affirm.”
Our holding in Burrell v. United States, 467 F.3d 160 (2d Cir.2006), forecloses Ikel-ionwu’s argument that his judgment below is not yet final. In Burrell, this Court held that a remand to dismiss a conspiracy count that was a lesser included offense of continuing criminal enterprise was an unappealable ministerial act, making the conviction “final for purposes of direct review upon the denial of a petition for writ of certiorari or the expiration of time for filing such a petition.” Id. at 168. Here, the remand was narrow, “for the two counts to be combined and a single sentence imposed.” The district court originally imposed a sentence of 360 months each for the continuing criminal enterprise and the conspiracy counts, with the sentences to run concurrently; and imposed a term of supervised release of five years on each of the two counts to run consecutively. At resentencing, the district court let stand the term of 360 months, and adjusted the term of supervised release to five years, eliminating the terms that were to accompany the conspiracy count.
As the remand was ministerial, it could not have disturbed Ikelionwu’s conviction, meaning his conviction became final for the purposes of retroactive application, on remand from direct appeal, of new constitutional rules either when the Supreme Court denied his petition for a writ of certiorari or when his time for filing a certiorari petition expired. Moreover, Ik-elionwu’s arguments implicating Apprendi fail because Apprendi does not apply retroactively. Coleman v. United States, 329 F.3d 77, 90 (2d Cir.2003).
Finally, because Ikelionwu has not filed a petition pursuant to Section 2255, this Court cannot offer an advisory opinion as to the viability of such a filing.
We have examined the remainder of Ik-elionwu’s claims and find them without merit.
Accordingly, the judgment of the district court is hereby AFFIRMED.
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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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AMENDED SUMMARY ORDER
John Paul Hankins appeals from a judgment of the United States District Court for the Eastern District of New York (Hurley, J.). Hankins, a pastor at a United Methodist church, sued the New York Annual Conference of the United Methodist Church (the “conference”) under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (2006) (the “ADEA”), and the New York State Human Rights *491Law, N.Y. Executive Law § 290 et seq. (McKinney 2005) (“NYSHRL”), alleging that defendants’ policy requiring ministers over the age of seventy to retire violated those two statutes. The district court dismissed Hankins’ suit pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6); it concluded that under our earlier opinion in this case, Hankins v. Lyght, 441 F.3d 96, 103 (2d Cir.2006) (Hankins I), the Religious Freedom Restoration Act, 42 U.S.C.2000bb et seq. (2006), (“RFRA”) was the governing law, and that Hankins would not be able to show a compelling interest in applying the ADEA, as RFRA requires. We assume familiarity with the underlying facts and procedural history of this case, as well as the issues on appeal.
DISCUSSION
Hankins claims that the district court erred by dismissing on this basis. We review such dismissals de novo. Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir.2008). The Conference previously had argued that a ministerial exception to the ADEA existed which would preclude its application to Hankins, and the district court agreed. However, in Hankins I, we vacated that decision, held that RFRA is applicable to suits between private individuals (at least with regards to laws that the federal government may enforce), and remanded so that the district court could consider the applicability of RFRA.
On remand, the district court held that RFRA had displaced the ministerial exception, although the suit should still be dismissed under RFRA. Hankins v. N.Y. Annual Conf. of the United Methodist Church, 516 F.Supp.2d 225, 234-35 (E.D.N.Y.2007) (Hankins II). Subsequently, in Rweyemamu v. Cote, 520 F.3d 198, 207 (2d Cir.2008), we held that the First Amendment compelled the dismissal of a Title VII claim brought by an ordained Catholic priest because his termination was based on allegedly unsatisfactory performance of his religious duties. We also cited with approval Minker v. Balt. Annual Conf. of the United Methodist Church, 894 F.2d 1354, 1355-56 (D.C.Cir. 1990), which held that a constitutional exception to the ADEA existed in the case of a Methodist minister denied a pastorage, allegedly due to his age. The facts in this case parallel those in Rweyemamu and Minker: Hankins’ duties were that of an ordained United Methodist minister, and the basis for his mandatory retirement was a rule contained in the central governing document of the United Methodist Church. RFRA, of course, cannot displace a constitutionally-mandated rule. Accordingly, we hold that the constitutionally-based ministerial exception requires the dismissal of Hankins’ suit. See McNally Wellman Co. v. N.Y. State Elec. & Gas Corp., 63 F.3d 1188, 1194 (2d Cir.1995) (“We ... may affirm on any ground supported by the record.”).
We have reviewed Hankins’ remaining claims and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant William Weir appeals from a March 30, 2009, 2009 WL 899437, order of the United States District Court for the Western District of New York (Curtin, J.), granting the motion of Defendant-Appellee Guardian Life Insurance Company of America (“Guardian”) for summary judgment, and dismissing Weir’s claims seeking reformation of his Special Agreement of Agency (the “Retired Special Agent Agreement”) and his reinstatement as a Field Representative (“FR”) of Guardian.
Weir argues that the Retried Special Agent Agreement was the product of mutual mistake, in that a computer error attributable to Guardian caused the lapse of certain insurance policies from which Weir derived compensation as an FR. Weir asserts that, in order to mitigate this *493reduction in his income, he elected to terminate his FR Agreement, resign as an active representative, and enter into a Retired Special Agent Agreement with Alliance Advisory Group, Inc. (“Alliance”), a general agency of Guardian. When Weir subsequently learned of the error, he requested reinstatement as an active FR, but his request was denied. We assume the parties’ familiarity with the remaining facts in this case and the proceedings in the district court.
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Under New York law, “[f]or a party to be entitled to reformation of a contract on the ground of mutual mistake, the mutual mistake must be material, i.e., it must involve a fundamental assumption of the contract.” True v. True, 63 A.D.3d 1145, 882 N.Y.S.2d 261, 263 (2d Dep’t 2009). “Proof of the variance between the meeting of the minds and its expression in the writing must be clear.” Surlak v. Surlak, 95 A.D.2d 371, 466 N.Y.S.2d 461, 476 (2d Dep’t 1983) (citing George Backer Mgmt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 413 N.Y.S.2d 135, 385 N.E.2d 1062,1066 (1978)).
For substantially the same reasons as the district court, we find that summary judgment was appropriate. The Retired Special Agent Agreement expressly indicates that “Guardian ... is not a party to this Agreement except to the extent of its endorsement.” As the district court noted, because the agreement specifically indicates that Guardian is not a party, Weir cannot, as a matter of law, show that he and Guardian have “a real and existing agreement on particular terms and subsequently find themselves signatories to a writing that does not accurately reflect that agreement.” See Harris v. Uhlendorf, 24 N.Y.2d 463, 301 N.Y.S.2d 53, 248 N.E.2d 892, 894 (1969). The court was powerless to order reformation of an agreement between Weir and Alliance on the basis of any misunderstanding shared by Weir and Guardian, as Guardian was not a party to that agreement.
Weir’s effort to circumvent this fact by arguing that Guardian was an “agent” of both Weir and Alliance during the execution of the Retired Special Agent Agreement is unavailing. Relying upon Hadley v. Clabeau, 140 Misc.2d 994, 532 N.Y.S.2d 221 (Sup.Ct.1988), he continues to suggest on appeal that, like the attorney who represented both parties in that case’s real estate transaction, Guardian was responsible for a mistake imparted to both of the contracting parties, and relied upon by them in reaching their agreement. Given that Weir produced no evidence to suggest that Guardian actually functioned in this agency role, or that Guardian’s error affecting his future compensation in any way factored into the terms and conditions of the Retired Special Agent Agreement, the district court correctly granted summary judgment in Guardian’s favor.
We have considered all of Weir’s remaining arguments and determined them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
I. Background
Petitioner Sale Djoumassi, an alleged native and citizen of the Central African Republic, seeks review of an October 30, 2007, order of the Board of Immigration Appeals (“BIA”), affirming the immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”), and the IJ’s finding that his applications were frivolous. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
II. Discussion
When, as here, the BIA affirms the IJ’s adverse credibility finding, relying on aspects of the IJ’s decision and not rejecting any of the grounds for that decision, this court reviews both the BIA’s and IJ’s opinions. Guan, v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). More specifically, this court “review[s] the IJ’s decision including the portions not explicitly discussed by the BIA.” Id. We review the agency’s find*496ings of fact, including adverse credibility determinations, under the substantial evidence standard; they are treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also CoroviC v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
A. Adverse Credibility Determination
The agency’s adverse credibility determination is supported by substantial evidence. Djoumassi claimed that he feared persecution as a result of his family’s involvement in the Movement for the Liberation of the Central African People (“MLPC”). However, the IJ’s findings regarding Djoumassi’s lack of knowledge regarding the MLPC are supported by the record. Djoumassi could not explain why he had a membership booklet from 1996 when he did not join the MLPC until 1998, and he was unable to explain for what the party’s initials stood. See Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 157 (2d Cir.2006).
Given that Djoumassi testified that he grew up hearing his father speak about the MLPC and had attended party meetings, it was reasonable for the IJ to fail to credit his claim that he lacked information about the political party because of his lack of education. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Djoumassi’s allegation that there is no proof that the number “1996” on the booklet is a date is belied by the record. Indeed, Djoumassi submitted the document as an “Original MLPC Membership Card of 1996,” and testified that the card was issued in 1996. As we have previously held, when the IJ makes an adverse credibility determination “based on specific examples in the record of inconsistent statements ... about matters material to [the petitioner’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Id. at 79-80 (internal quotation marks omitted).
Djoumassi’s challenge to the IJ’s reliance on discrepancies between his testimony and the testimony of his witness, Sylain Yakizi, is without merit. The IJ determined that Djoumassi’s testimony was incredible because he had submitted false evidence through a witness affidavit and witness testimony. The IJ’s findings that Djoumassi and Yakizi did not know each other, and that Yakizi was providing false testimony on Djoumassi’s behalf, are supported by the record. The IJ relied on multiple inconsistencies in testimony regarding family relationships, who made the arrangements for Yakizi to meet Djoumassi, and how well the men’s families knew each other in the Central African Republic. See Yan v. Mukasey, 509 F.3d 63, 66-68 (2d Cir.2007) (per curiam).
Yakizi testified that he could not recall the date of Djoumassi’s arrival and that the date in his affidavit likely had been provided by Djoumassi. “[A] single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007). “The IJ may does not benefit from corroboration or authentication independent of the petitioner’s own credibility.” Id. (emphasis omitted).
Djoumassi argues that the IJ failed to cite specific incidents of evasiveness. However, because the adverse credibility determination is supported by overwhelming evidence, even absent the evasiveness finding, remand on this basis would be futile and is therefore not appropriate. Chen, 434 F.3d at 161 (“[A]n error does *497not require a remand if the remand would be pointless because it is clear that the agency would adhere to its prior decision in the absence of error.”).
B. Frivolousness Finding
The Immigration and Nationality Act provides that when “the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the [required] notice ..., the alien shall be permanently ineligible for any benefits.” 8 U.S.C. § 1158(d)(6). In making such a finding, the BIA requires:
(1) notice to the alien of the consequences of filing a frivolous application; (2) a specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) an indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.
Yang v. Gonzales, 496 F.3d 268, 275 (2d Cir.2007) (quoting In re Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A.2007)).
Djoumassi argues that the IJ did not sufficiently address the issue of frivolousness, as distinct from the issue of credibility. Although the Government contends that review of the frivolousness determination is barred because Djoumassi failed to exhaust the claim, we deem the claim exhausted because the BIA expressly addressed the determination. See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1993).
As we have observed, “ ‘a finding of frivolousness does not flow automatically from an adverse credibility determination.’ ” Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 113 (2d Cir.2006) (quoting Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir.2005)); see also Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1317 (11th Cir.2006) (“[A]n adverse credibility determination alone cannot support a finding of frivolousness.”). The BIA noted and confirmed this rule in Y-L-, 24 I. & N. Dec. at 156-57.
The IJ in this case rendered his decision in December 2005, well before Y-L- was issued in April of 2007, and thus did not have the benefit of “standards for deciding when an asylum application may be found to be frivolous” established by the BIA in that case. Id. at 151-52. Thus, although the IJ made specific findings to support the adverse credibility finding, we cannot conclude on the record before us that the IJ met all the requirements for a finding of frivolousness, as set out by Y-L-. The BIA’s decision, which was rendered shortly after Y-L-, affirmed the IJ’s frivolousness finding without any citation to Y-L- or to the standards it set forth.
C. One-Year Bar Finding and Abandonment of CAT Claim
Djoumassi contends that the IJ erred by finding that his asylum application was not filed within one year of his arrival in the United States as required under 8 U.S.C. § 1158(a)(2)(B). Because the IJ denied the asylum application on the merits, this issue is not properly before this court. See Gao v. BIA, 482 F.3d 122, 127 (2d Cir.2007) (holding that appellate review is confined “to the reasons given by the agency”). Additionally, we find that Djoumassi has abandoned any challenge to the agency’s denial of relief under the CAT by failing to address that claim in his brief 8 to this court. See Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005) (citing Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998)).
*498III. Conclusion
For the foregoing reasons, we DENY the petition for review with respect to the IJ’s adverse credibility ruling, we GRANT the petition for review with respect to the finding of frivolousness, and we VACATE that finding and REMAND the case to the BIA for further proceedings consistent with this order.
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SUMMARY ORDER
Miaohui Wang, a native and citizen of China, seeks review of a September 28, 2008 order of the BIA affirming the November 20, 2006 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Miaohui Wang, No. A097 485 054 (B.I.A. Sep. 23, 2008), aff'g No. A097 485 054 (Immig. Ct. N.Y. City Nov. 20, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both decisions — -or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The agency reasonably relied, in part, on the omission from Wang’s asylum application of any assertion that she was physically abused while being interrogated by police. Wang testified that she was physically assaulted by police, explaining that a female officer pinched her and that a male officer beat her and “put his hands inside [her] clothes.” When confronted with the omission of any such assertion from her asylum application, Wang explained that it was “embarrassing” and that she was ashamed to write it in her application. The IJ did not find Wang’s explanation convincing. Although “asylum applicants are not required to list every incident of persecution on their 1-589 statements,” Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), Wang’s omission of the only physical mistreatment she alleged was plainly substantial. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir.2006). Additionally, the IJ reasonably declined to credit her explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
The agency also relied on other discrepancies in the record. For example, while Wang testified that she did not know what became of her friend Yan Ni, who introduced her to Falun Gong, Wang stated in her asylum application that when the police questioned her about Ni, “[she] got to know that [her] friend was already arrested.” Similarly, while Wang testified *500that she had contact with only one Falun Gong practitioner in the United States, she stated in her application for asylum that she “met a lot of Falun Gong practitioners in China Town in the U.S.”2
The agency also properly noted that while Wang testified that her fiance, Bill, applied for a visa for her to come to the United States, she indicated in her application for asylum that she asked her “American friend,” Gary, to help her “get out of China as soon as possible.” Whether or not these inconsistencies are substantial, together they served to undermine Wang’s credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 401 (2d Cir.2006). Moreover, while Wang offered the agency explanations for these discrepancies, they were not so compelling that the agency erred in rejecting them. See Majidi, 430 F.3d at 80-81.
Ultimately, the agency’s adverse credibility determination was supported by substantial evidence. See Tu Lin, 446 F.3d at 401. Because Wang based her claims for asylum, withholding of removal, and CAT relief on the same factual predicate, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. While Wang argues dial this inconsistency was caused by a translation error, we decline to consider this unexhausted argument in the first instance where the agency never had the opportunity to consider it. See 8 U.S.C. § 1252(b)(4)(A); Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 n. 1, 122 (2d Cir. 2007).
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SUMMARY ORDER
Petitioner Jacqueline Del Carmen Fernandez, a national of the Dominican Republic, is a permanent resident who was found removable by an immigration judge by reason of having committed an aggravated felony. See 8 U.S.C. §§ 1101(a)(43)(B) & (U), 1227(a)(2)(A)(iii). Petitioner then filed an application for deferral of removal pursuant to the Convention Against Torture (“CAT”), which the immigration judge denied after an eviden-tiary hearing. The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal. Petitioner now asks this Court to review the BIA’s determination that she is not eligible for CAT relief because she did not show she is likely to be tortured by or with the acquiescence of an official of the government of the Dominican Republic. We assume the parties’ familiarity with the facts and procedural history of the case.
The government contends that we lack jurisdiction to review the petition because Petitioner does not raise a colorable constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(C) & (D). Although 8 U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction to review final orders of removal where the alien is removable by reason of having committed an aggravated felony, § 1252(a)(2)(D) restores our jurisdiction to review constitutional claims and questions of law. Questions of law “are not limited solely to matters of ‘statutory construction.’ ” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326 (2d Cir.2006). The immigration judge found that the evidence Petitioner submitted was factually accurate, but nonetheless held that it was insufficient as a matter of law to afford Fernandez CAT relief. The facts of this case are therefore not in dispute. Thus, the issue before us is whether the facts as established are legally sufficient to support CAT relief.
The IJ found, and the BIA agreed, that Petitioner did not “in any way establish[ ] that current government officials acting in an official capacity would be responsible for any abuse she would be subjected to.” As a result, Petitioner could not show, as required by the regulations implementing CAT, that she would more likely than not be subjected to torture upon returning to the Dominican Republic. See 8 C.F.R. § 1208.18; see also Singh v. U.S. Attorney Gen., 561 F.3d 1275, 1280 (11th Cir.2009) (per curiam). Petitioner is therefore ineligible for CAT relief as a matter of law.
Accordingly, the petition for review is hereby DENIED.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Plaintiff Ivan Davis claims that while he was incarcerated at the Berks County Prison, three correctional officers, defendants James Cooper, Frank Galonis, and Joi Franklin, used excessive force against him, unnecessarily and wantonly inflicting pain, constituting cruel and unusual punishment in violation of the Eighth Amendment. Davis also claims that Galonis and Franklin improperly failed to intervene to stop other guards from attacking him. During trial, at the close of Davis’s case in chief, the District Court granted Galonis’s and Franklin’s motions for judgment as a matter of law on the excessive force claims against them. The court submitted the remaining claims to the jury. The jury found for defendants on all of the claims.
On appeal, Davis challenges the District Court’s entry of judgment as a matter of law on his claims against Franklin,1 as well as its denial of Davis’s motion for a new trial on the ground that the court improperly instructed the jury regarding the elements of an excessive force claim. We will reverse the entry of judgment as a matter of law in favor of Franklin on the excessive force claim and remand for a new trial on that claim. However, we will affirm the denial of the motion for a new trial based on the challenge to the jury instructions.
I. Background
This case concerns an incident that occurred at the Berks County Prison on September 10, 2002. After Cooper found Davis using a pay phone without authorization, a physical altercation occurred. Although many of the details of the altercation are disputed, the parties agree that Davis bit Cooper’s arm. Davis claims that he did this in self-defense, after Cooper had slammed Davis’s head into a wall numerous times, punched him, and attempted to choke him. According to Davis, Galonis witnessed this incident but failed to intervene to stop Cooper’s actions. At some point, Cooper requested assistance from other officers. Davis was then handcuffed and escorted to a high-security cell in the Behavioral Adjustment Unit (“BAU”).
During the presentation at trial of his case in chief, Davis testified that after he had been moved to the BAU cell, Galonis and other correctional officers continued to beat him. Davis stated that Franklin watched this beating occur but did not intervene. Davis also testified that after the other guards had “finished kicking me and punching me,” Franklin “kicked me two times in my butt, and one time in my back.” App. 1 19a-120a. It is not clear from the evidence presented by Davis whether his handcuffs had been removed upon his arrival at the BAU cell.
Davis testified that the guards who were present in the BAU cell at that time said to him, “[Mjother fucker, this is going to happen to you for assaulting one of our officer [sic], every time you be in here, something is going to happen to you.” App. 120a. Davis’s testimony is unclear regarding whether Franklin herself made this statement. However, another prisoner, Angel Cotto, when asked if “Sergeant *642Franklin [said] anything,” gave the following testimony in a deposition (which was read at trial during Davis’s case in chief):
I believe she either told [Davis] to shut the fuck up. He was asking- — he was telling them to stop hitting him and they were telling him that this is what you get for fucking — Sergeant Crowley and Sergeant Franklin were telling him, this is what you get for fucking one of my officers.
App. 222a-223a. Later in that deposition, Cotto reiterated that he heard Franklin “telling [Davis] to shut the fuck up and telling him that that’s what he gets for fucking one of her officers.” App. 238a. Davis also testified that he sustained back pain (along with other injuries) as a result of the defendants’ actions, and that this back pain persisted to the time of trial, over five years later. App. 120a-121a.
After the conclusion of Davis’s case in chief, Franklin moved under Federal Rule of Civil Procedure 50(a) for entry of judgment as a matter of law on the excessive force claim. App. 255a-256a. Franklin argued that Davis had not established that Franklin caused “any harm or any damages” when she kicked him, and that “therefore ... there is no testimony that [the kicks] were excessive under the circumstances.” App. 256a. She also argued that kicking him amounted to a “minimum use of force.” Id.
The District Court granted Franklin’s motion, stating,
[T]he only evidence is that [Davis] was on the ground and that, in the plaintiffs words, [Franklin] administered two kicks on the butt and one on the back.
There is no evidence in the record of any harm. The plaintiff has testified as to his injuries and there really is no evidence of any harm caused by any kicking in the back or the buttocks of Mr. Davis.
I do not see any evidence of malice or a purpose to cause harm, and I do not think the evidence against Correction Officer Joi Franklin rises to the level of excessive force.
App. 260a. The District Court also granted Galonis’s motion for judgment as a matter of law on the excessive force claim.
The trial continued on the excessive force claim against Cooper and the failure-to-intervene claims against Franklin and Galonis. At the end of trial, the court’s jury instruction on the elements of excessive force claim included the following language:
I should tell you that Pennsylvania Law provides that a corrections officer may use force in self defense or to prevent an assault on staff or other prisoners.
So, the use of force is sanctioned and permitted by Pennsylvania Law. The issue here is whether there was excessive force, because it is excessive force that would constitute a constitutional violation.
To establish his claim for a violation of the 8th Amendment Mr. Davis must prove that the defendant used force against him maliciously for the purpose of causing harm rather than in a good faith effort to maintain or restore discipline.
App. 555a-556a. Davis had objected to the instruction regarding Pennsylvania’s self-defense law during the charging conference. App. 420a.
The jury found for Cooper on the excessive force claim, and for Galonis and Franklin on the failure-to-intervene claims. App. 588a.
Davis moved for a new trial under Rule 59(a) on the grounds that it was error to grant Galonis’s and Franklin’s motions for judgment as a matter of law and to pro*643vide the self-defense jury instruction regarding the excessive force claim. App. 590a-600a. The District Court denied the motion. With respect to Franklin’s motion for judgment as a matter of law, the court found that there was “no evidence of any harm or injury” as a result of Franklin’s actions, and that “there was no evidence of malice or a purpose to cause harm on the part of Officer Franklin.” App. 12a-13a. With respect to the self-defense instruction, the court held that it was proper to instruct the jury on a correctional officer’s right to use force in self-defense, especially when that instruction is considered in the context of the entire charge. App. 8a-10a. This timely appeal followed.
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291.
II. Judgment as a Matter of Law
Our review of a decision granting judgment as a matter of law is plenary. Buskirk v. Apollo Metals, 307 F.3d 160,165-66 (3d Cir.2002). A district court should grant a motion for judgment as a matter of law only if, “viewing the evidence in the light most favorable to the nonmovant and giving [him] the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993). We apply the same standard as the district court. Buskirk, 307 F.3d at 166.
Prison officials violate the Eighth Amendment when they apply force “maliciously and sadistically to cause harm,” rather than “in a good-faith effort to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). If a plaintiff establishes that a prison official acted with malice, he need not show that “significant injury” resulted from the official’s actions. Id. at 9, 112 S.Ct. 995; see also Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir.2000). However, “[t]he Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10, 112 S.Ct. 995 (citations and internal quotation marks omitted).
On appeal, Davis argues that the District Court erred by (1) finding that Franklin’s use of force against Davis was de minimis; (2) finding that Franklin had not acted with malice; (3) requiring Davis to show significant physical injury; and (4) finding that Franklin had not caused Davis any physical injury. In response, Franklin contends that Davis had offered insufficient evidence of his injuries and of Franklin’s state of mind. Franklin argues that Davis should have offered “testimony that he suffered bruising or other physical injury,” and should have called Franklin as a witness.
We conclude that a jury could have reasonably found, based on the evidence offered by Davis in his case in chief, that Franklin had used force that was not de minimis, that Franklin had acted with malice, and that the injury shown was sufficient to support a verdict in Davis’s favor. According to the testimony of Davis and Cotto, Franklin said that she was kicking Davis in retaliation for his assault on Cooper. Davis had already been moved by the guards to a more secure cell, in the BAU, and was no longer attacking the guards. It also appears from Davis’s testimony that he had been handcuffed before being moved to the BAU, and that the handcuffs had not yet been removed. This indicates that any threat to the prison’s staff and inmates *644had ended, and that there was no need for the further use of force by Franklin and the other guards. Also, Davis testified that he had sustained injuries to his back that had endured for over five years, further substantiating his claim that Franklin was using excessive force. Under Hudson, and when viewed in the light most favorable to Davis, this evidence was sufficient for the jury to have concluded that Franklin had acted maliciously and sadistically to cause harm, rather than to restore prison discipline. Although Franklin may have ultimately been able to convince the jury of her version of events, it was premature for the court to grant judgment as a matter of law on this record.
We also disagree with the District Court’s assessment of the record regarding Davis’s injuries and its statement that there was “no evidence in the record of any harm.” App. 260a. Davis had testified that “[his] back was in pain from the punching and the kicking,” and that his back “still hurt from the beating” at the time of trial. App. 120a-121a. Even if Davis had not offered this testimony, however, that would not have justified the dismissal of his claim. As we have previously commented, “the absence of significant resulting injury is not a per se reason for dismissing a claim based on alleged wanton and unnecessary use of force against a prisoner. Although the extent of an injury provides a means of assessing the legitimacy and scope of the force, the focus always remains on the force used (the blows).” Brooks, 204 F.3d at 109.2
III. Jury Instructions
When examining jury instructions, we exercise plenary review to determine whether the jury charge, taken as a whole, was capable of “confusing and thereby misleading the jury” as to the correct legal standard. Mosley v. Wilson, 102 F.3d 85, 94 (3d Cir.1996) (internal quotation marks and citation omitted).
Davis argues that the District Court’s instruction regarding Pennsylvania’s self-defense law “replaced well-established federal constitutional law under the Eighth Amendment with a state law standard.” This argument is unconvincing. The District Court followed its comment regarding self-defense with a lengthy, and accurate, description of the law regarding excessive force. When viewed in the context of the entire instruction, we therefore cannot conclude that the jury charge was error.
IV. Conclusion
For the reasons set forth above, we will REVERSE the entry of judgment as a matter of law in favor of Franklin on the Eighth Amendment claim and will REMAND for a new trial on that claim. However, we will AFFIRM the denial of the motion for a new trial on the ground that the jury instructions were erroneous.3
. Davis does not appeal the grant of Galonis’s motion for judgment as a matter of law.
. The District Court relied on our statement in Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir.2000), that "[t]he objective inquiry is whether the inmate’s injury was more than de minimis,” which was followed by a general cite to Hudson v. McMillian. This sentence in Fuentes was drawing a distinction between the subjective — purpose of force — and objective — harm caused by the force — and was not intended to limit Hudson's holding, which was much broader, as we discuss herein, and which, as we recognized in Brooks and again in Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), clearly controls.
. We will not disturb the jury verdict for Franklin and Galonis on Davis's failure to *645intervene claim or for Cooper on the excessive force claim.
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OPINION
SMITH, Circuit Judge.
In this employment discrimination action, we are asked to review the District *646Court’s grant of summary judgment against an employee after his employer denied his request for a transfer. The District Court held that the employee failed to make out a prima facie case of age discrimination and, in the alternative, that he failed to offer any evidence to discredit the employer’s non-discriminatory reason for its decision or to show that a discriminatory reason more likely motivated it. For the reasons that follow, we will affirm the judgment of the District Court.
I.
Appellee Allegheny Energy Services Corporation (“Allegheny”) provides power to residential and commercial customers in Ohio, West Virginia, Pennsylvania, Maryland, and Virginia. Appellant Barry Heil-man began his employment with Allegheny in 1973 at the age of 19. He progressed up the ranks and now works as a lead lineman at the Kittanning Service Center. He is a member of Local Union No. 102 of the Utility Workers Union of America and was at times relevant to this case over the age of 40.
On March 14, 2006, Allegheny posted two vacancies for weekend lead lineman positions at its Arnold Service Center. The positions came with a residency requirement: linemen and servicemen at the Arnold Service Center, just like all linemen and servicemen at Allegheny’s locations throughout Pennsylvania, had to live within a 30-minute drive of their service center. Because linemen and servicemen are often called out to remedy power outages, Allegheny requires them to live within this range to ensure a quick response when called.
Heilman resides, and at the time of his bidding resided, in Ford City, Pennsylvania. The Arnold Service Center is located in Arnold, Pennsylvania. Before he bid, Heilman did not time his commute, but he believed, based on his longtime familiarity with the area, that he lived within a 30-minute drive of the Arnold Service Center. Heilman and others bid for the positions, and he and Michael Wright, another lead lineman from Kittanning, were awarded the positions. Allegheny had no discretion in awarding the positions, as Heilman and Wright were the senior-most Union members bidding. Heilman began his new position with a 6-month probationary period, which, among other things, allows time for a lineman or serviceman to move his residence if he resides outside the 30-minute range.
The time of Heilman’s commute became an issue at a safety meeting held three to four months after he began at the Arnold Service Center.1 Two of his superiors, on two separate occasions, each tested the commute between Heilman’s residence and the Arnold Service Center. They clocked the commute at 54, 40, 34, and 33 minutes. The last was on a route suggested by Heilman. During this time, the Local 102 Vice President also tested the commute, and he clocked it at 38 minutes. Heilman was informed that he did not meet the residency requirement and that he would have to return to his lead lineman position at the Kittanning Service Center at the end of his probationary period. Wright, who met the residency requirement for the Arnold Service Center, was permitted to remain there.
Heilman filed this discrimination action pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., and the Pennsylvania Human Rights Act, 43 Pa. Cons.Stat. §§ 951, et seq. The District Court, having jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, granted sum*647mary judgment in Allegheny’s favor because it found that Heilman failed to prove a prima facie case of discrimination. Specifically, the District Court concluded that there was no genuine issue of material dispute and that Heilman was not qualified for the lead lineman position at the Arnold Service Center because his residence was more than 30 minutes away. In addition, assuming that Heilman was qualified, the District Court found that no genuine issue of material fact remained regarding Allegheny’s legitimate, non-discriminatory reason for transferring him back to Kittan-ning, namely, the residency requirement. Heilman timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.2
II.
