url
stringlengths 56
59
| text
stringlengths 3
913k
| downloaded_timestamp
stringclasses 1
value | created_timestamp
stringlengths 10
10
|
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8474433/
|
ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474435/
|
*429
ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s June 4, 2009 dismissal order is vacated, the mandate recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before June 30, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474426/
|
ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474428/
|
ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
*427ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474431/
|
ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474436/
|
*429
ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s June 4, 2009 dismissal order is vacated, the mandate recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before June 30, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474438/
|
ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s May 20, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before June 30, 2009.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474440/
|
ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App.' P. 42(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474444/
|
ORDER
Yvonne Jett moves to transfer her case to the United States Court of Appeals for the Ninth Circuit and submits a motion for leave to proceed in forma pauperis.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion to transfer is granted. The case and the in forma pauperis motion are transferred to the United States Court of Appeals for the Ninth Circuit.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474448/
|
ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474451/
|
PER CURIAM.
ORDER
Max Rohr, Inc. moves to dismiss Rohit Prakash’s appeal. Prakash opposes. Max Rohr replies.
Prakash appeals the Trademark Trial and Appeal Board’s May 8, 2009 decision that, inter alia, denied his request for leave to amend his pleadings. In the May 8 order, the Board further indicated that there were genuine issues of material fact that required a trial and set forth deadlines for further proceedings.
Max Rohr argues that the May 8 decision was not a final, appealable decision pursuant to our decision in Copelands Enter., Inc. v. CNV, Inc., 887 F.2d 1065 (Fed.Cir.1989) (en banc). Prakash argues that Copelands “is irrelevant because the leave to amend pleadings was not denied” (emphasis in original).
In Copelands, the court ruled that it would review decisions of the Trademark Trial and Appeal Board only if the decision “put an end to the litigation before the Board.” In this case, the May 8 decision did not put an end to litigation before the Board and thus Prakash’s appeal is premature. Prakash has not shown that the fact that Copelands did not involve the denial of a motion for leave to amend pleadings merits a different result in this case. Prakash’s argument that his appeal is proper pursuant to Fed.R.Civ.P. 54(b) or 28 U.S.C. § 1292(b) is unavailing as those provisions apply to district court cases and not proceedings before the Trademark Trial and Appeal Board. Thus, the appeal is dismissed.
Accordingly,
*437IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474453/
|
RADER, Circuit Judge.
ORDER
The University of Pittsburgh of the Commonwealth System of Higher Education (Pitt) moves without opposition to vacate the December 17, 2008, 630 F.Supp.2d 576, final judgment entered by the United States District Court for the Western District of Pennsylvania, remand for further proceedings, and dismiss the cross-appeal.
In April 2007, Pitt alone brought suit against Varían Medical Systems, Inc., alleging infringement of two of its patents. On April 30, 2008, the district court dismissed the complaint with prejudice on the ground that Pitt lacked standing without first joining Carnegie Mellon University (Carnegie Mellon), an alleged co-owner of the patents. The parties appealed to this court, appeals nos.2008-1441, -1454.
In June 2008, Pitt filed the underlying action in the United States District Court for the Northern District of California, making these same patent infringement allegations. That case was transferred by the California district court to the Pennsylvania district court. The Pennsylvania district court dismissed this suit with prejudice. The parties then again appealed to this court, appeal nos.2009-1227, -1240. We stayed proceedings in this set of consolidated appeals pending this court’s final disposition in the first set of consolidated appeals.
In Univ. of Pittsburgh v. Varian Medical Systems, Inc., 569 F.3d 1328 (Fed.Cir.2009), this court held that even if Carnegie Mellon was a necessary party to the suit and even if dismissal was appropriate, the district court erred in dismissing the suit with prejudice. This court vacated the *438district court’s decision to dismiss the complaint with prejudice and remanded with instructions to designate the dismissal as without prejudice to Pitt’s ability to establish standing.
Because the dismissal of the underlying complaint was based on the district court’s initial decision which has now been vacated, we agree that this case should be treated in the same manner. We therefore lift the stay of proceedings in 2009-1227, - 1240, vacate the district court’s decision, and remand with instructions to dismiss the complaint without prejudice to Pitt’s ability to establish standing.
Accordingly,
IT IS ORDERED THAT:
(1) The motions are granted.
(2) Each side shall bear its own costs.-
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474455/
|
MAYER, Circuit Judge.
ORDER
Sanofi-Aventis et al. (Sanofi) move for panel review and reconsideration pursuant to Fed. Cir. R. 27(l) of the court’s July 21, 2009 order denying Sanofi’s motion for issuance of the mandate. Cobalt Pharmaceuticals, Inc. responds and states that it “does not oppose, and hereby consents, to entry of judgment in this appeal in accordance with and based on this Court’s decision in Sanofi-Synthelabo v. Apotex Inc., 2007-1438, with each side to bear its own costs.”
This appeal was stayed pending the court’s disposition of Sanofi v. Apotex, 2007-1438. In Apotex, the court affirmed the district court’s ruling that Sanofi’s patent was not invalid. Because the parties now agree that the judgment of the district court in this case should be summarily affirmed, the court grants the motion for reconsideration.
Accordingly,
IT IS ORDERED THAT:
(1) The motion for panel review is granted.
*439(2) The motion for reconsideration is granted. The judgment of the United States District Court for the Southern District of New York is summarily affirmed and the mandate is issued herewith.
(3) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474457/
|
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss this appeal for lack of jurisdiction or, in the alternative, summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in McCowan v. Shinseki, No. 09-7122.
Freddie E. McCowan sought review by the Court of Appeals for Veterans Claims of a Board of Veterans’ Appeals decision denying McCowan’s claim for entitlement to service connection for post-traumatic stress disorder (PTSD). The Board had determined that the evidence did not support a finding that McCowan had PTSD, and the Court of Appeals for Veterans Claims held that the Board’s decision had a plausible basis in the record and was not clearly erroneous. McCowan appeals to this court.
The Secretary moves to dismiss the appeal for lack of jurisdiction, asserting that McCowan only argues that the Board failed to properly weigh the medical evidence related to his claim for PTSD. We agree. In McCowan’s brief, he makes arguments concerning the evidence and mentions but does not explain a constitutional argument. This court must look beyond the appellant’s characterization of the issues to determine whether they fall within the jurisdiction of this court. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed.Cir.2007); Helfer v. West, 174 F.3d 1332, 1335 (Fed.Cir.1999). Here, McCowan only challenges the Court of Veterans Claims’ findings regarding his alleged PTSD. Because we agree with the Secretary that this court lacks jurisdiction, we must dismiss McCowan’s appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted. The motion for summary affirmance is moot.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474459/
|
PER CURIAM.
ORDER
The United States moves for summary affirmance of the judgment of the United States Court of Federal Claims which dismissed Karen McBrien’s complaint for lack of jurisdiction. McBrien has not responded.
McBrien filed a complaint seeking damages in excess of $10 million, alleging various civil rights and tort claims against the United States and a number of private parties. The Court of Federal Claims dismissed McBrien’s complaint, determining that it did not have jurisdiction over such of claims and over claims against parties other than the United States. This appeal followed.
Summary affirmance of a case is appropriate “when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.”) Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994). Here, the Court of Federal Claims correctly concluded that it lacks jurisdiction over McBrien’s claims. See Brown v. United States, 105 F.3d 621, 624 (Fed.Cir.1997); Osborn v. United States, 47 Fed.Cl. 224, 229 (2000). As the court stated in Brown, “[The Court of Federal Claims] lacks jurisdiction over tort actions against the United States” ... and is limited to cases in which the Constitution or a federal statute requires the payment of money damages as compensation. Brown v. United States, 105 F.3d at 623.
Because the Court of Federal Claims correctly held that McBrien’s claims are tort claims, based on federal statutes that do not require the payment of money damages by the United States, or against parties other than the United States, we conclude that no substantial question regarding the outcome of this appeal exists; therefore, summary affirmance is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion for summary affirmance is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474452/
|
PER CURIAM.
ORDER
Max Rohr, Inc. moves to dismiss Rohit Prakash’s appeal. Prakash opposes. Max Rohr replies.
Prakash appeals the Trademark Trial and Appeal Board’s May 8, 2009 decision that, inter alia, denied his request for leave to amend his pleadings. In the May 8 order, the Board further indicated that there were genuine issues of material fact that required a trial and set forth deadlines for further proceedings.
Max Rohr argues that the May 8 decision was not a final, appealable decision pursuant to our decision in Copelands Enter., Inc. v. CNV, Inc., 887 F.2d 1065 (Fed.Cir.1989) (en banc). Prakash argues that Copelands “is irrelevant because the leave to amend pleadings was not denied” (emphasis in original).
In Copelands, the court ruled that it would review decisions of the Trademark Trial and Appeal Board only if the decision “put an end to the litigation before the Board.” In this case, the May 8 decision did not put an end to litigation before the Board and thus Prakash’s appeal is premature. Prakash has not shown that the fact that Copelands did not involve the denial of a motion for leave to amend pleadings merits a different result in this case. Prakash’s argument that his appeal is proper pursuant to Fed.R.Civ.P. 54(b) or 28 U.S.C. § 1292(b) is unavailing as those provisions apply to district court cases and not proceedings before the Trademark Trial and Appeal Board. Thus, the appeal is dismissed.
Accordingly,
*437IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474454/
|
RADER, Circuit Judge.
ORDER
The University of Pittsburgh of the Commonwealth System of Higher Education (Pitt) moves without opposition to vacate the December 17, 2008, 630 F.Supp.2d 576, final judgment entered by the United States District Court for the Western District of Pennsylvania, remand for further proceedings, and dismiss the cross-appeal.
In April 2007, Pitt alone brought suit against Varían Medical Systems, Inc., alleging infringement of two of its patents. On April 30, 2008, the district court dismissed the complaint with prejudice on the ground that Pitt lacked standing without first joining Carnegie Mellon University (Carnegie Mellon), an alleged co-owner of the patents. The parties appealed to this court, appeals nos.2008-1441, -1454.
In June 2008, Pitt filed the underlying action in the United States District Court for the Northern District of California, making these same patent infringement allegations. That case was transferred by the California district court to the Pennsylvania district court. The Pennsylvania district court dismissed this suit with prejudice. The parties then again appealed to this court, appeal nos.2009-1227, -1240. We stayed proceedings in this set of consolidated appeals pending this court’s final disposition in the first set of consolidated appeals.
In Univ. of Pittsburgh v. Varian Medical Systems, Inc., 569 F.3d 1328 (Fed.Cir.2009), this court held that even if Carnegie Mellon was a necessary party to the suit and even if dismissal was appropriate, the district court erred in dismissing the suit with prejudice. This court vacated the *438district court’s decision to dismiss the complaint with prejudice and remanded with instructions to designate the dismissal as without prejudice to Pitt’s ability to establish standing.
Because the dismissal of the underlying complaint was based on the district court’s initial decision which has now been vacated, we agree that this case should be treated in the same manner. We therefore lift the stay of proceedings in 2009-1227, - 1240, vacate the district court’s decision, and remand with instructions to dismiss the complaint without prejudice to Pitt’s ability to establish standing.
Accordingly,
IT IS ORDERED THAT:
(1) The motions are granted.
(2) Each side shall bear its own costs.-
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474456/
|
MAYER, Circuit Judge.
ORDER
Sanofi-Aventis et al. (Sanofi) move for panel review and reconsideration pursuant to Fed. Cir. R. 27(l) of the court’s July 21, 2009 order denying Sanofi’s motion for issuance of the mandate. Cobalt Pharmaceuticals, Inc. responds and states that it “does not oppose, and hereby consents, to entry of judgment in this appeal in accordance with and based on this Court’s decision in Sanofi-Synthelabo v. Apotex Inc., 2007-1438, with each side to bear its own costs.”
This appeal was stayed pending the court’s disposition of Sanofi v. Apotex, 2007-1438. In Apotex, the court affirmed the district court’s ruling that Sanofi’s patent was not invalid. Because the parties now agree that the judgment of the district court in this case should be summarily affirmed, the court grants the motion for reconsideration.
Accordingly,
IT IS ORDERED THAT:
(1) The motion for panel review is granted.
*439(2) The motion for reconsideration is granted. The judgment of the United States District Court for the Southern District of New York is summarily affirmed and the mandate is issued herewith.
(3) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474463/
|
PER CURIAM.
ORDER
The United States moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss Samson J. Hypolite’s appeal as untimely. Hypolite opposes.
Hypolite seeks to appeal the United States Court of Federal Claims’ order in Hypolite v. United States, case no. 08-110, 2008 WL 4426611. The Court of Federal Claims entered judgment in that case on September 25, 2008. Hypolite did not file his notice of appeal until July 7, 2009, or 285 days later.
The United States argues that Hypolite’s appeal is untimely because it was not filed within 60 days of the entry of judgment. The United States argues that in order for Hypolite’s notice of appeal to be timely, he was required to be file the appeal no later than November 24, 2008.
An appeal from a judgment of the Court of Federal Claims must be filed within 60 days of entry of judgment. See Fed. R.App. P. 4(a)(1)(B). Because Hypolite’s filed his notice of appeal on July 7, 2009, 285 days after entry of judgment, this court lacks jurisdiction. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (timely filing of notice of appeal is a jurisdictional requirement); An untimely appeal must be dismissed for lack of jurisdiction; the requirement cannot be waived, and is not subject to equitable tolling. Id. See also Sofarelli Assocs., Inc. v. United States, 716 F.2d 1395 (Fed.Cir.1983) (appeal must be dismissed for lack of jurisdiction if notice of appeal is untimely).
Accordingly,
IT IS ORDERED THAT:
(1) The motions are granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474465/
|
PER CURIAM.
ORDER
The Postmaster General moves to dismiss Sarah M. Mitchell’s appeal as untimely filed.
In a decision dated March 25, 2009, The United States Postal Service Board of Contract Appeals denied in part and dismissed in part Mitchell’s claims related to a medical agreement. According to a certified mail receipt, counsel for Mitchell received the Board’s decision on March 30, 2009. On August 14, 2009, this court received Mitchell’s notice of appeal seeking review of the Board’s decision.