We “exercise plenary review over the District Court’s grant of summary judgment and apply the same standard that the District Court should have applied.” Shuman ex rel Shertzer v. Penn Manor Sck. Dist., 422 F.3d 141, 146 (3d Cir.2005) (quotation omitted). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences from the evidence must be drawn in his favor. Conopco, Inc. v. United States, 572 F.3d 162, 165 (3d Cir.2009).
III.
Heilman has offered no direct evidence of discrimination. In an indirect evidence case, it has been our usual practice to analyze the claims under the framework set up by the Supreme Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007) (‘We have stated that ‘the ADA, ADEA, and Title VII all serve the same purpose .....Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well.’ ”) (quoting Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995)). We note that the Supreme “Court has not definitively decided whether the evidentiary framework of McDonnell Douglas ... utilized in Title VII cases is appropriate in the ADEA context.” Gross v. FBL Financial Services, Inc., 557 U.S. -, 129 S.Ct. 2343, 2349 n. 2, 174 L.Ed.2d 119 (2009). However, as it has been our practice to do so, and lacking direction from the Supreme Court, we will continue to apply the McDonnell Douglas regime. Thus, a plaintiff must first establish a prima facie case of discrimination. If a prima facie showing has been made, the defendant must shoulder a burden of production to articulate a legitimate, nondiscriminatory reason for the employment decision. Ultimately, the burden of persuasion always remains with the plaintiff to establish that the defendant’s reasons are pretextual and that the real reason for the decision was unlawful discrimination. Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir.2009) (citations omitted).
To establish a prima facie case of discrimination based on Allegheny’s transfer of Heilman back to Kittanning, he must demonstrate that he is over 40 years old, *648he is qualified for the position at the Arnold Service Center, he suffered an adverse employment action, and other similarly situated individuals were treated more favorably. Fasold v. Justice, 409 F.3d 178, 184-85 (3d Cir.2005). The District Court, after determining that the record established that Heilman was not qualified for the position, did not analyze the remaining elements of a prima facie case. Because we write only for the parties, and because we agree with the conclusion reached by the District Court, we likewise will not address the remaining elements.
Heilman strongly urges on us that, in the normal course, the issue of an employee’s qualification for a position should be resolved in the second and third stages of the McDonnell Douglas analysis. See Ezold, v. Wolf Block, Schorr and Solis-Cohen, 983 F.2d 509, 523 (3d Cir.1992). This will normally prevent putting “too onerous a burden on the plaintiff in establishing a prima facie case.” Id. Of course, Heilman is aware that “we have refused to adopt a blanket rule” to this effect. Id. (citation omitted). The District Court ruled that the there was no genuine issue of material fact regarding Heilman’s qualifications for a lead lineman position at the Arnold Service Center, and he was not so qualified because he did not meet the residency requirement. We see no error.
Heilman argues that the 30-minute requirement is not an objective requirement but depends on many variables such as the weather and the route taken. This is undoubtedly true, but in a counterintuitive way it works against him. Allegheny maintained a residency requirement for its Pennsylvania locations. This requirement was measured in minutes of driving and not, for example, miles. We will not supplant Allegheny’s construction of this requirement with our own. Allegheny is the employer and may apply its rales to its workers in any fashion it sees fit, save an unlawful one. After four separate time trials by Allegheny personnel, and a fifth by a Union representative, Allegheny concluded that Heilman lived outside the required range. The District Court’s ruling that Heilman lived outside the 30-minute range is supported by the record. Thus, Heilman was not qualified for the position and did not establish a prima facie case of discrimination.
Assuming, arguendo, that Heilman could establish a prima facie case, including that he is otherwise qualified for the position, Allegheny articulates Heilman’s failure to meet the residency requirement as its legitimate, non-discriminatory reason for its decision. Heilman raises several grounds to argue that this reason is pretext, all of which fail. First, Ryan Moore, who is younger than Heilman and lives more than 30 minutes from the Arnold Service Center, nevertheless has been allowed to remain stationed there. Moore, however, is a meter reader, not a lead lineman. Next, Keith King works at the Arnold Service Center as a lead lineman but lives more than 30 minutes away. King’s situation does not shed light on Allegheny’s motives because King moved there 10 years before and was given permission by a different supervisor. That is unlike Heilman, who was granted a transfer and given six months to relocate. Moreover, three other younger employees, Nick Randolph, Grant Pence, and Keith Melville, failed to meet the residency requirement and were prohibited from transferring to a service center unless they satisfied it.
Finally, Heilman argues that Allegheny has waived the 30-minute residency requirement for its employees in Mt. Airy, Maryland. Allegheny counters that the cost of living within 30 minutes of its service center there is prohibitively expensive *649for its Mt. Airy employees. We are not tasked with reviewing the reasonableness of Allegheny’s employment requirements. Ezold, 983 F.2d at 527 (citations omitted); cf. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988) (“No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, the ADEA does not interfere.”) (quotation and alteration omitted). Our only task is to decide if Heilman introduced enough evidence to get past summary judgment on his claim for discrimination. He did not.
To get past summary judgment, an employment discrimination plaintiff must either present enough evidence to cast sufficient doubt on the employer’s legitimate, non-discriminatory reason, and thereby create a genuine issue of material fact as to it, or offer sufficient evidence to create a genuine issue of material fact that discrimination was the real reason for the action taken. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). Heilman failed to introduce enough evidence to create a genuine issue of material fact on either front. Thus, judgment against him was appropriate, Fed.R.Civ.P. 56(c), and we will affirm the judgment of the District Court.3
. The content of this meeting is not apparent from the record.
. Heilman also included two claims for retaliation, under the ADEA and PHRA. The District Court entered judgment against him on these claims as well, but he does not appeal that decision.
. Judge Stapleton would assume, arguendo, the existence of a prima facie case and would hold that Heilman has not carried his burden of tendering evidence at the third stage of the McDonnell Douglas analysis.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the judgment of conviction and sentence.
Jennia Morrow, her brother Jerome Morrow and Henry Jones were charged with Conspiracy to Possess with Intent to Distribute Five Grams or More of Crack Cocaine, in violation of 21 U.S.C. § 846, and Possession with Intent to Distribute and Distribution of Five Grams or More of Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(iii). After a four-day trial, the jury found all of the defendants guilty. The District Court sentenced Jennia Morrow and Jones to 63 months imprisonment on both counts, running concurrently, with four years supervised release. The District Court sentenced Jerome Morrow to 360 months imprisonment, running concurrently with his state sentence, followed by eight years of supervised release. Jennia Morrow raises two issues.
Morrow asserts a Sixth Amendment violation. At trial, a jailhouse informant testified about a conversation that he had with Jerome Morrow. The testimony was the subject of a motion in limine, in which the government recognized that Jerome Morrow’s words to the informant arguably incriminated Jennia Morrow and Henry. The government stated at the pre-trial hearing that it had worked with the informant to steer him away from these potentially incriminating statements. However, at trial, Jerome Morrow’s counsel cross-examined the informant, asking him “Did you see any written materials with respect to [Jerome Morrow’s] case?” The informant answered “He showed me a piece of paper that said that — she gave him — she took two hundred bucks.” Jerome Morrow did not testify at trial.
Jennia Morrow argues that the informant’s statement incriminated her in the conspiracy, and claims that her inability to cross-exam Jerome Morrow resulted in a Sixth Amendment Confrontation Clause violation. We exercise plenary review. U.S. v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998).
The record provided ample evidence of Jennia Morrow’s participation in the conspiracy apart from the testimony at issue. Jennia Morrow admitted receiving the $200. Another informant also testified *651to this, independent from any reference to the transcript at issue. Therefore, we conclude that even if we were to find that the admission of this testimony was a Sixth Amendment violation, the error would be harmless.
Morrow’s second issue on appeal, regarding the jury instruction, is meritless. In accord with Spangler, the District Court properly instructed the jury to account for character evidence along with all other evidence. U.S. v. Spangler, 838 F.2d 85, 86 (3d Cir.1988). Morrow was not entitled to a jury instruction that character evidence alone was sufficient to create reasonable doubt.
For all of these reasons, we will affirm the judgment of conviction and sentence of the District Court.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Raymond Calvitti appeals orders of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint against Anthony & Sylvan Pools Corporation (“A & S”) and an affiliated trust and trustee. Because Calvitti entered into an unambiguous agreement releasing those parties from any claim, we will affirm.
1. Background
Calvitti served as the President of KDI Sylvan Pools, Inc. (“KDI”), the predecessor in interest to A & S.1 On April 12, 1993, KDI created a Supplemental Retirement Plan (the “Plan”) designed to “reward Raymond J. Calvitti ... for his loyal and continuous service to the Company by providing supplemental retirement benefits.” (App.31.) As part of the Plan, KDI created a trust (the “Trust”) and agreed to make periodic contributions to it. The Plan stated that when Calvitti reached the age of 65 and was no longer working for KDI, the Company would “pay him an amount equal to the fair market value of the assets in the Trust as of such date.” (App.32.)
Under the Plan, Calvitti’s benefits were to be paid from KDI’s assets, not the Trust.2 The Trust served only as a meas*653uring stick for the amount Calvitti was due under the Plan. The Trust Agreement further emphasized that Calvitti did not have any claim to, or interest in, the assets in the Trust.3
In October 1995, KDI terminated Calvit-ti for cause. The following month, Calvitti and KDI entered into an “Agreement and Release” (the “Agreement”) designed to resolve all issues and disputes between them and sever their relationship amicably. In the Agreement, KDI agreed to (1) waive all claims it had against Calvitti as a result of his misconduct;4 (2) pay Calvitti a lump sum of $33,333.33; (3) pay Calvitti $3,846.15 per week from October 30, 1995 to June 30, 1996 (roughly $134,000); and (4) pay Calvitti’s health insurance expenses through June 30,1996. (App.86-89.)
In return, Calvitti agreed to release KDI and its affiliated entities from any claims he may have had against them. The release provides as follows:
For and in consideration of the monies and Benefits paid to EMPLOYEE [Cal-vitti] by EMPLOYER [KDI], ... and for other good and valuable consideration, EMPLOYEE hereby waives, releases and forever discharges EMPLOYER ... and the Supplemental Retirement Plan of KDI Pools, Inc., their assigns, predecessors, successors, trustees, and affiliated entities ... from any and all claims, suits, debts, dues, accounts, ... contracts, ... agreements, promises, claims, ... or causes of action of any kind or nature whether in law or equity, ... including, but not limited to ... claims arising under ... the Employment Retirement Income Security Act of 1974 (ERISA) ... and any and all other claims arising under federal, state or local law ... whether known or unknown; provided, however that parties do not release each other from any claim of breach of the terms of this Agreement and Release.
(App. 87-88 (emphasis in original).) By its terms, the Agreement specifically released KDI and its successors and affiliated entities from claims brought under ERISA.
Another section of the Agreement stated that KDI would have no further obligation to make any additional contributions to the Trust.5 The Agreement also contained a *654provision advising Calvitti to consult an attorney, stating that he had been given 21 days to consider the Agreement, and giving him seven days to rescind the Agreement after signing it. (App.91.)
On August 2, 1996, after KDI had fully performed under the Agreement, Calvitti, who had not yet reached the age of 65, requested that KDI pay him the sums held in the Trust. KDI’s attorney responded simply that KDI had “determined to continue administration of the Plan according to its terms.” (App.59.) In 2007, Calvitti turned 65 and again requested the sums held in the Trust. Calvitti’s request was denied, and he filed suit in the United States District Court for the Eastern District of Pennsylvania, alleging violations of ERISA and various common law claims. The complaint was later amended to add the Trust and Trustee as defendants.
KDI filed a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Calvitti’s First Amended Complaint for failure to state a claim. In an order dated June 2, 2008, the District Court granted the motion, finding that Calvitti had unambiguously released all his claims — -including ERISA claims — against KDI. The Court noted that, in fighting dismissal of his complaint, Calvitti had limited his arguments to the interpretation of the Agreement and had not challenged whether the Agreement was entered into knowingly and voluntarily. The Court also held that Calvitti’s common law claims were preempted by ERISA.
On June 9, 2008, the Trust and Trustee filed a motion to dismiss, which the Court granted on June 24. Calvitti separately appealed the District Court’s orders dismissing his claims against KDI and the Trust and Trustee, and his appeals have been consolidated for disposition. On appeal, he argues that he did not relinquish his claims to the money held in the Trust.
II. Discussion6
We review de novo the District Court’s decision to grant a motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). In deciding a motion to dismiss under Rule 12(b)(6), a trial court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Id. at 233 (quotation omitted).
We apply federal law to the interpretation of contracts affecting ERISA benefits. Moráis v. Cent. Beverage Corp. Union Employees’ Supplemental Retirement Plan, 167 F.3d 709, 711 (1st Cir. 1999); see also Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104, 108 (3d Cir. 1994) (citation omitted) (“It is, of course, well settled that federal law governs issues relating to the validity of a release of a federal cause of action.”). That law includes the general contract principle that “an unambiguous agreement should be enforced according to its terms.” McDowell v. Phila. Housing Auth., 423 F.3d 233, 238 (3d Cir.2005). Whether an agreement is ambiguous is a question of law for the court to decide after considering whether, from an objective standpoint, the agreement is reasonably susceptible to at least two different interpretations. See id. In making that determination, the court should consider the language of the agree*655ment, the interpretations suggested by the parties, and the extrinsic evidence offered in support of each interpretation. Fin-horn v. Fleming Foods of Pa., Inc., 258 F.3d 192, 194-95 (3d Cir.2001). Although we consider extrinsic evidence to determine whether a contract is ambiguous, “[i]n no event may extrinsic evidence be employed to contradict explicit contract language or to drain an agreement’s text of all content save ink and paper.” Smart v. Gillette Co. Long Term Disability Plan, 70 F.3d 173, 180 (1st Cir.1995).
The contract language at issue is, again, as follows:
“EMPLOYEE [Calvitti] hereby waives, releases and forever discharges ... [KDI], ... the Supplemental Retirement Plan of [KDI], their assigns, predecessors, successors, trustees, and affiliated entities ... from any and all claims, suits, debts, dues, accounts, ... charges, complaints, damages, sums of money ... or causes of action of any kind ... including but not limited to ... claims arising under the Employee Retirement Income Security Act of 1974 (ERISA)....”
(App.87-88.)
Not surprisingly, the parties suggest very different meanings for the Agreement’s language. The Appellees contend that Calvitti waived all his claims against them, including claims brought under ERISA for proceeds from the Plan. Calvit-ti, on the other hand, asserts that the Agreement does not affect his right to the assets set out in the Plan. In support of his position, he observes that the Agreement also releases KDI from continuing to make payments into the Trust and maintains that such a release would be unnecessary if he no longer had a claim to the assets in the Trust.
He also avers that extrinsic evidence supports his reading of the Agreement. Calvitti alleges that after the effective date of the Agreement, KDI made an additional contribution to the Trust of a sum that had accrued before the Agreement was entered. He argues that KDI had no reason to make that contribution if he had released his interest in the Trust and the assets in the Trust had reverted back to KDI. Calvitti also contends that when he requested the assets in the Trust before turning 65, KDI responded with a letter stating that the Plan would continue to be administered according to its terms. He argues that if, under the Agreement, he had released his right to the assets in the Trust and they had reverted back to KDI, then KDI would have said so in its letter. Instead, Calvitti argues, KDI responded in a manner consistent with his claim that he did not release his right to the assets in the Trust.
Despite Calvitti’s attempts to add ambiguity, we conclude that the language of the Agreement clearly supports the interpretation advanced by KDI, the Trust, and the Trustee. Calvitti expressly released KDI, the Plan, and their affiliated entities, which includes the Trust and Trustee, from all claims, including specifically ERISA claims. The provision releasing KDI from its obligation to continue funding the Trust is simply the type of belt-and-suspenders provision that has become common in modern contracts and does not change the unambiguous nature of the release. Likewise, the extrinsic evidence presented by Calvitti does not infuse ambiguity into the clear language of the Agreement. KDI’s post-agreement contribution to the Trust was a single event, probably no more than a mistake but certainly not a course of performance. It does not call into question the clearly expressed release. Similarly, KDI’s letter stating that the Plan would continue to be administered according to its terms, while not a model of clarity, does not imply that *656Calvitti had any further interest in Plan proceeds or any interest at all in the Trust.
In language as plain as can be, both the Plan and Trust Agreement state that Cal-vitti never had any interest in, or right to, the assets in the Trust. His claims to Plan proceeds were against KDI, and he waived all his claims when he signed the Agreement.
III. Conclusion
Calvitti specifically waived any and all claims, including ERISA claims, against KDI, the Plan, and their affiliated entities. The Agreement cannot be reasonably interpreted otherwise. Accordingly, we will affirm the District Court’s orders dismissing Calvitti’s claims.
. For ease of reference, appellee A & S is referred to hereafter by the name of its predecessor in interest, KDI.
. Sections 15 and 16 of the Plan read as follows:
15. All benefits to be provided pursuant to this Plan are general, unfunded obligations *653of the Company. Neither Employee nor his beneficiary will have any interest in any specific asset of the Company as a result of this Plan.
16. Benefits under this Plan will be paid from the general assets of the Company. The assets of the Trust shall not, under any circumstances, be deemed to be an asset of this Plan, but at all times shall remain a part of the general assets of the Company, subject to claims of the Company's general creditors.
(App.34.)
.Section 1(d) of the Trust Agreement reads as follows: "... Plan participant and his benefi-ciaiy shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. All rights created under the Plan and this Trust Agreement shall be mere unsecured contractual rights of the Plan participant and his beneficiary against Company.. -(App.37.)
. Attachment 1 to the Agreement is a list of actions for which KDI might have had claims against Calvitti, including (1) defalcation of an amount in excess of $60,000; (2) awarding improper referral bonuses; (3) non-business related distribution of sports tickets paid for by KDI; (4) payment of non-business related dues, fees, and other country club expenses with KDI funds; (5) payment of non-business related expenses for golf trips, green fees, and dinners with KDI funds; (6) improper use of KDI employees, materials, and equipment for personal projects; and (7) improper use of KDI equipment and employees for the benefit of a related company. Presumably, the listed actions are also the reasons that Calvitti was fired.
. Subsection (5) of the Agreement states: "It is agreed that EMPLOYER shall have no obligation to make any additional contributions to the Trust established pursuant to the Sup*654plemental Retirement Plan of KDI Pools, Inc.” (App.87.)
. The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
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AMBRO, Circuit Judge,
dissenting.
This case asks a simple question: are the words of a release so certain that no confusion can exist as to their meaning, and ultimately the parties’ intent. My colleagues believe (along with the District Court) that the words of the release here are so clear that no reasonable person can confuse the intent of KDI and Calvitti.7 That belief is both plausible and well stated: Calvitti released KDI, the Plan and the “Trustees” of the Plan from all “claims, ... agreements, ... or causes of action” of any kind, including ERISA claims. But if that belief is so certain, why is it that the parties acted otherwise after the release was signed?
Words are the parties’ attempt to communicate their intent. If the intent of the Agreement and Release signed by Calvitti and KDI were to release the monies left in the Trust (approximately $275,000) as of the date of the release (October 30, 1995), it misfits reason that all actions by KDI within months after the release indicated its understanding that the monies in the Trust someday would be Calvitti’s. KDI made post-release an additional contribution to the Trust to complete its funding obligation under the Plan that existed before the release. This KDI did in the face of specific language in the release that absolved it of any “obligation to make any additional contributions to the Trust established pursuant to the [P]lan.” (App.87.) And again, in August 1996, Calvitti formally asked that the funds then in the Trust be given to him. KDI’s general counsel, the same person who signed the release on behalf of KDI less than a year earlier, responded that KDI had “determined to continue administration of the Plan according to its terms.” Street sense simply would expect a response by KDI to Calvit-ti that he released his rights to the Trust monies. Not only was there no such response, KDI appeared to have agreed then with what Calvitti asserts was the parties’ intent.
But my colleagues say the words of the release counter the post-release actions of the parties and the claims of Calvitti. “In language as plain as can be, both the Plan and Trust Agreement state that Calvitti never had any interest in, or right to, the assets in the Trust. His claim to Plan proceeds were against KDI, and he waived all his claims when he signed the [release].” Maj. Op. at 656. The implication is that no reasonable person could believe other than that Calvitti waived his rights to the monies remaining in the Trust.
But KDI was reasonable, and it acted otherwise. Calvitti did as well. There are thus before us competing meanings of the release. “To choose between ... competing meanings, we can consider extrinsic evidence of the parties’ understanding of [the release]. An important source of such evidence is the parties’ performance of the agreement,” as it “can ... demonstrate a *657latent ambiguity in the contract, which itself is a basis upon which to deny summary judgment.” Smith v. Hartford Ins. Group, 6 F.3d 131, 138-39 (3d Cir.1993) (citations omitted). Moreover,
[t]o decide whether a contract is ambiguous, we do not simply determine whether, from our point of view, the language is clear.... Before making a finding concerning the existence or absence of ambiguity, we consider the contract language, the meanings suggested by counsel, and the extrinsic evidence offered in support of each interpretation. Extrinsic evidence may include the structure of the contract, the bargaining history, and the conduct of the parties that reflects their understanding of the contract’s meaning.
Teamsters Indus. Employees Welfare Fund v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir.1993) (citations omitted). Accord Bethlehem Steel Corp. v. United States, 270 F.3d 135, 139 (3d Cir. 2001). If this is the case with respect to summary judgment, how much more so is it at the motion to dismiss stage.
In the end my colleagues may be right— these post-release acts may have been simply “mistake[s].” Maj. Op. at 655. My suspicion otherwise — strong as it is that sophisticated principals would not have acted against their self-interest so starkly, and so soon, after the release — may prove wrong. But my colleagues’ beliefs, and my skepticism, are irrelevant at the Rule 12(b)(6) stage. All that counts there are that we take Calvitti’s assertions of fact at face and determine whether, despite that, he cannot win as a matter of law. With the facts of our case, at the least this calls for discovery. None was had here. Without it, Calvitti’s statements stand, and there is nothing to counter them but the words of a release the meaning of which is disputed by the parties.
To conclude, I do not believe that the words of the release are so clear as some believe. Maybe the release was of all claims Calvitti may have to any assets in the Trust or perhaps it was simply an agreement that KDI need not make additional contributions to the Plan that would arise post-release (thus making sense out of the post-release additional contribution to the Trust of KDI’s obligation that arose pre-release). Perhaps this is some form of trust that prevents the Plan sponsor (KDI), absent its insolvency or the Trust’s termination by agreement, from holding back deemed Trust assets to its beneficiary (Calvitti). (KDI is not insolvent, and nothing in the release triggers Trust termination.) Perhaps KDI’s post-release conduct against its own interest is explainable. When these questions are weighed against the backdrop that (1) a release discharges claims that have arisen at the time of that release, and not future claims, see Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 56 n. 4 (3d Cir.2001), thus leaving the question of whether Calvitti’s claim for benefits accrued under ERISA prior to the release or when he reached age 65, and (2) even words clear at face are subject to evidence of the parties’ contrary intent, a ruling here for either party fails to fit Rule 12(b)(6).
I thus respectfully dissent and would remand this case to the District Court.
. Unless otherwise noted, terms defined by the majority are used here.
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ORDER
The petitioner having failed to file an appendix required by Federal Circuit Rule *74630(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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*489SUMMARY ORDER
Defendant-Appellant Michael Hanakis was convicted after a jury trial in the United States District Court for the Eastern District of New York (Gleeson, J.) of conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 1341 and 1349, and thirteen counts of mail fraud, in violation of 18 U.S.C. § 1341. He was sentenced to a below-Guidelines sentence of 192 months of incarceration, five years of supervised release, a $1400 special assessment, and $8 million in restitution.
Defendant-Appellant contends that the sentencing court erroneously applied enhancements for (1) “a misrepresentation or other fraudulent action during the course of a bankruptcy proceeding,” U.S.S.G. § 2Bl.l(b)(8)(B), (2) derivation of “more than $1,000,000 in gross receipts from one or more financial institutions as a result of the offense,” U.S.S.G. § 2Bl.l(b)(14)(A), and (3) being a leader or organizer of an extensive criminal activity, U.S.S.G. § 3Bl.l(a). He also argues that he should have been given a criminal history category of I, rather than II, because he claims he was not on probation when the offenses occurred, and that his overall sentence is unreasonable.
We review the sentence and the procedures employed in arriving at the sentence for reasonableness. United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). “The procedural inquiry focuses primarily on the sentencing court’s compliance with its statutory obligation to consider the factors detailed in 18 U.S.C. § 3553(a), while the substantive inquiry assesses the length of the sentence imposed in light of the[se] factors.” Id. (internal citations and quotation marks omitted). Contrary to Defendant-Appellant’s arguments, the record reflects that the district court properly considered the sentencing factors set forth in 18 U.S.C. § 3553(a). The district court also explicitly stated that it would have imposed the same non-Guidelines sentence regardless of the outcome of the parties’ disputes over the challenged enhancements and the criminal history determination. On this record, we can identify no abuse of discretion by the district court in imposing Defendant-Appellant’s sentence.
Accordingly, the order of the district court is hereby AFFIRMED.
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SUMMARY ORDER
I. Background
Petitioner Sale Djoumassi, an alleged native and citizen of the Central African Republic, seeks review of an October 30, 2007, order of the Board of Immigration Appeals (“BIA”), affirming the immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”), and the IJ’s finding that his applications were frivolous. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
II. Discussion
When, as here, the BIA affirms the IJ’s adverse credibility finding, relying on aspects of the IJ’s decision and not rejecting any of the grounds for that decision, this court reviews both the BIA’s and IJ’s opinions. Guan, v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). More specifically, this court “review[s] the IJ’s decision including the portions not explicitly discussed by the BIA.” Id. We review the agency’s find*496ings of fact, including adverse credibility determinations, under the substantial evidence standard; they are treated as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also CoroviC v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
A. Adverse Credibility Determination
The agency’s adverse credibility determination is supported by substantial evidence. Djoumassi claimed that he feared persecution as a result of his family’s involvement in the Movement for the Liberation of the Central African People (“MLPC”). However, the IJ’s findings regarding Djoumassi’s lack of knowledge regarding the MLPC are supported by the record. Djoumassi could not explain why he had a membership booklet from 1996 when he did not join the MLPC until 1998, and he was unable to explain for what the party’s initials stood. See Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 157 (2d Cir.2006).
Given that Djoumassi testified that he grew up hearing his father speak about the MLPC and had attended party meetings, it was reasonable for the IJ to fail to credit his claim that he lacked information about the political party because of his lack of education. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Djoumassi’s allegation that there is no proof that the number “1996” on the booklet is a date is belied by the record. Indeed, Djoumassi submitted the document as an “Original MLPC Membership Card of 1996,” and testified that the card was issued in 1996. As we have previously held, when the IJ makes an adverse credibility determination “based on specific examples in the record of inconsistent statements ... about matters material to [the petitioner’s] claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” Id. at 79-80 (internal quotation marks omitted).
Djoumassi’s challenge to the IJ’s reliance on discrepancies between his testimony and the testimony of his witness, Sylain Yakizi, is without merit. The IJ determined that Djoumassi’s testimony was incredible because he had submitted false evidence through a witness affidavit and witness testimony. The IJ’s findings that Djoumassi and Yakizi did not know each other, and that Yakizi was providing false testimony on Djoumassi’s behalf, are supported by the record. The IJ relied on multiple inconsistencies in testimony regarding family relationships, who made the arrangements for Yakizi to meet Djoumassi, and how well the men’s families knew each other in the Central African Republic. See Yan v. Mukasey, 509 F.3d 63, 66-68 (2d Cir.2007) (per curiam).
Yakizi testified that he could not recall the date of Djoumassi’s arrival and that the date in his affidavit likely had been provided by Djoumassi. “[A] single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007). “The IJ may does not benefit from corroboration or authentication independent of the petitioner’s own credibility.” Id. (emphasis omitted).
Djoumassi argues that the IJ failed to cite specific incidents of evasiveness. However, because the adverse credibility determination is supported by overwhelming evidence, even absent the evasiveness finding, remand on this basis would be futile and is therefore not appropriate. Chen, 434 F.3d at 161 (“[A]n error does *497not require a remand if the remand would be pointless because it is clear that the agency would adhere to its prior decision in the absence of error.”).
B. Frivolousness Finding
The Immigration and Nationality Act provides that when “the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the [required] notice ..., the alien shall be permanently ineligible for any benefits.” 8 U.S.C. § 1158(d)(6). In making such a finding, the BIA requires:
(1) notice to the alien of the consequences of filing a frivolous application; (2) a specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) an indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.
Yang v. Gonzales, 496 F.3d 268, 275 (2d Cir.2007) (quoting In re Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A.2007)).
Djoumassi argues that the IJ did not sufficiently address the issue of frivolousness, as distinct from the issue of credibility. Although the Government contends that review of the frivolousness determination is barred because Djoumassi failed to exhaust the claim, we deem the claim exhausted because the BIA expressly addressed the determination. See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1993).
As we have observed, “ ‘a finding of frivolousness does not flow automatically from an adverse credibility determination.’ ” Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 113 (2d Cir.2006) (quoting Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir.2005)); see also Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1317 (11th Cir.2006) (“[A]n adverse credibility determination alone cannot support a finding of frivolousness.”). The BIA noted and confirmed this rule in Y-L-, 24 I. & N. Dec. at 156-57.
The IJ in this case rendered his decision in December 2005, well before Y-L- was issued in April of 2007, and thus did not have the benefit of “standards for deciding when an asylum application may be found to be frivolous” established by the BIA in that case. Id. at 151-52. Thus, although the IJ made specific findings to support the adverse credibility finding, we cannot conclude on the record before us that the IJ met all the requirements for a finding of frivolousness, as set out by Y-L-. The BIA’s decision, which was rendered shortly after Y-L-, affirmed the IJ’s frivolousness finding without any citation to Y-L- or to the standards it set forth.
C. One-Year Bar Finding and Abandonment of CAT Claim
Djoumassi contends that the IJ erred by finding that his asylum application was not filed within one year of his arrival in the United States as required under 8 U.S.C. § 1158(a)(2)(B). Because the IJ denied the asylum application on the merits, this issue is not properly before this court. See Gao v. BIA, 482 F.3d 122, 127 (2d Cir.2007) (holding that appellate review is confined “to the reasons given by the agency”). Additionally, we find that Djoumassi has abandoned any challenge to the agency’s denial of relief under the CAT by failing to address that claim in his brief 8 to this court. See Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005) (citing Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998)).
*498III. Conclusion
For the foregoing reasons, we DENY the petition for review with respect to the IJ’s adverse credibility ruling, we GRANT the petition for review with respect to the finding of frivolousness, and we VACATE that finding and REMAND the case to the BIA for further proceedings consistent with this order.
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SUMMARY ORDER
Miaohui Wang, a native and citizen of China, seeks review of a September 28, 2008 order of the BIA affirming the November 20, 2006 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Miaohui Wang, No. A097 485 054 (B.I.A. Sep. 23, 2008), aff'g No. A097 485 054 (Immig. Ct. N.Y. City Nov. 20, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both decisions — -or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. The agency reasonably relied, in part, on the omission from Wang’s asylum application of any assertion that she was physically abused while being interrogated by police. Wang testified that she was physically assaulted by police, explaining that a female officer pinched her and that a male officer beat her and “put his hands inside [her] clothes.” When confronted with the omission of any such assertion from her asylum application, Wang explained that it was “embarrassing” and that she was ashamed to write it in her application. The IJ did not find Wang’s explanation convincing. Although “asylum applicants are not required to list every incident of persecution on their 1-589 statements,” Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), Wang’s omission of the only physical mistreatment she alleged was plainly substantial. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir.2006). Additionally, the IJ reasonably declined to credit her explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
The agency also relied on other discrepancies in the record. For example, while Wang testified that she did not know what became of her friend Yan Ni, who introduced her to Falun Gong, Wang stated in her asylum application that when the police questioned her about Ni, “[she] got to know that [her] friend was already arrested.” Similarly, while Wang testified *500that she had contact with only one Falun Gong practitioner in the United States, she stated in her application for asylum that she “met a lot of Falun Gong practitioners in China Town in the U.S.”2
The agency also properly noted that while Wang testified that her fiance, Bill, applied for a visa for her to come to the United States, she indicated in her application for asylum that she asked her “American friend,” Gary, to help her “get out of China as soon as possible.” Whether or not these inconsistencies are substantial, together they served to undermine Wang’s credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 401 (2d Cir.2006). Moreover, while Wang offered the agency explanations for these discrepancies, they were not so compelling that the agency erred in rejecting them. See Majidi, 430 F.3d at 80-81.
Ultimately, the agency’s adverse credibility determination was supported by substantial evidence. See Tu Lin, 446 F.3d at 401. Because Wang based her claims for asylum, withholding of removal, and CAT relief on the same factual predicate, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. While Wang argues dial this inconsistency was caused by a translation error, we decline to consider this unexhausted argument in the first instance where the agency never had the opportunity to consider it. See 8 U.S.C. § 1252(b)(4)(A); Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 107 n. 1, 122 (2d Cir. 2007).
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SUMMARY ORDER
Petitioner Jacqueline Del Carmen Fernandez, a national of the Dominican Republic, is a permanent resident who was found removable by an immigration judge by reason of having committed an aggravated felony. See 8 U.S.C. §§ 1101(a)(43)(B) & (U), 1227(a)(2)(A)(iii). Petitioner then filed an application for deferral of removal pursuant to the Convention Against Torture (“CAT”), which the immigration judge denied after an eviden-tiary hearing. The Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal. Petitioner now asks this Court to review the BIA’s determination that she is not eligible for CAT relief because she did not show she is likely to be tortured by or with the acquiescence of an official of the government of the Dominican Republic. We assume the parties’ familiarity with the facts and procedural history of the case.
The government contends that we lack jurisdiction to review the petition because Petitioner does not raise a colorable constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(C) & (D). Although 8 U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction to review final orders of removal where the alien is removable by reason of having committed an aggravated felony, § 1252(a)(2)(D) restores our jurisdiction to review constitutional claims and questions of law. Questions of law “are not limited solely to matters of ‘statutory construction.’ ” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326 (2d Cir.2006). The immigration judge found that the evidence Petitioner submitted was factually accurate, but nonetheless held that it was insufficient as a matter of law to afford Fernandez CAT relief. The facts of this case are therefore not in dispute. Thus, the issue before us is whether the facts as established are legally sufficient to support CAT relief.
The IJ found, and the BIA agreed, that Petitioner did not “in any way establish[ ] that current government officials acting in an official capacity would be responsible for any abuse she would be subjected to.” As a result, Petitioner could not show, as required by the regulations implementing CAT, that she would more likely than not be subjected to torture upon returning to the Dominican Republic. See 8 C.F.R. § 1208.18; see also Singh v. U.S. Attorney Gen., 561 F.3d 1275, 1280 (11th Cir.2009) (per curiam). Petitioner is therefore ineligible for CAT relief as a matter of law.
Accordingly, the petition for review is hereby DENIED.
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SUMMARY ORDER
Defendant-Appellant Michael J. Von-dette was convicted after a jury trial in the United States District Court for the Eastern District of New York (Platt, J.) of conspiring to distribute hashish, marijuana, and methaqualone and conspiring to launder money. He was sentenced to 480 months of incarceration, five years of supervised release, a $25,000 fine, a $200 special assessment, and forfeiture in excess of $2 million.
*503This Court affirmed on appeal Defendant-Appellant’s conviction and sentence, 83 Fed.Appx. 394 (2d Cir.2003) (unpublished summary order), and the forfeiture order, 352 F.3d 772 (2d Cir.2003), but the United States Supreme Court remanded for reconsideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Vondette v. United States, 543 U.S. 1108, 125 S.Ct. 1010, 160 L.Ed.2d 1035 (2005). The district court declined to resentence Defendant-Appellant upon remand from this Court pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005). United States v. Vondette, No. 97-CR-1010 (TCP), 2007 WL 1120432 (E.D.N.Y. Apr.13, 2007). Defendant-Appellant now appeals this latest order. We assume the parties’ familiarity with the facts and procedural history of the case.
When considering an appeal from a denial to resentence after a Crosby remand, we “review for reasonableness both the procedure whereby the District Court decided not to resentence and the substance of the undisturbed sentence.” United States v. Williams, 475 F.3d 468, 471 (2d Cir.2007). However, “the law of the case doctrine forecloses reconsideration of issues that were decided — or that could have been decided — during prior proceedings.” Id.
We are not convinced that the sentence imposed was unreasonable. The record reflects that the district court considered the sentencing factors set forth in 18 U.S.C. § 3553(a) during the original sentencing proceeding, and the district court explicitly stated on remand that it “would not give Vondette a non-trivially different sentence under the post-Booker regime.” See Williams, 475 F.3d at 475; Crosby, 397 F.3d at 118. Defendant-Appellant was not entitled to full resentencing on remand because he did not preserve his objection to the mandatory nature of the Sentencing Guidelines. See United States v. Fagans, 406 F.3d 138, 140 (2d Cir.2005); United States v. Fuller, 426 F.3d 556, 561 (2d Cir.2005). His remaining arguments are foreclosed by the law of the case.
Accordingly, the order of the district court declining to resentence Defendant-Appellant and denying Defendant-Appellant’s motions to vacate the judgment of conviction, dismiss the indictment, and vacate the judgment of forfeiture is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Wilda Rios, pro se, appeals from the judgment of the United States District Court for the Eastern District of New York (Ross, J.), granting summary judgment in favor of the defendant and dismissing Appellant’s complaint brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq. (“ADA”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
Claims alleging discriminatory discharge under the ADA are analyzed under the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hey-*505man v. Queens Vill. Comm, for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.1999). Accordingly, if a plaintiff alleges a prima facie case of discrimination and the employer demonstrates a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence sufficient to permit a rational jury to conclude that the employer’s explanation is merely a pretext for impermissible discrimination. Id. To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) her employer is subject to the ADA; (2) she is disabled within the meaning of the ADA; (3) she is otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; and (4) she suffered an adverse employment action because of her disability. Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004).
Here, the district court properly found that Appellant could not establish a prima facie case of discrimination as she was unable to demonstrate that she was “otherwise qualified” within the meaning of the ADA because she could not perform the “essential function” of regularly showing up to work. See Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 120-21 (2d Cir.2004) (distinguishing between an employee’s fundamental duties and those that are merely marginal). The evidence demonstrates that Appellant repeatedly failed to show up to work on time or at all for a variety of reasons, many of which were unrelated to her claimed disability. The Department of Education’s (“DOE”) Rules and Regulations, as well as the measures DOE took to rectify Appellant’s excessive absences, including disciplinary charges and suspension, indicate that DOE considered attendance and punctuality to be “essential functions” of the job. See 42 U.S.C. § 12111(8).
The McDonnell Douglas burden shifting analysis also applies to retaliation claims brought pursuant to the ADA. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). To establish a prima facie case of retaliation under the ADA, a plaintiff is required to show by a preponderance of the evidence that: (1) she participated in a protected activity under the ADA; (2) the defendant knew of the protected activity; (3) the plaintiff experienced an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Id.
Here, the district court properly found that Appellant had failed to state a prima facie retaliation claim with respect to her disciplinary charges and suspension as both occurred prior to her City Commission on Human Rights (“CCHR”) complaints. Furthermore, even assuming that the proximity in time between Appellant’s filing of a complaint before the CCHR and her suspension satisfies her prima facie case of retaliation, she does not provide any evidence that DOE’s explanation that it suspended and ultimately terminated Appellant on account of her absenteeism and tardiness was pretextual.
We have considered all of Appellant’s remaining arguments on appeal and find them to be without merit, substantially for the reasons stated by the district court.
Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Plaintiffs Mark R. Ferran and Nadia Ferran, pro se, appeal the May 13, 2008, 552 F.Supp.2d 344, judgment of the United States District Court for the Northern District of New York (Hurd, /.), which dismissed their complaint and closed the action. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
On March 4, 2005, the district court: (1) dismissed, on immunity grounds, plaintiffs *509claims under 42 U.S.C. § 1983 against four defendants, and (2) conditionally dismissed plaintiffs’ claims against the fifth defendant, Rensselaer County, subject to reinstatement of those claims upon the filing of an amended complaint within thirty days of the order. Plaintiffs did not amend their pleading within that time frame, and, on May 6, 2005, the court dismissed their remaining claims, sua sponte, pursuant to Federal Rule of Civil Procedure Rule 41(b).
This matter initially came before us on an appeal of the judgment resulting from the May 2005 dismissal. On January 15, 2008, we vacated that judgment and remanded with instructions to the district court to explain its decision with reference to the five factors bearing on a court’s exercise of discretion under Rule 41(b), which we discussed in Jackson v. City of New York, 22 F.3d 71, 74 (2d Cir.1994). See Ferran v. Office of Disk Attorney, 260 Fed.Appx. 365, 366 (2d Cir.2008) (summary order).
In response to our decision, the district court analyzed its decision under the Jackson factors and reached the same conclusion. See Ferran v. Office of Disk Attorney, 552 F.Supp.2d 344, 346-48 (N.D.N.Y. 2008). Now that the district court has articulated its reasoning, we review its dismissal for failure to prosecute for abuse of discretion. See, e.g., Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir.2009). “We identify abuse of discretion when a district court’s challenged decision rests ‘on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding,’ or when its ruling ‘cannot be located within the range of permissible decisions.’ ” Id. (quoting Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir.2004)).
The district court’s reliance on Rule 41(b) under these circumstances constituted a legal error sufficient to warrant vaca-tur. If, in the district court’s view, the allegations in the operative pleading were deficient, then the proper analysis was to be performed under Rules 8(a), 10, and 12(b)(6), rather than Rule 41(b). Moreover, “it was error for the District Court to issue specific instructions mandating the content and format of the putative amended complaint.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,191 (2d Cir.2008); see also Wynder, 360 F.3d at 77-78. Accordingly, we vacate the district court’s May 13, 2008 judgment, and remand for further proceedings.
On remand, upon a motion pursuant to Rule 12(b)(6), the district court may undertake an assessment of the complaint under the standards articulated by the Supreme Court in Ashcroft v. Iqbal, — U.S.-, ---, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). In doing so, the district court is, of course, obligated to be mindful of plaintiffs’ pro se status when analyzing the legal sufficiency of their factual allegations. See, e.g., Sealed Plaintiff, 537 F.3d at 191. The district court may also entertain — but need not invite — a motion by plaintiffs for leave to amend their complaint, and the court possesses broad discretion to determine whether such leave is appropriate pursuant to Rule 15(a). See Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir.2009) (per curiam); see also McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007) (noting that district courts may “deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party”).
For the foregoing reasons, the judgment of the district court is hereby VACATED, and the case is REMANDED for further proceedings consistent with this Summary Order.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Wayne Dreibelbis, Jr., appeals from the District Court’s denial of his motion for reconsideration of its decision granting the Defendants’ motion for summary judgment on Dreibelbis’ claims for monetary damages for alleged violations of his First and Fourteenth Amendment rights. For the following reasons, we will affirm the District Court.1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Dreibelbis’ estranged wife has custody of their child and he has been granted visitation that — at the order of the state judge overseeing the divorce and custody dispute — must be arranged and supervised by Centre County Children and Youth Services (“CYS”). Defendants Young and Watson are both employees of CYS. Dreibelbis contends that CYS denied him court-ordered visits with his daughter over a two-year period, in violation of his First and Fourteenth Amendment rights. In response, the Defendants assert that they made efforts to arrange visits, but Dreibelbis demanded that he be allowed to videotape the visits and refused to proceed when he was not permitted to do so.
In a videotape filmed during the first scheduled visitation at the CYS office, Dreibelbis stated that he would not go *713forward with the visitation unless he could •videotape it. After making efforts to reschedule, CYS received a letter from Drei-belbis dated November 30, 2005, in which he argued that CYS should change its hours of operation to allow visitation on weekends and stated that his attorney would be contacting the court to make arrangements for changes to the visitation order. According to CYS, it was subsequently under the impression that Dreibel-bis would be litigating the videotape and expert issue before the state court judge. On December 5, 2005, Young informed the state judge that CYS would wait to hear from the court.
Dreibelbis filed this action in federal court on October 19, 2006, seeking an injunction ordering CYS to arrange visitation as well as monetary damages. The request for an injunction was denied on the basis of Younger abstention and this decision is not appealed. Four months after filing his action in federal court, Dreibelbis filed a petition in state court to modify the custody order. The request for modification was denied on July 6, 2007. The state court judge found Dreibelbis was responsible for the lack of visitation due to his insistence on videotaping, which the judge declared would be “unhealthy,” and that CYS was willing to conduct visits, just not with the conditions desired by Dreibel-bis.
The District Court, in deciding the motion for summary judgment, concluded that — given the state court’s ruling — the Rooker-Feldman doctrine barred Plaintiffs claims. Although the state court judge’s July 6, 2007 decision was entered after Dreibelbis filed his federal court action, the District Court found that to succeed in his federal action Dreibelbis would need to challenge the validity of the state court’s decision — that CYS and its employees had properly followed the state court judge’s October 25, 2005 visitation order. Even assuming that it did possess jurisdiction, the District Court’s December 10, 2007 decision held that Defendants were entitled to summary judgment on multiple grounds.2 The District Court found that Dreibelbis’ own letters to CYS and the videotape of his initial visit to CYS’ office confirmed that he refused to participate in visits that were not videotaped or monitored by an expert who could diagnose Parental Alienation Syndrome, which he believed his daughter might be experiencing.
II.
This appeal raises a number of issues, including: (1) did the District Court properly determine that Rooker-Feldman barred Dreibelbis’ claims; (2) did the court properly dismiss all Monell claims against CYS; (3) did Dreibelbis provide evidence showing a deprivation of his constitutional rights; (4) did the District Court properly determine that Young and Watson enjoy absolute immunity as agents of the state court; and (5) did Defendants enjoy qualified immunity to the extent they acted in accord with the state judge’s directions? We need not address all these issues in order to affirm.
The District Court concluded that, in light of the Rooker-Feldman doctrine, it lacked jurisdiction to hear Plaintiffs claims. Rooker-Feldman precludes lower federal courts from hearing claims that were actually litigated in state court or are *714“inextricably intertwined” with adjudication in a state court. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir.2006). In a recent discussion of the doctrine, which derives from two Supreme Court cases, the Court declared that “neither Rooker nor Feldman supports the notion that properly invoked concurrent jurisdiction vanishes if a state court reaches judgment on the same or related question while the case remains sub judice in a federal court.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Since Plaintiff filed his federal case before the state court judgment was entered, the Rooker-Feldman doctrine does not bar jurisdiction.
Nonetheless, as Exxon Mobil also noted, preclusion law still governs disposition of the federal action. Id. at 293, 125 S.Ct. 1517 (“The Full Faith and Credit Act, 28 U.S.C. § 1738, originally enacted in 1790, ch. 11, 1 Stat. 122, requires the federal court to ‘give the same preclusive effect to a state-court judgment as another court of that State would give.’ ” (citing Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986))). The state court determined that CYS’ actions properly conformed with the court’s order and that Dreibelbis was responsible for the lack of visitation due to his insistence on videotaping. These determinations have preclusive effect.
We therefore agree with the District Court’s decision that Dreibelbis cannot satisfy the first element of a claim under 42 U.S.C. § 1983, a violation of a right protected by the Constitution or laws of the United States. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000). Moreover, our independent review of the record leaves no doubt that the state court correctly determined that Dreibelbis was responsible for the lack of visits with his daughter and that he therefore cannot show that his First and Fourteenth Amendment rights were violated.
Having found that Dreibelbis is unable to establish a violation of his federal rights, we need not reach the other issues raised in his appeal. For the foregoing reasons, we will affirm the District Court.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. We exercise plenary review over a district court's summary judgment ruling. Twp. of Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007). Although Dreibelbis appeals from the June 30, 2008 order denying his motion for reconsideration, we apply the standard of review proper to the underlying judgment. See McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992).
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Billie Jo Gilroy appeals from a summary judgment entered in favor of the Commissioner in this Social Security disability case. Because we write only for the benefit of the parties, we assume familiarity with the facts and the proceedings in the District Court. We will affirm.
I.
The record before the ALJ contained reports from a treating psychiatrist, Dr. Wang. One of those reports, dated February 23, 2006, includes a Global Assessment of Functioning (“GAF”) score of 45. Gilroy insists that the ALJ erred by failing to “explain why he was rejecting [that score] or how he thought it could be reconciled with his own conclusions.” Appellant’s Br. at 10.
As Gilroy correctly points out, Dr. Wang’s report “did not express any opinions regarding specific limitations” that Gilroy had. Appellant’s Br. at 14. It did, however, report a GAF score of 45. A GAF score of 41 to 50 indicates that in the opinion of the evaluator the patient has:
Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).
Diagnostic and Statistical Manual of Mental Disorders, TR at 34 (boldface in original). A GAF score does not have a direct correlation to the severity requirements of the Social Security mental disorder listings, 66 Fed.Reg. 50764-5 (2000), and a GAF score of 45, if credited, would not require a finding of disability. In the con*716text of his report, Dr. Wang’s GAF 45 rating is fairly understood to convey that he believed Gilroy had a serious impairment in social or occupational functioning. This belief is not further explained, however.
The ALJ concluded that Gilroy had not been under a disability within the meaning of the Social Security Act from June 15, 2003, through April 11, 2007, the date of his decision. His opinion summarizes the evidence in the context of the five-step analysis required by the regulations. It found that the claimant had the following medically ascertainable “severe” impairments: bipolar disorder, major depression disorder, and post-traumatic stress disorder. With appropriate explanations, it further concluded that the claimant had “moderate” limitations with respect to maintaining social functioning and with respect to maintaining concentration, persistence and pace at work-related tasks. With respect to Gilroy’s overall residual functional capacity, the ALJ ultimately concluded as follows:
I find that the claimant does not have any exertional limitations. She retains the ability to perform simple, routine, repetitive tasks and make simple decisions. Her social anxiety limits her ability to interact with supervisors and coworkers and precludes interaction with the public. Additional limitations are not well supported by the totality of evidence.
App. at 31a.
The ALJ’s opinion clearly reflects substantial evidence supporting this conclusion and adequately explains why the evidence relied upon by Gilroy did not persuade him that she had more serious limitations. While it did not make explicit reference to Dr. Wang’s one-time rating of GAF 45, it did make repeated references to observations from Dr. Wang’s reports. Given the failure of Dr. Wang to “express any opinions regarding specific limitations” or otherwise to explain the basis for his GAF rating, we are at a loss to understand how the ALJ could have responded to that rating in a more satisfactory manner. As we have noted, he did explain his views on the degree of Gilroy’s limitations with respect to social and occupational functioning and did conclude that “her social anxiety limits her ability to interact with supervisors and coworkers and precludes interaction with the public.” This conclusion is not in conflict with Dr. Wang’s GAF rating, and no further comment was required.
II.
Both Gilroy and her husband testified before the ALJ concerning her impairments and their impact on her ability to work. Their testimonies did not materially differ. The ALJ found their testimony “only partially credible”:
I find the testimony concerning the claimant’s impairments and their impact on her ability to work only partially credible in light of the desci’iption of her daily activities and life style, the objective medical evidence of record and treating medical opinions regarding the severity of the claimant’s condition and functional limitations. The testimony of the claimant’s spouse has also been considered.
App. at 30a. Gilroy insists that the ALJ erred by failing to explain his rejection of her husband’s testimony. We are unpersuaded. In context, we understand from the above-quoted segment of his opinion that the ALJ only partially credited her husband’s testimony for the same reasons that he only partially credited hers.
III.
The sixth sentence of 42 U.S.C. § 405(g) provides in relevant part that the *717“Court may ... at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” Gilroy invoked this authority by asking the District Court to remand her case to the Commissioner so that three additional items of evidence could be considered: (1) a report of a mental evaluation conducted by Dr. Lindsay Groves on August 30, 2007; (2) a report of a mental evaluation conducted by Dr. Chantal Deines on June 6, 2008; and (3) a notice of award of Social Security disability benefits dated August 1, 2008. The District Court declined to remand for this purpose. It did not abuse its discretion in doing so.
As we explained in Szubak v. Secretary of Health & Human Services, 745 F.2d 831, 833 (3d Cir.1984) (internal citations omitted):
As amended in 1980, § 405(g) now requires that to support a “new evidence” remand, the evidence must first be “new” and not merely cumulative of what is already in the record. Second, the evidence must be “material;” it must be relevant and probative. Beyond that, the materiality standard requires that there be a reasonable possibility that the new evidence would have changed the outcome of the Secretary’s determination. An implicit materiality requirement is that the new evidence relate to the time period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition. Finally the claimant must demonstrate good cause for not having incorporated the new evidence into the administrative record.
Gilroy has failed to show good cause why Dr. Groves’ evaluation and report could not have been secured for presentation to the ALJ. She also has failed to show that it would create a reasonable possibility of a change in the ALJ’s decision. Dr. Groves’ report adds little to that of Dr. Wang and does nothing to alter the facts supporting the ALJ’s finding that the claimant’s mental impairments were severe, but not disabling.1
*718The issue before the ALJ and the District Court was whether Gilroy was disabled between June 15, 2003, and April 11, 2007. Dr. Deines’ psychological evaluation was sought and proffered in support of a subsequent application for Social Security disability and took place on June 6, 2008, a year and two months after the ALJ’s decision in these proceedings. Dr. Deines’ report and the subsequent award of benefits it helped to secure address the issue of Gilroy’s capacity to work during a period of time distinct from that before the ALJ. The District Court did not abuse its discretion in concluding that neither was material to the issue before him.
IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
. The Commissioner's brief accurately summarized those facts as follows:
After she allegedly became disabled, Gilroy worked as a nurse's aide and a labor packager.
Gilroy went shopping with her spouse, cleaned, washed laundry, took out 6 the trash, cared for her personal needs without assistance, cooked, vacuumed, and did not require frequent rest breaks during the day; During her alleged period of disability, Gil-roy got married and lived with her spouse, received visits from a friend, and socialized with some family members;
By her own admission, Gilroy could understand and follow instructions, make her own decisions, and help her five-year-old son with his homework;
Gilroy received minimal mental health treatment during the relevant period, and attended her first psychiatric evaluation in February 2006, almost three years after her alleged disability onset date;
Gilroy has never required a mental health hospitalization through the date of the ALJ's decision;
Gilroy’s medical records showed that her symptoms improved with treatment;
Gilroy’s records reflect noncompliance with treatment;
At appointments between February 2006 and November 2006, Gilroy’s treating psychiatrist, Dr. Wang, reported that she had adequate insight, adequate judgment, adequate impulse, control, normal speech, fair grooming, fair eye contact, a goal-directed thought process, and grossly intact cognition; and
State agency psychologist, Dr. Santilli, reviewed the evidence and determined that Gilroy’s impairments did not meet or equal *718any listed impairment and that she retained the ability to work. Appellee's Br. at 43-44 (record citations omitted).
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Charles Yeager pled guilty to one count of being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In doing so, he reserved the right to challenge the District Court’s denial of his suppression motion on appeal. He asserts that the District Court committed reversible error in its denial of that motion. For the reasons that follow, we will affirm.
I.
Because we write only for the parties who are familiar with the factual context and procedural history of this case, we set forth only those facts necessary to our analysis.
On April 11, 2007, Agent William Fazio, a parole officer who had been responsible for supervising Yeager since January of that year, received a telephone tip from a female individual who asked to remain anonymous. She informed Fazio that Yeager was the father of her 20-year-old son, and that he had been beating his girlfriend, stealing insulin needles from his sister’s children for cocaine use, and was planning a burglary in New York, for which he was attempting to enlist her son as a confederate. At some point in the conversation, the phone was handed to another individual who identified herself as Susie, Yeager’s sister. Susie likewise informed Fazio that Yeager had been stealing insulin needles for drugs from her children and had been beating his girlfriend. She also stated that Yeager had a firearm. When asked, Susie gave Fazio a number where she could be reached.1
After this conversation, Fazio learned from his supervisor that Yeager had a history of prior burglary convictions and handgun possession. He then called Susie back to ask her about the gun, which she described as small and silver.
Fazio subsequently received permission to search Yeager’s property. When he arrived, he observed Yeager and his girlfriend leaving the residence. Fazio described Yeager’s appearance as pale and gaunt and also observed that Yeager’s girlfriend had a “fat lip,” which appeared to have been stitched.
During the encounter between Yeager and the law enforcement agents, Yeager informed the agents that they would find drug paraphernalia in his residence, which they subsequently did. Yeager produced a key chain with a key to a Ford but claimed that the Ford had been sold. However, when a U.S. Marshal on the scene pressed the button on the Ford key, lights flashed on a nearby Ford Explorer. Agents then searched the Ford and located a handgun in its console.
After crediting the testimony of Fazio and his supervisor and after finding the above facts, the District Court denied Yeager’s motion to suppress.
II.
The residence or vehicle of a parolee can be searched on the basis of reason*720able suspicion alone. United States v. Baker, 221 F.3d 438, 444 (3d Cir.2000). Reasonable suspicion is a “particularized and objective basis for suspecting the particular person ... of criminal activity.” United States v. Brown, 448 F.3d 239, 246 (3d Cir.2006). Yeager insists that the tip, which he describes as anonymous, did not provide the requisite reasonable suspicion. He also insists that any statements that he or his girlfriend made to law enforcement agents must be suppressed as the fruits of an unlawful search and arrest.
This Circuit has previously noted that “[i]n the context of anonymous tips, the Supreme Court has made clear that 'an informant’s veracity, reliability, and basis of knowledge ... [are] highly relevant in determining the value of his report.’ ” Id. at 249 (quoting Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)) (internal quotations omitted). “When considering fully all the facts about a tip, the honesty of the caller, the reliability of his information and the basis of his knowledge are closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is reasonable suspicion.” Id. (internal quotation omitted).
We agree with the District Court that in this case the tip was not anonymous. As the District Court observed:
First, the initial caller identified herself by relationship ... [as] the mother of Yeager’s son. The other individual identified herself by name as Susie, and also supplied her telephone number, which Agent Fazio subsequently called back. Susie also indicated that she was the defendant’s sister.
App. at 10.
In United States v. Nelson, 284 F.3d 472, 482 (3d Cir.2002), we held that an informant was “not truly anonymous” because both the police and the caller were aware that the police could potentially identify the caller. We noted that “the informant used a private line whose number was disseminated only to family members and informants, and the caller asked for [an officer] by name,” and we held that a search conducted subsequent to the tip was supported by reasonable suspicion. Id.
Likewise, in this instance, the caller was reasonably identifiable. In addition to the factors noted by the District Court, we also find relevant the fact that the informant placed a call to Yeager’s parole officer, rather than to a general police number. The informant gave specific information describing Yeager’s gun, his drug use, his abuse of his girlfriend, and his attempted burglary plans. All of these factors provided Fazio with reasonable suspicion. Furthermore, prior to conducting the search, Fazio confirmed that Yeager had a history of drug use and burglary. He and other agents also determined that Yeager’s physical appearance reflected signs of drug use and observed that Yeager’s girlfriend bore signs of abuse matching that described in the tip. Based on these factors, the officers had reasonable suspicion to conduct the search. Accordingly, we affirm the District Court’s denial of the motion to suppress.
III.
Yeager also asserts that the District Court erred in finding that his prior burglary conviction qualifies as a “violent felony” under 18 U.S.C. § 924(e). The government responds that Yeager waived his right to appeal this issue in his plea agreement, which provides that Yeager “may take a direct appeal from his conviction limited to the following issue: the district court’s denial of his Motion to Suppress Evidence.” Supp.App. at 3.
*721We have previously held that “waivers of appeals are generally permissible if entered into knowingly and voluntarily, unless they work a miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 558 (3d Cir.2001). The defendant has the burden of showing why the waiver provision of the agreement should not be enforced. Id. at 563. Here, Yeager has failed to address the validity of the plea agreement at all. We find no evidence that the plea agreement was not entered into knowingly or voluntarily, and we also find no other exceptional circumstances that would justify disregarding its terms. Accordingly, we will enforce Yeager’s waiver of his right to appeal this issue and will not reach the merits of this issue.
IV.
For these reasons, the judgment of the District Court will be affirmed.
. Fazio’s written report of the telephone call did not contain any information that the callers informed him that Yeager’s girlfriend appeared to be beaten or that he had a gun; he testified about these facts for the first time during the suppression hearing. The District Court credited his testimony, and since the defendant has not challenged the District Court’s factual findings as clearly erroneous, we accept them as true.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Willie Andrew Hampton pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and the District Court sentenced him to 180 months of imprisonment. On appeal, Hampton challenges the District Court’s credibility determinations and subsequent denial of his motion to suppress, the applicability of an enhanced sentence under the Armed Career Criminal Act, and the constitutionality of 18 U.S.C. § 922(g). For the reasons set forth below, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this ease. Therefore, we will set forth only those facts necessary to our analysis.