An appeal from a decision of the Postal Service Board of Contract Appeals must be filed within 120 days of receipt of the decision. See 41 U.S.C. § 607(g)(1)(A). Mitchell did not file her notice of appeal until August 14, 2009, or 137 days after her counsel’s receipt of the Board’s decision. Because Mitchell’s appeal was untimely filed, it must be dismissed. Placeway Constr. Co. v. United States, 713 F.2d 726, 727-28 (Fed.Cir.1983) (appeal must be received by court within 120 days of the appellant’s receipt of the Board’s decision; court has no authority to waive statutory deadline).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474467/
|
ORDER
Satisloh AG and Satisloh North America, Inc. move to withdraw their petition for permission to appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474469/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474722/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tracy Lynn Petty appeals the district court’s order denying relief on her motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We find no reversible error and we thus affirm for the reasons stated by the district court. United States v. Petty, No. 3:04-cr-00250-RJC-CH-5, 2008 WL 3992165 (W.D.N.C. Aug. 27, 2008). We deny Petty’s motion for appointment of counsel, and we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474462/
|
PER CURIAM.
ORDER
The United States moves to dismiss for lack of jurisdiction Jay Peterson’s appeal from the final judgment of the United States Court of Federal Claims. Peterson opposes.
On July 2, 2009, 2009 WL 1979263, Court of Federal Claims issued a decision dismissing Peterson’s complaint with prejudice and entering judgment in favor of the United States. On September 1, 2009, 61 days after entry of judgment, Peterson filed his notice of appeal.
An appeal from a judgment of the Court of Federal Claims must be filed within 60 days of entry of judgment. See Fed. RApp. P. 4(a)(1)(B); 28 U.S.C. § 2522. “[T]he timely filing of a notice of appeal is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). An untimely appeal must be dismissed for lack of jurisdiction; the requirement cannot be waived, and is not subject to equitable tolling. Id.
Peterson contends that his appeal was timely because pursuant to Rule 26(c) of the Federal Rules of Appellate Procedure he was entitled three additional calendar days after service of the decision. However, this provision does not apply to the filing of the notice of appeal. As noted above, the notice of appeal is due within 60 days from the date of entry of judgment, not service of the judgment.
Because Peterson’s appeal was filed more than 60 days after entry of judgment, and because Rule 26(c) is inapplicable here, we must dismiss Peterson’s appeal as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted. All other motions are moot.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474466/
|
PER CURIAM.
ORDER
The Postmaster General moves to dismiss Sarah M. Mitchell’s appeal as untimely filed.
In a decision dated March 25, 2009, The United States Postal Service Board of Contract Appeals denied in part and dismissed in part Mitchell’s claims related to a medical agreement. According to a certified mail receipt, counsel for Mitchell received the Board’s decision on March 30, 2009. On August 14, 2009, this court received Mitchell’s notice of appeal seeking review of the Board’s decision.
An appeal from a decision of the Postal Service Board of Contract Appeals must be filed within 120 days of receipt of the decision. See 41 U.S.C. § 607(g)(1)(A). Mitchell did not file her notice of appeal until August 14, 2009, or 137 days after her counsel’s receipt of the Board’s decision. Because Mitchell’s appeal was untimely filed, it must be dismissed. Placeway Constr. Co. v. United States, 713 F.2d 726, 727-28 (Fed.Cir.1983) (appeal must be received by court within 120 days of the appellant’s receipt of the Board’s decision; court has no authority to waive statutory deadline).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474468/
|
ORDER
Satisloh AG and Satisloh North America, Inc. move to withdraw their petition for permission to appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474472/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474474/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474475/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed August 17, 2009, be affirmed. The district court properly dismissed the petition for writ of mandamus because the question of whether prosecution is to be instituted is within the discretion of the Attorney General, and that prosecutorial discretion may not be controlled through mandamus. See Powell v. Katzenbach, 359 F.2d 234, 234 (D.C.Cir.1965) (per curiam). Appellant has not shown a “clear and indisputable” right to mandamus relief. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474478/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplements thereto filed by the *447appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed March 17, 2009, be affirmed. The district court did not abuse its discretion by declining to reopen appellant’s civil action on the ground that the court could not discern what claims were presented against which defendants and the basis for any claims. On January 4, 2008, 2008 WL 54152, appellant’s complaint was dismissed without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To comply with this rule, the complaint should identify the “circumstances, occurrences, and events” that support the claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The dismissal without prejudice allows appellant to file a new complaint that meets these requirements. See Ciralsky, 355 F.3d at 671.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474482/
|
PER CURIAM.
JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed April 30, 2009, 2009 WL 1176464, be affirmed. The district court properly dismissed this action seeking compensation and return of land in Palestine. Appellant relies on the “expropriation exception” to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), but he has not shown that rights in property were taken in violation of international law and that a jurisdictional nexus exists between the expropriation and the United States, so as to meet the requirements of this exception. See Nemariam v. Fed. Democratic Republic of Eth., 491 F.3d 470, 474-75 (D.C.Cir.2007).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474476/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed August 17, 2009, be affirmed. The district court properly dismissed the petition for writ of mandamus because the question of whether prosecution is to be instituted is within the discretion of the Attorney General, and that prosecutorial discretion may not be controlled through mandamus. See Powell v. Katzenbach, 359 F.2d 234, 234 (D.C.Cir.1965) (per curiam). Appellant has not shown a “clear and indisputable” right to mandamus relief. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474477/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplements thereto filed by the *447appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed March 17, 2009, be affirmed. The district court did not abuse its discretion by declining to reopen appellant’s civil action on the ground that the court could not discern what claims were presented against which defendants and the basis for any claims. On January 4, 2008, 2008 WL 54152, appellant’s complaint was dismissed without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To comply with this rule, the complaint should identify the “circumstances, occurrences, and events” that support the claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The dismissal without prejudice allows appellant to file a new complaint that meets these requirements. See Ciralsky, 355 F.3d at 671.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474479/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 20, 2009, 2009 WL 453122, be affirmed. The district court correctly determined it lacked authority to review any decision of the Supreme Court or to order the Supreme Court to take any action. See In re Marin, 956 F.2d 339, 340 (D.C.Cir.1992) (per curiam).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after *448resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474481/
|
PER CURIAM.
JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed April 30, 2009, 2009 WL 1176464, be affirmed. The district court properly dismissed this action seeking compensation and return of land in Palestine. Appellant relies on the “expropriation exception” to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), but he has not shown that rights in property were taken in violation of international law and that a jurisdictional nexus exists between the expropriation and the United States, so as to meet the requirements of this exception. See Nemariam v. Fed. Democratic Republic of Eth., 491 F.3d 470, 474-75 (D.C.Cir.2007).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474483/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of the foregoing and the motion to strike, which is included in appellant’s reply brief, the motion for appointment of counsel, the motion to file fewer briefs than required, and the motion to defer the appendix, it is
ORDERED that the motion to strike be denied. It is
FURTHER ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motion to file fewer briefs than required be granted. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order of March 30, 2009, 608 F.Supp.2d 4, be affirmed. The district court properly construed appellant’s claims against the Federal Bureau of Prisons, and Harely S. Lappin and Kim M. White in their official capacities, as claims against the United States, see Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and dismissed these claims because the United States has not waived sovereign immunity with respect to actions for violations of constitutional rights by federal officials, see Clark v. Library of Congress, 750 F.2d 89, 103 n. 31 & 104 (D.C.Cir.1984).
Appellant has not shown that the district court abused its discretion in transferring the remainder of the case to the Eastern District of North Carolina. See In re Tripati, 836 F.2d 1406, 1407 (D.C.Cir.1988) (per curiam). It is
FURTHER ORDERED that the motion to defer the appendix be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474487/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. While the issues presented occasion no need for a published opinion, they have been accord*451ed full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
This court has decided the rule in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not apply retroactively to cases on collateral review. In re Fashina, 486 F.3d 1300, 1301 (D.C.Cir.2007). That King brings new legal arguments to bear upon the issue does not enable this panel to revisit that decision. Under the law of the circuit doctrine, “[o]ne three-judge panel ... does not have the authority to overrule another three-judge panel of the court.” LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc).
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474489/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of these materials and the motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order of June 16, 2009, 2009 WL 1686957, be affirmed. The district court properly dismissed this action for lack of standing because appellant did not allege an injury in fact caused by the appellees’ conduct and redressable by the court, which are the “irreducible constitutional minimum” requirements for standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. *452See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474491/
|
*453
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed March 19, 2009, be affirmed. The district court did not abuse its discretion in denying appellant’s motions for reconsideration. The court correctly held that appellant’s 120-month statutory mandatory minimum sentence was not subject to reduction under 18 U.S.C. § 3582(c)(2), see U.S.S.G. § 1B1.10, Application Note 1(A), and appellant has not provided any valid grounds for reconsidering that holding.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474493/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 29, 2009 be affirmed. The district court did not abuse its discretion in dismissing appellant’s fanciful “cover up” and “conspiracy” claims as frivolous, see Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), and personal jurisdiction and venue are lacking with respect to any non-fanciful allegations.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8477226/
|
ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474486/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order entered June 10, 2009, be affirmed. On April 15, 2009, the district court issued a default judgment in the amount of $5,500.00 in favor of the appellant and against James Q. Butler. The district court did not abuse its discretion in denying appellant’s motion for relief from that judgment under Federal Rule of Civil Procedure 60(b). Appellant is free to pursue enforcement of the default judgment against Butler through legal means in the district court or to seek assistance from the District of Columbia Bar, which considers applications for reimbursement through the Clients’ Security Fund, for losses caused by the dishonest conduct of a member of the D.C. Bar.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474488/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. While the issues presented occasion no need for a published opinion, they have been accord*451ed full consideration by the Court. See Fed. R.App. P. 36; D.C.Cir. Rule 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
This court has decided the rule in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not apply retroactively to cases on collateral review. In re Fashina, 486 F.3d 1300, 1301 (D.C.Cir.2007). That King brings new legal arguments to bear upon the issue does not enable this panel to revisit that decision. Under the law of the circuit doctrine, “[o]ne three-judge panel ... does not have the authority to overrule another three-judge panel of the court.” LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc).
The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474490/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of these materials and the motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order of June 16, 2009, 2009 WL 1686957, be affirmed. The district court properly dismissed this action for lack of standing because appellant did not allege an injury in fact caused by the appellees’ conduct and redressable by the court, which are the “irreducible constitutional minimum” requirements for standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. *452See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474492/
|
*453
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed March 19, 2009, be affirmed. The district court did not abuse its discretion in denying appellant’s motions for reconsideration. The court correctly held that appellant’s 120-month statutory mandatory minimum sentence was not subject to reduction under 18 U.S.C. § 3582(c)(2), see U.S.S.G. § 1B1.10, Application Note 1(A), and appellant has not provided any valid grounds for reconsidering that holding.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474494/
|
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 29, 2009 be affirmed. The district court did not abuse its discretion in dismissing appellant’s fanciful “cover up” and “conspiracy” claims as frivolous, see Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), and personal jurisdiction and venue are lacking with respect to any non-fanciful allegations.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8477227/
|
ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474495/
|
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.
We note that appellant’s brief did not comply with Fed. R.App. P. 28(a)(9), which states that the appellant’s brief must contain “the argument, which must contain: (A) appellant’s contentions and the reasons for them.... ” With respect to at least two of the four issues raised in the appellant’s brief, little or no reasoning was presented. We nevertheless considered all issues raised and find no error warranting reversal of the district court’s judgment.
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.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474497/
|
SUMMARY ORDER
Ling Li, a native and citizen of China, seeks review of a May 20, 2008 order of the BIA, affirming the June 28, 2006 decision of Immigration Judge (“IJ”) Sarah M. Burr, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ling Li, No. A077 645 053 (B.I.A. May 20, 2008), aff'g No. A077 645 053 (Immig. Ct. N.Y. City June 28, 2006). *455We 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 under the substantial evidence standard. See 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).
Substantial evidence supports the agency’s finding that Li failed to establish his eligibility for asylum and withholding of removal. In finding that Li failed to establish a well-founded fear of future persecution for having participated in a 1999 protest, the agency reasonably relied on evidence in the record demonstrating that there was no warrant for Li’s arrest on account of his participation in the protest and that police had not contacted his parents to seek his arrest for at least four years, or since 2002.
Ultimately, Li has failed to demonstrate that a reasonable factfinder would be compelled to conclude, contrary to the agency, that he established a well-founded fear of persecution on account of his involvement in the 1999 protest. See 8 U.S.C. § 1252(b)(4)(B). Accordingly, the agency reasonably denied Li’s applications for asylum and withholding of removal, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006), and we need not consider the agency’s alternative finding that Li failed to demonstrate a nexus between his claimed fear and a protected ground, see 8 U.S.C. § 1101(a)(42).
The BIA also reasonably concluded that Li failed to demonstrate a well-founded fear of persecution on account of the birth of his U.S. citizen children. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir.2008). Indeed, we have previously reviewed the BIA’s consideration of similar evidence and have found no error in its conclusion that such evidence was insufficient to establish an objectively reasonable fear of persecution. See id. Moreover, the BIA reasonably found that the affidavits from his family and coworker did not reference the treatment of similarly situated individuals because said affidavits described sterilizations that had occurred many years before and did not involve Chinese nationals returning to China with U.S. citizen children. See Jian Hui Shao, 546 F.3d at 160-61. In addition, as in Matter of J-W-S-, 24 I. & N. Dec. at 190, Li failed to submit any evidence of the forced sterilization of Chinese nationals returning to China with their children born abroad, see Jian Hui Shao, 546 F.3d at 164. Accordingly, because the agency did not err in finding that Li failed to demonstrate a well-founded fear of persecution on account of the birth of his U.S. citizen children, the agency reasonably denied his applications for asylum and -withholding of removal based on that claim. See Paul, 444 F.3d at 156.
Finally, we note that Li abandons any challenge to the agency’s denial of his application for CAT relief. See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.1994) (per curiam).
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 *456DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474506/
|
SUMMARY ORDER
Plaintiff-Appellant Sandra Lavoie-Francisco appeals from a judgment of the district court (Squatrito, J.) entered October 14, 2008, granting Defendants-Appellees’ motion for summary judgment and dismissing the complaint. We assume the parties’ familiarity with the facts and procedural history of the case.
We have considered all of the arguments on appeal and find them without merit. Therefore, we AFFIRM, for substantially the reasons stated by the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474508/
|
SUMMARY ORDER
Defendant-Appellant Raphael Rodriguez appeals from a final judgment of conviction imposed September 25, 2008 (Stein, /.), sentencing him principally to 235 months’ imprisonment. We assume the parties’ familiarity with the facts and procedural history of this case.
On appeal, Rodriguez argues that his prior conviction for grand larceny in the fourth degree, which criminalizes larceny from the person,2 does not constitute a violent felony under 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”). However, this argument is foreclosed by our recent opinion in United States v. Thrower, 584 F.3d 70 (2d Cir.2009), which held that larceny from the person is a violent felony under the residual clause of the ACCA. See 584 F.3d at 74-75.
Rodriguez also argues that the district court’s instructions to the jury that the defendant was a “witness with an in*467terest in the outcome of this case,” and that such a witness possesses a “motive to testify falsely,” violate the presumption of innocence. In United States v. Gaines, 457 F.3d 238 (2d Cir.2006), we held that a trial court’s jury instructions must not assume that a defendant is guilty. Id. at 246. The charge in question read: “Obviously, the defendant has a deep personal interest in the result of his prosecution. This interest creates a motive for false testimony and, therefore, the defendant’s testimony should be scrutinized and weighed with care.” Id. at 242. Our problem -with the charge was not that it was necessarily inaccurate, but that it “undermines the presumption of innocence.” Id. at 246. As we explained,
[A] defendant does not always have a motive to testify falsely. An innocent defendant has a motive to testify truthfully. As the government candidly acknowledged at oral argument, the district court’s charge that Gaines’s “interest create[d] a motive for false testimony” was true only if Gaines was, in fact, guilty.
Id. We therefore “denounce[d] any instruction ... that tells a jury that a testifying defendant’s interest in the outcome of the case creates a motive to testify falsely,” id., and specifically “directed] district courts in the circuit not to charge juries that a testifying defendant’s interest in the outcome of the case creates a motive to testify falsely,” id. at 247. See also United States v. Brutus, 505 F.3d 80, 87-88 (2d Cir.2007) (“Simply stated, an instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence because it presupposes the defendant’s guilt.... [I]f the defendant has testified, the charge should tell the jury to evaluate the defendant’s testimony in the same way it judges the testimony of other witnesses.”).
In this case, the district court instructed the jury to “[tjake into account any evidence that a witness who testified may benefit in some way from the outcome of the case. Such an interest creates a motive to testify falsely.” Three pages later, the district court instructed, “You should examine and evaluate [the defendant’s] testimony just as you would the testimony of any witness with an interest in the outcome of this case.” No other witness was identified as one with an interest in the outcome of the case.
Even if this charge, when viewed in its entirety, did run afoul of Gaines and Brutus and undermine the presumption of innocence, reversal would not be appropriate. Because there was no objection to the charge at trial, we review for plain error. According to the Supreme Court, “reversal is required where there is (1) unpreserved error, that (2) is plain; (3) affects a substantial right; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Zvi, 168 F.3d 49, 58 (2d Cir.1999) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). We need not reach prongs one through three because the jury instruction in this case in no way caused a miscarriage of justice when viewed in the context of the entire trial. See id. Therefore, for the foregoing reasons, the judgment of the district court is AFFIRMED.
. New York Penal Law § 155.30 provides: "A person is guilty of grand larceny in the fourth degree when he steals property and when: ... (5) The property, regardless of its nature and value, is taken from the person of another.”
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474512/
|
SUMMARY ORDER
Petitioner Ibrahima Samb, allegedly a native and citizen of Mauritania, seeks review of the May 16, 2008 order of the BIA denying his motion to reopen. In re Ibrahima Samb, No. A73 620 113 (B.I.A. May 16, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Here, the BIA did not abuse its discretion in denying Samb’s motion. An alien seeking to reopen proceedings may file one motion to reopen and must file that motion no later than ninety days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that Samb’s December 2007 motion was untimely. Moreover, the BIA properly found that Samb’s motion did not qualify for any exception to the time limitation. See 8 C.F.R. § 1003.2(c)(3). It is well-settled that a change in personal circumstances, such as Samb’s marriage or the birth of his two United States citizen daughters, is not evidence of changed country conditions. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (per curiam). Nor was Samb eligible to file a successive asylum application based solely on his changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008); In re C-W-L, 24 I. & N. Dec. 346 (B.I.A.2007). Because Samb’s failure to demonstrate changed country conditions was alone proper grounds upon which to deny his motion to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(ii); Yuen Jin, 538 F.3d at 156, we need not reach the issue of whether Samb was prima facie eligible for asylum or withholding of removal.2
*471For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.
. Petitioner's underlying claim relates to FGM. We note that several other cases involving similar claims are before this Circuit. Should the law dealing with these claims develop in ways that are favorable to Petitioner, Petitioner is of course free to ask the BIA to reopen his case sua sponte so that, even at that late date, the BIA may, if it chooses, take *471account of the changes in the law. We intimate no view on any such application.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474514/
|
SUMMARY ORDER
Roxanne Ford appeals from a summary judgment entered in favor of her former employer, the New York City Department of Health & Mental Hygiene, on her claims of discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq.
We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). We will uphold a summary judgment award only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
Upon de novo review of the record in light of these principles, we affirm the award of summary judgment for substantially the same reasons stated by the district court in its thorough and well-reasoned opinion. See Ford v. N.Y. City *472Dep’t of Health & Mental Hygiene, 545 F.Supp.2d 377 (S.D.N.Y.2008).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474516/
|
SUMMARY ORDER
Appellant Anna Mastrolillo, pro se, appeals a judgment of the district court granting Appellee State of Connecticut, Norwalk Community College’s motion for summary judgment and dismissing her employment discrimination complaint. The district court construed her complaint as raising claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 to 12117 (“ADA”). We assume the parties’ familiarity with the underlying facts, procedural history of the ease, and issues on appeal.
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). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted).
With respect to Mastrolillo’s gender discrimination claim, Title VII makes it unlawful for an employer “to discharge any individual ... because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). We analyze Title VII claims under the burden-shifting test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A plaintiff must first establish a prima facie case of discrimination by showing: (1) she is a member of a protected class, (2) she performed the job satisfactorily or was qualified for the position, (3) an adverse employment action took place, and (4) the action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.1997).
Here, Mastrolillo failed to allege a prima facie case of gender discrimination. See Shumway, 118 F.3d at 63. While she was subject to adverse employment action due to the non-renewal of her teaching contract, she did not establish that she performed her job satisfactorily, *474given the negative performance evaluations and her admitted lack of interest in teaching certain advanced level courses. Further, she failed to demonstrate that the non-renewal of her contract gave rise to an inference of discrimination because she submitted no evidence indicating that she was treated differently than men or that men were given preferential treatment. Four male faculty members did not have their teaching contracts renewed around the same time as Mastrolillo, including one male in the same department. Moreover, the decision not to renew her contract was made by the same individual who initially recommended that the college consider her for the teaching position. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.1997) (“[W]hen the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [the defendant] an invidious motivation....”). Accordingly, the district court correctly granted summary judgment to the college.
With respect to Mastrolillo’s mental disability discrimination claim, the ADA prohibits discrimination against a “qualified individual [with a disability] on the basis of disability” in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Claims alleging discriminatory discharge under the ADA are also analyzed under the McDonnell Douglas burden-shifting test. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.1999). To establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (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, and (4) she suffered an adverse employment action because of her disability. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004).
The ADA defines disability, with respect to an individual, as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1); Buckley v. Consol. Edison Co. of N.Y., 127 F.3d 270, 272 (2d Cir.1997). An impairment “substantially limits” the major life activity of working if an individual is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3). “The inability to perform a single, particular job,” however, “does not constitute a substantial limitation in the major life activity of working.” Id.; see also Giordano v. City of New York, 274 F.3d 740, 747-48 (2d Cir.2001).
Here, Mastrolillo provided no evidence that she suffered from an impairment that satisfies the ADA’s definition of disability. Additionally, she failed to establish that there was a record of such disability. There does appear to be a dispute as to whether the college knew of her mental condition and thereby regarded her as disabled within the meaning of the ADA, as Mastrolillo did inform her supervisor in early 2001 that she was undergoing psychiatric care. However, even if she was “regarded as” having a disability within the meaning of the ADA, she failed to demonstrate that her contract was not renewed “on the basis of’ such disability. Accordingly, the district court correctly granted summary judgment to the college, as Mastrolillo failed to establish a prima facie case of disability discrimination.
*475For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8477367/
|
Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474496/
|
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.
We note that appellant’s brief did not comply with Fed. R.App. P. 28(a)(9), which states that the appellant’s brief must contain “the argument, which must contain: (A) appellant’s contentions and the reasons for them.... ” With respect to at least two of the four issues raised in the appellant’s brief, little or no reasoning was presented. We nevertheless considered all issues raised and find no error warranting reversal of the district court’s judgment.
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.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474498/
|
SUMMARY ORDER
Ling Li, a native and citizen of China, seeks review of a May 20, 2008 order of the BIA, affirming the June 28, 2006 decision of Immigration Judge (“IJ”) Sarah M. Burr, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ling Li, No. A077 645 053 (B.I.A. May 20, 2008), aff'g No. A077 645 053 (Immig. Ct. N.Y. City June 28, 2006). *455We 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 under the substantial evidence standard. See 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).
Substantial evidence supports the agency’s finding that Li failed to establish his eligibility for asylum and withholding of removal. In finding that Li failed to establish a well-founded fear of future persecution for having participated in a 1999 protest, the agency reasonably relied on evidence in the record demonstrating that there was no warrant for Li’s arrest on account of his participation in the protest and that police had not contacted his parents to seek his arrest for at least four years, or since 2002.
Ultimately, Li has failed to demonstrate that a reasonable factfinder would be compelled to conclude, contrary to the agency, that he established a well-founded fear of persecution on account of his involvement in the 1999 protest. See 8 U.S.C. § 1252(b)(4)(B). Accordingly, the agency reasonably denied Li’s applications for asylum and withholding of removal, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006), and we need not consider the agency’s alternative finding that Li failed to demonstrate a nexus between his claimed fear and a protected ground, see 8 U.S.C. § 1101(a)(42).
The BIA also reasonably concluded that Li failed to demonstrate a well-founded fear of persecution on account of the birth of his U.S. citizen children. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir.2008). Indeed, we have previously reviewed the BIA’s consideration of similar evidence and have found no error in its conclusion that such evidence was insufficient to establish an objectively reasonable fear of persecution. See id. Moreover, the BIA reasonably found that the affidavits from his family and coworker did not reference the treatment of similarly situated individuals because said affidavits described sterilizations that had occurred many years before and did not involve Chinese nationals returning to China with U.S. citizen children. See Jian Hui Shao, 546 F.3d at 160-61. In addition, as in Matter of J-W-S-, 24 I. & N. Dec. at 190, Li failed to submit any evidence of the forced sterilization of Chinese nationals returning to China with their children born abroad, see Jian Hui Shao, 546 F.3d at 164. Accordingly, because the agency did not err in finding that Li failed to demonstrate a well-founded fear of persecution on account of the birth of his U.S. citizen children, the agency reasonably denied his applications for asylum and -withholding of removal based on that claim. See Paul, 444 F.3d at 156.
Finally, we note that Li abandons any challenge to the agency’s denial of his application for CAT relief. See Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.1994) (per curiam).
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 *456DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474500/
|
SUMMARY ORDER
Plaintiff-Appellant Eleanor Capogrosso appeals from an August 8, 2008 opinion and order of the United States District Court for the Southern District of New York (Scheindlin, J.) dismissing her claims sua sponte, and an August 28, 2008 order of that same court denying reconsideration of her claims.
The Eleventh Amendment to the United States Constitution bars Appellant’s claims against the State of New York and its arms. Moreover, the defendant New York State judges are afforded absolute judicial immunity, as are those remaining defendants “who perform functions closely associated with the judicial process.” Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.1988).
To the extent that Appellant is effectively asking the Court to review decisions of the courts of the State of New York, we lack jurisdiction to address her claims. See Exxon Mobil Corp. v. Saudi Basics Indus. Corp., 544 U.S. 280, 283-88, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (explaining the Rooker-Feldman doctrine). With respect to her remaining claims, Appellant fails to allege a deprivation of “a right, privilege, or immunity secured by the Constitution or laws of the United States.” Charles W. v. Maul, 214 F.3d 350, 357 (2d Cir.2000).
Accordingly, the opinion and order of the district court dismissing Appellant’s action is hereby AFFIRMED. Any outstanding motions are hereby DENIED as moot.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474501/
|
SUMMARY ORDER
Plaintiffs-appellants Ralph Vargas and Bland-Ricky Roberts (collectively “Plaintiffs”) appeal from a judgment of the United States District Court for the Southern District of New York (Pauley, J.) entered on May 18, 2007, granting defendants-appellees East West Communications, Inc. and Brian Transeau’s (collectively “Defendants”) motion for summary judgment and dismissing the case, and from a judgment entered on September 18, 2008, awarding attorneys’ fees of $175,000 in favor of Defendants. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
A. Summary Judgment Decision
We review the grant of summary judgment de novo, “examining the evidence in the light most favorable to, and drawing all inferences in favor of, the non-movant.” Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.2003). Because Plaintiffs would bear the burden at trial of demonstrating that Aparthenonia copied Bust Dat Groove, Defendants “may satisfy their burden under Rule 56 by showing ‘that there is an absence of evidence to support [an essential element] of the nonmoving party’s case.’ ” Repp v. Webber, 132 F.3d 882, 890 (2d Cir.1997) (alteration in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Plaintiffs may not avoid summary judgment by “rely[ing] simply on conclusory allegations or speculation ..., but instead must offer evidence to show that [their] version of the events is not wholly fanciful.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003) (omission in original) (internal quotation marks omitted).