The circumstances giving rise to Hampton’s conviction occurred on January 16, 2006, when three Clairton Police Department officers, Officer Sean McGrail, Officer Michael Merlino, and Officer Richard Bonczek, conducted the traffic stop of a rented minivan based on an allegedly inoperable passenger side brake light. Norman Collins was driving the vehicle, and Hampton was a passenger. During the stop, the officers, discovering that neither the driver nor Hampton had a valid driver’s license, decided to impound the minivan. Officer McGrail asked Collins to step out of the vehicle, while Officers Merlino and Bonczek explicitly instructed Hampton to remain inside the minivan. Hampton refused to do so, and a struggle ensued. During the scuffle, one of the officers felt a gun and notified his colleagues. It took all three officers to finally overcome Hampton. After subduing and securing him, the police found two loaded 9mm handguns on Hampton’s person and discovered that Hampton was wearing a bulletproof vest underneath his coat. Hampton was subsequently charged as being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Hampton filed a motion to suppress, arguing that the firearms were obtained in violation of his Fourth Amendment rights. At the suppression hearing, Officer McGrail testified that he conducted the traffic stop due to an unlit passenger side brake light and that he communicated the problem to Collins. (App. at 76-77.) He also explained why he did not relay the problem in his radio transmission: “It’s a practice of mine [that] I never broadcast the reason for my traffic stops.” (App. at 91.) Gary W. McDonough, a co-owner of the rental service that rented the minivan, testified that the minivan’s brake lights appeared to be working both before and after the incident, but conceded that it was possible for a loose wire to cause the light to operate intermittently. (App. at 109-11, 140.) At a second suppression hearing,1 Collins testified that the police did not demonstrate to him that the brake light was inoperable (App. at 177), while Officer McGrail reiterated his testimony that he informed Collins of the unlit brake light. (App. at 215-16.) The District Court, finding Officer McGrail’s testimony credible *726and Collins’ testimony not credible, denied the motion to suppress. (App. at 7, 9.)
Hampton eventually pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The Plea Agreement contained an express waiver of Hampton’s appellate rights, with several discrete exceptions:
“Willie Andrew Hampton waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. § 1291 or 18 U.S.C. § 3742, subject to the following exceptions:
(a) If the United States appeals from the sentence, Willie Andrew Hampton may take a direct appeal from the sentence.
(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Willie Andrew Hampton may take a direct appeal from the sentence.
(c) As a condition of his guilty plea, Willie Andrew Hampton may take a direct appeal from his conviction limited to the following two issues: (1) whether 18 U.S.C. § 922(g) is unconstitutional under the Commerce Clause, either on its face or as applied in this case; and (2) whether the traffic stop violated the defendant’s Fourth Amendment rights....
The foregoing reservations of the right to appeal on the basis of specified issues do not include the right to raise issues other than those specified.”
(App. at 280-81, ¶ 9.) At the plea hearing, Hampton stated that he understood that the judge had yet to calculate his sentence, which could be more or less severe than the sentencing guideline range. (App. at 260-61.) Thereafter, the Government repeated the Plea Agreement, including the appellate waiver, in open court. (App. at 261-63.)
The Presentence Investigation Report classified Hampton as an armed career criminal under § 924(e) due to his three prior serious drug offense convictions. Hampton’s final offense level of 31 and criminal history category of IV, combined with the 15-year statutory minimum pursuant to § 924(e), yielded a sentencing guideline range of 180 to 188 months of imprisonment. The District Court sentenced Hampton to 180 months of imprisonment, and Hampton filed a timely appeal.
II.
The District Court had jurisdiction by virtue of 18 U.S.C. § 3231, and we have jurisdiction to review the District Court’s judgment of sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. ‘We review a District Court’s denial of a motion to suppress for clear error as to the underlying factual findings and exercise plenary review over the District Court’s application of the law to those facts.” United States v. Lockett, 406 F.3d 207, 211 (3d Cir.2005). However, we will not set aside a District Court’s credibility determination when supported by the record. United States v. Kole, 164 F.3d 164, 177 (3d Cir.1998). Although we exercise plenary review over the constitutionality of the application of the Armed Career Criminal Act, United States v. Walker, 473 F.3d 71, 75 (3d Cir. 2007), we must determine as a threshold matter whether Hampton’s appellate waiver prevents us from exercising our jurisdiction to review the merits of Hampton’s appeal, United States v. Corso, 549 F.3d 921, 926 (3d Cir.2008). Finally, we exercise plenary review over the constitutionality of 18 U.S.C. § 922(g)(1). United States v. Singletary, 268 F.3d 196, 198 (3d Cir. 2001).
*727III.
On appeal, Hampton raises three challenges to his judgment of sentence. First, he argues that the District Court committed clear error by denying Hampton’s motion to suppress. Second, he contends that the District Court violated his Equal Protection rights under the Fifth Amendment by counting his prior convictions as three under the Armed Career Criminal Act. Lastly, he argues that Congress exceeded its power under the Commerce Clause in enacting 18 U.S.C. § 922(g)(1). We will address each contention in turn.
A.
Hampton argues that the District Court committed clear error when it determined that the minivan had an unlit brake light and thus rejected Hampton’s argument that his Fourth Amendment rights were violated. Because the District Court denied Hampton’s motion to suppress' “[bjased on [its] findings regarding the credibility of the witnesses to this incident” (App. at 9), Hampton essentially challenges the District Court’s credibility determinations regarding Officer McGrail and Collins.
It is well settled that where the record supports a district court’s credibility determination, it is not for us to set aside. Kole, 164 F.3d at 177. This is because “[credibility determinations are the unique province of a fact finder.” Id. Here, the District Court chose to believe Officer McGrail’s testimony that the minivan had an unlit passenger side brake light and to disbelieve Collins’ testimony that the police did not demonstrate to him that the brake light was inoperable. Because the record — Officer McGrail’s repeated testimony and McDonough’s testimony that it was possible for the brake light to operate intermittently — supports this determination, we will not set it aside here. Therefore, since an unlit brake light is a violation of 75 Pa. Cons.Stat. § 4303(b) and “any technical violation of a traffic code legitimatizes a stop,” United States v. Mosley, 454 F.3d 249, 252 (3d Cir.2006) (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)), the District Court did not err by rejecting Hampton’s Fourth Amendment claim and denying his motion to suppress.
B.
Hampton also contends that the application of a sentence enhancement under the Armed Career Criminal Act violates the Equal Protection Clause of the Fifth Amendment by treating defendants who are armed career criminals, see 18 U.S.C. § 924(e), U.S.S.G. § 4B1.4, differently from defendants who are unarmed career offenders, see 28 U.S.C. § 994(h), U.S.S.G. §§ 4A1.1, 4A1.2(a)(2), 4B1.1, 4B1.2. (App. at 38.) More specifically, Hampton challenges the fact that the Armed Career Criminal Act counts his prior convictions as three separate convictions, when the same convictions are counted only once under the career offender guidelines. (App. at 38-40.) The Government, contending that Hampton waived this argument in his Plea Agreement, requests that we decline to reach this issue.
We will decline to review the merits of Hampton’s appeal if the issue he pursues falls within the scope of his appellate waiver and if he knowingly and voluntarily agreed to the waiver, unless enforcing the waiver would work a miscarriage of justice. Corso, 549 F.3d at 927. We have stated that “waivers of appeals should be strictly construed,” United States v. Khattak, 273 F.3d 557, 562 (3d Cir.2001), and that the “defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary,” *728United States v. Mabry, 536 F.3d 231, 237 (3d Cir.2008).
Here, we find not only that Hampton waived his Equal Protection claim in his Plea Agreement, but also that his claim is without merit. First, it is clear from the plain language of the waiver, see Section (I), supra, that Hampton’s Equal Protection claim is not one of the specified exceptions: Hampton’s 180-month sentence is below the statutory maximum and within the guideline range, and Hampton’s Equal Protection claim is distinct from the constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause and Hampton’s Fourth Amendment rights.
Second, Hampton has failed to meet his burden of proving that the appellate waiver was not knowing and voluntary. At the plea hearing, the District Court directed Hampton’s attention to the Government’s description of the Plea Agreement, and the Government described the appellate waiver provision. (App. at 261-62.) The Court then asked Hampton whether he still wished to enter a plea of guilty. (App. at 273.) After clarifying a separate issue regarding theft, Hampton signed the Plea Agreement in open court.2 (App. at 273-76.)
Finally, an examination of the merits of Hampton’s Equal Protection claim demonstrates that enforcement of the appellate waiver will not result in a miscarriage of justice. We have stated that “unless a statute creates a suspect classification or impinges upon a fundamental interest, it will be upheld if the purpose of the classification bears some rational relationship to a legitimate state purpose.” United States v. Hawkins, 811 F.2d 210, 216 (3d Cir.1987). In Hawkins, we declined to question Congress’ finding that most robberies and burglaries are committed by a small number of career criminals. Id. at 216-17. Accordingly, we held that there is a rational basis3 for distinguishing between three-time robbers/burglars and three-time other-category felons, such as murderers or kidnappers, under the Armed Career Criminal Act. Id. If Congress was rational in enhancing the sentences of robbers/burglars and not murderers and kidnappers, Congress was clearly rational in treating armed career criminals more severely than unarmed career criminals. Therefore, because Hampton’s Equal Protection claim is without merit, enforcement of the appellate waiver will not result in a miscarriage of justice.
C.
Lastly, we turn to Hampton’s argument that Congress exceeded its powers under the Commerce Clause in enacting 18 U.S.C. § 922(g)(1). Hampton recognizes that we examined this precise issue in detail in Singletary and held directly to the contrary. 268 F.3d at 204-05 (holding that “proof ... that the gun had traveled in interstate commerce, at some time in the past, was sufficient to satisfy the interstate commerce element” of the statute). Since Singletary remains the law of this circuit, precedent prevents us from entertaining Hampton’s argument. See United States v. Coward, 296 F.3d 176, 183 (3d Cir.2002) (rejecting the defendant’s challenge to § 922(g) in light of the binding effect we give to precedential opinions of this court).
*729IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
. In light of Officer McGrail’s testimony at the original suppression hearing, Hampton filed a motion to reopen the record so that Collins could be called to testify to his knowledge of the brake light’s condition. The District Court granted the request and scheduled a second suppression hearing.
. Even assuming, arguendo, that the waiver was not knowing and voluntary, Hampton’s Equal Protection claim still fails on the merits.
. Hampton concedes that the rational basis standard applies.
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OPINION
PER CURIAM.
Appellants William and Linda Tanchak (“the Tanchaks”) appeal fi-om an order of *730the District Court that denied their motion for summary judgment and granted in part the Government’s motion for summary judgment. Pursuant to the latter, the District Court ordered that the Government’s tax assessments against William Tanchak be reduced to judgment, that William Tanchak owe accruing statutory interest on that judgment, that federal tax liens attach to all of William Tanchak’s property and rights to property, and that the Tanc-haks pay one-half the rental value of their real property to the Government every month until the judgment is satisfied. We will affirm.
I.
On September 24, 2007, the Government filed an amended complaint against the Tanchaks, seeking to reduce to judgment unpaid federal income tax assessments against William Tanchak for the 1989, 1990, 1991, 1993 and 1994 tax years; as of May 2008, $619,890.05 remained due and owing for those assessments.1 The Government also sought to foreclose its federal tax liens on William Tanchak’s interest in the real property co-owned by his wife. Specifically, the Government requested that the real property be sold in accordance with the judicial sale provisions of 28 U.S.C. §§ 2001 and 2002. The Government also sought costs and attorney’s fees incurred in the commencement and prosecution of the action against the Tanchaks.
The Government and William Tanchak filed cross-motions for summary judgment. Tanchak moved on the grounds that the Government’s claims were time-barred pursuant to 26 U.S.C. § 6502(a)(1), that he had no taxable income during the years he was assessed deficiencies, that the Government had failed to produce any evidence of his receiving income during the tax years in question, and that the Government should not have been permitted to file its amended complaint. For its part, the Government supported its motion with evidence of the income taxes, interest and penalties in the amounts shown in the tax assessments against William Tanchak, as well the notices of deficiency directly sent to him.
The District Court denied William Tanc-hak’s motion, concluding, among other things, that the Government had filed its original complaint twenty-two days before the applicable ten-year statute of limitations had elapsed. As to the Government’s motion, the District Court concluded that the Government’s tax assessments were entitled to a presumption of correctness, and that William Tanchak’s “self-serving statement that he had no taxable income for the 1989, 1990, 1991, 1993 and 1994 tax years” was insufficient to establish a genuine issue of material fact with regard to the validity or correctness of those assessments. As a result, the District Court granted the motion “insofar as it requests judgment on taxes, but [it] decline[d] to award fees and costs and force a sale of real property.” Instead, the District Court ordered the Tanchaks to “pay over one-half of the imputed rental value of the real property, in the amount of $1,000.00 every month, to [the Government].” The Tanchaks appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review of the District Court’s order granting summary judgment. See Allstate Settlement Corp. v. Rapid Settlements, Ltd., 559 F.3d 164, 169 (3d Cir. 2009). Summary judgment is proper *731where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We view the facts in the light most favorable to the non-mov-ants, and draw all reasonable inferences in their favor. See Allstate Settlement Corp., 559 F.3d at 169. We may affirm the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000).
III.
In their brief2 the Tanchaks present two arguments why the District Court erred in partially granting summary judgment for the Government.3 First, the Tanchaks reassert their contention that the Government’s complaint is time-barred pursuant to the applicable ten-year statute of limitations. Second, the Tanchaks reassert that since William Tanchak “had no income for the years in question,” he is not liable for the unpaid income taxes that the Government has attributed to him. For substantially the reasons provided in the District Court’s opinion, we conclude that both arguments are wholly lacking in merit.
As to their statute of limitations argument, the Tanchaks contend that the relevant dates are March 6, 1995 (when the Government allegedly first performed a Form 4340 assessment for William Tanc-hak), April 6, 1997 (when the Government allegedly revised its Form 4340), and March 29, 2007 (when the Government filed its complaint). The Tanchaks argue that the District Court erroneously relied upon the date when the Form 4340 was allegedly revised in finding that the Government’s complaint was not time-barred. The Tanchaks’ allegations, however, are at odds with the record, which demonstrates that the Tanchaks were not assessed a deficiency for unpaid income taxes until April 21, 1997, and that the March 6, 1995 date refers to the date when the Government filed a substitute tax return on behalf of William Tanchak pursuant to 26 U.S.C. § 6020. (Dist Ct. dkt # 24, Ex. 2., pgs. 8-17); see also 26 U.S.C. § 6501(b)(3) (“the execution of a return by the Secretary pursuant to the authority conferred by [§ 6020] shall not start the running of the period of limitations on assessment and collection”).
The Tanchaks’ argument concerning William Tanchak’s lack of income during the relevant tax years is similarly unfounded. In particular, the Tanchaks’ lament that “[i]t is difficult to document no income,” without more, does not come close to carrying their “burden of proving, by a preponderance of the evidence that [the IRS’s] assessment is erroneous.” Francisco v. United States, 267 F.3d 303, 319 (3d Cir.2001). And as the District Court appropriately noted, the Tanchaks failed to avail themselves of any apparent means for substantiating their contention. *732(Dist. Ct. Op. at 10) (“Mr. Tanchak ... fails to submit evidence that could controvert the Government’s evidence that he received income from certain delineated sources, such as unemployment and self-employment income. Mr. Tanchak offers no records from the State’s Unemployment Insurance Benefit Claims, for example, to show he never received this form of income”). Therefore, even viewing the facts in the light most favorable to the Tanchaks, and drawing all reasonable inferences in them favor, we are convinced that there are no genuine issues of material fact and that the Government is entitled to judgment as a matter of law.
Accordingly, we will affirm the order of the District Court.
. The Government originally filed its complaint on March 29, 2007. (Dist. Ct. dkt # 1.) On September 21, 2007, the Magistrate Judge granted the Government's motion for leave to file the amended complaint. (Dist. Ct. dkt # 10.)
. Like the District Court, we also take note of a Bob/Robin Vinik purporting to be "on the brief" for the Tanchaks’ filings, all of which were signed, though, by William Tanchak only. (Dist. Ct. dkt # 22, Ex. 1); (Appellant’s Br. at 1); (Appellant’s Reply Br. at 1). We take judicial notice of the fact that Mr. Vinik, who does not appear to be an attorney, has a history of involving himself in law suits to which he is not party, see, e.g., De Vesa v. Dorsey, 134 N.J. 420, 634 A.2d 493, 495 (1993), and strongly caution him against the unauthorized practice of law, should he be so engaged.
. The Tanchaks do not challenge the District Court’s order insofar as it mandates that they pay the Government monthly installments of one-half the rental value of their real property, and therefore this issue is waived. See Laborers' Int'l Union of N. Am. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir.1994).
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OPINION
PER CURIAM.
Petitioner Shah Seed is a native and citizen of Pakistan. He seeks review of a *733final order of removal. We do not have jurisdiction to review the denial of Seed’s asylum claim on timeliness grounds. In addition, we conclude that substantial evidence supports the Immigration Judge’s (“IJ”) determination that Seed is unlikely to be persecuted or tortured if removed to Pakistan. As a result, it was proper for the Board of Immigration Appeals (“BIA”) to adopt and affirm the IJ’s decision pursuant to Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and we will deny Seed’s petition for review.
I.
Seed entered the United States in November 1998. He stayed longer than was permitted by his work visa. Seed was issued a Notice to Appear in February 2003, and was charged as an overstay in violation of 8 U.S.C. § 1227(a)(1)(B). He applied for asylum, withholding of removal, and protection under the Convention Against Torture. At a hearing before the IJ, Seed testified that he had been a member of the Pakistan Peoples Party (“PPP”) since 1992. He was the PPP president for his village, and his duties primarily consisted of recruitment activities. Seed testified to being arrested in March 1998. He was detained for a few days, and during that time he was allegedly beaten by the police. Seed also testified that when he told the police he belonged to the PPP, he was released from prison. He testified that he fears returning to Pakistan because his support for the PPP will lead to both his arrest by the Pakistani government and persecution by the militant Islamic group Tehrik-e-Nafaz-e-Shariat-e-Mohammadi (“INSM”).1
The IJ denied all requested relief. She first determined that Seed was ineligible for asylum because he had failed to apply for it within one-year of his arrival to the United States. The IJ next determined that Seed’s testimony and supporting documents were insufficient to establish eligibility for withholding of removal, and insufficient to “establish that anyone would be interested in torturing him for any reason upon return to Pakistan.” (A.R.87.) The BIA affirmed the decision of the IJ in toto and it dismissed Seed’s appeal. Seed filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). However, we lack jurisdiction to review the BIA’s determination that Seed’s application for asylum is untimely. See 8 U.S.C. § 1158(a)(3) (stating that “[n]o court shall have jurisdiction to review any determination of the Attorney General” relating to the timeliness of an asylum application); Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d Cir.2006). Therefore, the scope of our review is limited to Seed’s claims for withholding of removal and CAT relief. See Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003).
Where, as here, the BIA expressly adopts and affirms the IJ’s decision pursuant to Matter of Burbano, 20 I. & N. Dec. at 874 (BIA may adopt or affirm IJ’s decision, in whole or in part, when it is in agreement with reasoning and result of that decision), we review the decision of both the IJ and the BIA to determine *734whether the BIA’s decision to defer to the IJ was appropriate. See Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir.2007). We review the IJ’s factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc).
III.
The IJ’s determinations that Seed is unlikely to be subject to persecution and torture upon removal to Pakistan, see Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc) (describing preponderance standard for CAT claims); Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003) (describing preponderance standard for withholding of removal claims), are supported by substantial evidence. The full extent of Seed’s alleged abuse in Pakistan is found in the following excerpts from direct examination:
COUNSEL: Did you have any contact with the police in Pakistan?
SEED: Yes. I was arrested by police on March 5,1998.
* * *
COUNSEL: What happen [sic] to you while you were in police custody if anything happen [sic] to you?
SEED: They beat me up. I had wounds all over my hands and all over my body.
COUNSEL: Did you seek any treatment for these wounds?
SEED: I did not do any special treatment or anything like that. Example [sic], I did not go [to] the hospital or anything like that. No.
(A.R.119, 121.) We agree with the IJ that this testimony, standing alone, is clearly insufficient to establish past persecution. See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom’ ”) (quotation omitted).
Furthermore, the IJ rightly rejected Seed’s allegation that if removed he will be persecuted or tortured because of his support for the PPP. As the IJ noted, Seed “testified earlier that all of his family members were supporters of the PPP, that they even have a flag flying from their house, and yet no harm has come to any of his family members.” (A.R.60.) That testimony significantly cuts against Seed’s allegation. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (“[W]hen family members remain in petitioner’s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner’s well-founded fear of future persecution is diminished”). Further bolstering the IJ’s determination is her finding that “[t]he Department of State Report on Human Rights Practices, while it describes that certainly the political situation in Pakistan can be tumultuous, there is no evidence ... that someone in [Seed]’s position would be targeted for harm upon return to Pakistan, especially someone whose [sic] been away since 1998 and not been involved in the United States in politics.” (A.R.62.) As the IJ’s decision is supported by substantial evidence, the BIA did not err in adopting and affirming that decision pursuant to Matter of Burbano.
Accordingly, we will deny the petition for review.
. In his testimony, Seed referenced this group as “Nafaz-E-Shirat.” (A.R.123) It is apparent, though, that he is speaking of the same TNSM we have been referred to in prior cases concerning political asylees from Pakistan's Swat region. See, e.g., Shah v. Att’y Gen., 293 Fed.Appx. 178, 179 (3d Cir.2008); Khan v. Att’y Gen., 236 Fed.Appx. 846, 849 (3d Cir. 2007).
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SUMMARY ORDER
Defendant-Appellant Michael J. Von-dette was convicted after a jury trial in the United States District Court for the Eastern District of New York (Platt, J.) of conspiring to distribute hashish, marijuana, and methaqualone and conspiring to launder money. He was sentenced to 480 months of incarceration, five years of supervised release, a $25,000 fine, a $200 special assessment, and forfeiture in excess of $2 million.
*503This Court affirmed on appeal Defendant-Appellant’s conviction and sentence, 83 Fed.Appx. 394 (2d Cir.2003) (unpublished summary order), and the forfeiture order, 352 F.3d 772 (2d Cir.2003), but the United States Supreme Court remanded for reconsideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Vondette v. United States, 543 U.S. 1108, 125 S.Ct. 1010, 160 L.Ed.2d 1035 (2005). The district court declined to resentence Defendant-Appellant upon remand from this Court pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005). United States v. Vondette, No. 97-CR-1010 (TCP), 2007 WL 1120432 (E.D.N.Y. Apr.13, 2007). Defendant-Appellant now appeals this latest order. We assume the parties’ familiarity with the facts and procedural history of the case.
When considering an appeal from a denial to resentence after a Crosby remand, we “review for reasonableness both the procedure whereby the District Court decided not to resentence and the substance of the undisturbed sentence.” United States v. Williams, 475 F.3d 468, 471 (2d Cir.2007). However, “the law of the case doctrine forecloses reconsideration of issues that were decided — or that could have been decided — during prior proceedings.” Id.
We are not convinced that the sentence imposed was unreasonable. The record reflects that the district court considered the sentencing factors set forth in 18 U.S.C. § 3553(a) during the original sentencing proceeding, and the district court explicitly stated on remand that it “would not give Vondette a non-trivially different sentence under the post-Booker regime.” See Williams, 475 F.3d at 475; Crosby, 397 F.3d at 118. Defendant-Appellant was not entitled to full resentencing on remand because he did not preserve his objection to the mandatory nature of the Sentencing Guidelines. See United States v. Fagans, 406 F.3d 138, 140 (2d Cir.2005); United States v. Fuller, 426 F.3d 556, 561 (2d Cir.2005). His remaining arguments are foreclosed by the law of the case.
Accordingly, the order of the district court declining to resentence Defendant-Appellant and denying Defendant-Appellant’s motions to vacate the judgment of conviction, dismiss the indictment, and vacate the judgment of forfeiture is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Wilda Rios, pro se, appeals from the judgment of the United States District Court for the Eastern District of New York (Ross, J.), granting summary judgment in favor of the defendant and dismissing Appellant’s complaint brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq. (“ADA”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
Claims alleging discriminatory discharge under the ADA are analyzed under the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hey-*505man v. Queens Vill. Comm, for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.1999). Accordingly, if a plaintiff alleges a prima facie case of discrimination and the employer demonstrates a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present evidence sufficient to permit a rational jury to conclude that the employer’s explanation is merely a pretext for impermissible discrimination. Id. To establish a prima facie case of discrimination under the ADA, a plaintiff must show: (1) her employer is subject to the ADA; (2) she is disabled within the meaning of the ADA; (3) she is otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; and (4) she suffered an adverse employment action because of her disability. Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004).
Here, the district court properly found that Appellant could not establish a prima facie case of discrimination as she was unable to demonstrate that she was “otherwise qualified” within the meaning of the ADA because she could not perform the “essential function” of regularly showing up to work. See Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 120-21 (2d Cir.2004) (distinguishing between an employee’s fundamental duties and those that are merely marginal). The evidence demonstrates that Appellant repeatedly failed to show up to work on time or at all for a variety of reasons, many of which were unrelated to her claimed disability. The Department of Education’s (“DOE”) Rules and Regulations, as well as the measures DOE took to rectify Appellant’s excessive absences, including disciplinary charges and suspension, indicate that DOE considered attendance and punctuality to be “essential functions” of the job. See 42 U.S.C. § 12111(8).
The McDonnell Douglas burden shifting analysis also applies to retaliation claims brought pursuant to the ADA. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). To establish a prima facie case of retaliation under the ADA, a plaintiff is required to show by a preponderance of the evidence that: (1) she participated in a protected activity under the ADA; (2) the defendant knew of the protected activity; (3) the plaintiff experienced an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action. Id.
Here, the district court properly found that Appellant had failed to state a prima facie retaliation claim with respect to her disciplinary charges and suspension as both occurred prior to her City Commission on Human Rights (“CCHR”) complaints. Furthermore, even assuming that the proximity in time between Appellant’s filing of a complaint before the CCHR and her suspension satisfies her prima facie case of retaliation, she does not provide any evidence that DOE’s explanation that it suspended and ultimately terminated Appellant on account of her absenteeism and tardiness was pretextual.
We have considered all of Appellant’s remaining arguments on appeal and find them to be without merit, substantially for the reasons stated by the district court.
Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant Michael J. Wang, pro se, appeals from the district court’s sua sponte dismissal of his complaint against Toni E. Logue, an Assistant Attorney General for the State of New York, which was based on statements made in court during the course of her representation of State defendants in litigation initiated by Wang. Wang raised claims under 42 U.S.C. §§ 1983, 1985, and 1986, as well as various state law claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews the sua sponte dismissal of a complaint de novo. See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). The district court correctly determined that Logue is absolutely immune from suit for actions taken during her representation of State defendants. See Barrett v. United States, 798 F.2d 565, 571-73 (2d Cir.1986). Although the district court failed to address Wang’s state law claims in its order of dismissal, Lo-gue’s immunity extends to such claims. *511Id. While pro se plaintiffs should generally be granted leave to amend their complaints, the district court correctly determined that a liberal reading of Wang’s complaint gave no indication that a valid claim could be stated in an amended complaint. See McEachin v. McGuinnis, 357 F.3d 197, 200-01 (2d Cir.2004)
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Petitioner Argentina Vargas De Leon Ortiz petitions this Court for review of a June 14, 2002 Board of Immigration Appeals (BIA) order affirming an Immigration Judge’s (IJ’s) decision ordering Petitioner’s removal. On February 7, 2008, this Court ordered the petition withdrawn so that Petitioner could pursue a motion to reopen before the BIA. On November 17, 2008, the BIA denied the motion to reopen as untimely and declined to reopen the case sua sponte. We treat this petition as an appeal from the BIA’s denial of Petitioner’s motion to reopen and assume the parties’ familiarity with this ease’s facts and procedural history.
We remand on very limited grounds. The BIA surely had the authority to decline to review Petitioner’s motion to re*512open as untimely. It similarly could decide sua sponte not to consider such a claim. And that decision is not reviewable by this Court.
In deciding not to review this claim sua sponte, the BIA reasoned that a docket entry filed about one month before the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), which eliminated Petitioner’s eligibility for section 212(c) relief, indicated that Petitioner had not yet agreed to enter into a plea. It then stated that a docket entry filed roughly four months after AEDPA’s enactment indicated that such an agreement had been reached. From this, it concluded that no agreement to plead was reached before AEDPA’s enactment and that therefore Petitioner was not eligible for section 212(c) relief. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Petitioner seems to argue, however, that she did agree to plead before the enactment of AEDPA, and that she wishes to have the opportunity to prove so.
We take no position, as it is not before us, on whether an agreement to plead, rather than the plea itself, is the appropriate point for gauging pleas for purpose of the applicability of AEDPA under St Cyr. It is certainly arguable that only the plea itself can suffice. But the BIA did not seem to base its decision on this ground. It seemed to focus, instead, on when an agreement to plead was made in determining whether sua sponte to reopen. Indeed, the BIA did not consider November 20, 1996, the date the plea was signed, as the date the parties agreed to the plea. The BIA used instead a docket entry dated September 5, 1996, that noted the “plea agreement needs to be finalized,” to conclude that the “docket entry reflects that the plea was agreed to by the parties.”
The facts on the record, without more, do not support a finding that no agreement to plead was made before AEDPA went into effect. Under the circumstances, we deem it appropriate to remand for the BIA, given its plenary authority to decide whether to reopen sua sponte, to determine whether on the correct facts (and assuming arguendo that the law is as the BIA seems to view it to be) it wishes to reopen sua sponte. Should it choose not to do so, that decision is of course not reviewable. See generally Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009).
For these reasons, we GRANT the petition for review, VACATE the BIA’s order, and REMAND the case to the BIA for further proceedings consistent with this order.
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https://www.courtlistener.com/api/rest/v3/opinions/8474090/
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SUMMARY ORDER
Petitioner Xia Lin-Chen, a native and citizen of the People’s Republic of China, seeks review of a June 27, 2008 order of the BIA affirming the September 14, 2006 decision of Immigration Judge (“IJ”) Helen Sichel, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xia Lin-Chen, No. A98 357 587 (B.I.A. June 27, 2008), aff'g No. A98 357 587 (Immig. Ct. N.Y. City Sept. 14, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
The amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 (“the Act”) apply to Lin-Chen’s asylum application because it was filed on May 11, 2005. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 *514(2005). For asylum applications governed by the Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); see Matter ofJ-Y-C- 24 I. & N. Dec. 260, 265 (BIA 2007).