In a copyright infringement case, a plaintiff must show, inter alia, the “unauthorized copying of the copyrighted work.” Id. “Because copiers are rarely caught red-handed, copying has traditionally been proven circumstantially by proof of access and substantial similarity.” Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir.1988). Proof of access may be inferred “where there are striking similarities probative of copying.” Repp, 132 F.3d at 889. Here, Plaintiffs relied on the reports and testimony of three experts to establish that Aparthenonia and Bust Dat Groove were strikingly similar. The district court determined, however, that this evidence was insufficient to create a genuine issue of fact, explaining, inter alia, that the expert reports and testimony were both internally and externally inconsistent. See Vargas v. *460Transeau, 514 F.Supp.2d 439, 444-46 (S.D.N.Y.2007). Plaintiffs contend that the district court’s treatment of their expert evidence was improper at the summary judgment stage. We disagree.
Although Plaintiffs are correct that the district court must view the facts and evidence in the light most favorable to them at summary judgment and “must be wary of granting summary judgment when conflicting expert reports are presented,” Town of Southold, v. Town of E. Hampton, 477 F.3d 38, 52 (2d Cir.2007), Plaintiffs cannot avoid summary judgment simply by submitting any expert evidence, particularly where that evidence is both internally and externally inconsistent. See, e.g., Jorgensen, 351 F.3d at 56 (rejecting appellant’s argument that two works were strikingly similar because the evidence offered by certain appellant witnesses was both internally inconsistent and contradicted by other appellant witnesses).
Furthermore, “[a] plaintiff has not proved striking similarity sufficient to sustain a finding of copying if the evidence as a whole does not preclude any reasonable possibility of independent creation.” Gaste, 863 F.2d at 1068. Here, Defendants offered ample evidence to establish a reasonable possibility of independent creation. Although Plaintiffs submitted an affidavit in opposition to that evidence, mere assertions, and equivocal ones at that, are insufficient to satisfy their burden at summary judgment. Plaintiffs’ argument that the district court lacked the authority to consider Defendants’ supplemental affidavits regarding independent creation is without merit. See Fed. R.Civ.P. 56(e).
B. Attorneys’ Fee Decision
After the district court granted summary judgment, Defendants moved for attorneys’ fees and costs pursuant to 17 U.S.C. § 505. The district court granted that motion and awarded Defendants $175,000. We review this decision for abuse of discretion. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994); Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir.2001).
In evaluating whether an award of attorneys’ fees is warranted in a copyright infringement case, this Court places great emphasis on whether a plaintiffs claims were objectively reasonable. See Matthew Bender, 240 F.3d at 122. Here, the district court found that they were not. Plaintiffs challenge this decision, arguing that it is “difficult, if not impossible,” to find that their claims were not objectively reasonable given that (1) the court had to ask for more evidence from Defendants before granting summary judgment, (2) Plaintiffs had prevailed on Defendants’ first summary judgment motion, (3) Plaintiffs successfully settled with three of the five defendants, and (4) Plaintiffs “initially] survived Defendants’ second motion for summary judgment.” None of these arguments, however, demonstrates that the district court abused its discretion in awarding attorneys’ fees.
Plaintiffs’ contention that the attorneys’ fees award was inappropriate because it will cause them financial ruin similarly is to no avail. The district court carefully considered Plaintiffs’ financial situation before awarding fees, and it specifically noted that it was awarding an amount significantly below what would have been reasonable under the lodestar method because such an award — $797,000—-would threaten Plaintiffs with financial ruin. We see no error in the district court’s decision.
We have considered all of Plaintiffs’ arguments and find them to be without mer*461it. Accordingly, the judgments of the district court are hereby AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474505/
|
SUMMARY ORDER
Plaintiff-Appellant Sandra Lavoie-Francisco appeals from a judgment of the district court (Squatrito, J.) entered October 14, 2008, granting Defendants-Appellees’ motion for summary judgment and dismissing the complaint. We assume the parties’ familiarity with the facts and procedural history of the case.
We have considered all of the arguments on appeal and find them without merit. Therefore, we AFFIRM, for substantially the reasons stated by the district court.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474507/
|
SUMMARY ORDER
Defendant-Appellant Raphael Rodriguez appeals from a final judgment of conviction imposed September 25, 2008 (Stein, /.), sentencing him principally to 235 months’ imprisonment. We assume the parties’ familiarity with the facts and procedural history of this case.
On appeal, Rodriguez argues that his prior conviction for grand larceny in the fourth degree, which criminalizes larceny from the person,2 does not constitute a violent felony under 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”). However, this argument is foreclosed by our recent opinion in United States v. Thrower, 584 F.3d 70 (2d Cir.2009), which held that larceny from the person is a violent felony under the residual clause of the ACCA. See 584 F.3d at 74-75.
Rodriguez also argues that the district court’s instructions to the jury that the defendant was a “witness with an in*467terest in the outcome of this case,” and that such a witness possesses a “motive to testify falsely,” violate the presumption of innocence. In United States v. Gaines, 457 F.3d 238 (2d Cir.2006), we held that a trial court’s jury instructions must not assume that a defendant is guilty. Id. at 246. The charge in question read: “Obviously, the defendant has a deep personal interest in the result of his prosecution. This interest creates a motive for false testimony and, therefore, the defendant’s testimony should be scrutinized and weighed with care.” Id. at 242. Our problem -with the charge was not that it was necessarily inaccurate, but that it “undermines the presumption of innocence.” Id. at 246. As we explained,
[A] defendant does not always have a motive to testify falsely. An innocent defendant has a motive to testify truthfully. As the government candidly acknowledged at oral argument, the district court’s charge that Gaines’s “interest create[d] a motive for false testimony” was true only if Gaines was, in fact, guilty.
Id. We therefore “denounce[d] any instruction ... that tells a jury that a testifying defendant’s interest in the outcome of the case creates a motive to testify falsely,” id., and specifically “directed] district courts in the circuit not to charge juries that a testifying defendant’s interest in the outcome of the case creates a motive to testify falsely,” id. at 247. See also United States v. Brutus, 505 F.3d 80, 87-88 (2d Cir.2007) (“Simply stated, an instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence because it presupposes the defendant’s guilt.... [I]f the defendant has testified, the charge should tell the jury to evaluate the defendant’s testimony in the same way it judges the testimony of other witnesses.”).
In this case, the district court instructed the jury to “[tjake into account any evidence that a witness who testified may benefit in some way from the outcome of the case. Such an interest creates a motive to testify falsely.” Three pages later, the district court instructed, “You should examine and evaluate [the defendant’s] testimony just as you would the testimony of any witness with an interest in the outcome of this case.” No other witness was identified as one with an interest in the outcome of the case.
Even if this charge, when viewed in its entirety, did run afoul of Gaines and Brutus and undermine the presumption of innocence, reversal would not be appropriate. Because there was no objection to the charge at trial, we review for plain error. According to the Supreme Court, “reversal is required where there is (1) unpreserved error, that (2) is plain; (3) affects a substantial right; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Zvi, 168 F.3d 49, 58 (2d Cir.1999) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). We need not reach prongs one through three because the jury instruction in this case in no way caused a miscarriage of justice when viewed in the context of the entire trial. See id. Therefore, for the foregoing reasons, the judgment of the district court is AFFIRMED.
. New York Penal Law § 155.30 provides: "A person is guilty of grand larceny in the fourth degree when he steals property and when: ... (5) The property, regardless of its nature and value, is taken from the person of another.”
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474509/
|
SUMMARY ORDER
Petitioner Andrew Scott, pro se, appeals the Tax Court’s grant of summary judgment dismissing his petition challenging the notice of deficiency by the Internal Revenue Service (“IRS”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As a initial matter, because Scott does not challenge the $20,000 penalty imposed by the Tax Court under 26 U.S.C. § 6673 for his advancement of frivolous claims, we deem that claim waived. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (holding that when a litigant raises an issue before the district court but does not raise it on appeal, it is abandoned, and noting that this rule may be applied to pro se litigants). Regardless, even if Scott had challenged that decision, given the abject frivolity of his arguments (as noted below), we cannot say the Tax Court *469abused its discretion in imposing a $20,000 sanction.
We review the Tax Court’s conclusions of law de novo, its factual findings for clear error, and its application of its own procedural rules for abuse of discretion. See Sunik v. Comm’r, 321 F.3d 335, 337 (2d Cir.2003); Madison Recycling Assocs. v. Comm’r, 295 F.3d 280, 285 (2d Cir.2002); 26 U.S.C. § 7482(a)(1) (“The United States Courts of Appeals ... shall ... review the decisions of the Tax Court ... in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.... ”).
Here, the Tax Court properly granted the Government’s motion for summary judgment. The record shows — and indeed, Scott conceded — that although he earned $61,072 in the 2004 tax year, he stated on his tax return that he had zero wages for that year. Thus, the Government’s notice of deficiency accurately concluded that Scott understated his tax liability by $10,031, and because that was a substantial understatement, he was liable for a $2,941 accuracy-related penalty under 26 U.S.C. § 6662. See 26 U.S.C. § 6662(d)(1)(A) (understatement is substantial where the reported tax amount is understated by the greater of ten percent of the tax required to be shown or $5,000). In his defense, Scott argues that he is not an “employee” under the Internal Revenue Code, and that his income does not constitute “wages.” We have repeatedly rejected these specious arguments. See, e.g., Connor v. Comm’r of Internal Revenue, 770 F.2d 17, 20 (2d Cir.1985) (“Wages are income.”); see also id. (noting that the assertion to the contrary “has been rejected so frequently that the very raising of it justifies the imposition of sanctions”). We have carefully reviewed Scott’s remaining arguments and found them to be without merit.
For the foregoing reasons, the order of the Tax Court is hereby AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474511/
|
SUMMARY ORDER
Petitioner Ibrahima Samb, allegedly a native and citizen of Mauritania, seeks review of the May 16, 2008 order of the BIA denying his motion to reopen. In re Ibrahima Samb, No. A73 620 113 (B.I.A. May 16, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Here, the BIA did not abuse its discretion in denying Samb’s motion. An alien seeking to reopen proceedings may file one motion to reopen and must file that motion no later than ninety days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that Samb’s December 2007 motion was untimely. Moreover, the BIA properly found that Samb’s motion did not qualify for any exception to the time limitation. See 8 C.F.R. § 1003.2(c)(3). It is well-settled that a change in personal circumstances, such as Samb’s marriage or the birth of his two United States citizen daughters, is not evidence of changed country conditions. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (per curiam). Nor was Samb eligible to file a successive asylum application based solely on his changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008); In re C-W-L, 24 I. & N. Dec. 346 (B.I.A.2007). Because Samb’s failure to demonstrate changed country conditions was alone proper grounds upon which to deny his motion to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(ii); Yuen Jin, 538 F.3d at 156, we need not reach the issue of whether Samb was prima facie eligible for asylum or withholding of removal.2
*471For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.
. Petitioner's underlying claim relates to FGM. We note that several other cases involving similar claims are before this Circuit. Should the law dealing with these claims develop in ways that are favorable to Petitioner, Petitioner is of course free to ask the BIA to reopen his case sua sponte so that, even at that late date, the BIA may, if it chooses, take *471account of the changes in the law. We intimate no view on any such application.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474515/
|
SUMMARY ORDER
Appellant Anna Mastrolillo, pro se, appeals a judgment of the district court granting Appellee State of Connecticut, Norwalk Community College’s motion for summary judgment and dismissing her employment discrimination complaint. The district court construed her complaint as raising claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 to 12117 (“ADA”). We assume the parties’ familiarity with the underlying facts, procedural history of the ease, and issues on appeal.
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). In determining whether there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted).
With respect to Mastrolillo’s gender discrimination claim, Title VII makes it unlawful for an employer “to discharge any individual ... because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(l). We analyze Title VII claims under the burden-shifting test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). A plaintiff must first establish a prima facie case of discrimination by showing: (1) she is a member of a protected class, (2) she performed the job satisfactorily or was qualified for the position, (3) an adverse employment action took place, and (4) the action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.1997).
Here, Mastrolillo failed to allege a prima facie case of gender discrimination. See Shumway, 118 F.3d at 63. While she was subject to adverse employment action due to the non-renewal of her teaching contract, she did not establish that she performed her job satisfactorily, *474given the negative performance evaluations and her admitted lack of interest in teaching certain advanced level courses. Further, she failed to demonstrate that the non-renewal of her contract gave rise to an inference of discrimination because she submitted no evidence indicating that she was treated differently than men or that men were given preferential treatment. Four male faculty members did not have their teaching contracts renewed around the same time as Mastrolillo, including one male in the same department. Moreover, the decision not to renew her contract was made by the same individual who initially recommended that the college consider her for the teaching position. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir.1997) (“[W]hen the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to [the defendant] an invidious motivation....”). Accordingly, the district court correctly granted summary judgment to the college.
With respect to Mastrolillo’s mental disability discrimination claim, the ADA prohibits discrimination against a “qualified individual [with a disability] on the basis of disability” in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Claims alleging discriminatory discharge under the ADA are also analyzed under the McDonnell Douglas burden-shifting test. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir.1999). To establish a prima facie case of discrimination under the ADA, a plaintiff must show that: (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, and (4) she suffered an adverse employment action because of her disability. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir.2004).
The ADA defines disability, with respect to an individual, as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1); Buckley v. Consol. Edison Co. of N.Y., 127 F.3d 270, 272 (2d Cir.1997). An impairment “substantially limits” the major life activity of working if an individual is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3). “The inability to perform a single, particular job,” however, “does not constitute a substantial limitation in the major life activity of working.” Id.; see also Giordano v. City of New York, 274 F.3d 740, 747-48 (2d Cir.2001).
Here, Mastrolillo provided no evidence that she suffered from an impairment that satisfies the ADA’s definition of disability. Additionally, she failed to establish that there was a record of such disability. There does appear to be a dispute as to whether the college knew of her mental condition and thereby regarded her as disabled within the meaning of the ADA, as Mastrolillo did inform her supervisor in early 2001 that she was undergoing psychiatric care. However, even if she was “regarded as” having a disability within the meaning of the ADA, she failed to demonstrate that her contract was not renewed “on the basis of’ such disability. Accordingly, the district court correctly granted summary judgment to the college, as Mastrolillo failed to establish a prima facie case of disability discrimination.
*475For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474517/
|
SUMMARY ORDER
Plaintiff-Appellant Naomi Watson, pro se, appeals from the March 28, 2008, judgment of the United States District Court for the Southern District of New York (Pitman, M.J.) granting summary judgment to the defendant-appellee. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
We review an order granting summary judgment de novo, focusing on whether the district court properly concluded that there were no genuine issues 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). In determining whether there are genuine issues of material fact, this Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotations omitted).
After having reviewed Watson’s contentions on appeal and the record of proceedings below, we affirm for substantially the same reasons stated by the magistrate judge in his thorough decision. We have considered all of Watson’s arguments and find them to be without merit.
*476Accordingly, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474519/
|
*477SUMMARY ORDER
Defendant Javier Sanchez appeals from a judgment of conviction entered on May-23, 2008, in the district court, following his plea of guilty, without a plea agreement, to one count of conspiracy to distribute and to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846, and one count of distributing and possessing with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(b)(1)(A).1 Sanchez was sentenced primarily to the statutory mandatory minimum term of 120 months’ imprisonment on each count, to run concurrently. On appeal, Sanchez principally contends that the district judge clearly erred in concluding that Sanchez was ineligible for safety valve relief from the statutory mandatory minimum term of imprisonment. We assume the parties’ familiarity with the facts and procedural history of the case.
To qualify for safety valve relief, a defendant bears the burden of proving, inter alia, that “not later than the time of the sentencing hearing, [he] has truthfully provided to the Government all information and evidence [he] has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5); U.S.S.G. § 501.2(a)(5); United States v. Tang, 214 F.3d 365, 371 (2d Cir.2000) (“A defendant bears the burden of proving that he has met all five safety valve criteria.”). If a defendant does not truthfully disclose all that he knows about his offense, the safety valve reduction is properly denied. See United States v. Conde, 178 F.3d 616, 620-21 (2d Cir.1999).
We review the district court’s factual findings for clear error. United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir.2005).
In his sworn written statement and his testimony at the Fatico hearing, Sanchez claimed that he did not have a source or price for crack cocaine when he met with the government informant. The district court reasonably found these assertions to be untruthful because, inter alia, Sanchez: (1) told the government informant in a recorded telephone conversation that only crack was available; (2) offered to supply crack cocaine and discussed the price of the crack cocaine in a recorded conversation with the government informant; and (3) arranged to meet the government informant to provide him with crack cocaine and did meet with the government informant at the designated place and time. Given this evidence, the district court did not err in concluding that Sanchez did not truthfully disclose all that he knows about his offense and denying the safety valve reduction.
We have reviewed Sanchez’s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
. This Order disposes only of Defendant-Appellant Javier Sanchez’s appeal. Defendant-Appellant Frank Tejeda appealed from a conviction on the same indictment, 08-1989-cr(L), which was consolidated with Sanchez's present appeal; Tejeda’s case was remanded, on appellee’s motion, to the district court for resentencing.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474529/
|
SUMMARY ORDER
Petitioner Mei Mei Zheng, a native and citizen of the People’s Republic of China, seeks review of an October 29, 2007 order of the BIA denying her motion to reopen. In re Mei Mei Zheng, No. A077 341 369 (B.I.A. Oct. 29, 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 abuse its discretion 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”). Zheng argues that the BIA erred in not giving sufficient weight to the unauthenticated village committee notices. While the agency may not reject an asylum-seeker’s document solely because the document was not authenticated, Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.2005), here, the BIA reasonably rejected the notices because they did not reference any change in China’s family planning policy. See Jian Hui Shao, 546 F.3d at 169. Accordingly, we need not disturb the agency’s finding. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (indicating that the weight afforded to evidence lies largely in the discretion of the agency).
To the extent that Zheng challenges the BIA’s consideration of the other evidence she submitted, 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 *498169, 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, 471 F.3d at 338 n. 17. Because the BIA reasonably concluded that Zheng failed to establish a material change in country conditions, and such failure provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Zheng’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
Zheng’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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474531/
|
SUMMARY ORDER
Petitioner Qing Shan Liu, a native and citizen of the People’s Republic of China, seeks review of an October 31, 2007 order of the BIA denying his motion to reopen. In re Qing Shan Liu, No. A079 775 660 (B.I.A. Oct. 31, 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 abuse its discretion in denying Liu’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 Liu argues that the BIA’s analysis of his 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 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). Moreover, we decline to consider the documents Liu submitted in the Special Appendix as they were not included in the administrative record below. See 8 U.S.C. § 1252(b)(4)(A); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir.2007).
Because the BIA reasonably found that Liu failed to establish a material change in country conditions, and such failure provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Liu’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
Liu’s argument that he is entitled to file a successive asylum application based on the birth of his 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474533/
|
SUMMARY ORDER
Petitioner Dian Quan Jiang, a native and citizen of the People’s Republic of China, seeks review of an October 30, 2007 order of the BIA denying his motion to reopen. In re Dian Quan Jiang, No. A074 235 273 (B.I.A. Oct. 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 *503Shao 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 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 Jiang argues that the BIA’s analysis of his 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 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).
Because the BIA reasonably found that Jiang failed to demonstrate a material change in country conditions, and such failure provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Jiang’s motion. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169. Jiang’s argument that he is entitled to file a successive asylum application based on the birth of his 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474535/
|
SUMMARY ORDER
Petitioner Zhen Xu, a native and citizen of the People’s Republic of China, seeks review of an October 30, 2007 order of the BIA denying her motion to reopen. In re Zhen Xu, No. A073 657 862 (B.I.A. Oct. 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 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Xu’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 *505fashion without a reviewing court presuming that it has abused its discretion”). While Xu 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).
Because the BIA reasonably found that Xu failed to demonstrate that there has been a material change in circumstances in China, and such failure provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Xu’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shoo, 546 F.3d at 169.
Xu’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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474537/
|
SUMMARY ORDER
Petitioner Mei Fei Dong, a native and citizen of the People’s Republic of China, seeks review of an October 25, 2007 order of the BIA denying her motion to reopen. In re Mei Fei Dong, No. A073 489 083 (B.I.A. Oct. 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. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the BIA did not err in denying Dong’s untimely and number-barred motion to reopen.
Dong argues that the BIA abused its discretion when it concluded that she failed to demonstrate either changed country conditions sufficient to excuse the untimeliness of her motion to reopen or her prima facie eligibility for relief without providing a particularized analysis of her evidence. However, her argument fails, as 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”). Contrary to Dong’s argument, the BIA provided sufficient reasoning for discounting the evidence she submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency). Indeed, the BIA explicitly considered her affidavit and reasonably found it insufficient to support her claim because it lacked detail and was uncorroborated by independent evidence. See id.
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*507tion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474539/
|
SUMMARY ORDER
Petitioner Gui Kun Lin, a native and citizen of the People’s Republic of China, seeks review of an October 18, 2007 order of the BIA denying his motion to reopen. In re Gui Kun Lin, No. A077 121 697 (B.I.A. Oct. 18, 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 *508agency’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 Lin’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”). The BIA reasonably questioned the reliability of the evidence Lin submitted in light of the adverse credibility determination that was made in his underlying proceedings, and found that his evidence did not demonstrate a material change in country conditions. See 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).
Because the failure to establish changed country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Lin’s motion. 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474541/
|
SUMMARY ORDER
Thomas Alexander Dallal appeals a judgment entered after a jury trial in favor of defendant New York Times Company (the “Times”) on his claim of copyright infringement with respect to photographs he created that the Times published on its website.1 Dallal contends that the district court erred by denying his motions pursuant to Fed.R.Civ.P. 50(a) with respect to certain of the Times’s defenses. He also faults the district court’s preclusion of two expert witnesses, its instructions to the jury, and other trial management and evidentiary rulings.
We review de novo the district court’s denial of judgment as a matter of law, which is warranted only where “ ‘a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.’ ” Jarvis v. Ford Motor Co., 283 F.3d 33, 43 (2d Cir.2002) (quoting Fed. R.Civ.P. 50(a)). We similarly review de novo preserved challenges to jury instructions. Jin v. Metro. Life Ins. Co., 310 F.3d 84, 91 (2d Cir.2002). We review for abuse of discretion the district court’s management of trial, see United States v. Yakobowicz, 427 F.3d 144, 150 (2d Cir.2005), and its evidentiary rulings, see United States v. Bah, 574 F.3d 106, 116 (2d Cir.2009), including its decisions as to whether to permit expert testimony, see Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 212 (2d Cir.2009). In applying these standards, we assume familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our ruling.
1. Rule 50 Motions
a. Oral Agreement, Implied License, and Equitable Estoppel
Dallal asserts that he was entitled to judgment as a matter of law on the Times’s defenses of oral agreement, implied license, and equitable estoppel. He contends that he authorized the Times’s exclusive use of his photographs, effecting a “transfer of copyright ownership” within the meaning of 17 U.S.C. § 204(a), and requiring that each transaction be in writing. He further contends that the governing writings were his invoices, which contained language that he reads to preclude Internet publication. Thus, he contends, as a matter of law, the Times should not have been allowed to defend on grounds of *511oral agreement, implied license, or equitable estoppel.
We disagree. Section 204(a) requires a written contract where there is a transfer of copyright ownership, including the grant of an exclusive license, see Davis v. Blige, 505 F.3d 90, 100 n. 10 (2d Cir.2007), but as we determined in vacating the district court’s grant of summary judgment in favor of the Times, see Dallal v. N.Y. Times Co., 2006 WL 463386 (2d Cir. Feb.17, 2006), a question of fact existed as to the nature of the transactions at issue here. The evidence did not establish, as a matter of law, that the Times purchased an exclusive license satisfying the requirement of § 204(a). In maintaining otherwise, Dallal relies on the language of his invoice and the testimony of a Times editor that the Times generally requires “first exclusive use” of photographs. But the record contains no other evidence that the Times sought an exclusive license, e.g., any suggestion that it ever tried to prevent Dallal or anyone else from republishing his work.
Meanwhile, evidence was adduced indicating that although Times editors had signed Dallal’s invoices, they were never returned to him; that the signatures denoted not assent to be bound, but compliance with in-house accounting; that Times employees told Dallal that the Times did not intend to be bound by the invoices; that Dallal was aware the photos would be published on the Internet; and that Dallal nevertheless accepted more than 1,000 assignments from the Times. In the face of such evidence, the district court properly denied Dallal’s Rule 50 motion and permitted the jury to consider whether an oral agreement existed that the Times would acquire a nonexclusive license permitting the publication of Dallal’s work on the Internet, as well as the question of equitable estoppel.
b. Revision Privilege
Dallal further asserts that he was entitled to judgment as a matter of law on the Times’s “revision privilege” defense. Title 17 U.S.C. § 201(c) permits revisions by copyright holders in collective works, even where individual authors retain their copyrights, “[i]n the absence of an express transfer of the copyright or of any rights under it.” Dallal maintains that, because the invoices effected an “express transfer” of an ownership interest, § 201(c) is inapplicable as a matter of law. We reject this argument in light of our determination that a question of fact existed as to whether the transactions at issue were governed by an oral agreement. Our prior holdings concerning transactions governed by express written agreements are not to the contrary. See Faulkner v. Nat’l Geographic Enters., Inc., 409 F.3d 26, 40 (2d Cir.2005); Tasini v. N.Y. Times Co., 206 F.3d 161, 170-71 (2d Cir.2000), aff'd, N.Y. Times Co. v. Tasini, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001).
2. Jury Instructions2
A district court’s jury charge constitutes reversible error only where it “misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994). Contrary to Dallal’s contention, the district court properly instructed the jury that an exclusive transfer of copyright cannot occur without a writing. The omission of the requirement that the author sign such a *512writing was immaterial, given that it was undisputed that Dallal signed the invoices. The district court did not, as Dallal suggests, instruct the jury that the invoices were irrelevant; it chai-ged only that the parties disputed whether their agreement was established by the invoices, by oral statements, or by the parties’ conduct. We reject Dallal’s argument that the district court erred by instructing the jury as to equitable estoppel and the revision privilege for the reasons described above. Finally, we detect no error in the district court’s refusal to instruct the jury about the factually distinguishable Tasini cases, see N.Y. Times Co. v. Tasini, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500; Tasini v. N.Y. Times Co., 206 F.3d 161, where Dallal adduced no evidence that those cases had influenced the Times’s intent as to its purchase of his photos.
3. Expert Witnesses
We identify no abuse of discretion in the district court’s preclusion of Dallal’s two expert witnesses. The court permitted Dallal to submit several revised proffers for each of the witnesses at issue, and it granted permission to present the testimony of a third expert whom Dallal later was unable to produce. To the extent the excluded testimony related to industry custom and practice, Dallal failed to demonstrate relevance, because the Times did not rely on its conformity with industry practice but, instead, offered testimony about how it understood its bargain with Dallal in light of its own practice. To the extent Dallal’s proffers indicated that the two experts would comment on the facts of Dallal’s case and explain how industry participants interpreted applicable law, we identify no error, let alone manifest error, see Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., EEC, 571 F.3d at 213, in the district court’s decision to exclude such testimony, which it correctly observed would have intruded on its own province and that of the jury.
4. Evidentiary Rulings and Trial Management
Finally, we identify no abuse of discretion in the district court’s evidentiary rulings or in its management of the trial. The district court was well within its discretion in bifurcating the liability and damages phases of the trial, a sensible means of achieving expedition and economy. See Fed.R.Civ.P. 42(b); Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 283 (2d Cir.1990). There was no need for redundant presentation of evidence, as Dallal suggests, because the same jury was to hear each phase. Nor did the district court abuse its discretion by excluding from the liability phase testimony by Times General Counsel George Freeman, which Dallal proposed to use in proving willfulness. Such proof may have been relevant to the issue of damages, but it had no bearing on liability. We are unpersuaded by Dallal’s complaints about the district court’s actions during the testimony of trial witnesses, which reasonably addressed plaintiffs occasionally argumentative style of questioning and, thus, fell well within the district court’s broad discretion. See United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, 44 F.3d 1091, 1095 (2d Cir.1995). We likewise detect no abuse of discretion in the district court’s exclusion of Dallal’s proffered summary charts on the ground that they were more argumentative than evidentiary in nature.
We have considered Dallal’s remaining arguments, and they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
. Although Dallal names as appellees all defendants involved in the original action, he does not challenge the district court's decision, at the close of the trial evidence, dismissing the action against all defendants other than the Times for lack of evidence. Accordingly, we deem any such argument waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).