Substantial evidence supports the IJ’s adverse credibility determination. The IJ found that there were discrepancies between Lin-Chen’s testimony, her asylum application, and her mother’s letter. Lin-Chen only challenges one of these discrepancies in her brief to this Court, arguing that she provided a reasonable explanation for why she did not include in her asylum application the warning that she received from Chinese authorities to stop engaging in religious activities. Lin-Chen’s arguments are, however, unavailing. The agency need not “expressly parse or refute on the record each and every one of [an applicant’s] purported explanations for testimonial inconsistencies or evidentiary gaps.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir. 2006); see Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Moreover, while petitioners are not required to list every incident of persecution on their applications, Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006), Lin-Chen attached a statement to her asylum application and, thus, was not confined to the limited space provided on the form itself. The IJ properly concluded that the purported warning should have been included in Lin-Chen’s asylum application where, as here, she testified that it was this warning that caused her to flee China. See Secaida-Rosales v. I.N.S., 331 F.3d 297, 308 (2d Cir.2003), overruled on other grounds by Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir.2008).
Having called Lin-Chen’s credibility into question, the IJ properly concluded that Lin-Chen was unable to rehabilitate her testimony when she failed to provide sufficient corroborative evidence. See Xiao Ji Chen, 471 F.3d at 341. Nor was it error for the IJ to give diminished weight to certain other evidence that Lin-Chen submitted. See id. at 342 (indicating that the weight afforded to an applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ).
Because the only evidence of a threat to Lin-Chen’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005); cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004).
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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474094/
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SUMMARY ORDER
Plaintiff Roger R. Crane, Jr., appeals from the dismissal of an action seeking a declaratory judgment that his play, The Last Confession, does not infringe the United Kingdom (“U.K.”) copyright of defendant’s book, In God’s Name: An Investigation into the Murder of Pope John Paul I. Crane argues that the district court (1) failed to apply established legal principles in declining to exercise jurisdiction, and (2) accorded unwarranted weight to the potential for friction between sovereign legal systems. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Standard of Review
The Declaratory Judgment Act states that a court “may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). This permissive language grants broad discretion to district courts “to refuse to exercise jurisdiction over a declaratory action that they would otherwise be empowered to hear.” Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir.2003); see also Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (observing that Declaratory Judgment Act “confer[s] on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants”). We review a district court’s decision not to exercise declaratory judgment jurisdiction deferentially, and we will reverse only for abuse of discretion. See Wilton v. Seven Falls Co., 515 U.S. at 289, 115 S.Ct. 2137; Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 388 (2d Cir.2005). “A district court abuses its discretion if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact.” United States v. Adams, 448 F.3d 492, 498-99 (2d Cir.2006) (internal quotation marks omitted).
2. The District Court’s Application of Law
Crane argues that the district court declined jurisdiction based on a mistaken application of law — specifically, a failure to consider two relevant factors: whether declaratory judgment will (1) “serve a useful purpose in clarifying or settling the legal issues involved,” and (2) “finalize the controversy and offer relief from uncertainty.” Dow Jones & Co. v. Harrods Ltd,., 346 F.3d at 359 (citing Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969)). We are not persuaded.
The district court’s failure expressly to analyze the aforementioned factors does not necessarily reflect a failure to consider them. Even in circumstances where the factors relevant to a determination affecting a liberty interest are statutorily prescribed, see 18 U.S.C. § 3553(a), we have not demanded robotic incantations or detailed explanation to demonstrate a district *518court’s compliance with applicable law. See United States v. Brown, 514 F.3d 256, 264 (2d Cir.2008). No different conclusion is warranted here, where the scope of district court discretion is broader. Indeed, after noting its “discretion to award a declaratory judgment when it deems that such relief is appropriate,” the district court cited to the very page of Dow Jones where the factors are listed, a strong indication of its awareness of the interests at stake. See Crane v. Poetic Prods. Ltd., 593 F.Supp.2d 585, 598 (S.D.N.Y.2009). On this record, we identify no mistake of law evidencing abuse of discretion.
3. Repose and Comity
Plaintiff submits that the district court abused its discretion in concluding that his request for a declaration of non-liability under foreign law presented a risk of “friction between sovereign legal systems.” See Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d at 359. We disagree. “[T]he principal purpose of a declaratory judgment is to clarify and settle disputed legal relationships and to relieve uncertainty, insecurity and controversy.” Broadview Chem. Corp. v. Loctite Corp., 474 F.2d 1391, 1393 (2d Cir.1973). A declaration by a United States court of parties’ rights under domestic law offers such repose because every other court within the United States must give “full faith and credit” to such a judgment. See U.S. Const, art. 4, § 1; 28 U.S.C. § 1738. The same cannot be said of a declaration of rights under foreign law, however, as the courts of one sovereign are not strictly bound to honor judgments of the courts of another, see, e.g., Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 654-55 (2d Cir.2004) (“[A] foreign court might not give res judicata effect to a United States judgment, particularly since United States courts may choose to give res judicata effect to foreign judgments on the basis of comity, but are not obliged to do so.” (internal quotation marks omitted)); Restatement (Third) of Foreign Relations Law of the United States § 481 (1987) (observing that judgments declaring rights “are not generally entitled to enforcement, but may be entitled to recognition” (emphasis added)), and might be less inclined to do so on a question of their own law. Crane submits that the uncertain legal status of his play may harm his prospects for securing a movie deal or otherwise profiting from the work, but he has not shown that declaratory judgment from a United States court would remove these concerns.
In light of the district court’s uncertain ability to “finalize the controversy,” Dow Jones & Co. v. Harrods Ltd., 346 F.3d at 359, the court was within its discretion to cite international comity as a ground for declining to exercise declaratory judgment jurisdiction. See generally Société National Industrielle Aerospatiale v. United States Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 544 n. 27, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987) (referring to comity as “spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states”).
We note finally that another relevant factor set out in Dow Jones is whether a “better or more effective remedy” is available. 346 F.3d at 360. The English courts afford litigants an opportunity to seek declaratory judgment, an action that would not only diminish the comity concerns at issue here but conclusively establish plaintiffs rights under U.K. law. See English Civil Procedure Rule 40.20 (“The court may make binding declarations whether or not any other remedy is *519claimed.”).1
For the foregoing reasons, we conclude that the district court did not abuse its broad discretion in declining to exercise jurisdiction over this aspect of Crane’s case. Accordingly, the judgment of the district court is AFFIRMED.
. Crane acknowledges that his play opened in England and toured several English cities before a limited run in London.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474097/
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SUMMARY ORDER
Plaintiff-Appellant Michael Bendik appeals from an order of the United States District Court for the Southern District of New York (Preska, J.) granting summary judgment in favor of Defendant-Appellee Hartford Life Insurance Company (“Hartford”) and denying Bendik’s cross-motion for partial summary judgment. We assume the parties’ familiarity with the factual and procedural history of this case and the issues raised on appeal.
The district court held that de novo review of Bendik’s benefit determination was unwarranted because the plan clearly provided Hartford with discretionary au*520thority, and Bendik failed to present any evidence suggesting that the denial of his benefits was in fact influenced by a conflict of interest. Rather, the court applied an arbitrary and capricious standard of review and concluded that Hartford’s reliance on Dr. Sniger’s medical report was neither arbitrary nor capricious.
Shortly before the district court’s decision, however, the United States Supreme Court clarified “the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under § 1132(a)(1)(B).” Metro. Life Ins. Co. v. Glenn, — U.S.-,-, 128 S.Ct. 2343, 2347, 171 L.Ed.2d 299 (2008) (internal quotation marks and citation omitted). In Metropolitan Life, the Supreme Court recognized that structural conflict exists when an “entity that administers [a] plan ... both determines whether an employee is eligible for benefits and pays benefits out of its own pocket,” id. at 2346, and stated that “a conflict should be weighed as a factor in determining whether there is an abuse of discretion,” id. at 2350 (internal quotation marks and citation omitted). A conflict should be afforded greater weight when “circumstances suggest a higher likelihood that it affected the benefits decision” and less weight “where the administrator has taken active steps to reduce potential bias and to promote accuracy.” Id. at 2351. Nevertheless, “conflicts are but one factor among many that a reviewing judge must take into account.” Id.
At the time the district court considered the cross-motions for summary judgment, neither party was aware of this decision and the district court was not alerted to its applicability. We therefore conclude that remand is necessary for the district court to apply the Metropolitan Life standard and to consider all of the relevant factors in reviewing Hartford’s denial for abuse of discretion. See, e.g., Metro. Life, 128 S.Ct. at 2351-52 (affirming as proper the Sixth Circuit’s consideration of factors including, among others, the conflict of interest and the observation that the insurance company “had emphasized a certain medical report that favored a denial of benefits, had deemphasized certain other reports that suggested a contrary conclusion, and had failed to provide its independent vocational and medical experts with all of the relevant evidence”).
For the foregoing reasons, we VACATE the opinion and judgment of the district court and REMAND this matter to the district court for a determination in accordance with this order.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474098/
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SUMMARY ORDER
Appellant Charles D. Gianetti, pro se, appeals the district court’s dismissal of his complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted, as well as its refusal to grant him leave to amend his complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As a preliminary matter, because Gianetti does not challenge the district court’s dismissal of his breach of contract, quantum meruit, and unjust enrichment claims, we deem those claims abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995). Because Gianetti did not argue before the district court that Conn. Gen.Stat. § 20-7f(b) was unconstitutional, we decline to consider that claim or his related argument that the dismissal of his complaint violated his due process rights because it prevented him from challenging the constitutionality of that state law. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).
I. Motion for Leave to Amend
We review the denial of a motion for leave to amend the complaint for abuse of discretion. Nettis v. Levitt, 241 F.3d 186, 192 (2d Cir.2001). Here, nothing in the record suggests that the district court abused its discretion by refusing to grant Gianetti leave to amend his complaint. Gianetti’s long history of bringing vexatious claims against former patients and insurance providers suggests the appearance of bad faith in the instant complaint.
II. Dismissal under Rule 12(b)(6).
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). As a preliminary matter, Gianetti concedes that the employee benefit plan at issue is governed by Employee Retirement Income Security Act of 1974 (“ERISA”), and that the basis for the instant action is his receipt of an assignment of benefits pursuant to that ERISA-regulated benefit plan. 29 U.S.C. § 1001 et seq. Accordingly, the only issue he challenges on appeal is the district court’s determination that his fraud, misrepresentation, and Connecticut Unfair Trade Practices Act (“CUTPA”) claims were preempted by ERISA.
Gianetti’s fraud, misrepresentation, and CUTPA claims concern the existence or extent of benefits under an ERISAregulated employee benefit plan (of which Gianetti is an assignee). As the district court ruled, all of his claims are therefore preempted by ERISA, since, absent the *523ERISA plan, Gianetti would have no cause of action against the Defendants. Aetna Health Inc. v. Davila, 542 U.S. 200, 214, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (where cause of action does not attempt to remedy any violation of a legal duty independent of ERISA, the claim is completely preempted by that statute).
We have considered all of Gianetti’s remaining claims of error and found them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474102/
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SUMMARY ORDER
Petitioner Mohammad Hussain, a native and citizen of Pakistan, seeks review of a December 1, 2008 order of the BIA denying his motion to reopen and affirming the November 8, 2007 decision of Immigration Judge (“IJ”) Robert Weisel pretermitting his application for asylum and denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Hussain, No. A 095 882 454 (B.I.A. Dec. 1, 2008), aff'g No. A 095 382 454 (Immig. Ct. N.Y. City Nov. 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. BIA’s Affirmance of the IJ’s Decision
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mulcasey, 529 F.3d 99, 110 (2d Cir.2008).
A. Asylum: One-Year Bar to Jurisdiction
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D). Because Hussain raises no such argument, we dismiss the petition for review to the extent he attempts to challenge the agency’s dismissal of his asylum application as untimely. See 8 U.S.C. § 1158(a)(3).
B. Withholding of Removal and CAT Relief
Substantial evidence supports the IJ’s adverse credibility determination. As the IJ found, Hussain testified that he feared persecution in Pakistan because of the August and October 2006 attacks on his *527brother. However, the statement he submitted in support of his motion for release on bond did not mention either of those attacks, and his April 2007 asylum application did not mention the October 2006 attack. Because Hussain’s asylum application was governed by the amendments made to the INA by the REAL ID Act, the IJ was entitled to base his credibility determination on any discrepancy without regard to its centrality. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin v. Muka-sey, 534 F.3d 162, 167 (2d Cir.2008). In any event, these discrepancies were material to Hussain’s claim in that they concerned the very basis of his purported fear of returning to Pakistan. Moreover, no reasonable factfinder would have been compelled to credit Hussain’s explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Therefore, the IJ properly denied Hus-sain’s application for withholding of removal and CAT relief because the only evidence that he would be persecuted or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
II. Motion to Reopen
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Here, the BIA did not abuse its discretion in denying Hussain’s motion to reopen. Hussain alleges that he was denied due process because the IJ displayed a bias against him and because the record reveals translation errors. However, as the BIA found, the IJ took considerable pains to ensure that Hussain understood the questions posed to him. Having reviewed the record, we find that Hussain was provided a full and fair opportunity to present his claims. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007); cf. Ali v. Muka-sey, 529 F.3d 478, 493 (2d Cir.2008). We decline to consider Hussain’s arguments regarding alleged translation errors because they were not presented to the BIA and hence are unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474105/
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SUMMARY ORDER
Petitioner Hang Chen, a native and citizen of the People’s Republic of China, seeks review of a January 17, 2008 order of the Board of Immigration Appeals (“BIA”), affirming the January 31, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, denying Chen’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Hang Chen, No. A97 959 263 (B.I.A. Jan. 17, 2008), aff'g, No. A97 959 263 (Immig. Ct. N.Y. City Jan. 31, 2006). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
When, as in this case, the BIA affirms the IJ’s decision in all but one respect, we review the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. United States Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). Chen’s application is governed by the REAL ID Act of 2005 because he filed it on August 19, 2005, after the Act’s May 11, 2005 effective date.1 See Pub.L. No. 109-*52913, § 101(h)(2), 119 Stat. 231, 305 (2005). Under the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir.2008).
We conclude that the agency’s adverse credibility determination underlying its denial of asylum was supported by substantial evidence. Specifically, the IJ found that Chen testified inconsistently regarding the date police entered his home to arrest his friend for practicing Falun Gong, claimed implausibly that he departed from China without difficulty despite being sought by the authorities, and testified inconsistently regarding his desire to leave China in order to practice and promote Falun Gong. As these findings contain record support, we will not disturb them. See 8 U.S.C. § 1252(b)(4)(B); Wen-sheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir.2007). Finally, because the credibility of Chen’s testimony was called into question, the IJ properly relied on Chen’s failure to adduce evidence corroborating his claim. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir.2000); see generally 8 U.S.C. § 1158(b)(1)(B).
Because Chen does not challenge the agency’s denial of his withholding of removal and CAT claims, we deem any such arguments waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005).
We have considered petitioner’s other arguments on appeal and conclude that they lack merit. Accordingly, 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.
. Chen does not dispute the REAL ID Act's application to his petition for review. We note, however, that Chen first appeared before the IJ on April 22, 2005, prior to the REAL ID Act's effective date. At that hearing, Chen indicated his desire to apply for asylum, but acknowledged that he had not yet *529made an application. Chen later filed his application on August 19, 2005, after the REAL ID Act's effective date. Because the REAL ID Act's effective date provision references filed applications, not pre-application requests for relief, the REAL ID Act governs here. See Balachova v. Mukasey, 547 F.3d 374, 380 n. 2 (2d Cir.2008); Liang Chen v. United States Attorney Gen., 454 F.3d 103, 107 n. 2 (2d Cir.2006); In re S-B-, 24 I. & N. Dec. 42, 44-45 (BIA 2006).
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SUMMARY ORDER
Petitioners Asta Kauzonaite and Kestutis Papaurelis, natives and citizens of Lithuania, seek review of a January 12, 2009 order of the BIA affirming the June 5, 2006 decision of Immigration Judge (“IJ”) Michael W. Straus, denying Kauzonaite’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).* In re Asta Kauzonaite, Kestutis Papaurelis, Nos. A098 972 234/235 (B.I.A. Jan. 12, 2009), aff'g Nos. A098 972 234/235 (Immig. Ct. Hartford, CT June 5, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this ease.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mulcasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraor*531dinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, this Court retains jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). Kauzonaite argues that she demonstrated extraordinary circumstances excusing the untimeliness of her asylum application because she received ineffective assistance of counsel. Because ineffective assistance of counsel claims present constitutional issues, see Omar v. Mukasey, 517 F.3d 647, 650 (2d Cir.2008), we may review Kauzonaite’s argument.
Nevertheless, Kauzonaite’s argument fails. For an alien to demonstrate that she received ineffective assistance of counsel, she must comply with the procedures laid out by the BIA in Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.1988). As the BIA explained, however, Kauzonaite failed to comply with any of these requirements. Kauzonaite does not challenge this finding in her brief to this Court, and because this finding was alone dispositive of her claim, see Jian Yun Zheng v. Ashcroft, 409 F.3d 43, 47 (2d Cir.2005), we need not consider Kauzonaite’s argument that she exercised due diligence in pursuing her claim.
We thus proceed to review Kauzonaite’s challenge to the agency’s denial of her application for withholding of removal and CAT relief.
II. Withholding of Removal
The agency did not err in finding that Kauzonaite failed to establish eligibility for withholding of removal based on her membership in a particular social group. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). In order to demonstrate membership in a particular social group, the alien must demonstrate that the group “share[s] a common, immutable characteristic,” which may be either innate or a product of shared past experience. See Matter of Acosta, 19 I. & N. Dec. 211, 233 (B.I.A.1985). In addition, membership in a particular social group must entail a level of “social visibility” sufficient to identify members to others in the community, particularly to potential persecutors. See Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74 (B.I.A.2007); see also Gomez v. INS, 947 F.2d 660, 664 (2d Cir.1991) (explaining that the traits that characterize a social group must be “recognizable and discrete,” and that “broadly-based characteristics such as youth and gender” will not by themselves suffice to define a particular social group for the purposes of an asylum claim).
Kauzonaite argues that her “membership in a particular social group has been established due to her gender.” However, although gender is an immutable characteristic, see Matter of Acosta, 19 I. & N. Dec. at 233, gender alone is “insufficient to identify a particular social group.” Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 240 (2d Cir.1992); see also Gomez, 947 F.2d at 664. Thus, the BIA did not err in denying Kauzonaite’s application for withholding of removal based on its finding that she failed to demonstrate the requisite nexus to a protected ground. See 8 U.S.C. § 1101(a)(42); Gomez, 947 F.2d at 664.
III. CAT Relief
Unlike both asylum and withholding of removal under the INA, CAT relief does not require a nexus to one of the protected grounds. See Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004). In order to establish eligibility for CAT relief, the alien must demonstrate that it is more likely than not that she will face torture by her government upon return to her native country, or that “government officials [would] know of or remain willfully blind to an act [of torture] and thereafter breach *532their legal responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir.2004).
The agency did not err in finding that Kauzonaite failed to demonstrate that she was eligible for CAT relief. The IJ explained that although Kauzonaite was raped and beaten in the past, she failed to demonstrate that she was likely to face the same treatment in the future either at the hands of the Lithuanian government or with its acquiescence. The agency explained that although she alleged that she had been attacked by a police officer, the “evidence simply d[id] not establish that the government or government authorities would be aware of torture of [Kauzonaite] and would willfully do nothing.” Indeed, because Kauzonaite never sought help from the Lithuanian government in the past, the agency reasonably found that she had not shown that it would be unable or unwilling to assist her in the future. Thus, the agency reasonably denied Kauzonaite’s request for CAT relief. See 8 C.F.R. §§ 1208.16(c), 1208.17; Khouzam, 361 F.3d at 171.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
Because Papaurelis’ claim is wholly dependent on Kauzonaite's and he was listed as a derivative applicant on her application for asylum, we refer to Kauzonaite alone throughout this order.
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https://www.courtlistener.com/api/rest/v3/opinions/8474109/
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SUMMARY ORDER
Lian Hua Sun, a native and citizen of China, seeks review of a February 3, 2009, order of the BIA affirming the August 22, 2006, decision of Immigration Judge (“IJ”) Philip Morace, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Lian Hua Sun, No. A099 592 071 (B.I.A. Feb. 3, 2009), aff'g No. A099 592 071 (Immig. Ct. N.Y. City Aug. 22, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions, or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008).1
In finding Sun not credible, the IJ reasonably relied upon inconsistencies between Sun’s original asylum application, the record of her asylum interview, and her amended asylum application and testimony. Sun’s original asylum application, filed in December 2005, stated her date of entry into the United States as April 2005. However, at her master calendar hearing in March 2006, DHS notified the IJ that Sun was arrested in the United States in February 2005. Subsequently, Sun amended her asylum application, changing her date of entry to January 2005. The IJ found it significant that Sun did not amend her application to reflect dates consistent with her February 2005 arrest until after DHS brought the arrest to the court’s attention. Under the REAL ID Act, the IJ did not err by finding that this discrepancy served to undermine Sun’s credibility. See 8 U.S.C. § 1158(b)(l)(B)(iii).
The IJ also noted that Sun’s testimony and amended asylum application gave in*534consistent dates for her date of arrest in China and her date of departure from China. The IJ found these discrepancies “significant.” Substantial evidence supports the IJ’s reliance on those discrepancies. See Xiu Xia Lin, 534 F.3d at 167 (permitting an IJ to rely on any inconsistency in making an adverse credibility determination, so long as the “totality of the circumstances” supports a finding that the applicant is not credible).
Sun argues that she explained that the erroneous dates might have been due to the fact that she was “confused,” that her attorney may have “misunderstood and took the wrong date,” and that she was “nervous” and “uptight” during her asylum interview. However, the IJ did not err in declining to credit these explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005) (holding that a petitioner “must do more than offer a ‘plausible’ explanation for his inconsistent statement to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony”).
Sun also argues that the IJ impermissi-bly requested corroborating evidence without identifying particular pieces of missing relevant evidence or showing that such evidence was reasonably available. However, no such showing is required where an IJ’s denial of relief is based on an adverse credibility finding. See Maladho Djehe Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir.2006).
Ultimately, because no reasonable fact-finder would be compelled to conclude to the contrary, the agency’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66. Thus, the agency’s denial of Sun’s application for asylum was proper. Because Sun based her claims for withholding of removal and CAT relief on the same factual predicate as her asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The asylum application at issue in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Xiu Xia Lin, 534 F.3d at 165.
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https://www.courtlistener.com/api/rest/v3/opinions/8474111/
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SUMMARY ORDER
Petitioners Hui Fang You and Ri Guan Zheng, natives and citizens of the People’s Republic of China, seek review of the January 21, 2009 order of the BIA affirming the March 22, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson that denied their applications for relief under the Convention Against Torture (CAT). In re Hui Fang You, Nos. A076 217 400/402 (B.I.A. Jan. 21, 2009), aff'g Nos. A076 217 400/402 (Immig. Ct. N.Y. City Mar. 22, 2007). We assume the parties’ *536familiarity with the underlying facts and procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s decision, but its decision closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions for the sake of completeness. Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard, 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 Corovie v. Muka-sey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Petitioners argue that the agency erred in denying their claim for CAT relief based on their illegal departure from China. However, it is well-settled that the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China.” See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,160 (2d Cir.2005). Nonetheless, Petitioners assert that their submission of a letter from two of their friends who were purportedly beaten by Chinese officials upon repatriation constitutes sufficient particularized evidence so as to render them eligible for CAT relief. This argument is unavailing. Indeed, in Mu Xiang Lin, we rejected nearly that exact argument. See id. (“Even taking at face value the hearsay allegations that Lin’s brother made concerning his own experience of having been beaten in prison, his letter does not indicate that the same fate will befall his sister upon her return.”). Accordingly, the agency properly denied Petitioners’ claim on this basis. See id. (citing Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n. 21 (2d Cir.2003)).
With respect to his own application, Zheng argues that the BIA erred in rejecting as impermissibly speculative his application for CAT relief based on his fear of forced sterilization. However, where a petitioner is not married and does not have children, his fear of forced sterilization based on a hypothetical future violation of the family planning policy is too speculative to warrant relief. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (absent solid support in the record for petitioner’s assertion that he would be subjected to forced sterilization, his fear was “speculative at best”); see also Matter of J.F.F., 23 I. & N. Dec. 912, 917-18 (A.G.2006) (finding that petitioner’s reliance on a string of suppositions in support of his CAT claim was too speculative to warrant relief). Because the agency reasonably determined that Zheng’s fear of forced sterilization was impermissibly speculative, and because this determination disposes of his claim, we need not consider his argument that the BIA erred by concluding that sterilization does not constitute torture.
Petitioners remaining claim of error is similarly without merit. Because Zheng’s affidavit was in the record, the BIA’s reliance on that evidence in determining that his claim was speculative did not constitute improper factfinding pursuant to 8 C.F.R. § 1003.1(d)(3)(iv). See Xian Tuan Ye v. DHS, 446 F.3d 289, 296 (2d Cir.2006) (finding no error where BIA bases its decision on facts already in the record).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending mo*537tion 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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*538
SUMMARY ORDER
Li Hua Lin, a native and citizen of the People’s Republic of China, seeks review of a December 19, 2008 order of the BIA, affirming the December 5, 2006 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Li Hua Lin, No. A079 261 007 (B.I.A. Dec. 19, 2008), aff'g No. A079 261 007 (Immig. Ct. N.Y. City Dec. 5, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We “defer to ... an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii).
Substantial evidence supports the agency’s adverse credibility determination. The IJ properly relied on omissions and inconsistencies found in the record. For example, Lin omitted from her asylum application any assertion that she suffered physical abuse at the hands of Chinese officials while in detention. Similarly, Lin omitted from her application her family planning claim, adding it in a supplemental statement she submitted prior to her hearing. Although Lin offered explanations for these omissions, a reasonable fact-finder would not have been compelled to accept them. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005). Accordingly, the agency properly denied Lin’s application for withholding of removal.1 See 8 C.F.R. §§ 208.13(b), 208.16(b)(1).
As to Lin’s challenge to the agency’s denial of her CAT claim, we have held that an applicant cannot demonstrate that she is more likely than not to be tortured “based solely on the fact that she is part of the large class of persons who have left China illegally” and on generalized evidence indicating that torture occurs in Chinese prisons. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005). Furthermore, information from friends or relatives, detailing their experiences, is insufficient to establish eligibility for CAT relief absent specific details regarding the likelihood that the applicant will face torture upon repatriation. See id., at 160. As Lin provided no basis for the IJ to conclude that she, in particular, faces a likelihood of torture, aside from testimony the IJ reasonably found not credible, substantial evidence supports the agency’s denial of Lin’s application for CAT relief. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003).
*539For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Lin does not challenge the agency's preter-mission of her untimely asylum application.
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SUMMARY ORDER
Petitioner Rong Mei Zhu, a native and citizen of the People’s Republic of China, *540seeks review of a June 4, 2008 order of the BIA denying her motion to remand and affirming the November 16, 2006 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa denying her application for relief under the Convention Against Torture (“CAT”). In re Rong Mei Zhu, No. A079 083 776 (B.I.A. June 4, 2008), aff'g No. A079 083 776 (Immig. Ct. N.Y. City Nov. 16, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Convention Against Torture
Zhu alleged that she was likely to face torture in China because she departed that country illegally. The agency found, however, that Zhu failed to establish that her departure was illegal. By itself, this finding is sufficient to defeat Zhu’s application for CAT relief.
However, even if Zhu did leave China illegally, the agency did not err in finding that the documentation she submitted in support of her CAT claim was insufficient to meet her burden of proving a clear probability of torture. See 8 C.F.R. §§ 1208.16(c), 1208.17. In order to prevail on her CAT claim, Zhu needed to submit evidence showing a clear probability that someone in her particular alleged circumstances would be tortured. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.2003). That is, Zhu was required to show that an individual who, like herself, left China illegally and was later removed from the United States, would more likely than not be subjected to torture if she returned to China. See id. We cannot find, contrary to the agency, that Zhu produced such particularized evidence. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005).
II. Motion to Remand
In addition, the BIA did not err in finding that the evidence that Zhu submitted in support of her motion to remand was insufficient to warrant further proceedings on her claim that she would face persecution in China based on the birth of her two children in this country. We review the BIA’s denial of a motion to remand for abuse of discretion. See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). A motion to remand that relies on additional evidence is held to the substantive requirements of a motion to reopen. See id. at 156. Thus, the movant’s failure to establish her prima facie eligibility for the underlying relief sought is a valid basis for denying such a motion. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
We have previously reviewed the BIA’s consideration of Zhu’s evidence, and evidence similar to it, and found no error in its conclusion that such evidence was insufficient to establish the likelihood that an applicant would be subjected to forced sterilization or other measures amounting to persecution on account of having given birth to two children in the United States. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). Accordingly, the BIA did not abuse its discretion in denying Zhu’s motion based on her failure to establish her prima facie eligibility for the underlying relief sought. See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
*541For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8474117/
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SUMMARY ORDER
Petitioner Liang Yi Cheng, a native and citizen of the People’s Republic of China, seeks review of the June 30, 2008 order of the BIA affirming the April 10, 2007 decision of Immigration Judge (“IJ”) Joanna M. Bukszpan denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Liang Yi Cheng, No. A78 286 966 (B.I.A. June 30, 2008), aff'g No. A78 286 966 (Immig. Ct. N.Y. City Apr. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements that decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA 482 F.3d 122, 126 (2d Cir.2007).
Because Cheng failed to raise his withholding of removal and CAT claims in either his brief to the BIA or his brief to this Court, we deem those claims abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007). Moreover, Cheng waived any claim based on his alleged illegal departure from China by failing to raise that issue explicitly in his brief to this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
Regarding the agency’s denial of Cheng’s application for asylum, his petition for review fails. As an initial matter, pursuant to our decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc), Cheng is not per se eligible for asylum based on his fiancée’s forced abortion. See Gui Yin Liu, 508 F.3d at 723; see also Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008).
Furthermore, we find that substantial evidence supports the agency’s denial *543of Cheng’s asylum application to the extent it rested on his alleged “resistance” to China’s coercive family planning policy. See Shi Liang Lin, 494 F.3d at 312-13 (citing 8 U.S.C. § 1101(a)(42)). Regarding his arguments concerning past persecution, we observe that Shi Liang Lin squarely held that an asylum applicant cannot claim persecution based on a procedure that he did not undergo personally. See id. at 306, 309; see also Gui Yin Liu, 508 F.3d at 722-23. In addition, whatever challenge Cheng raises to the IJ’s finding, adopted and affirmed by the BIA, that the cancellation of his household registration lacked the required nexus to a protected ground is without merit. See Shi Liang Lin, 494 F.3d at 306. The registration booklet itself belies his argument that officials cancelled his registration on account of any alleged resistance to the family planning policy where it states that the cancellation occurred because he left China for the United States.
As to Cheng’s fear of future persecution, even assuming his actions could be considered “resistance,” substantial evidence supports the agency’s conclusion that his fear was not well-founded. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003), overruled in part on other grounds by Shi Liang Lin, 494 F.3d at 305, (discussing the substantial evidence standard). As the IJ found, it is unlikely that the cadres would continue to pursue Cheng when they interrogated him only to locate his fiancée, a feat they eventually accomplished without his assistance. Nor, as the BIA reasonably determined, did the cadres’ alleged visits to Cheng’s family’s home from “time to time” establish a sufficient likelihood that Cheng would be persecuted. Given these determinations, Cheng does not persuasively argue that the agency erred in denying his asylum application. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff-Appellant James Missel (“Mis-sel”) appeals from a judgment of the United States District Court for the Western District of New York (Telesca, J.) entered on June 4, 2008, 2008 WL 2357637, dismissing his § 1983 complaint against the County of Monroe, the Monroe County Sheriffs Department, and Sheriff Patrick O’Flynn in his official capacity (collectively “Defendants” or “County Defendants”) for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
In brief, Missel’s complaint alleges that Missel suffered a pattern of harassment, persecution, and intimidation at the hands of Deputy Michael Hildreth of the Monroe *545County Sheriffs Department. See Compl. ¶¶ 21-35. The complaint discloses that these incidents resulted in a departmental investigation of Hildreth, his termination from the Sheriffs Department, and ultimately his criminal conviction on April 24, 2007 for eavesdropping and official misconduct. Id. ¶¶ 48-49. Missel filed this action seeking damages from Hildreth and the County Defendants under 42 U.S.C. § 1983 for injuries resulting from Hil-dreth’s unconstitutional conduct. Missel and Hildreth thereafter agreed that the action would “be discontinued, with prejudice as and only to Defendant Michael Hildreth.” J.A. 92. Relevant to this appeal are Missel’s claims against the County Defendants. Compl. ¶¶ 83-102. The district court dismissed these claims in their entirety on the ground that Missel had only alleged unconstitutional conduct on the part of Hildreth individually and did not allege sufficient facts to state a claim for municipal liability pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
“We review de novo the grant of a motion to dismiss for failure to state a claim upon which relief can be granted” under Rule 12(b)(6). Harris v. Mills, 22 A.D. 379, 572 F.3d 66, 71 (2d Cir.2009). We accept all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiffs favor. Id. However, legal conclusions in the complaint are not factual allegations entitled to a presumption of truth, and a complaint that merely recites the elements of a cause of action without factual support is insufficient. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also LaFaro v. N. Y. Cardiothoracic Group, PLLC, 570 F.3d 471, 475-76 (2d Cir.2009). The complaint is sufficient if the “well-pleaded factual allegations” contained therein “plausibly give rise to [the plaintiffs] entitlement to relief.” Iqbal, 129 S.Ct. at 1950.
Under Monell, a municipality may not be held liable under § 1983 solely on a respondeat superior theory. Monell, 436 U.S. at 691, 98 S.Ct. 2018. A plaintiff must prove that “policies or customs that [were] sanctioned” by the municipality led to the alleged constitutional violation. Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir.2006) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). We agree with the district court that Missel has made no factual allegations that would support a plausible inference that the County of Monroe’s “policies” or “customs” caused Hildreth’s violations of Missel’s rights. First, although Missel asserts that Hildreth acted pursuant to Monroe County policies of “permitting deputies to publish false statements” and “targeting perceived pedophiles ... for harassment,” the complaint contains no facts to support these claims. Compl. ¶¶ 96-98, 99-102. To allege the existence of an affirmative municipal policy, a plaintiff must make factual allegations that support a plausible inference that the constitutional violation took place pursuant either to a formal course of action officially promulgated by the municipality’s governing authority or the act of a person with policymaking authority for the municipality. Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir.2008) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Missel has made no allegation that any official policymaker or policymaking body took any action to establish either of the policies he alleges. The allegations that Hildreth acted pursuant to a “policy,” without any facts suggesting the policy’s existence, are plainly insuffi*546cient. See, e.g., Dwares v. City of New York, 985 F.2d 94, 100-02 (2d Cir.1993).
Missel’s most specific attempt to tie the County Defendants to Hildreth’s actions is a claim that the County failed to train Hildreth, in support of which the complaint alleges that the County Defendants “were on notice of defendant Deputy Hildreth’s[ ] propensity to abuse and misuse his power and authority” because there had been “prior complaints about his actions in the East Rochester Police Department,” Compl. ¶ 86, and “other incidents involving defendant Hildreth of which plaintiffs [sic] are not currently aware,” id. ¶ 88. But the complaint does not contain any factual allegations to support these conclusory and speculative assertions; and the assertion that the County was aware of complaints about Hildreth for his conduct in past employment — “the East Rochester Police Department” — does not provide a plausible basis for an inference that the County failed to give Hildreth proper training as a County employee.
Neither has Missel adequately alleged that his injuries resulted from a municipal policy or custom of “deliberate indifference” to, or tacit approval of, Hildreth’s conduct. A complaint states a § 1983 claim against a municipality if it plausibly alleges that a municipal policymaker was “knowingly and deliberately indifferent to the possibility that its ... officers were wont” to violate constitutional rights. Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir.1986). Such a complaint must allege that “the need for more or better supervision ... was obvious,” but that the defendant “made no meaningful attempt” to prevent the constitutional violation. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127 (2d Cir.2004) (quoting Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir.1995)) (internal quotation marks omitted). Missel has made insufficient factual allegations that the County Defendants were on notice of and took no action in response to Hildreth’s conduct, or that Hildreth had a history of such behavior that Defendants deliberately ignored. Moreover, rather than supporting an inference of Defendants’ deliberate indifference, the facts alleged in the complaint — including that the County began an immediate investigation of Hildreth the day after Missel lodged a complaint against him with the Sheriffs Department, Compl. ¶¶ 36-41, successfully prosecuted Hildreth for eavesdropping and official misconduct, id. ¶ 48, and fired him, id. ¶ 49 — make it far more plausible that Hil-dreth acted without authorization and without the knowledge of any municipal decisionmaker.
We conclude therefore that Missel’s allegations against the County Defendants were not sufficient to state a claim for municipal liability under Monell. The district court’s dismissal of the complaint against the County Defendants was therefore proper. We have considered Missel’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Appellant appeals from the district court’s May 9, 2008 order dismissing his amended complaint of employment discrimination based on race, color, and religion under Title VII of the Civil Rights Act of 1964, and granting summary judgment to Appellees. We presume the parties’ familiarity with the facts and the procedural history.
This Court reviews orders granting summary judgment de novo and determines whether the district court properly concluded there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Cronin v. Aetna, Life Ins. Co., 46 F.3d 196, 202-03 (2d Cir.1995).
“A district court may not convert a motion under Fed.R.Civ.P. 12(b)(6) into a Rule 56 motion for summary judgment without sufficient notice to an opposing party and an opportunity for that party to respond.” Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir.1995); see In re G. & A. Books, Inc., 770 F.2d 288, 294-95 (2d Cir.1985). When a party is proceeding pro se, “ ‘[njotice is particularly important’ because the pro se litigant ‘may be unaware of the consequences of his failure to offer evidence bearing on triable issues.’ ” Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir.2009) (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d *549Cir.1983)). Thus, pro se litigants “must have ‘unequivocal’ notice of the meaning and consequences of conversion to summary judgment.” Id. at 307-08 (citing Beacon Enters., Inc., 715 F.2d at 767). “ ‘The failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.’ ” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.1999) (quoting Ruoto-lo v. IRS, 28 F.3d 6, 8 (2d Cir.1994) (per curiam)).
Where the proper notice has not been given, the question is “whether from all of the circumstances, including the papers filed by the pro se litigant, it is reasonably apparent that the litigant understood the nature of the adversary’s summary judgment motion and the consequences of not properly opposing it.” Sawyer v. Am. Fed’n of Gov’t Employees, 180 F.3d 31, 35 (2d Cir.1999) (discussing Vital, 168 F.3d at 620). The failure to provide notice is considered harmless where the pro se litigant’s subsequent actions demonstrate an understanding of the procedure for summary judgment motions. See M.B. #11072-054 v. Reish, 119 F.3d 230, 232 (2d Cir.1997) (per curiam) (finding that a pro se litigant who filed a 27-page declaration of facts with 104 pages of exhibits, a 40-page memorandum of law, a cross-motion for summary judgment, and a request for additional discovery understood the nature and consequences of summary judgment). However, the “mere fact that the pro se litigant has made some response to the motion for summary judgment is not dispositive where neither his response nor other parts of the record reveal that he understood the nature of the summary judgment process.” Vital, 168 F.3d at 621.
Here, the district court’s order converting the defendant’s motion to dismiss to one for summary judgment did not fully apprise Appellant “of the consequences of failing to respond to a motion for summary judgment.” Id. at 620. Moreover, Appellant’s response to the district court’s order did not show sufficient understanding of the nature and consequences of the proceeding for us to deem the lack of notice to be harmless.
For the reasons stated above, the judgment of the district court is VACATED, and we REMAND to the district court to conduct further proceedings in accordance with this decision. Upon remand the district court may wish to consider whether to appoint counsel for plaintiff from among the attorneys on the district court’s pro bono panel.
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SUMMARY ORDER
Appellant Michael J. Wang, pro se, appeals from the district court’s sua sponte dismissal of his complaint against Toni E. Logue, an Assistant Attorney General for the State of New York, which was based on statements made in court during the course of her representation of State defendants in litigation initiated by Wang. Wang raised claims under 42 U.S.C. §§ 1983, 1985, and 1986, as well as various state law claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews the sua sponte dismissal of a complaint de novo. See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). The district court correctly determined that Logue is absolutely immune from suit for actions taken during her representation of State defendants. See Barrett v. United States, 798 F.2d 565, 571-73 (2d Cir.1986). Although the district court failed to address Wang’s state law claims in its order of dismissal, Lo-gue’s immunity extends to such claims. *511Id. While pro se plaintiffs should generally be granted leave to amend their complaints, the district court correctly determined that a liberal reading of Wang’s complaint gave no indication that a valid claim could be stated in an amended complaint. See McEachin v. McGuinnis, 357 F.3d 197, 200-01 (2d Cir.2004)
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Petitioner Argentina Vargas De Leon Ortiz petitions this Court for review of a June 14, 2002 Board of Immigration Appeals (BIA) order affirming an Immigration Judge’s (IJ’s) decision ordering Petitioner’s removal. On February 7, 2008, this Court ordered the petition withdrawn so that Petitioner could pursue a motion to reopen before the BIA. On November 17, 2008, the BIA denied the motion to reopen as untimely and declined to reopen the case sua sponte. We treat this petition as an appeal from the BIA’s denial of Petitioner’s motion to reopen and assume the parties’ familiarity with this ease’s facts and procedural history.
We remand on very limited grounds. The BIA surely had the authority to decline to review Petitioner’s motion to re*512open as untimely. It similarly could decide sua sponte not to consider such a claim. And that decision is not reviewable by this Court.
In deciding not to review this claim sua sponte, the BIA reasoned that a docket entry filed about one month before the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA), which eliminated Petitioner’s eligibility for section 212(c) relief, indicated that Petitioner had not yet agreed to enter into a plea. It then stated that a docket entry filed roughly four months after AEDPA’s enactment indicated that such an agreement had been reached. From this, it concluded that no agreement to plead was reached before AEDPA’s enactment and that therefore Petitioner was not eligible for section 212(c) relief. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Petitioner seems to argue, however, that she did agree to plead before the enactment of AEDPA, and that she wishes to have the opportunity to prove so.
We take no position, as it is not before us, on whether an agreement to plead, rather than the plea itself, is the appropriate point for gauging pleas for purpose of the applicability of AEDPA under St Cyr. It is certainly arguable that only the plea itself can suffice. But the BIA did not seem to base its decision on this ground. It seemed to focus, instead, on when an agreement to plead was made in determining whether sua sponte to reopen. Indeed, the BIA did not consider November 20, 1996, the date the plea was signed, as the date the parties agreed to the plea. The BIA used instead a docket entry dated September 5, 1996, that noted the “plea agreement needs to be finalized,” to conclude that the “docket entry reflects that the plea was agreed to by the parties.”
The facts on the record, without more, do not support a finding that no agreement to plead was made before AEDPA went into effect. Under the circumstances, we deem it appropriate to remand for the BIA, given its plenary authority to decide whether to reopen sua sponte, to determine whether on the correct facts (and assuming arguendo that the law is as the BIA seems to view it to be) it wishes to reopen sua sponte. Should it choose not to do so, that decision is of course not reviewable. See generally Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009).
For these reasons, we GRANT the petition for review, VACATE the BIA’s order, and REMAND the case to the BIA for further proceedings consistent with this order.
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SUMMARY ORDER
Petitioner Xia Lin-Chen, a native and citizen of the People’s Republic of China, seeks review of a June 27, 2008 order of the BIA affirming the September 14, 2006 decision of Immigration Judge (“IJ”) Helen Sichel, denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xia Lin-Chen, No. A98 357 587 (B.I.A. June 27, 2008), aff'g No. A98 357 587 (Immig. Ct. N.Y. City Sept. 14, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
The amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 (“the Act”) apply to Lin-Chen’s asylum application because it was filed on May 11, 2005. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 *514(2005). For asylum applications governed by the Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); see Matter ofJ-Y-C- 24 I. & N. Dec. 260, 265 (BIA 2007).
Substantial evidence supports the IJ’s adverse credibility determination. The IJ found that there were discrepancies between Lin-Chen’s testimony, her asylum application, and her mother’s letter. Lin-Chen only challenges one of these discrepancies in her brief to this Court, arguing that she provided a reasonable explanation for why she did not include in her asylum application the warning that she received from Chinese authorities to stop engaging in religious activities. Lin-Chen’s arguments are, however, unavailing. The agency need not “expressly parse or refute on the record each and every one of [an applicant’s] purported explanations for testimonial inconsistencies or evidentiary gaps.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir. 2006); see Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Moreover, while petitioners are not required to list every incident of persecution on their applications, Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006), Lin-Chen attached a statement to her asylum application and, thus, was not confined to the limited space provided on the form itself. The IJ properly concluded that the purported warning should have been included in Lin-Chen’s asylum application where, as here, she testified that it was this warning that caused her to flee China. See Secaida-Rosales v. I.N.S., 331 F.3d 297, 308 (2d Cir.2003), overruled on other grounds by Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir.2008).
Having called Lin-Chen’s credibility into question, the IJ properly concluded that Lin-Chen was unable to rehabilitate her testimony when she failed to provide sufficient corroborative evidence. See Xiao Ji Chen, 471 F.3d at 341. Nor was it error for the IJ to give diminished weight to certain other evidence that Lin-Chen submitted. See id. at 342 (indicating that the weight afforded to an applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ).
Because the only evidence of a threat to Lin-Chen’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005); cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004).
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
Plaintiff Roger R. Crane, Jr., appeals from the dismissal of an action seeking a declaratory judgment that his play, The Last Confession, does not infringe the United Kingdom (“U.K.”) copyright of defendant’s book, In God’s Name: An Investigation into the Murder of Pope John Paul I. Crane argues that the district court (1) failed to apply established legal principles in declining to exercise jurisdiction, and (2) accorded unwarranted weight to the potential for friction between sovereign legal systems. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Standard of Review
The Declaratory Judgment Act states that a court “may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). This permissive language grants broad discretion to district courts “to refuse to exercise jurisdiction over a declaratory action that they would otherwise be empowered to hear.” Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir.2003); see also Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (observing that Declaratory Judgment Act “confer[s] on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants”). We review a district court’s decision not to exercise declaratory judgment jurisdiction deferentially, and we will reverse only for abuse of discretion. See Wilton v. Seven Falls Co., 515 U.S. at 289, 115 S.Ct. 2137; Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 388 (2d Cir.2005). “A district court abuses its discretion if it bases its ruling on a mistaken application of the law or a clearly erroneous finding of fact.” United States v. Adams, 448 F.3d 492, 498-99 (2d Cir.2006) (internal quotation marks omitted).
2. The District Court’s Application of Law
Crane argues that the district court declined jurisdiction based on a mistaken application of law — specifically, a failure to consider two relevant factors: whether declaratory judgment will (1) “serve a useful purpose in clarifying or settling the legal issues involved,” and (2) “finalize the controversy and offer relief from uncertainty.” Dow Jones & Co. v. Harrods Ltd,., 346 F.3d at 359 (citing Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969)). We are not persuaded.
The district court’s failure expressly to analyze the aforementioned factors does not necessarily reflect a failure to consider them. Even in circumstances where the factors relevant to a determination affecting a liberty interest are statutorily prescribed, see 18 U.S.C. § 3553(a), we have not demanded robotic incantations or detailed explanation to demonstrate a district *518court’s compliance with applicable law. See United States v. Brown, 514 F.3d 256, 264 (2d Cir.2008). No different conclusion is warranted here, where the scope of district court discretion is broader. Indeed, after noting its “discretion to award a declaratory judgment when it deems that such relief is appropriate,” the district court cited to the very page of Dow Jones where the factors are listed, a strong indication of its awareness of the interests at stake. See Crane v. Poetic Prods. Ltd., 593 F.Supp.2d 585, 598 (S.D.N.Y.2009). On this record, we identify no mistake of law evidencing abuse of discretion.
3. Repose and Comity
Plaintiff submits that the district court abused its discretion in concluding that his request for a declaration of non-liability under foreign law presented a risk of “friction between sovereign legal systems.” See Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d at 359. We disagree. “[T]he principal purpose of a declaratory judgment is to clarify and settle disputed legal relationships and to relieve uncertainty, insecurity and controversy.” Broadview Chem. Corp. v. Loctite Corp., 474 F.2d 1391, 1393 (2d Cir.1973). A declaration by a United States court of parties’ rights under domestic law offers such repose because every other court within the United States must give “full faith and credit” to such a judgment. See U.S. Const, art. 4, § 1; 28 U.S.C. § 1738. The same cannot be said of a declaration of rights under foreign law, however, as the courts of one sovereign are not strictly bound to honor judgments of the courts of another, see, e.g., Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 654-55 (2d Cir.2004) (“[A] foreign court might not give res judicata effect to a United States judgment, particularly since United States courts may choose to give res judicata effect to foreign judgments on the basis of comity, but are not obliged to do so.” (internal quotation marks omitted)); Restatement (Third) of Foreign Relations Law of the United States § 481 (1987) (observing that judgments declaring rights “are not generally entitled to enforcement, but may be entitled to recognition” (emphasis added)), and might be less inclined to do so on a question of their own law. Crane submits that the uncertain legal status of his play may harm his prospects for securing a movie deal or otherwise profiting from the work, but he has not shown that declaratory judgment from a United States court would remove these concerns.
In light of the district court’s uncertain ability to “finalize the controversy,” Dow Jones & Co. v. Harrods Ltd., 346 F.3d at 359, the court was within its discretion to cite international comity as a ground for declining to exercise declaratory judgment jurisdiction. See generally Société National Industrielle Aerospatiale v. United States Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 544 n. 27, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987) (referring to comity as “spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states”).
We note finally that another relevant factor set out in Dow Jones is whether a “better or more effective remedy” is available. 346 F.3d at 360. The English courts afford litigants an opportunity to seek declaratory judgment, an action that would not only diminish the comity concerns at issue here but conclusively establish plaintiffs rights under U.K. law. See English Civil Procedure Rule 40.20 (“The court may make binding declarations whether or not any other remedy is *519claimed.”).1
For the foregoing reasons, we conclude that the district court did not abuse its broad discretion in declining to exercise jurisdiction over this aspect of Crane’s case. Accordingly, the judgment of the district court is AFFIRMED.
. Crane acknowledges that his play opened in England and toured several English cities before a limited run in London.
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SUMMARY ORDER
Plaintiff-Appellant Michael Bendik appeals from an order of the United States District Court for the Southern District of New York (Preska, J.) granting summary judgment in favor of Defendant-Appellee Hartford Life Insurance Company (“Hartford”) and denying Bendik’s cross-motion for partial summary judgment. We assume the parties’ familiarity with the factual and procedural history of this case and the issues raised on appeal.
The district court held that de novo review of Bendik’s benefit determination was unwarranted because the plan clearly provided Hartford with discretionary au*520thority, and Bendik failed to present any evidence suggesting that the denial of his benefits was in fact influenced by a conflict of interest. Rather, the court applied an arbitrary and capricious standard of review and concluded that Hartford’s reliance on Dr. Sniger’s medical report was neither arbitrary nor capricious.
Shortly before the district court’s decision, however, the United States Supreme Court clarified “the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under § 1132(a)(1)(B).” Metro. Life Ins. Co. v. Glenn, — U.S.-,-, 128 S.Ct. 2343, 2347, 171 L.Ed.2d 299 (2008) (internal quotation marks and citation omitted). In Metropolitan Life, the Supreme Court recognized that structural conflict exists when an “entity that administers [a] plan ... both determines whether an employee is eligible for benefits and pays benefits out of its own pocket,” id. at 2346, and stated that “a conflict should be weighed as a factor in determining whether there is an abuse of discretion,” id. at 2350 (internal quotation marks and citation omitted). A conflict should be afforded greater weight when “circumstances suggest a higher likelihood that it affected the benefits decision” and less weight “where the administrator has taken active steps to reduce potential bias and to promote accuracy.” Id. at 2351. Nevertheless, “conflicts are but one factor among many that a reviewing judge must take into account.” Id.
At the time the district court considered the cross-motions for summary judgment, neither party was aware of this decision and the district court was not alerted to its applicability. We therefore conclude that remand is necessary for the district court to apply the Metropolitan Life standard and to consider all of the relevant factors in reviewing Hartford’s denial for abuse of discretion. See, e.g., Metro. Life, 128 S.Ct. at 2351-52 (affirming as proper the Sixth Circuit’s consideration of factors including, among others, the conflict of interest and the observation that the insurance company “had emphasized a certain medical report that favored a denial of benefits, had deemphasized certain other reports that suggested a contrary conclusion, and had failed to provide its independent vocational and medical experts with all of the relevant evidence”).
For the foregoing reasons, we VACATE the opinion and judgment of the district court and REMAND this matter to the district court for a determination in accordance with this order.
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SUMMARY ORDER
Appellant Charles D. Gianetti, pro se, appeals the district court’s dismissal of his complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted, as well as its refusal to grant him leave to amend his complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As a preliminary matter, because Gianetti does not challenge the district court’s dismissal of his breach of contract, quantum meruit, and unjust enrichment claims, we deem those claims abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995). Because Gianetti did not argue before the district court that Conn. Gen.Stat. § 20-7f(b) was unconstitutional, we decline to consider that claim or his related argument that the dismissal of his complaint violated his due process rights because it prevented him from challenging the constitutionality of that state law. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).
I. Motion for Leave to Amend
We review the denial of a motion for leave to amend the complaint for abuse of discretion. Nettis v. Levitt, 241 F.3d 186, 192 (2d Cir.2001). Here, nothing in the record suggests that the district court abused its discretion by refusing to grant Gianetti leave to amend his complaint. Gianetti’s long history of bringing vexatious claims against former patients and insurance providers suggests the appearance of bad faith in the instant complaint.
II. Dismissal under Rule 12(b)(6).
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). As a preliminary matter, Gianetti concedes that the employee benefit plan at issue is governed by Employee Retirement Income Security Act of 1974 (“ERISA”), and that the basis for the instant action is his receipt of an assignment of benefits pursuant to that ERISA-regulated benefit plan. 29 U.S.C. § 1001 et seq. Accordingly, the only issue he challenges on appeal is the district court’s determination that his fraud, misrepresentation, and Connecticut Unfair Trade Practices Act (“CUTPA”) claims were preempted by ERISA.
Gianetti’s fraud, misrepresentation, and CUTPA claims concern the existence or extent of benefits under an ERISAregulated employee benefit plan (of which Gianetti is an assignee). As the district court ruled, all of his claims are therefore preempted by ERISA, since, absent the *523ERISA plan, Gianetti would have no cause of action against the Defendants. Aetna Health Inc. v. Davila, 542 U.S. 200, 214, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (where cause of action does not attempt to remedy any violation of a legal duty independent of ERISA, the claim is completely preempted by that statute).
We have considered all of Gianetti’s remaining claims of error and found them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Petitioner Mohammad Hussain, a native and citizen of Pakistan, seeks review of a December 1, 2008 order of the BIA denying his motion to reopen and affirming the November 8, 2007 decision of Immigration Judge (“IJ”) Robert Weisel pretermitting his application for asylum and denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Hussain, No. A 095 882 454 (B.I.A. Dec. 1, 2008), aff'g No. A 095 382 454 (Immig. Ct. N.Y. City Nov. 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. BIA’s Affirmance of the IJ’s Decision
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mulcasey, 529 F.3d 99, 110 (2d Cir.2008).
A. Asylum: One-Year Bar to Jurisdiction
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D). Because Hussain raises no such argument, we dismiss the petition for review to the extent he attempts to challenge the agency’s dismissal of his asylum application as untimely. See 8 U.S.C. § 1158(a)(3).
B. Withholding of Removal and CAT Relief
Substantial evidence supports the IJ’s adverse credibility determination. As the IJ found, Hussain testified that he feared persecution in Pakistan because of the August and October 2006 attacks on his *527brother. However, the statement he submitted in support of his motion for release on bond did not mention either of those attacks, and his April 2007 asylum application did not mention the October 2006 attack. Because Hussain’s asylum application was governed by the amendments made to the INA by the REAL ID Act, the IJ was entitled to base his credibility determination on any discrepancy without regard to its centrality. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin v. Muka-sey, 534 F.3d 162, 167 (2d Cir.2008). In any event, these discrepancies were material to Hussain’s claim in that they concerned the very basis of his purported fear of returning to Pakistan. Moreover, no reasonable factfinder would have been compelled to credit Hussain’s explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Therefore, the IJ properly denied Hus-sain’s application for withholding of removal and CAT relief because the only evidence that he would be persecuted or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
II. Motion to Reopen
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Here, the BIA did not abuse its discretion in denying Hussain’s motion to reopen. Hussain alleges that he was denied due process because the IJ displayed a bias against him and because the record reveals translation errors. However, as the BIA found, the IJ took considerable pains to ensure that Hussain understood the questions posed to him. Having reviewed the record, we find that Hussain was provided a full and fair opportunity to present his claims. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007); cf. Ali v. Muka-sey, 529 F.3d 478, 493 (2d Cir.2008). We decline to consider Hussain’s arguments regarding alleged translation errors because they were not presented to the BIA and hence are unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Hang Chen, a native and citizen of the People’s Republic of China, seeks review of a January 17, 2008 order of the Board of Immigration Appeals (“BIA”), affirming the January 31, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, denying Chen’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Hang Chen, No. A97 959 263 (B.I.A. Jan. 17, 2008), aff'g, No. A97 959 263 (Immig. Ct. N.Y. City Jan. 31, 2006). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
When, as in this case, the BIA affirms the IJ’s decision in all but one respect, we review the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. United States Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). Chen’s application is governed by the REAL ID Act of 2005 because he filed it on August 19, 2005, after the Act’s May 11, 2005 effective date.1 See Pub.L. No. 109-*52913, § 101(h)(2), 119 Stat. 231, 305 (2005). Under the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir.2008).
We conclude that the agency’s adverse credibility determination underlying its denial of asylum was supported by substantial evidence. Specifically, the IJ found that Chen testified inconsistently regarding the date police entered his home to arrest his friend for practicing Falun Gong, claimed implausibly that he departed from China without difficulty despite being sought by the authorities, and testified inconsistently regarding his desire to leave China in order to practice and promote Falun Gong. As these findings contain record support, we will not disturb them. See 8 U.S.C. § 1252(b)(4)(B); Wen-sheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir.2007). Finally, because the credibility of Chen’s testimony was called into question, the IJ properly relied on Chen’s failure to adduce evidence corroborating his claim. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir.2000); see generally 8 U.S.C. § 1158(b)(1)(B).
Because Chen does not challenge the agency’s denial of his withholding of removal and CAT claims, we deem any such arguments waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005).
We have considered petitioner’s other arguments on appeal and conclude that they lack merit. Accordingly, 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.
. Chen does not dispute the REAL ID Act's application to his petition for review. We note, however, that Chen first appeared before the IJ on April 22, 2005, prior to the REAL ID Act's effective date. At that hearing, Chen indicated his desire to apply for asylum, but acknowledged that he had not yet *529made an application. Chen later filed his application on August 19, 2005, after the REAL ID Act's effective date. Because the REAL ID Act's effective date provision references filed applications, not pre-application requests for relief, the REAL ID Act governs here. See Balachova v. Mukasey, 547 F.3d 374, 380 n. 2 (2d Cir.2008); Liang Chen v. United States Attorney Gen., 454 F.3d 103, 107 n. 2 (2d Cir.2006); In re S-B-, 24 I. & N. Dec. 42, 44-45 (BIA 2006).
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SUMMARY ORDER
Lian Hua Sun, a native and citizen of China, seeks review of a February 3, 2009, order of the BIA affirming the August 22, 2006, decision of Immigration Judge (“IJ”) Philip Morace, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Lian Hua Sun, No. A099 592 071 (B.I.A. Feb. 3, 2009), aff'g No. A099 592 071 (Immig. Ct. N.Y. City Aug. 22, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions, or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008).1
In finding Sun not credible, the IJ reasonably relied upon inconsistencies between Sun’s original asylum application, the record of her asylum interview, and her amended asylum application and testimony. Sun’s original asylum application, filed in December 2005, stated her date of entry into the United States as April 2005. However, at her master calendar hearing in March 2006, DHS notified the IJ that Sun was arrested in the United States in February 2005. Subsequently, Sun amended her asylum application, changing her date of entry to January 2005. The IJ found it significant that Sun did not amend her application to reflect dates consistent with her February 2005 arrest until after DHS brought the arrest to the court’s attention. Under the REAL ID Act, the IJ did not err by finding that this discrepancy served to undermine Sun’s credibility. See 8 U.S.C. § 1158(b)(l)(B)(iii).
The IJ also noted that Sun’s testimony and amended asylum application gave in*534consistent dates for her date of arrest in China and her date of departure from China. The IJ found these discrepancies “significant.” Substantial evidence supports the IJ’s reliance on those discrepancies. See Xiu Xia Lin, 534 F.3d at 167 (permitting an IJ to rely on any inconsistency in making an adverse credibility determination, so long as the “totality of the circumstances” supports a finding that the applicant is not credible).
Sun argues that she explained that the erroneous dates might have been due to the fact that she was “confused,” that her attorney may have “misunderstood and took the wrong date,” and that she was “nervous” and “uptight” during her asylum interview. However, the IJ did not err in declining to credit these explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005) (holding that a petitioner “must do more than offer a ‘plausible’ explanation for his inconsistent statement to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony”).