. Although the record contains some ambiguity about whether Dallal preserved all of the objections to the district court's jury charge that he raises on appeal, we assume for the purposes of our discussion that he did, and we conclude that none has merit.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474543/
|
SUMMARY ORDER
Todd-Murgas was convicted, following a guilty plea, of conspiracy to distribute and to possess with intent to distribute powder and crack cocaine. See 21 U.S.C §§ 841(a)(1), 846. Originally sentenced to a term of 188 months’ incarceration, he here appeals (1) the higher 207-month sentence imposed on initial remand by Judge Munson, and (2) the decision of Chief Judge Mordue on a subsequent Crosby remand not to modify that sentence. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision.
1. The Increased Sentence
On Todd-Murgas’s initial appeal, this court affirmed his conviction but vacated the sentence, identifying error in the district court’s requirement that the government prove uncharged conduct relevant to sentencing—specifically, Todd-Murgas’s alleged role in two drug-related murders— by clear and convincing evidence. See United States v. Cordoba—Murgas, 233 F.3d 704 (2d Cir.2000). On remand, the district court found the homicidal conduct proved by the appropriate preponderance standard and, on that ground, sentenced Todd-Murgas to 207 months’ incarceration, a term 19 months longer than originally imposed but still within his Guidelines range of 188 to 235 months.
Todd-Murgas submits that the sentence violated this court’s remand mandate, which he construes to allow an upward departure from the Guidelines sentencing range pursuant to U.S.S.G. § 5K2.1, but not a higher sentence within the Guidelines range.3 The argument merits little discussion. Our mandate clearly vacated judgment, requiring the district court to resentence defendant after it decided whether the alleged relevant conduct was proved by a preponderance of the evidence. Todd-Murgas agrees that this mandate clearly empowered the district court to rely on such proved conduct to impose a sentence above the Guidelines range. To suggest that the mandate did not permit the more modest action of imposing an increased sentence within the Guidelines range is not only wrong; it is absurd. See generally United States v. Carpenter, 320 F.3d 334, 344-45 (2d Cir.2003) (observing that district court properly follows “spirit” of mandate rather than “letter” to avoid injustice).
Todd-Murgas further argues that the increased sentence is presumptively vindictive because it was based on the same evidence that was before the court at the time of the original sentencing. The argument fails because, following our mandate on remand, the district court applied a lesser burden of proof to its review of this evidence. Where an increased sentence is based on a “changed understanding of the law,” a defendant is afforded no presumption of vindictiveness; he must demonstrate “actual vindictiveness.” United States v. Singletary, 458 F.3d 72, 76-77 (2d Cir.2006) (internal quotation marks omitted). Todd-Murgas fails to point to anything in the record suggesting vindictiveness. Accordingly, we identify *516no error in the district court’s imposition of a higher sentence on our initial remand.
2. Crosby Remand
? argues that the district court erred in not following the procedures outlined in United States v. Garcia, 413 F.3d 201, 228-30 (2d Cir.2005), for a Crosby remand when a case is reassigned to a new judge. Because Crosby remands to successor judges are rare, district courts seldom have occasion to consider and apply these procedures. In this case, Todd-Murgas charges that the district court erred in failing to (1) review the full record of the original sentencing, (2) compare the original sentence to the sentence it would have imposed in light of Booker, and (3) produce the defendant in open court.
We address the last point first. In holding that a Crosby remand could proceed before a judge other than the one who imposed the challenged sentence, Garcia identified an important condition: the new “judge must order the defendant produced in open court ... and must afford him an opportunity to be heard,” 413 F.3d at 230 (emphasis added). The government does not dispute that Todd-Murgas was not produced before Chief Judge Mordue (to whom this case was reassigned from Judge Munson after the Crosby remand); rather, it argues that the quoted condition is dictum. The government is mistaken. The identified procedures are pivotal to our holding that, even when a Crosby remand cannot proceed before the original sentencing judge, a successor judge can reliably tell us whether a Booker error was harmless, without which reliable assurance we would be required to order resentencing. See United States v. Garcia, 413 F.3d at 229-30. Because we cannot confidently conclude that the failure to produce ToddMurgas and to afford him an opportunity to address the court had no effect on the district court’s Crosby response, we reluctantly remand this case yet again so that this Garcia requirement can be satisfied.4
In light of this decision, Todd-Murgas’s other procedural challenges require little discussion. The record indicates that Chief Judge Mordue carefully reviewed all materials relevant to the prior sentencing in this case. In such circumstances, we will not assume from a failure explicitly to reference “statements made by the original sentencing judge indicating an inclination to show greater leniency or severity but for the Guidelines mandates,” United States v. Garcia, 413 F.3d at 229 n. 19, that the court overlooked such materials, see United States v. Brown, 514 F.3d 256, 264 (2d Cir.2008) (observing that sentencing judge need not engage in “robotic incantations” or “slavishly follow any particular formula” to demonstrate consideration of required sentencing factors (internal quotation marks omitted)). Nevertheless, on remand, the district court and the parties may pursue the matter further as warranted.
We are similarly disinclined to think that the able district judge failed to perform the comparative analysis detailed in Garcia. See 413 F.3d at 229 (observing that “necessary comparative assessment is most clearly made if the new judge states whether the sentence that judge would have imposed with the benefit of Booker is or is not the same as the challenged sentence”). Here again, any doubt can easily *517be assuaged on remand by a clear statement.5
In sum, although we identify no merit in Todd-Murgas’s challenges to the district court’s imposition of a higher sentence within the Guidelines range on the initial remand in this case, we REMAND once again for further Crosby proceedings consistent with this order.
. Although we did not address Todd-Murgas's challenges to his increased sentence when he first raised them in this court—employing a Crosby remand first to ascertain whether the district court would resentence in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)—we do so here in the interest of efficiency.
. In Garcia, we recognized that, with the consent of the court, the defendant and the government may waive defendant's appearance at a Crosby remand proceeding before a successor judge, 413 F.3d at 230, but no such waiver occurred in this case.
. With the benefit of the Supreme Court’s decisions in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), it should now be clear that a district court’s task on a Crosby remand is not simply to assess the reasonableness of the original sentence. See, e.g., United States v. Jones, 531 F.3d 163, 182 (2d Cir.2008) (observing that, in wake of Kimbrough and Gall, district court must make independent, individualized assessment of appropriate sentence without presuming reasonableness of Guidelines range). Reasonableness is the standard of appellate review. See United States v. Cavera, 550 F.3d 180, 190-91 (2d Cir.2008) (en banc). On a Crosby remand, a district court should indicate whether, with a proper understanding of the advisory nature of the Guidelines and its discretion in weighing the relevant factors identified in 18 U.S.C. § 3553(a), it would have imposed the same sentence.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474545/
|
SUMMARY ORDER
Appellant Samuel De Asis, pro se, appeals from the judgment of the United States District Court for the Eastern District of New York (Irizarry, ,/.), granting the Appellees’ motion to dismiss Appellant’s action brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, the Fifth and Fourteenth Amendments, and New York State law for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews “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); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
Having conducted an independent and de novo review, we conclude, for substantially the same reasons stated by the district court, that Appellant failed to state a claim upon which relief could be granted, and that allowing Appellant to amend his complaint would have been futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). We need not address Appellant’s claim on appeal that alleged incidents considered to be time-barred by the district court were timely under the continuing violation doctrine, as the inclusion of those events would have no effect on Appellant’s ability to state a claim. We further note that the district court did not err in failing to address Appellant’s claim of municipal liability for negligent supervision, in light of its correct finding that Appellant alleged no underlying constitutional violation. See Segal v. City of New York, 459 F.3d 207, 219-20 (2d Cir.2006) (holding that district court need not reach municipal liability claim where due process claims failed). Finally, insofar as Appellant can be construed as raising a due process claim based on the defendants’ failure to refund a prepaid fine after Appellant successfully challenged his traffic citations, the claim is unavailing because a post-deprivation remedy was available, in the form of an Article 78 mandamus proceeding. See New York State Nat’l Org. for Women v. Pataki, 261 F.3d 156, 168 (2d Cir.2001) (error for court not to have considered the availability of Article 78 proceedings in determining whether the *519state has provided procedural due process).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474547/
|
SUMMARY ORDER
Defendant the Republic of Argentina (“Argentina”) appeals a grant of injunctive relief in favor of plaintiffs, judgment creditors, which bars it from transferring its interest in certain of its own global bonds presently held in trust by Caja de Valores S.A. (“Caja”), an Argentine financial institution, and allegedly on deposit at the Depository Trust Corporation (“DTC”) in New York. Argentina argues that the injunctions must be vacated because they are not supported by the requisite findings. It further asserts that the Uniform Commercial Code, see N.Y. U.C.C. § 8-112(c), and the Foreign Sovereign Immunities Act (“FSIA”), see 28 U.S.C. § 1609, preclude the awarded relief as a matter of law. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our ruling.
The district court initially granted the relief here at issue in the form of ex parte temporary restraining orders (“TROs”) signed on April 18, 22, and 25, 2008. See Fed.R.Civ.P. 65(b)(2). Each TRO states that “Argentina, its servants, employees, agents, representatives, and any person acting in concert with them (including, without limitation, [Caja])1 are restrained and enjoined, pursuant to Fed.R.Civ.P. 65(b), from issuing any instruction to [Caja], or to any other person, to transfer, sell, pledge, loan or otherwise encumber or alienate the [bonds] held by [Caja] at [DTC].” On April 30, 2008, the district court held a hearing as to whether the TROs should be converted into preliminary injunctions. It reserved decision, continuing the TROs in the interim, so that on May 23, 2008, they automatically converted to preliminary injunctions. See Fed.R.Civ.P. 65(b)(2); In re Criminal Contempt Proceedings Against Crawford, 329 F.3d 131, 137-38 (2d Cir.2003) (noting that TRO extended beyond the time limit of Rule 65(b) is treated as preliminary *521injunction). It is from these TROs/preliminary injunctions that Argentina now appeals.
We review a grant of a preliminary injunction for abuse of discretion. Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir.2008). A district court abuses its discretion if it “applies legal standards incorrectly or relies upon clearly erroneous findings of fact, or proceed[s] on the basis of an erroneous view of the applicable law.” Capital Ventures Int’l v. Republic of Argentina, 443 F.3d 214, 222 (2d Cir.2006) (internal quotation marks omitted). Argentina submits that the district court’s injunctive orders are unsupported by any required findings and must, therefore, be vacated.
The law permits a preliminary injunction to issue only where the moving party demonstrates “(1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant’s favor.” Doninger v. Niehoff, 527 F.3d at 47. A court deciding a preliminary injunction motion “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., - U.S. -, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008) (internal quotation marks omitted); see also id. at 378, 382 (identifying abuse of discretion where lower courts “addressed [the relevant] considerations in only a cursory fashion”); Munaf v. Geren, 553 U.S. 674, -, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008) (identifying abuse of discretion where reviewing court “searche[d] the opinions below in vain for any mention of a likelihood of success as to the merits”); Weitzman v. Stein, 897 F.2d 653, 658 (2d Cir.1990) (vacating preliminary injunction where district court had made “no findings whatsoever”).
We agree with Argentina that continued preliminary injunctive relief in this case presently is unsupported by the requisite findings. At the April 30, 2008 hearing, the district court expressly reserved decision on the issuance of a preliminary injunction, explaining:
I could not say today on the record that is before me, as much as I understand of it — and I have not mastered it at all completely, but I couldn’t say today, I couldn’t rule today that the Republic of Argentina has no interest in what is on deposit or what is on the books of DTC. I couldn’t say that. I couldn’t rule that way. On the basis of what you have said in the last few minutes, it seems to me that there are questions.
I will have to be very frank with you. I don’t know whether discovery is needed or me doing a more thorough job on the papers before me.
But I certainly will reserve decision, and whatever restraining order or whatever I have signed thus far will remain in effect until I make a decision.
Tr. Oral Arg. at 46 (Apr. 30, 2008). While a district may continue a TRO for a brief time, once that time passes, the court must make the findings required to support a preliminary injunction in order to grant ongoing relief. See Fed.R.Civ.P. 65(b)(2); Pan Am. World Airways, Inc. v. Flight Eng’rs’ Int’l Ass’n, PAA Chapter, 306 F.2d 840, 842 (2d Cir.1962) (“There is no statutory authority for ... indefinite, successive extensions of temporary restraining orders.”); see also Fed.R.Civ.P. 52(a)(2) (“In granting ... an interlocutory injunction, the court must ... state the findings and conclusions that support its action.”). Because the district court’s quoted remarks *522do not — and were not intended to — “inform[] us as to its underlying rationale” for a preliminary injunction, much less “discipline its approach to the case before it,” we cannot uphold continued injunctive relief on this record. Inverness Corp. v. Whitehall Labs., 819 F.2d 48, 51 (2d Cir.1987).
The district court’s statement nevertheless suggests the existence of serious merits questions, and the record reflects the possibility that vacating the injunctions would impose undue hardship on plaintiffs, who might thus be deprived of a significant opportunity to execute on their judgments. Accordingly, we do not vacate the injunctions; instead, we “remand the case to the district court for an explanation” as to the propriety of a preliminary injunction. Id.
To Argentina’s contention that no remand is warranted because the relief sought is precluded as a matter of law by N.Y. U.C.C. § 8-112(c) and the FSIA, we observe that, consistent with “our settled practice,” we “allow the district court to address arguments in the first instance.” Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir.2000); accord Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d Cir.2009) (remanding for determination whether Azerbaijani state oil company was state agent for purposes of due process analysis).
For the reasons stated, we REMAND the case with the challenged orders intact, and we instruct the district court to undertake the necessary analysis for a preliminary injunction within ten days of this order or to vacate these temporary orders without prejudice to granting equitable relief in the future upon appropriate findings.