Sun also argues that the IJ impermissi-bly requested corroborating evidence without identifying particular pieces of missing relevant evidence or showing that such evidence was reasonably available. However, no such showing is required where an IJ’s denial of relief is based on an adverse credibility finding. See Maladho Djehe Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir.2006).
Ultimately, because no reasonable fact-finder would be compelled to conclude to the contrary, the agency’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-66. Thus, the agency’s denial of Sun’s application for asylum was proper. Because Sun based her claims for withholding of removal and CAT relief on the same factual predicate as her asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The asylum application at issue in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Xiu Xia Lin, 534 F.3d at 165.
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SUMMARY ORDER
Petitioners Hui Fang You and Ri Guan Zheng, natives and citizens of the People’s Republic of China, seek review of the January 21, 2009 order of the BIA affirming the March 22, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson that denied their applications for relief under the Convention Against Torture (CAT). In re Hui Fang You, Nos. A076 217 400/402 (B.I.A. Jan. 21, 2009), aff'g Nos. A076 217 400/402 (Immig. Ct. N.Y. City Mar. 22, 2007). We assume the parties’ *536familiarity with the underlying facts and procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s decision, but its decision closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions for the sake of completeness. Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard, 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 Corovie v. Muka-sey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Petitioners argue that the agency erred in denying their claim for CAT relief based on their illegal departure from China. However, it is well-settled that the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China.” See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,160 (2d Cir.2005). Nonetheless, Petitioners assert that their submission of a letter from two of their friends who were purportedly beaten by Chinese officials upon repatriation constitutes sufficient particularized evidence so as to render them eligible for CAT relief. This argument is unavailing. Indeed, in Mu Xiang Lin, we rejected nearly that exact argument. See id. (“Even taking at face value the hearsay allegations that Lin’s brother made concerning his own experience of having been beaten in prison, his letter does not indicate that the same fate will befall his sister upon her return.”). Accordingly, the agency properly denied Petitioners’ claim on this basis. See id. (citing Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 n. 21 (2d Cir.2003)).
With respect to his own application, Zheng argues that the BIA erred in rejecting as impermissibly speculative his application for CAT relief based on his fear of forced sterilization. However, where a petitioner is not married and does not have children, his fear of forced sterilization based on a hypothetical future violation of the family planning policy is too speculative to warrant relief. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (absent solid support in the record for petitioner’s assertion that he would be subjected to forced sterilization, his fear was “speculative at best”); see also Matter of J.F.F., 23 I. & N. Dec. 912, 917-18 (A.G.2006) (finding that petitioner’s reliance on a string of suppositions in support of his CAT claim was too speculative to warrant relief). Because the agency reasonably determined that Zheng’s fear of forced sterilization was impermissibly speculative, and because this determination disposes of his claim, we need not consider his argument that the BIA erred by concluding that sterilization does not constitute torture.
Petitioners remaining claim of error is similarly without merit. Because Zheng’s affidavit was in the record, the BIA’s reliance on that evidence in determining that his claim was speculative did not constitute improper factfinding pursuant to 8 C.F.R. § 1003.1(d)(3)(iv). See Xian Tuan Ye v. DHS, 446 F.3d 289, 296 (2d Cir.2006) (finding no error where BIA bases its decision on facts already in the record).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending mo*537tion 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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*538
SUMMARY ORDER
Li Hua Lin, a native and citizen of the People’s Republic of China, seeks review of a December 19, 2008 order of the BIA, affirming the December 5, 2006 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Li Hua Lin, No. A079 261 007 (B.I.A. Dec. 19, 2008), aff'g No. A079 261 007 (Immig. Ct. N.Y. City Dec. 5, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We “defer to ... an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii).
Substantial evidence supports the agency’s adverse credibility determination. The IJ properly relied on omissions and inconsistencies found in the record. For example, Lin omitted from her asylum application any assertion that she suffered physical abuse at the hands of Chinese officials while in detention. Similarly, Lin omitted from her application her family planning claim, adding it in a supplemental statement she submitted prior to her hearing. Although Lin offered explanations for these omissions, a reasonable fact-finder would not have been compelled to accept them. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005). Accordingly, the agency properly denied Lin’s application for withholding of removal.1 See 8 C.F.R. §§ 208.13(b), 208.16(b)(1).
As to Lin’s challenge to the agency’s denial of her CAT claim, we have held that an applicant cannot demonstrate that she is more likely than not to be tortured “based solely on the fact that she is part of the large class of persons who have left China illegally” and on generalized evidence indicating that torture occurs in Chinese prisons. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005). Furthermore, information from friends or relatives, detailing their experiences, is insufficient to establish eligibility for CAT relief absent specific details regarding the likelihood that the applicant will face torture upon repatriation. See id., at 160. As Lin provided no basis for the IJ to conclude that she, in particular, faces a likelihood of torture, aside from testimony the IJ reasonably found not credible, substantial evidence supports the agency’s denial of Lin’s application for CAT relief. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003).
*539For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Lin does not challenge the agency's preter-mission of her untimely asylum application.
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SUMMARY ORDER
Petitioner Rong Mei Zhu, a native and citizen of the People’s Republic of China, *540seeks review of a June 4, 2008 order of the BIA denying her motion to remand and affirming the November 16, 2006 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa denying her application for relief under the Convention Against Torture (“CAT”). In re Rong Mei Zhu, No. A079 083 776 (B.I.A. June 4, 2008), aff'g No. A079 083 776 (Immig. Ct. N.Y. City Nov. 16, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Convention Against Torture
Zhu alleged that she was likely to face torture in China because she departed that country illegally. The agency found, however, that Zhu failed to establish that her departure was illegal. By itself, this finding is sufficient to defeat Zhu’s application for CAT relief.
However, even if Zhu did leave China illegally, the agency did not err in finding that the documentation she submitted in support of her CAT claim was insufficient to meet her burden of proving a clear probability of torture. See 8 C.F.R. §§ 1208.16(c), 1208.17. In order to prevail on her CAT claim, Zhu needed to submit evidence showing a clear probability that someone in her particular alleged circumstances would be tortured. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.2003). That is, Zhu was required to show that an individual who, like herself, left China illegally and was later removed from the United States, would more likely than not be subjected to torture if she returned to China. See id. We cannot find, contrary to the agency, that Zhu produced such particularized evidence. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005).
II. Motion to Remand
In addition, the BIA did not err in finding that the evidence that Zhu submitted in support of her motion to remand was insufficient to warrant further proceedings on her claim that she would face persecution in China based on the birth of her two children in this country. We review the BIA’s denial of a motion to remand for abuse of discretion. See Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). A motion to remand that relies on additional evidence is held to the substantive requirements of a motion to reopen. See id. at 156. Thus, the movant’s failure to establish her prima facie eligibility for the underlying relief sought is a valid basis for denying such a motion. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
We have previously reviewed the BIA’s consideration of Zhu’s evidence, and evidence similar to it, and found no error in its conclusion that such evidence was insufficient to establish the likelihood that an applicant would be subjected to forced sterilization or other measures amounting to persecution on account of having given birth to two children in the United States. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). Accordingly, the BIA did not abuse its discretion in denying Zhu’s motion based on her failure to establish her prima facie eligibility for the underlying relief sought. See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
*541For 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 Liang Yi Cheng, a native and citizen of the People’s Republic of China, seeks review of the June 30, 2008 order of the BIA affirming the April 10, 2007 decision of Immigration Judge (“IJ”) Joanna M. Bukszpan denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Liang Yi Cheng, No. A78 286 966 (B.I.A. June 30, 2008), aff'g No. A78 286 966 (Immig. Ct. N.Y. City Apr. 10, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements that decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA 482 F.3d 122, 126 (2d Cir.2007).
Because Cheng failed to raise his withholding of removal and CAT claims in either his brief to the BIA or his brief to this Court, we deem those claims abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007). Moreover, Cheng waived any claim based on his alleged illegal departure from China by failing to raise that issue explicitly in his brief to this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
Regarding the agency’s denial of Cheng’s application for asylum, his petition for review fails. As an initial matter, pursuant to our decision in Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007) (en banc), Cheng is not per se eligible for asylum based on his fiancée’s forced abortion. See Gui Yin Liu, 508 F.3d at 723; see also Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008).
Furthermore, we find that substantial evidence supports the agency’s denial *543of Cheng’s asylum application to the extent it rested on his alleged “resistance” to China’s coercive family planning policy. See Shi Liang Lin, 494 F.3d at 312-13 (citing 8 U.S.C. § 1101(a)(42)). Regarding his arguments concerning past persecution, we observe that Shi Liang Lin squarely held that an asylum applicant cannot claim persecution based on a procedure that he did not undergo personally. See id. at 306, 309; see also Gui Yin Liu, 508 F.3d at 722-23. In addition, whatever challenge Cheng raises to the IJ’s finding, adopted and affirmed by the BIA, that the cancellation of his household registration lacked the required nexus to a protected ground is without merit. See Shi Liang Lin, 494 F.3d at 306. The registration booklet itself belies his argument that officials cancelled his registration on account of any alleged resistance to the family planning policy where it states that the cancellation occurred because he left China for the United States.
As to Cheng’s fear of future persecution, even assuming his actions could be considered “resistance,” substantial evidence supports the agency’s conclusion that his fear was not well-founded. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003), overruled in part on other grounds by Shi Liang Lin, 494 F.3d at 305, (discussing the substantial evidence standard). As the IJ found, it is unlikely that the cadres would continue to pursue Cheng when they interrogated him only to locate his fiancée, a feat they eventually accomplished without his assistance. Nor, as the BIA reasonably determined, did the cadres’ alleged visits to Cheng’s family’s home from “time to time” establish a sufficient likelihood that Cheng would be persecuted. Given these determinations, Cheng does not persuasively argue that the agency erred in denying his asylum application. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff-Appellant James Missel (“Mis-sel”) appeals from a judgment of the United States District Court for the Western District of New York (Telesca, J.) entered on June 4, 2008, 2008 WL 2357637, dismissing his § 1983 complaint against the County of Monroe, the Monroe County Sheriffs Department, and Sheriff Patrick O’Flynn in his official capacity (collectively “Defendants” or “County Defendants”) for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
In brief, Missel’s complaint alleges that Missel suffered a pattern of harassment, persecution, and intimidation at the hands of Deputy Michael Hildreth of the Monroe *545County Sheriffs Department. See Compl. ¶¶ 21-35. The complaint discloses that these incidents resulted in a departmental investigation of Hildreth, his termination from the Sheriffs Department, and ultimately his criminal conviction on April 24, 2007 for eavesdropping and official misconduct. Id. ¶¶ 48-49. Missel filed this action seeking damages from Hildreth and the County Defendants under 42 U.S.C. § 1983 for injuries resulting from Hil-dreth’s unconstitutional conduct. Missel and Hildreth thereafter agreed that the action would “be discontinued, with prejudice as and only to Defendant Michael Hildreth.” J.A. 92. Relevant to this appeal are Missel’s claims against the County Defendants. Compl. ¶¶ 83-102. The district court dismissed these claims in their entirety on the ground that Missel had only alleged unconstitutional conduct on the part of Hildreth individually and did not allege sufficient facts to state a claim for municipal liability pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
“We review de novo the grant of a motion to dismiss for failure to state a claim upon which relief can be granted” under Rule 12(b)(6). Harris v. Mills, 22 A.D. 379, 572 F.3d 66, 71 (2d Cir.2009). We accept all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiffs favor. Id. However, legal conclusions in the complaint are not factual allegations entitled to a presumption of truth, and a complaint that merely recites the elements of a cause of action without factual support is insufficient. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also LaFaro v. N. Y. Cardiothoracic Group, PLLC, 570 F.3d 471, 475-76 (2d Cir.2009). The complaint is sufficient if the “well-pleaded factual allegations” contained therein “plausibly give rise to [the plaintiffs] entitlement to relief.” Iqbal, 129 S.Ct. at 1950.
Under Monell, a municipality may not be held liable under § 1983 solely on a respondeat superior theory. Monell, 436 U.S. at 691, 98 S.Ct. 2018. A plaintiff must prove that “policies or customs that [were] sanctioned” by the municipality led to the alleged constitutional violation. Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir.2006) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). We agree with the district court that Missel has made no factual allegations that would support a plausible inference that the County of Monroe’s “policies” or “customs” caused Hildreth’s violations of Missel’s rights. First, although Missel asserts that Hildreth acted pursuant to Monroe County policies of “permitting deputies to publish false statements” and “targeting perceived pedophiles ... for harassment,” the complaint contains no facts to support these claims. Compl. ¶¶ 96-98, 99-102. To allege the existence of an affirmative municipal policy, a plaintiff must make factual allegations that support a plausible inference that the constitutional violation took place pursuant either to a formal course of action officially promulgated by the municipality’s governing authority or the act of a person with policymaking authority for the municipality. Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir.2008) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). Missel has made no allegation that any official policymaker or policymaking body took any action to establish either of the policies he alleges. The allegations that Hildreth acted pursuant to a “policy,” without any facts suggesting the policy’s existence, are plainly insuffi*546cient. See, e.g., Dwares v. City of New York, 985 F.2d 94, 100-02 (2d Cir.1993).
Missel’s most specific attempt to tie the County Defendants to Hildreth’s actions is a claim that the County failed to train Hildreth, in support of which the complaint alleges that the County Defendants “were on notice of defendant Deputy Hildreth’s[ ] propensity to abuse and misuse his power and authority” because there had been “prior complaints about his actions in the East Rochester Police Department,” Compl. ¶ 86, and “other incidents involving defendant Hildreth of which plaintiffs [sic] are not currently aware,” id. ¶ 88. But the complaint does not contain any factual allegations to support these conclusory and speculative assertions; and the assertion that the County was aware of complaints about Hildreth for his conduct in past employment — “the East Rochester Police Department” — does not provide a plausible basis for an inference that the County failed to give Hildreth proper training as a County employee.
Neither has Missel adequately alleged that his injuries resulted from a municipal policy or custom of “deliberate indifference” to, or tacit approval of, Hildreth’s conduct. A complaint states a § 1983 claim against a municipality if it plausibly alleges that a municipal policymaker was “knowingly and deliberately indifferent to the possibility that its ... officers were wont” to violate constitutional rights. Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir.1986). Such a complaint must allege that “the need for more or better supervision ... was obvious,” but that the defendant “made no meaningful attempt” to prevent the constitutional violation. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127 (2d Cir.2004) (quoting Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir.1995)) (internal quotation marks omitted). Missel has made insufficient factual allegations that the County Defendants were on notice of and took no action in response to Hildreth’s conduct, or that Hildreth had a history of such behavior that Defendants deliberately ignored. Moreover, rather than supporting an inference of Defendants’ deliberate indifference, the facts alleged in the complaint — including that the County began an immediate investigation of Hildreth the day after Missel lodged a complaint against him with the Sheriffs Department, Compl. ¶¶ 36-41, successfully prosecuted Hildreth for eavesdropping and official misconduct, id. ¶ 48, and fired him, id. ¶ 49 — make it far more plausible that Hil-dreth acted without authorization and without the knowledge of any municipal decisionmaker.
We conclude therefore that Missel’s allegations against the County Defendants were not sufficient to state a claim for municipal liability under Monell. The district court’s dismissal of the complaint against the County Defendants was therefore proper. We have considered Missel’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Paul-Rene Albertini appeals from the district court’s December 23, 2008, 2008 WL 5351906, order denying summary judgment on his breach of contract claim and granting summary judgment to Defendant-Appellee Warner Music Group Corporation. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
After reviewing the issues on appeal and the record of proceedings below, we affirm for substantially the same reasons articulated by the district court in its thoughtful and well-reasoned opinion.
Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Appellant appeals from the district court’s May 9, 2008 order dismissing his amended complaint of employment discrimination based on race, color, and religion under Title VII of the Civil Rights Act of 1964, and granting summary judgment to Appellees. We presume the parties’ familiarity with the facts and the procedural history.
This Court reviews orders granting summary judgment de novo and determines whether the district court properly concluded there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Cronin v. Aetna, Life Ins. Co., 46 F.3d 196, 202-03 (2d Cir.1995).
“A district court may not convert a motion under Fed.R.Civ.P. 12(b)(6) into a Rule 56 motion for summary judgment without sufficient notice to an opposing party and an opportunity for that party to respond.” Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir.1995); see In re G. & A. Books, Inc., 770 F.2d 288, 294-95 (2d Cir.1985). When a party is proceeding pro se, “ ‘[njotice is particularly important’ because the pro se litigant ‘may be unaware of the consequences of his failure to offer evidence bearing on triable issues.’ ” Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir.2009) (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d *549Cir.1983)). Thus, pro se litigants “must have ‘unequivocal’ notice of the meaning and consequences of conversion to summary judgment.” Id. at 307-08 (citing Beacon Enters., Inc., 715 F.2d at 767). “ ‘The failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.’ ” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.1999) (quoting Ruoto-lo v. IRS, 28 F.3d 6, 8 (2d Cir.1994) (per curiam)).
Where the proper notice has not been given, the question is “whether from all of the circumstances, including the papers filed by the pro se litigant, it is reasonably apparent that the litigant understood the nature of the adversary’s summary judgment motion and the consequences of not properly opposing it.” Sawyer v. Am. Fed’n of Gov’t Employees, 180 F.3d 31, 35 (2d Cir.1999) (discussing Vital, 168 F.3d at 620). The failure to provide notice is considered harmless where the pro se litigant’s subsequent actions demonstrate an understanding of the procedure for summary judgment motions. See M.B. #11072-054 v. Reish, 119 F.3d 230, 232 (2d Cir.1997) (per curiam) (finding that a pro se litigant who filed a 27-page declaration of facts with 104 pages of exhibits, a 40-page memorandum of law, a cross-motion for summary judgment, and a request for additional discovery understood the nature and consequences of summary judgment). However, the “mere fact that the pro se litigant has made some response to the motion for summary judgment is not dispositive where neither his response nor other parts of the record reveal that he understood the nature of the summary judgment process.” Vital, 168 F.3d at 621.
Here, the district court’s order converting the defendant’s motion to dismiss to one for summary judgment did not fully apprise Appellant “of the consequences of failing to respond to a motion for summary judgment.” Id. at 620. Moreover, Appellant’s response to the district court’s order did not show sufficient understanding of the nature and consequences of the proceeding for us to deem the lack of notice to be harmless.
For the reasons stated above, the judgment of the district court is VACATED, and we REMAND to the district court to conduct further proceedings in accordance with this decision. Upon remand the district court may wish to consider whether to appoint counsel for plaintiff from among the attorneys on the district court’s pro bono panel.
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SUMMARY ORDER
Petitioner Javed Akhter, a native and citizen of Pakistan, seeks review of an April 25, 2007 order of the BIA denying his motion to reopen his removal proceedings. In re Javed Akhter, No. A077 541 597 (B.I.A. Apr. 25, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). However, when the BIA analyzes country conditions evidence submitted with a motion to reopen, “we review the BIA’s fact-finding only for ‘substantial evidence.’” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
An alien who has been ordered removed may file one motion to reopen, but must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). Here, there is no dispute that Akhter’s motion was untimely because he filed it over five and a half years after his August 2001 final order of removal. However, the filing deadline may be equitably tolled for claims of ineffective assistance of counsel. See Jin Bo Zhao v. INS, 452 F.3d 154, 159 (2d Cir.2006). Moreover, there is no time limit for motions to reopen based on materially changed country conditions. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
Akhter’s motion to reopen was based upon both ineffective assistance of counsel and changed country conditions. The BIA rejected both claims. However, before this Court Akhter makes no mention of his ineffective assistance of counsel claim, and we consider only his challenge to the BIA’s changed country conditions finding. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
The BIA reasonably concluded that Akhter had not shown “that conditions [in Pakistan] have worsened.” Indeed, Akhter alleged in his motion that police were looking for him, the same claim that he made in his asylum application. Thus, *551Akhter did not show the requisite change. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
The BIA further concluded that even if Akhter had shown that conditions in Pakistan had changed, he could not show that such changes were material to his claim because he had been found not credible in the underlying proceeding. Akhter does not challenge this finding in any respect. Even if he had done so, his argument would fail because the agency may rely on an underlying credibility determination in denying the relief requested. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Plaintiff Andrew Walzer, pro se and as custodian for his daughter Arielle Walzer, sued to recover the approximately $140,000 he lost by investing in the stock of defendant UAL Corporation (“UAL”). He now appeals from the district court’s dismissal of his complaint and denial of leave to amend. We review the dismissal de novo, liberally construing the pro se complaint, accepting its factual allegations as true, and drawing all reasonable inferences in the plaintiffs favor. See Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008); Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). We review the denial of leave to amend for abuse of discretion. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). In doing so, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Dismissal of Complaint
Our de novo review confirms that, even if liberally construed, the complaint fails to state a claim under any of the myriad legal theories Walzer identifies. Accordingly, we affirm the judgment of dismissal for *553substantially the same reasons stated by the district court in its thorough and well-reasoned opinion. See Walzer v. UAL Corp., No. 05 Civ. 0581, 2008 WL 87944 (S.D.N.Y. Jan. 2, 2008).
2. Denial of Leave To Amend
Although leave to amend is generally granted at least once, especially to pro se litigants, the district court need not permit amendment when, as in this case, a liberal reading of the complaint gives no indication that a valid claim might be stated. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). Here, Walzer never filed a proposed amended complaint and only vaguely alluded to the claims he intended to raise. Moreover, Walzer’s original complaint unequivocally acknowledged that his financial losses were caused by UAL’s filing for bankruptcy and defendants’ general mismanagement of UAL, not by any of defendants’ alleged misrepresentations or omissions. Accordingly, the district court did not abuse its discretion in concluding that, regardless of any future claims Walzer might allege, he could not state a claim that any fraud “caused the loss for which the plaintiff seeks to recover.” Dura Pham., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005).
On appeal, Walzer presents two new theories of loss causation. His first theory attributes his loss to the UAL directors’ failure to disclose that they had retained bankruptcy attorneys. Silence, however, does not give rise to securities fraud unless defendants had a duty to disclose information, and Walzer has not alleged any such duty here. See Chiarella v. United States, 445 U.S. 222, 232, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980) (“[T]he element required to make silence fraudulent — a duty to disclose — is absent in this case.”).1 Walzer’s second theory attributes his loss to UAL’s inconsistent or inaccurate disclosure of the number of shares outstanding at the end of 2000. In fact, UAL’s Form 10-K states that 16,295,475 of the 68,834,167 shares then issued were held in treasury. Given that outstanding shares comprise “stock that is held by investors and has not been redeemed by the issuing corporation,” Black’s Law Dictionary 1552 (9th ed.2009); see also Douglas K. Moll, Shareholder Oppression and “Fair Value”: Of Discounts, Dates, and Dastardly Deeds in the Close Corporation, 54 Duke L.J. 293, 328 n. 129 (2004) (“ ‘Treasury shares are carried on the books as authorized and still issued but not outstanding.’ ” (quoting James D. Cox & Thomas Lee Hazen, Cox & Hazen on Corporations, § 21.11, at 1287 (2d ed.2003))), Walzer cannot claim that the market was deceived by the statement that 52,538,692 shares were outstanding at the end of 2000.
Accordingly, we identify no abuse of discretion in the district court’s denial of leave to amend to plead these theories.
*554We have considered Walzer’s other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. While Regulation S-K requires disclosure of "the nature and results of any bankruptcy,” 17 C.F.R. § 229.101(a)(1), or "any material pending legal proceedings,” including bankruptcy, id. § 229.103 (emphasis added), it does not require disclosure regarding the retention of counsel to examine the possibility of future bankruptcy. Thus, the only duty to disclose Walzer could allege here would be UAL’s limited duty to update concrete, forward-looking statements that were rendered misleading by subsequent events. See In re Int'l Bus. Machs. Corp. Sec. Litig., 163 F.3d 102, 109-10 (2d Cir.1998); In re Time Warner, Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir. 1993). Here, Walzer argues merely that, had he known UAL was already contemplating bankruptcy, he would not have purchased UAL stock. This allegation, by itself, is insufficient to state a breach of the limited duty to update.
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*555SUMMARY ORDER
Petitioner Luis Ramon Morales, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States, seeks review of a January 5, 2006 decision of the Board of Immigration Appeals (“BIA”), denying his motion to reconsider a motion to reopen removal proceedings. Morales argues that, because he acquired United States citizenship from his father at the time of his birth, he is not removable as an aggravated felon under section 237(a)(2)(A)(iii) and (a)(2)(C) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(C). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only to the extent necessary to explain our decision.
Although we generally lack jurisdiction to review orders of removal based, as Morales’s is, on an alien’s commission of aggravated felonies, see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to resolve constitutional claims or questions of law, see id. § 1252(a)(2)(D); Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007), including whether a petitioner has a valid claim to United States citizenship, see Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir.2008). Section 242(b)(5)(A) of the INA provides: “If [a] petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim.”2 8 U.S.C. § 1252(b)(5)(A). If, however, there is a genuine issue of material fact about the petitioner’s nationality, “the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim.” Id. § 1252(b)(5)(B). In determining whether there is a genuine issue of material fact, we apply the same principles employed when reviewing a grant of summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Agosto v. INS, 436 U.S. 748, 754, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978).
As the party effectively seeking summary judgment, the government “bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051,1060-61 (2d Cir.1995). To the extent Morales bears the burden of proof on an issue, as he does here on the issue of citizenship, the government can secure judgment by “pointing] to an absence of evidence to support an essential element of [Morales’s] claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In such circumstances, Morales can demonstrate a genuine issue of material fact only by advancing enough evidence to permit a reasonable factfinder to decide in his favor. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.2003).
To determine whether Morales has satisfied this burden, we apply section 301 of the INA, the statute in effect on June 15, 1962, the date of Morales’s birth. See Drozd v. INS, 155 F.3d 81, 86 (2d Cir. 1998). Section 301 then provided:
(a) The following shall be nationals and citizens of the United States at birth:
(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of *556whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.
8 U.S.C. § 1401(a)(7) (1952).
Morales’s mother was a citizen of the Dominican Republic. His father, however, was born in Puerto Rico on March 19, 1900, and presumably acquired United States citizenship in 1917 pursuant to the Jones Act, 39 Stat. 951 (1917) (codified at 8 U.S.C. § 1402). Morales submits that his father left Puerto Rico for the Dominican Republic in 1919 and did not return to the United States until after Morales’s birth. Thus, assuming without deciding that presence in Puerto Rico between 1900 and the 1917 enactment of the Jones Act qualifies as presence in the United States under § 1407(a)(7), the key question to be decided in this case is whether Morales adduced sufficient evidence of his father’s presence in Puerto Rico through March 19, 1919, thereby satisfying the § 1407(a)(7) requirement of five years’ residence after attainment of the age of fourteen.
Morales’s evidence on this point consists principally of (1) a birth certificate showing that his father’s birth was registered in Puerto Rico on February 10, 1919; and (2) a sworn affidavit, dated June 18, 1971, from his father, which claims that he left Puerto Rico the same year. Because nothing in the record suggests that a person must be physically present to register his birth, the certificate is not probative of Morales’s father’s physical presence. Even if it were, the certificate demonstrates, at most, the father’s physical presence in the United States only through February 10, 1919, whereas § 1407(a)(7) would have required such presence through March 19, 1919. The father’s affidavit is probative of his physical presence. Nevertheless, because it does not specify a date of departure, it too is insufficient to permit the finding of presence through March 19 necessary to support Morales’s citizenship claim under § 1407(a)(7).
In sum, having failed to adduce sufficient evidence to demonstrate his father’s physical presence in the United States through at least March 19, 1919, Morales has no claim to citizenship under 8 U.S.C. § 1407(a) and remains an alien. Accordingly, we lack jurisdiction to hear his challenge to removal and, therefore, order the petition for review DISMISSED.3
. Our power to decide a nationality claim includes the power to remand the case to the administrative agency to which it was initially presented. See Poole v. Mukasey, 527 F.3d 257, 258 (2d Cir.2008).
. Without expressing an opinion on the merits of Morales’s claim to United States citizenship, we note, as discussed at oral argument, that the disposition of this petition should not preclude Morales from independently pursuing a further investigation into facts that could establish his citizenship, or from taking actions as may be appropriate to bring such information, if any, to the attention of the BIA.
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*567
SUMMARY ORDER
Petitioner Fei Zheng, a native and citizen of the People’s Republic of China, seeks review of an August 21, 2007 order of the BIA denying his motion to reopen. In re Fei Zheng, No. A070 906 201 (B.I.A. Aug. 21, 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 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not err in denying Zheng’s untimely 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 Zheng argues that the BIA’s analysis of his evidence was inadequate, evidence that “the [agency] is asked to consider time and again [may be considered] ... in a summary fashion without a reviewing court presuming that [the agency] has abused its discretion.” Wei Guang Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir.2006). Indeed, 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 Shao, 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).
Zheng’s assertion that he has demonstrated prima facie eligibility for relief is unavailing, as the BIA reasonably found, based on the record and its precedential decisions, that the Chinese government does not physically compel sterilization but rather seeks to secure compliance with its family planning goals by imposing economic sanctions as an alternative to sterilization, and that such sanctions do not rise to the level of persecution. See Jian Hui Shao, 546 F.3d at 164 (finding that the BIA reasonably concluded that the economic rewards and penalties used to implement the family planning policy in Fuji-an province did not necessarily amount to “physical or mental coercion”). While we have recognized that, in some circumstances, “severe economic penalties could be as effective as physical pressure in forcing an involuntary sterilization,” the record evidence in this case did not compel the BIA to find a reasonable possibility of the imposition of penalties amounting to economic persecution upon the petitioner’s return to China. Id. at 161-162. Because Zheng’s failure to establish prima facie eligibility for relief provides a valid basis for the BIA’s denial of his motion to reopen, we find no abuse of discretion here. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
*568For 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 Wen Bing Jiang, a native and citizen of the People’s Republic of China, *569seeks review of a September 28, 2007 order of the BIA denying her motion to reopen. In re Wen Bing Jiang, No. A077 009 311 (B.I.A. Sept. 28, 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 Hid Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Jiang’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 Ail'd 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”). The BIA reasonably questioned the reliability of Jiang’s mother-in-law’s affidavit because it was not new and previously unavailable evidence and because Jiang was found to be not credible in her underlying proceedings. See 8 C.F.R. § 1003.2(c)(1); Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-48 (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).
Moreover, the BIA reasonably found based on this record that the Chinese government does not physically compel sterilization but rather seeks to secure compliance with its family planning goals by imposing economic sanctions as an alternative to sterilization, and that such sanctions do not rise to the level of persecution. See Jian Hui Shao, 546 F.3d at 164 (finding that the BIA reasonably concluded that the economic rewards and penalties used to implement the family planning policy in Fujian province did not necessarily amount to “physical or mental coercion”). While we have recognized that, in some circumstances, “severe economic penalties could be as effective as physical pressure in forcing an involuntary sterilization,” the record evidence in this case did not compel the BIA to find a reasonable possibility of the imposition of penalties amounting to economic persecution upon the petitioner’s return to China. Id. at 161-162. Accordingly, the BIA did not abuse its discretion in denying Jiang’s motion to reopen.
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 Xiao Dan Yang, a native and citizen of the People’s Republic of China, seeks review of an October 19, 2007 order of the BIA affirming its August 19, 2005 decision, which reversed the December 1, 2003 decision of Immigration Judge (“IJ”) Helen J. Sichel granting Yang’s application for asylum. In re Xiao Dan Yang, No. A096 253 393 (B.I.A. Oct. 19, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an independent decision on remand from this Court, we review the BIA’s decision alone. See Be-lortaja v. Gonzales, 484 F.3d 619, 622-23 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Yang argues that the BIA misinterpreted the country conditions evidence relied on in its precedential decisions, Matter of S-Y-G-, 24 I. & N. Dec. 247 (B.I.A.2007), and Matter of J-W-S-, 24 I. & N. Dec. 185 (B.I.A.2007). That argument lacks merit where we held in Jian Hui Shao v. Muka-sey, 546 F.3d 138, 165-66, 172-73 (2d Cir. 2008), that the BIA’s interpretation of that evidence was reasonable. To the extent that Yang requests that this Court reconsider Jian Hui Shao, the relief she seeks is unavailable. See BankBoston, N.A. v. Sokolowski (In re Sokolowski), 205 F.3d 532, 535 (2d Cir.2000) (holding that “this court is bound by a decision of a prior panel unless and until its rationale is overruled, implicitly or expressly, by the Supreme Court or this court en banc ” (quotation marks and citations omitted)).
Yang argues that the BIA erred in concluding that she failed to demonstrate a well-founded fear of persecution based on the birth of her children in the United States. However, this argument fails where we have previously reviewed the agency’s consideration of the same or similar evidence and have found no error in its conclusion that such evidence was insuffi*575cient to establish an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 156-65. Additionally, despite Yang’s argument to the contrary, there is nothing in the BIA’s decision compelling the conclusion that it failed to take into account all of her evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (stating that we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.”). Further, although Yang asserts that the BIA committed legal error by examining the record evidence de novo, the BIA properly made a legal determination that her evidence failed to demonstrate the objective reasonableness of her fear. Jian Hui Shao, 546 F.3d at 162-63 (citing Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004)).
We also reject Yang’s due process challenge. Yang argues that the BIA violated her procedural due process rights by considering a document outside the administrative record without first giving her notice and an opportunity to respond. See Burger v. Gonzales, 498 F.3d 131, 135 (2d Cir.2007). However, because the BIA did not rely on that document as the sole basis for denying relief and, instead, that document “simply corroborated the disposition already supported by the voluminous record evidence adduced by the parties,” we find that the BIA’s failure to provide Yang notice and an opportunity to respond does not rise “to the level of a due process violation requiring remand.” See Jian Hui Shao, 546 F.3d at 167-68.
Finally, Yang argues that the BIA failed to address her motion to remand. However, contrary to Yang’s assertion, the BIA addressed the substance of her motion in its decision because it noted that it had already found in Matter of S-Y-G that the documents she sought review of did not either demonstrate materially changed circumstances or a likelihood of persecution based on the birth of U.S.-born children.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8474125/
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SUMMARY ORDER
Petitioner Javed Akhter, a native and citizen of Pakistan, seeks review of an April 25, 2007 order of the BIA denying his motion to reopen his removal proceedings. In re Javed Akhter, No. A077 541 597 (B.I.A. Apr. 25, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). However, when the BIA analyzes country conditions evidence submitted with a motion to reopen, “we review the BIA’s fact-finding only for ‘substantial evidence.’” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
An alien who has been ordered removed may file one motion to reopen, but must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). Here, there is no dispute that Akhter’s motion was untimely because he filed it over five and a half years after his August 2001 final order of removal. However, the filing deadline may be equitably tolled for claims of ineffective assistance of counsel. See Jin Bo Zhao v. INS, 452 F.3d 154, 159 (2d Cir.2006). Moreover, there is no time limit for motions to reopen based on materially changed country conditions. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
Akhter’s motion to reopen was based upon both ineffective assistance of counsel and changed country conditions. The BIA rejected both claims. However, before this Court Akhter makes no mention of his ineffective assistance of counsel claim, and we consider only his challenge to the BIA’s changed country conditions finding. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
The BIA reasonably concluded that Akhter had not shown “that conditions [in Pakistan] have worsened.” Indeed, Akhter alleged in his motion that police were looking for him, the same claim that he made in his asylum application. Thus, *551Akhter did not show the requisite change. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
The BIA further concluded that even if Akhter had shown that conditions in Pakistan had changed, he could not show that such changes were material to his claim because he had been found not credible in the underlying proceeding. Akhter does not challenge this finding in any respect. Even if he had done so, his argument would fail because the agency may rely on an underlying credibility determination in denying the relief requested. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Plaintiff Andrew Walzer, pro se and as custodian for his daughter Arielle Walzer, sued to recover the approximately $140,000 he lost by investing in the stock of defendant UAL Corporation (“UAL”). He now appeals from the district court’s dismissal of his complaint and denial of leave to amend. We review the dismissal de novo, liberally construing the pro se complaint, accepting its factual allegations as true, and drawing all reasonable inferences in the plaintiffs favor. See Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008); Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). We review the denial of leave to amend for abuse of discretion. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007). In doing so, we assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
1. Dismissal of Complaint
Our de novo review confirms that, even if liberally construed, the complaint fails to state a claim under any of the myriad legal theories Walzer identifies. Accordingly, we affirm the judgment of dismissal for *553substantially the same reasons stated by the district court in its thorough and well-reasoned opinion. See Walzer v. UAL Corp., No. 05 Civ. 0581, 2008 WL 87944 (S.D.N.Y. Jan. 2, 2008).
2. Denial of Leave To Amend
Although leave to amend is generally granted at least once, especially to pro se litigants, the district court need not permit amendment when, as in this case, a liberal reading of the complaint gives no indication that a valid claim might be stated. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991). Here, Walzer never filed a proposed amended complaint and only vaguely alluded to the claims he intended to raise. Moreover, Walzer’s original complaint unequivocally acknowledged that his financial losses were caused by UAL’s filing for bankruptcy and defendants’ general mismanagement of UAL, not by any of defendants’ alleged misrepresentations or omissions. Accordingly, the district court did not abuse its discretion in concluding that, regardless of any future claims Walzer might allege, he could not state a claim that any fraud “caused the loss for which the plaintiff seeks to recover.” Dura Pham., Inc. v. Broudo, 544 U.S. 336, 341-42, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005).
On appeal, Walzer presents two new theories of loss causation. His first theory attributes his loss to the UAL directors’ failure to disclose that they had retained bankruptcy attorneys. Silence, however, does not give rise to securities fraud unless defendants had a duty to disclose information, and Walzer has not alleged any such duty here. See Chiarella v. United States, 445 U.S. 222, 232, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980) (“[T]he element required to make silence fraudulent — a duty to disclose — is absent in this case.”).1 Walzer’s second theory attributes his loss to UAL’s inconsistent or inaccurate disclosure of the number of shares outstanding at the end of 2000. In fact, UAL’s Form 10-K states that 16,295,475 of the 68,834,167 shares then issued were held in treasury. Given that outstanding shares comprise “stock that is held by investors and has not been redeemed by the issuing corporation,” Black’s Law Dictionary 1552 (9th ed.2009); see also Douglas K. Moll, Shareholder Oppression and “Fair Value”: Of Discounts, Dates, and Dastardly Deeds in the Close Corporation, 54 Duke L.J. 293, 328 n. 129 (2004) (“ ‘Treasury shares are carried on the books as authorized and still issued but not outstanding.’ ” (quoting James D. Cox & Thomas Lee Hazen, Cox & Hazen on Corporations, § 21.11, at 1287 (2d ed.2003))), Walzer cannot claim that the market was deceived by the statement that 52,538,692 shares were outstanding at the end of 2000.
Accordingly, we identify no abuse of discretion in the district court’s denial of leave to amend to plead these theories.
*554We have considered Walzer’s other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. While Regulation S-K requires disclosure of "the nature and results of any bankruptcy,” 17 C.F.R. § 229.101(a)(1), or "any material pending legal proceedings,” including bankruptcy, id. § 229.103 (emphasis added), it does not require disclosure regarding the retention of counsel to examine the possibility of future bankruptcy. Thus, the only duty to disclose Walzer could allege here would be UAL’s limited duty to update concrete, forward-looking statements that were rendered misleading by subsequent events. See In re Int'l Bus. Machs. Corp. Sec. Litig., 163 F.3d 102, 109-10 (2d Cir.1998); In re Time Warner, Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir. 1993). Here, Walzer argues merely that, had he known UAL was already contemplating bankruptcy, he would not have purchased UAL stock. This allegation, by itself, is insufficient to state a breach of the limited duty to update.
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*555SUMMARY ORDER
Petitioner Luis Ramon Morales, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States, seeks review of a January 5, 2006 decision of the Board of Immigration Appeals (“BIA”), denying his motion to reconsider a motion to reopen removal proceedings. Morales argues that, because he acquired United States citizenship from his father at the time of his birth, he is not removable as an aggravated felon under section 237(a)(2)(A)(iii) and (a)(2)(C) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(C). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only to the extent necessary to explain our decision.
Although we generally lack jurisdiction to review orders of removal based, as Morales’s is, on an alien’s commission of aggravated felonies, see 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to resolve constitutional claims or questions of law, see id. § 1252(a)(2)(D); Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007), including whether a petitioner has a valid claim to United States citizenship, see Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir.2008). Section 242(b)(5)(A) of the INA provides: “If [a] petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner’s nationality is presented, the court shall decide the nationality claim.”2 8 U.S.C. § 1252(b)(5)(A). If, however, there is a genuine issue of material fact about the petitioner’s nationality, “the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim.” Id. § 1252(b)(5)(B). In determining whether there is a genuine issue of material fact, we apply the same principles employed when reviewing a grant of summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Agosto v. INS, 436 U.S. 748, 754, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978).
As the party effectively seeking summary judgment, the government “bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051,1060-61 (2d Cir.1995). To the extent Morales bears the burden of proof on an issue, as he does here on the issue of citizenship, the government can secure judgment by “pointing] to an absence of evidence to support an essential element of [Morales’s] claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In such circumstances, Morales can demonstrate a genuine issue of material fact only by advancing enough evidence to permit a reasonable factfinder to decide in his favor. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir.2003).
To determine whether Morales has satisfied this burden, we apply section 301 of the INA, the statute in effect on June 15, 1962, the date of Morales’s birth. See Drozd v. INS, 155 F.3d 81, 86 (2d Cir. 1998). Section 301 then provided:
(a) The following shall be nationals and citizens of the United States at birth:
(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of *556whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.
8 U.S.C. § 1401(a)(7) (1952).
Morales’s mother was a citizen of the Dominican Republic. His father, however, was born in Puerto Rico on March 19, 1900, and presumably acquired United States citizenship in 1917 pursuant to the Jones Act, 39 Stat. 951 (1917) (codified at 8 U.S.C. § 1402). Morales submits that his father left Puerto Rico for the Dominican Republic in 1919 and did not return to the United States until after Morales’s birth. Thus, assuming without deciding that presence in Puerto Rico between 1900 and the 1917 enactment of the Jones Act qualifies as presence in the United States under § 1407(a)(7), the key question to be decided in this case is whether Morales adduced sufficient evidence of his father’s presence in Puerto Rico through March 19, 1919, thereby satisfying the § 1407(a)(7) requirement of five years’ residence after attainment of the age of fourteen.
Morales’s evidence on this point consists principally of (1) a birth certificate showing that his father’s birth was registered in Puerto Rico on February 10, 1919; and (2) a sworn affidavit, dated June 18, 1971, from his father, which claims that he left Puerto Rico the same year. Because nothing in the record suggests that a person must be physically present to register his birth, the certificate is not probative of Morales’s father’s physical presence. Even if it were, the certificate demonstrates, at most, the father’s physical presence in the United States only through February 10, 1919, whereas § 1407(a)(7) would have required such presence through March 19, 1919. The father’s affidavit is probative of his physical presence. Nevertheless, because it does not specify a date of departure, it too is insufficient to permit the finding of presence through March 19 necessary to support Morales’s citizenship claim under § 1407(a)(7).
In sum, having failed to adduce sufficient evidence to demonstrate his father’s physical presence in the United States through at least March 19, 1919, Morales has no claim to citizenship under 8 U.S.C. § 1407(a) and remains an alien. Accordingly, we lack jurisdiction to hear his challenge to removal and, therefore, order the petition for review DISMISSED.3
. Our power to decide a nationality claim includes the power to remand the case to the administrative agency to which it was initially presented. See Poole v. Mukasey, 527 F.3d 257, 258 (2d Cir.2008).
. Without expressing an opinion on the merits of Morales’s claim to United States citizenship, we note, as discussed at oral argument, that the disposition of this petition should not preclude Morales from independently pursuing a further investigation into facts that could establish his citizenship, or from taking actions as may be appropriate to bring such information, if any, to the attention of the BIA.
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SUMMARY ORDER
Timothy McDarrah appeals a judgment of conviction in the United States District Court for the Southern District of New York (Crotty, J.). McDarrah was convicted of attempted enticement of a minor through the use of a facility of interstate commerce, in violation of 18 U.S.C. § 2422(b), and was sentenced principally to 72 months’ imprisonment. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
The Indictment
McDarrah argues that he was denied his right, under the Fifth Amendment, to trial pursuant to a properly framed indictment, because the indictment in this case did not specify a single overt act or substantial step taken in furtherance of the attempted enticement. We disagree.
The indictment in this case adequately informed McDarrah of the offense with which he was charged because it stated the elements of the crime, including the allegation of an attempt, and informed McDarrah of the means and time period of the charged conduct. See United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). An indictment alleging attempt “need not specifically allege a particular overt act or any other ‘component part’ of the offense.” Id. at 107, 127 S.Ct. 782 (internal citations omitted). That the offense conduct took place over a period of approximately two months, rather than one day does not trigger a requirement that the indictment allege each overt act during the period. See id. at 108, 127 S.Ct. 782 (use of the word “attempt” coupled with the time and place information in the indictment rendered the indictment sufficient).
*561The Search Warrant for McBarrah’s AOL Account
The district court rejected McDarrah’s pre-trial motion to suppress evidence obtained from the search of his AOL account, concluding that the warrant was supported by probable cause and was not overbroad. United States v. McDamh, No. 05-cr-1182, 2006 WL 1997638, at *9-*10 (S.D.N.Y. July 17, 2006). McDarrah now renews his challenge to the admissibility of the evidence uncovered by the search of this account, asserting that the warrant was defective because it was overbroad and contained no supportive factual predicate suggesting that the messages, other than those between him and “Julie” or “David Smith,” would be evidence of criminal activity.
We conclude that the warrant was sufficiently particular to “enable the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize.” United States v. George, 975 F.2d 72, 75 (2d Cir.1992). The warrant described the items subject to search with particularized detail and did not include a catch-all provision providing for the search of “any other evidence” or allow for wide-ranging searches beyond what was described. That the particularized items encompassed much or all of the content within McDarrah’s AOL account and the documents related to that account is not determinative. Instead, the relevant question is whether there was probable cause supporting the warrant’s application to e-mail messages and account information other than the correspondence between McDarrah and “Julie” and “David Smith.”
FBI Agent Austin Berglas stated in his affidavit that, based on his own experience, his conversations with other officers, and the facts set forth in the affidavit, he believed there was probable cause to believe that the items to be searched would contain evidence of violations of § 2422 and other federal laws. Upon reviewing the application, the magistrate judge could have determined there was ample evidence that a crime was committed and strong indication that further evidence of criminal activity could be found in e-mails between McDarrah and people other than “Julie” and “David Smith.” The magistrate judge therefore had a “substantial basis” to conclude that a search of the messages in McDarrah’s account other than those between him and “Julie” or “David Smith” would “uncover evidence of wrongdoing.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Furthermore, a warrant need not be limited to a location where the conduct amounting to evidence of wrongdoing — -such as the emails between McDarrah and “Julie”— has already been uncovered, as long as there is a sound basis to conclude that evidence of wrongdoing may be found in additional specified locations. See United States v. Irving, 452 F.3d 110, 125 (2d Cir.2006).
In any event, the good faith exception to the exclusionary rule would apply here, because the agents acted in good faith in seeking the warrant and reasonably relied upon it in conducting the search. See United States v. Leon, 468 U.S. 897, 920-22, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Buck, 813 F.2d 588, 592-93 (2d Cir.1987).
The Evidentiary Rulings
McDarrah argues that the trial court erred in admitting (1) Agent Berglas’s testimony as to McDarrah’s state of mind, as “lay” opinion testimony under Federal Rule of Evidence 701; and (2) four e-mails McDarrah sent to erotic services advertisements on Craigslist as “other act” evidence under Federal Rule of Evidence 404(b). We review evidentiary rulings for *562abuse of discretion. United States v. Tocco, 135 F.3d 116, 127 (2d Cir.1998).
Federal Rule of Evidence 701 allows witnesses to offer lay opinion testimony limited to inferences that are (a) rationally based on the perception of the witness; and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Rule 701 testimony is based on personal perceptions — interpretations that function as “an acceptable shorthand for the rendition of facts that the witness personally perceived.” United States v. Garcia, 413 F.3d 201, 211 (2d Cir.2005) (internal quotation marks omitted.). However, Rule 701 specifically prohibits lay opinions “based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” In Garcia, we held that the admissibility of a law enforcement officer’s opinion testimony must be determined under Rule 701, not 701, if it “rests in any way upon ... specialized knowledge.” 413 F.3d at 215 (internal quotation marks omitted). We concluded that Rule 701 was an improper basis to admit a law enforcement agent’s opinion testimony that repeatedly used the word “we” as a means of discussing opinions based on “collaborative efforts of a team of law enforcement officers,” because testimony in that posture indicated that the “opinion was not limited to [the agent’s] personal perceptions.” Id. at 212.
Here, the government repeatedly elicited “lay” opinion testimony from Berglas’s testimony that violated these principles. Berglas testified that certain of McDarrah’s exchanges with “Julie” were part of “a process we call grooming.” (Trial Tr. 152 (emphasis added).) Berglas explained on direct that McDarrah’s invitations to “Julie” were the start of a grooming process aimed to encourage “Julie” to trust him. Berglas explained one exchange as an escalation of the grooming process by which McDarrah “is making it totally clear that he just wants to gain my trust and — and that he is totally serious about having sex, and teaching me all these things, and buying me clothes, CDs, and anything else I wanted.” (Trial Tr. 246 (emphasis added).) Garcia makes clear that this was not proper: Berglas’s use of the word “we” signaled to the jury that his testimony was based upon knowledge he and other investigators had collectively acquired through their experience investigating conduct similar to McDarrah’s, and therefore, was specialized knowledge rather than “lay” opinion. Moreover, by effectively telling the jury that, based on his specialized knowledge, the defendant was guilty of attempted enticement, Berglas veered into the territory we warned against in United States v. Mejia, 545 F.3d 179, 191 (2d Cir.2008), where government witnesses are “no longer aiding the jury in its factfinding: they are instructing the jury on the existence of the facts needed to satisfy the elements of the charged offense.”
However, although we believe the district court abused its discretion in admitting the testimony, we conclude that its admission was harmless. An evidentiary error is harmless if the government demonstrates that it is “highly probable” that the error did not have a “substantial and injurious effect or influence” on the verdict. United States v. Dukagjini, 326 F.3d 45, 61-62 (2d Cir.2003) (internal quotation marks and citations omitted); Fed. R.Crim.P. 52(a).
Here, it is highly probable that, without regard to Berglas’s interpretation, the jury could readily have concluded that McDar-rah believed that “Julie” was a 13-year-old girl. For example, the majority of McDarrah’s messages to “Julie” reflect an apparent belief on his part that she was a 13-year-old girl: he showed an immediate *563interest in chatting with “Juliel3NYC,” and told her that the age of consent in New York is 17 “but I don’t plan to wait that long.” Those occasions when McDar-rah seemed to question “Julie’s” identity by suggesting she sounded “like a cop,” were isolated and closely followed by further discussion of McDarrah’s sexual interest in “Julie.”
It is also highly probable that the jury would have concluded independently of Berglas’s testimony that McDarrah’s communications to “Julie” were not limited to an interest in chatting about sex and were intended to entice her to engage in sexual conduct. The transcripts reveal progressively more sexually explicit discussions that increasingly centered around McDar-rah’s efforts to coordinate a time to observe and to meet “Julie;” such exchanges were powerful evidence that McDarrah sought not simply to discuss but to actually engage in sexual conduct with “Julie.”
In sum, though the agent’s opinion testimony did not conform to Rule 701, the jurors could have drawn their own conclusions based on the transcripts of the exchanges, which included ample evidence of MeDarrah’s guilt. Accordingly, we believe it is highly probable that the jury would have found McDarrah guilty in the absence of the opinion testimony.
With respect to the “other act” evidence, MeDarrah’s e-mail responses to the Craigslist advertisements were relevant to his knowledge and intent, because he wrote those emails to girls he knew could be minors (he enthusiastically indicated that girls younger than 18 are acceptable) and his e-mails showed his interest in actual sexual conduct. There is an obvious similarity between McDarrah’s four “other act” e-mails and his communications with “Julie,” because they are virtually the same conduct. See United States v. Brand, 467 F.3d 179, 197-98 (2d Cir.2006) (in prosecution under § 2422(b), possession of child pornography relevant to sexual interest in young girls met similarity requirement because of known link between child pornography and pedophilia). Furthermore, the district court issued a limiting instruction stating that the jury was to consider the four e-mails only when evaluating whether or not McDarrah’s charged conduct was a mistake, accident, or otherwise innocent. See United States v. Williams, 205 F.3d 23, 34 (2d Cir.2000) (other act evidence not unduly prejudicial when it did not involve conduct more serious than the charged crime and where district court gave proper limiting instruction). There was no error in admitting the e-mails.
The sufficiency of the trial evidence
McDarrah argues that the evidence at trial was insufficient to convict him of attempted enticement, because his “grooming” correspondence with “Julie” was by definition preparatory conduct and the September 14, 2005 request that “Julie” come down from her apartment was a continuation of preparation, not a substantial step toward commission of enticement. McDarrah also maintains that the correspondence shows that he did not actually believe Julie was a 13-year-old girl.
When conducting sufficiency review on appeal, the relevant question is whether, when viewed in the light most favorable to the government and with all reasonable inferences drawn in the government’s favor, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A jury may convict under § 2422(b) based on a finding that the defendant attempted to entice or persuade a minor to engage in illegal sexual activity and need not find that the de*564fendant attempted to engage in the illegal sexual activity itself. Brand, 467 F.3d at 201-02 (setting forth elements of § 2422(b) charge); see also United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (“While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and [by enacting § 2422(b) ] the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves.”).
A reasonable juror, after reading McDarrah and “Julie’s” correspondence and listening to their taped conversations, could have determined that the tone and content of McDarrah’s communications indicated that he believed “Julie” was a minor. Drawing all inferences in favor of the government, a reasonable juror could also conclude that McDarrah’s messages to “Julie,” particularly those discussing ways for the two to meet, comprised a series of substantial steps any number of which may have been taken in furtherance of an effort to entice her to engage in sexual conduct. See Bailey, 228 F.3d at 639-40 (sexually explicit correspondence provided sufficient evidence for attempt to entice conviction where defendant attempted to set up meetings but where no meeting ever took place). McDarrah’s e-mail request that “Julie” meet him outside her apartment on September 14, 2005, corroborated that his previous e-mails were more than merely preparatory, and that he exhibited an intent to persuade a minor not just to talk about sex, but to engage in sexual conduct. A reasonable juror could also have concluded that the September 14 e-mail itself, coupled with McDarrah’s presence at the designated location at that time, constituted a substantial step toward enticing a girl McDarrah believed to be 13 years old to engage in illegal sexual activity
We have considered McDarrah’s remaining challenges and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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*567
SUMMARY ORDER
Petitioner Fei Zheng, a native and citizen of the People’s Republic of China, seeks review of an August 21, 2007 order of the BIA denying his motion to reopen. In re Fei Zheng, No. A070 906 201 (B.I.A. Aug. 21, 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 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not err in denying Zheng’s untimely 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 Zheng argues that the BIA’s analysis of his evidence was inadequate, evidence that “the [agency] is asked to consider time and again [may be considered] ... in a summary fashion without a reviewing court presuming that [the agency] has abused its discretion.” Wei Guang Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir.2006). Indeed, 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 Shao, 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).
Zheng’s assertion that he has demonstrated prima facie eligibility for relief is unavailing, as the BIA reasonably found, based on the record and its precedential decisions, that the Chinese government does not physically compel sterilization but rather seeks to secure compliance with its family planning goals by imposing economic sanctions as an alternative to sterilization, and that such sanctions do not rise to the level of persecution. See Jian Hui Shao, 546 F.3d at 164 (finding that the BIA reasonably concluded that the economic rewards and penalties used to implement the family planning policy in Fuji-an province did not necessarily amount to “physical or mental coercion”). While we have recognized that, in some circumstances, “severe economic penalties could be as effective as physical pressure in forcing an involuntary sterilization,” the record evidence in this case did not compel the BIA to find a reasonable possibility of the imposition of penalties amounting to economic persecution upon the petitioner’s return to China. Id. at 161-162. Because Zheng’s failure to establish prima facie eligibility for relief provides a valid basis for the BIA’s denial of his motion to reopen, we find no abuse of discretion here. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
*568For 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 Wen Bing Jiang, a native and citizen of the People’s Republic of China, *569seeks review of a September 28, 2007 order of the BIA denying her motion to reopen. In re Wen Bing Jiang, No. A077 009 311 (B.I.A. Sept. 28, 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 Hid Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Jiang’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 Ail'd 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”). The BIA reasonably questioned the reliability of Jiang’s mother-in-law’s affidavit because it was not new and previously unavailable evidence and because Jiang was found to be not credible in her underlying proceedings. See 8 C.F.R. § 1003.2(c)(1); Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-48 (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).
Moreover, the BIA reasonably found based on this record that the Chinese government does not physically compel sterilization but rather seeks to secure compliance with its family planning goals by imposing economic sanctions as an alternative to sterilization, and that such sanctions do not rise to the level of persecution. See Jian Hui Shao, 546 F.3d at 164 (finding that the BIA reasonably concluded that the economic rewards and penalties used to implement the family planning policy in Fujian province did not necessarily amount to “physical or mental coercion”). While we have recognized that, in some circumstances, “severe economic penalties could be as effective as physical pressure in forcing an involuntary sterilization,” the record evidence in this case did not compel the BIA to find a reasonable possibility of the imposition of penalties amounting to economic persecution upon the petitioner’s return to China. Id. at 161-162. Accordingly, the BIA did not abuse its discretion in denying Jiang’s motion to reopen.
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 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 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.
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.
Ravanna Spencer, an inmate at the State Correctional Institution at Camp Hill, Pennsylvania, appeals the order of the District Court entering judgment in favor of Appellees in his civil suit. For the following reasons, we will summarily vacate and remand to the District Court for further proceedings. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6.
Spencer filed a complaint in May 2006, alleging numerous instances in which various prison officials violated his constitutional rights. The crux of Spencer’s action is that Appellee Kalsky, the prison psychologist, along with Appellee Newton, the prison psychiatrist, interviewed him at his *590cell door and in the course of the interview improperly disclosed his mental health history. Spencer also asserts that Newton discontinued his medication in retaliation for his filing of a grievance.
The case was referred to a Magistrate Judge. Spencer filed two motions for appointment of counsel, which the Magistrate Judge denied. Next, upon the Magistrate Judge’s recommendation, the District Court dismissed several defendants and claims. The remaining defendants then filed summary judgment motions. In their first summary judgment motions, defendants contested only Spencer’s failure to exhaust his administrative remedies. The District Court granted summary judgment with respect to the retaliation claim and remanded the case to the Magistrate Judge with respect to the Eighth and Fourteenth Amendment claims against both Newton and Kalsky. In their second summary judgment motions, Kalsky and Newton argued that Spencer’s remaining claims were meritless. The Magistrate Judge, in two separate orders dated December 11, 2008, and December 15, 2008, recommended granting summary judgment in favor of both Kalsky and Newton.
On January 12, 2009, Spencer filed the first of three motions requesting an extension of time to file objections to the Magistrate Judge’s Report and Recommendation. The District Court granted all three motions, indicating that the third extension, setting the deadline on April 30, 2009, would be the last. On May 1, 2009, the District Court entered an order adopting the Magistrate Judge’s Report and Recommendations, granted both summary judgment motions, and entered judgment in favor of the Appellees. In its order, the Court noted that no objections had been filed to the Report and Recommendation.
Four days after the entry of judgment, the District Court received Spencer’s objections to the Report and Recommendation which were dated April 29, 2009. The District Court has not acted on Spencer’s objections. Spencer filed a timely notice of appeal challenging the District Court’s order and has filed a motion requesting appointment of counsel.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Under the Magistrate Judges Act, a party may file written objections to the Magistrate Judge’s proposed findings within ten days. 28 U.S.C. § 636(b)(1). Once objections are filed, the District Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The ten-day limit is not jurisdictional and may be extended by the District Court. See Grandison v. Moore, 786 F.2d 146,148 (3d Cir.1986).
Here, while the District Court did not receive the objections until five days after the deadline, the document is dated April 29, 2009. Because Spencer is a prisoner, he receives the benefit of the “prison mailbox rule.” See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Under that rule, the date of filing occurs when a prisoner transmits documents to prison authorities for mailing. See Longenette v. Krusing, 322 F.3d 758, 761 (3d Cir.2003). Thus, inasmuch as the documents are dated one day before the deadline, it appears that Spencer timely filed his objections to the Magistrate Judge’s Report and Recommendation. Because the District Court did not consider the merits of Spencer’s objections, we will remand for its consideration in the first instance. See Grandison, 786 F.2d at 149.
Spencer also appeals the Magistrate Judge’s denial of his two motions for counsel. Spencer did not appeal these orders to the District Court and therefore he *591cannot challenge the orders in this Court. See Nara v. Frank, 488 F.3d 187, 195 (3d Cir.2007).
For the foregoing reasons, we will summarily vacate the District Court’s order granting judgment for the defendants and will remand this matter for farther proceedings in accordance with this opinion. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6. Spencer’s motion for appointment of counsel in this Court is denied as moot.
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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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