. One of the TROs omits this parenthetical.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474549/
|
SUMMARY ORDER
Defendant Gilberto Caraballo was convicted, after a jury trial, of five counts relating to the murder of Jose Fernandez, see 18 U.S.C. § 1958(a) (substantive and conspiratorial murder-for-hire); id. § 373(a) (solicitation to commit a crime of violence); id. § 924(c) (use of a firearm in relation to a crime of violence); 21 U.S.C. § 848(e)(1)(A) (murder while engaging in a narcotics offense); one count relating to the murder of Edward Cortes, see id. (murder while engaging in a narcotics offense); conspiracy to distribute five kilograms or more of cocaine hydrochloride and fifty grams or more of cocaine base (“crack”), see id. §§ 841(b)(1)(A), 846; and two counts of firearm possession, see 18 U.S.C. § 922(g) (felon in possession of a *524firearm); id. § 924(c) (possession of a firearm in furtherance of a drug trafficking crime). Caraballo was principally sentenced to five concurrent life sentences. On appeal, Caraballo challenges (1) the sufficiency of the evidence supporting his § 848(e)(1)(A) conviction for the murder of Jose Fernandez, as well as (2) the district court’s failure (a) to dismiss a juror for cause after the start of trial, and (b) to give a multiple conspiracies charge. We address Caraballo’s sufficiency challenge in a published opinion issued today. See United States v. Caraballo, 585 F.3d 652 (2d Cir.2009). We here address his claims of error by the district court. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our deeision.
1. Failure To Dismiss Juror Five
Caraballo asserts that the district court abused its discretion in not dismissing Juror Five for cause when, after the first full day of trial testimony, he expressed safety concerns because (1) he often worked in the neighborhood where many of the charged offenses took place, and (2) he had been previously struck by a stray bullet. We accord considerable deference to a trial court’s decision whether or not to remove a juror for cause, mindful that the court’s findings regarding actual or potential bias are “based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.” Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); accord Uttecht v. Brown, 551 U.S. 1, 8, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (collecting cases and noting deference due trial court in jury selection “because so much may turn on a potential juror’s demean- or”). We will not disturb a decision regarding a juror’s ability to serve “absent a clear abuse of discretion,” United States v. Perez, 387 F.3d 201, 205 (2d Cir.2004), which we do not identify here.
The nature of Juror Five’s work and the fact that he had been shot were revealed and discussed before trial, at which time no challenge was raised to his service. When Juror Five voiced safety concerns after trial began, the trial court conducted an extensive colloquy, at the conclusion of which the juror affirmed that (1) his concerns “wouldn’t interfere” with his ability to perform as a juror, and (2) that he would be fair and impartial “to the best of [his] ability.” Trial Tr. at 1723. The district court credited these statements, “surmis[ing]” that the juror’s expressed concerns related more “to his suddenly being selected for this jury” than to a “serious” apprehension “for his personal safety.” Id. at 1725.
Given the juror’s clear expression of his “willingness to exert truly best efforts to decide the case without reference to [his] predispositions and based solely on the evidence presented at trial,” United States v. Nelson, 277 F.3d 164, 202-03 (2d Cir.2002) (citing cases), and the fact that defense counsel did not request further inquiry as to the juror’s ability to be fair, we can identify no abuse of discretion in the district court’s refusal to dismiss Juror Five. Moreover, in light of the district coui-t’s conscientious handling of this matter and its “broad discretion in the questioning of potential jurors,” United States v. Toms, 128 F.3d 38, 43 (2d Cir.1997), we reject Caraballo’s assertion that the district court abused that discretion in declining to pose additional questions to Juror Five regarding his potential bias.
2. Failure To Give “Multiple Conspiracies” Charge
Caraballo contends that the district court erred in failing to give a “multiple *525conspiracies” charge given that (1) Caraballo was charged with separate conspiracies to procure the murder of Jose Fernandez and to distribute narcotics; and (2) the evidence tended to demonstrate that Caraballo may have participated in yet other, uncharged conspiracies, which may have confused the jury. Because this argument was not raised below, we review only for plain error, see United States v. Miller, 116 F.3d 641, 672 (2d Cir.1997), and we identify none.1
“[T]o secure a reversal for a failure to give a requested multiple-conspiracy charge, a defendant must show,” inter alia, “that he suffered substantial prejudice resulting from the failure to give the requested charge.” United States v. Maldonado-Rivera, 922 F.2d 934, 962-63 (2d Cir.1990) (internal quotation marks and citation omitted). Such a showing cannot be made, however, “where there was ample proof before the jury for it to find beyond a reasonable doubt that [the] defendant was a member of the conspiracy charged in the indictment.” United States v. Vazquez, 113 F.3d 383, 386 (2d Cir.1997). Overwhelming evidence supported Caraballo’s membership in both of the charged conspiracies, and, indeed, Caraballo does not attempt to demonstrate otherwise on appeal. His multiple conspiracies charge claim must, therefore, be rejected.
In any event, a multiple conspiracies charge is not called for simply because a defendant, standing trial alone, is charged with participating in more than one conspiracy. See United States v. Corey, 566 F.2d 429, 431 n. 3 (2d Cir.1977). A multiple conspiracies charge is designed to assist the jury in determining whether or not a particular charged conspiracy was truly a “single conspiracy,” not to remind them separately to consider each charged conspiracy. See 1 Sand et al., Modern Federal Jury Instructions — Criminal ¶ 19.01, Instruction 19-5 & cmt. at 19-22 (2009) (“Generally speaking, the instruction is appropriate in cases where a number of defendants have been collectively charged in the indictment with participation in a single, overall conspiracy, but where there is a basis for the defense claim that multiple conspiracies existed.”). As the government notes, such a reminder was adequately provided when the district court instructed the jury that “[e]ach count and the evidence pertaining to it should be considered separately.” Trial Tr. at 3659. Moreover, although Caraballo asserts that the admission — not challenged here — of evidence regarding additional uncharged crimes and conspiracies “may well have confused” the jury and led them to convict Caraballo because he “had participated in certain conspiracies” other than “the precise ones charged,” Appellant’s Br. at 42-43, he offers no record support for an assumption that the jury disregarded its instructions as to the limited purposes for which this evidence could be considered in its deliberations, see Shannon v. United States, 512 U.S. 573, 585, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (noting “almost invariable assumption ... that jurors follow their instructions” (internal quotation marks omitted)). We therefore reject Caraballo’s multiple conspiracies charge claim as without merit.
3. Conchiswn
For the reasons stated in this order and in the contemporaneous published opinion, *526the judgment of conviction is AFFIRMED.
. During the proceedings below, Caraballo's counsel requested a multiple conspiracies charge with respect to the narcotics conspiracy in light of evidence purportedly indicating that this conspiracy had two discrete phases. See Charging Conf. Tr. at 12. That argument is not raised on appeal, however.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474733/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronnie Logan appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Logan, No. 3:00-cr-00068-MR-1 (W.D.N.C. Jan. 13, 2009). We deny Logan’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474518/
|
SUMMARY ORDER
Plaintiff-Appellant Naomi Watson, pro se, appeals from the March 28, 2008, judgment of the United States District Court for the Southern District of New York (Pitman, M.J.) granting summary judgment to the defendant-appellee. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
We review an order granting summary judgment de novo, focusing on whether the district court properly concluded that there were no genuine issues 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). In determining whether there are genuine issues of material fact, this Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotations omitted).
After having reviewed Watson’s contentions on appeal and the record of proceedings below, we affirm for substantially the same reasons stated by the magistrate judge in his thorough decision. We have considered all of Watson’s arguments and find them to be without merit.
*476Accordingly, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474522/
|
SUMMARY ORDER
Defendants-Appellants John Cook, Jacquelyn Ucello, and Tammy Couture (“Defendants”) appeal a March 20, 2008 judgment of the United States District Court for the District of Connecticut (Bryant, J.) denying a motion for summary judgment on claims under 42 U.S.C. § 1983 for violation of the Equal Protection and Due Process Clauses of the United States Constitution. The Defendants seek interlocutory appeal from the district court’s decision, arguing that they are entitled to qualified immunity on the equal protection and due process claims asserted in Counts One, Four, and Seven of Plaintiff-Appellee Robin Distiso’s (“Plaintiff’) complaint. Because we find that the district court did not adequately address the Defendants’ qualified immunity defense, we vacate and remand for further proceedings consistent with this opinion. We assume the parties’ familiarity with the facts, procedural history, and scope of issues presented on appeal.
I. Background
The Plaintiff alleges in her complaint that her son, Nicholas, an African-American, was subjected to student-on-student racial harassment and physical abuse by his classmates and racial discrimination by his teachers, Ucello and Couture, and the principal, Cook. Mrs. Distiso and her husband (“the Distisos”) both testified in their depositions that Nicholas came home from school and told them about the racially-motivated conduct to which he was subjected while at school. Nicholas was also deposed, but in response to questions about whether he “remember[ed] what happened,” Nicholas repeatedly testified that he did not remember or that he remembered only what he practiced with his mother the previous day in preparation for the deposition. The record shows that in many instances in which Mrs. Distiso complained to school officials about the manner in which other students were treating *480her son, she did not assert that she believed Nicholas was being harassed because of his race. The record also shows that in response to many of Mrs. Distiso’s complaints, including those that alleged that Nicholas was being subjected to student-on-student racial harassment, the teachers responded by stating that they would speak with the offending students. In response to other complaints, investigations were launched. In May 2003, the Distisos filed their only formal complaint with the Commission on Human Rights and Opportunities (“CHRO”) in which they alleged that Nicholas’s classmates were calling him racist names. After an investigation, the CHRO issued a “no reasonable cause finding,” and determined that “it did not discover any racial harassment.”
The district court found that the Plaintiff had come forward with sufficient evidence to reach a jury on the questions of whether the Defendants were informed of the discriminatory student-on-student conduct and whether their response to Mrs. Distiso’s complaints constituted deliberate indifference to Nicholas’s constitutional rights. The district court then denied the Defendants’ qualified immunity defense, asserting conclusorily that Nicholas’s right to be free from racial discrimination was clearly established, and that a reasonable school official would have known he or she had a duty to remedy racial discrimination.
For purposes of this appeal, the Defendants have accepted as true the Plaintiffs version of the facts.
II. Jurisdiction
First, we address the Plaintiffs contention that we lack jurisdiction over this interlocutory appeal. Generally, “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Tierney v. Davidson, 133 F.3d 189, 194 (2d Cir.1998) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). To the extent that the district court has found that there is enough evidence in the record to create a genuine issue as to some question of fact, we do not have jurisdiction to review that factual determination on interlocutory appeal. Salim v. Proulx, 93 F.3d 86, 91 (2d Cir.1996) (citing Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) and Behrens v. Pelletier, 516 U.S. 299, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). We may, however, exercise interlocutory jurisdiction to determine whether, assuming the Plaintiffs version of the facts is true, the Defendants are entitled to qualified immunity as a matter of law. Tierney, 133 F.3d at 194.
Defendants contend that based on the Plaintiffs version of the facts, they are entitled to summary judgment on their qualified immunity defense. We therefore have jurisdiction to consider whether, as a matter of law, the district court adequately addressed the Defendants’ qualified immunity arguments. See Francis v. Coughlin, 849 F.2d 778, 780 (2d Cir.1988) (taking jurisdiction over an interlocutory qualified immunity appeal and remanding to allow the district court to consider the Defendants’ qualified immunity defense).
III. Qualified Immunity
Last Term, the Supreme Court reconsidered the Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), two-step qualified immunity inquiry in which the initial question a court must answer is whether the facts alleged show the government officer’s conduct violated a constitutional right. In Pearson v. Callahan, - U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), a case that had not yet *481been decided at the time of the district court’s decision, the Supreme Court held that while the Saucier approach “is often appropriate, it should no longer be regarded as mandatory.” Id. at 818. Therefore, if the facts alleged by the Plaintiff here do not make out violation of a “clearly established” constitutional right, then qualified immunity is available. Id. at 816; see also Okin v. Village of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 430 n. 9 (2d Cir.2009) (acknowledging Callahan).
A right is clearly established if: (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has affirmed the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir.1998) “The question is not what a lawyer would learn or intuit from researching ease law, but what a reasonable person in [the] defendant’s position should know about the constitutionality of the conduct.” Id.
Importantly, when faced with a qualified immunity defense, a court should consider the specific scope and nature of a defendant’s qualified immunity claim. That is, a determination of whether the right at issue was “clearly established” must be “undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151; see also Zieper v. Metzinger, 474 F.3d 60, 67-68 (2d Cir.2007) (noting that the qualified immunity analysis must be undertaken in a “particularized” sense); Pena v. DePrisco, 432 F.3d 98, 114 (2d Cir.2005). The contours of the right “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
Here, the district court’s analysis of the Defendants’ qualified immunity claim regarding the equal protection allegations in Counts One, Four, and Seven was very brief. The court considered the questions of whether the allegedly violated right was “clearly established” and whether a “reasonable defendant” would have known that his conduct was unlawful with reference only to the broad proposition that Nicholas was entitled to be free from a racially discriminatory environment. The district court did not discuss the steps taken by the Defendants to investigate Mrs. Distiso’s complaints or to respond to them. The court likewise did not consider this Court’s decision in Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir.1999). Gant represents the only time this Circuit in a published opinion has applied the deliberate indifference standard to allegations of student-on-student racial harassment in violation of a student’s equal protection rights. In Gant, we determined that in order to succeed on a student-on-student racial harassment claim, a plaintiff must show that the defendants were “deliberately indifferent” such that their response to “known discrimination ‘[was] clearly unreasonable in light of the known circumstances.’ ” Id. at 141 (quoting Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 648, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)).
The district court’s treatment of the qualified immunity defense as applicable to the due process allegations in Counts One, Four, and Seven was equally cursory. In Smith v. Half Hollow Hills Central School District, 298 F.3d 168 (2d Cir.2002), this Court determined that no due process violation was alleged when a complaint stated that a teacher, without provocation, slapped a student across the face. Id. at 170. The panel noted that while “[striking a student without any pedagogical or disciplinary justification ... is undeniably wrong .... not all wrongs *482perpetrated by a government actor violate due process.” Id. at 173. The district court did not address the implications of this case for whether it is clearly established that Couture’s alleged grabbing of Nicholas’s arm, even without disciplinary justification, violates due process. Nor did the court discuss how Ucello’s or Cook’s alleged conduct can be said to have violated clearly established law.
When a district court gives only “cursory treatment [to] the immunity defense,” this Court will remand to the district court with instructions to give further consideration to the matter. Francis, 849 F.2d at 780; see also Cine SK8, Inc. v. Henrietta, 507 F.3d 778, 792 (2d Cir.2007) (“[W]hen a district court fails to address an immunity defense, it is generally appropriate to remand the case with instructions to rule on the matter.” (citations omitted)). We believe remand is appropriate here to permit the district court in the first instance to address the specific scope and nature of the Defendants’ qualified immunity claim. This will afford the district court the opportunity to consider the qualified immunity question in light of the Supreme Court’s recent decision in Callahan, and with regard to Saucier’s command that the analysis must be undertaken in the specific context of the case.
For the foregoing reasons, the judgment of the district court is hereby VACATED and REMANDED for proceedings consistent with this order.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474526/
|
AMENDED SUMMARY ORDER
Plaintiffs Patrick J. Berkery and John T. O’Reilly commenced this action under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and state law. They allege that the Archdiocese of Hartford (the “Archdiocese”) failed to pay Berkery funds that were contractually owed to him upon his retirement, and that certain of the defendants committed defamation, libel, and slander. On June 28, 2007, the United States District Court for the District of Connecticut (Covello, J.) dismissed Berkery’s claims under ERISA and the ADA, and declined to exercise supplemental jurisdiction over plaintiffs’ remaining state-law claims. Plaintiffs filed a motion for reconsideration of those rulings, which was denied on January 29, 2008. Plaintiffs appealed.1 We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
In reviewing a dismissal for lack of subject matter jurisdiction at the pleadings stage, we review conclusions of law de novo, accepting as true all material facts *489alleged in the complaint and drawing all reasonable inferences in the plaintiffs favor. Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir.2009). We are not bound to accept as true legal conclusions couched as factual allegations. Id. The party invoking jurisdiction bears the burden of establishing that jurisdiction exists. Id. We also review de novo a dismissal pursuant to Rule 12(b)(6), accepting as true all factual allegations in the complaint and construing all reasonable inferences in the non-movant’s favor. Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406, 424 (2d Cir.2008). The denial of a motion for reconsideration, however, is reviewed only for abuse of discretion. Universal Church v. Geltzer, 463 F.3d 218, 228 (2d Cir.2006).
With respect to Berkery’s ERISA claim, the district court held that neither the complaint nor any of the numerous exhibits attached to it identifies an ERISA-governed “employee benefit plan,” 29 U.S.C. § 1002(3). We agree. The July 17, 1995 letter agreement referring to the “Rev. Patrick J. Berkery Retirement Fund” does not suggest that the Archdiocese established a benefit plan that required “ongoing, particularized, administrative analysis” of Berkery’s retirement fund or his eligibility to receive compensation under its terms. Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 737 (2d Cir.2001) (quotation omitted). Moreover, the agreement did not vest discretion in the Archdiocese over the manner in which payments from the fund would be made to Berkery. Rather, under the terms of the agreement, Berkery was entitled to the accumulated proceeds of the fund upon request when he stopped working full time within the Archdiocese of Hartford, and the funds were to be distributed to him in payment amounts of his choosing. These terms indicate that the fund required “ ‘no administrative scheme whatsoever to meet the employer’s obligation.’ ” Kosakow, 274 F.3d at 736-37 (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987)); see also James v. Fleet/Norstar Fin. Group, Inc., 992 F.2d 463, 466 (2d Cir.1993) (“To do little more than write a check hardly constitutes the operation of a benefit plan.”).
Berkery’s reliance on the January 31, 2006 letter from defendant Michael St. Denis is similarly unavailing. The letter merely suggests that, in response to questions from Berkery about how to manage his retirement fund, an employee of the Archdiocese provided advice relating to Be7‘ke7,y,s discretionary control of the fund. The allegations in the complaint and the documents upon which plaintiffs rely are therefore insufficient to support a plausible inference that the “Rev. Patrick J. Berkery Retirement Fund” was an “employee benefit plan” under ERISA. Moreover, even assuming, arguendo, that the “Rev. Patrick J. Berkery Retirement Fund” is an ERISA-governed plan, Berkery has not refuted that it would be exempt under ERISA as a “church plan.” 29 U.S.C. § 1003(b)(2); see also 29 U.S.C. § 1002(33) (defining “church plan”). Accordingly, we affirm the district court’s dismissal of Berkery’s ERISA claim.
The district court also properly dismissed Berkery’s ADA claim. Berkery does not allege that defendants withheld the proceeds of his retirement fund “because o/his alleged disability.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir.2008) (emphasis added). Rather, he alleges that the Archdiocese purported to withhold the funds due to complaints “concerning his handling of parish funds,” and that this pretextual explanation was presented to conceal the fact that his retirement fund “was part of the financial *490assets pledged by the Archdiocese in [its] recent abuse settlement.”
Berkery was entitled to plead an alternative explanation for the decision of the Archdiocese to withhold the proceeds of his retirement fund. See Fed.R.Civ.P. 8(e); see also Henry v. Daytop Village, Inc., 42 F.3d 89, 95-96 (2d Cir.1994). With respect to this element of his ADA claim, however, Berkery plead no facts at all. The complaint presents no allegations that link the Archdiocese’s decision to his disability or support an inference of disability discrimination. Simply put, Rule 8 requires more. Therefore, we affirm the district court’s dismissal of Berkery’s ADA claim.
Because the district court’s subject matter jurisdiction was predicated on the federal questions presented by Berkery’s claims under ERISA and the ADA, it did not err in declining to exercise supplemental jurisdiction over plaintiffs’ state-law claims after dismissing the federal claims. See, e.g., Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir.2003). Moreover, in light of the foregoing, the district court did not abuse its discretion in denying plaintiffs’ motion for reconsideration. We have reviewed plaintiffs’ remaining arguments and find them to be without merit.2 Accordingly, the judgment of the district court is hereby AFFIRMED.
. Because the motion for reconsideration was filed within ten days of the initial dismissal order and it renewed plaintiffs’ previous arguments, the notice of appeal filed after the denial of plaintiffs' motion for reconsideration is sufficient to permit review of the initial dismissal order. See "R" Best Produce, Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir.2008).
. For purposes of clarity we note that, although Berkery's co-plaintiff, John T. O’Reilly, signed both the notice of appeal and Berkery's appellate brief on a pro se basis, O’Reilly presented no independent arguments or submissions in support of his appeal. Therefore, O'Reilly abandoned his challenge to the district court's decisions. See, e.g., Sioson v. Knights of Columbus, 303 F.3d 458, 459-60 (2d Cir.2002).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474534/
|
SUMMARY ORDER
Petitioner Dian Quan Jiang, a native and citizen of the People’s Republic of China, seeks review of an October 30, 2007 order of the BIA denying his motion to reopen. In re Dian Quan Jiang, No. A074 235 273 (B.I.A. Oct. 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 *503Shao 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 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 Jiang argues that the BIA’s analysis of his 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 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).
Because the BIA reasonably found that Jiang failed to demonstrate a material change in country conditions, and such failure provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Jiang’s motion. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169. Jiang’s argument that he is entitled to file a successive asylum application based on the birth of his 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474536/
|
SUMMARY ORDER
Petitioner Zhen Xu, a native and citizen of the People’s Republic of China, seeks review of an October 30, 2007 order of the BIA denying her motion to reopen. In re Zhen Xu, No. A073 657 862 (B.I.A. Oct. 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 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Xu’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 *505fashion without a reviewing court presuming that it has abused its discretion”). While Xu 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).
Because the BIA reasonably found that Xu failed to demonstrate that there has been a material change in circumstances in China, and such failure provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Xu’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shoo, 546 F.3d at 169.
Xu’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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474540/
|
SUMMARY ORDER
Petitioner Gui Kun Lin, a native and citizen of the People’s Republic of China, seeks review of an October 18, 2007 order of the BIA denying his motion to reopen. In re Gui Kun Lin, No. A077 121 697 (B.I.A. Oct. 18, 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 *508agency’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 Lin’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”). The BIA reasonably questioned the reliability of the evidence Lin submitted in light of the adverse credibility determination that was made in his underlying proceedings, and found that his evidence did not demonstrate a material change in country conditions. See 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).
Because the failure to establish changed country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion in denying Lin’s motion. 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474542/
|
SUMMARY ORDER
Thomas Alexander Dallal appeals a judgment entered after a jury trial in favor of defendant New York Times Company (the “Times”) on his claim of copyright infringement with respect to photographs he created that the Times published on its website.1 Dallal contends that the district court erred by denying his motions pursuant to Fed.R.Civ.P. 50(a) with respect to certain of the Times’s defenses. He also faults the district court’s preclusion of two expert witnesses, its instructions to the jury, and other trial management and evidentiary rulings.
We review de novo the district court’s denial of judgment as a matter of law, which is warranted only where “ ‘a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.’ ” Jarvis v. Ford Motor Co., 283 F.3d 33, 43 (2d Cir.2002) (quoting Fed. R.Civ.P. 50(a)). We similarly review de novo preserved challenges to jury instructions. Jin v. Metro. Life Ins. Co., 310 F.3d 84, 91 (2d Cir.2002). We review for abuse of discretion the district court’s management of trial, see United States v. Yakobowicz, 427 F.3d 144, 150 (2d Cir.2005), and its evidentiary rulings, see United States v. Bah, 574 F.3d 106, 116 (2d Cir.2009), including its decisions as to whether to permit expert testimony, see Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 212 (2d Cir.2009). In applying these standards, we assume familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our ruling.
1. Rule 50 Motions
a. Oral Agreement, Implied License, and Equitable Estoppel
Dallal asserts that he was entitled to judgment as a matter of law on the Times’s defenses of oral agreement, implied license, and equitable estoppel. He contends that he authorized the Times’s exclusive use of his photographs, effecting a “transfer of copyright ownership” within the meaning of 17 U.S.C. § 204(a), and requiring that each transaction be in writing. He further contends that the governing writings were his invoices, which contained language that he reads to preclude Internet publication. Thus, he contends, as a matter of law, the Times should not have been allowed to defend on grounds of *511oral agreement, implied license, or equitable estoppel.
We disagree. Section 204(a) requires a written contract where there is a transfer of copyright ownership, including the grant of an exclusive license, see Davis v. Blige, 505 F.3d 90, 100 n. 10 (2d Cir.2007), but as we determined in vacating the district court’s grant of summary judgment in favor of the Times, see Dallal v. N.Y. Times Co., 2006 WL 463386 (2d Cir. Feb.17, 2006), a question of fact existed as to the nature of the transactions at issue here. The evidence did not establish, as a matter of law, that the Times purchased an exclusive license satisfying the requirement of § 204(a). In maintaining otherwise, Dallal relies on the language of his invoice and the testimony of a Times editor that the Times generally requires “first exclusive use” of photographs. But the record contains no other evidence that the Times sought an exclusive license, e.g., any suggestion that it ever tried to prevent Dallal or anyone else from republishing his work.
Meanwhile, evidence was adduced indicating that although Times editors had signed Dallal’s invoices, they were never returned to him; that the signatures denoted not assent to be bound, but compliance with in-house accounting; that Times employees told Dallal that the Times did not intend to be bound by the invoices; that Dallal was aware the photos would be published on the Internet; and that Dallal nevertheless accepted more than 1,000 assignments from the Times. In the face of such evidence, the district court properly denied Dallal’s Rule 50 motion and permitted the jury to consider whether an oral agreement existed that the Times would acquire a nonexclusive license permitting the publication of Dallal’s work on the Internet, as well as the question of equitable estoppel.
b. Revision Privilege
Dallal further asserts that he was entitled to judgment as a matter of law on the Times’s “revision privilege” defense. Title 17 U.S.C. § 201(c) permits revisions by copyright holders in collective works, even where individual authors retain their copyrights, “[i]n the absence of an express transfer of the copyright or of any rights under it.” Dallal maintains that, because the invoices effected an “express transfer” of an ownership interest, § 201(c) is inapplicable as a matter of law. We reject this argument in light of our determination that a question of fact existed as to whether the transactions at issue were governed by an oral agreement. Our prior holdings concerning transactions governed by express written agreements are not to the contrary. See Faulkner v. Nat’l Geographic Enters., Inc., 409 F.3d 26, 40 (2d Cir.2005); Tasini v. N.Y. Times Co., 206 F.3d 161, 170-71 (2d Cir.2000), aff'd, N.Y. Times Co. v. Tasini, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001).
2. Jury Instructions2
A district court’s jury charge constitutes reversible error only where it “misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994). Contrary to Dallal’s contention, the district court properly instructed the jury that an exclusive transfer of copyright cannot occur without a writing. The omission of the requirement that the author sign such a *512writing was immaterial, given that it was undisputed that Dallal signed the invoices. The district court did not, as Dallal suggests, instruct the jury that the invoices were irrelevant; it chai-ged only that the parties disputed whether their agreement was established by the invoices, by oral statements, or by the parties’ conduct. We reject Dallal’s argument that the district court erred by instructing the jury as to equitable estoppel and the revision privilege for the reasons described above. Finally, we detect no error in the district court’s refusal to instruct the jury about the factually distinguishable Tasini cases, see N.Y. Times Co. v. Tasini, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500; Tasini v. N.Y. Times Co., 206 F.3d 161, where Dallal adduced no evidence that those cases had influenced the Times’s intent as to its purchase of his photos.
3. Expert Witnesses
We identify no abuse of discretion in the district court’s preclusion of Dallal’s two expert witnesses. The court permitted Dallal to submit several revised proffers for each of the witnesses at issue, and it granted permission to present the testimony of a third expert whom Dallal later was unable to produce. To the extent the excluded testimony related to industry custom and practice, Dallal failed to demonstrate relevance, because the Times did not rely on its conformity with industry practice but, instead, offered testimony about how it understood its bargain with Dallal in light of its own practice. To the extent Dallal’s proffers indicated that the two experts would comment on the facts of Dallal’s case and explain how industry participants interpreted applicable law, we identify no error, let alone manifest error, see Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., EEC, 571 F.3d at 213, in the district court’s decision to exclude such testimony, which it correctly observed would have intruded on its own province and that of the jury.
4. Evidentiary Rulings and Trial Management
Finally, we identify no abuse of discretion in the district court’s evidentiary rulings or in its management of the trial. The district court was well within its discretion in bifurcating the liability and damages phases of the trial, a sensible means of achieving expedition and economy. See Fed.R.Civ.P. 42(b); Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 283 (2d Cir.1990). There was no need for redundant presentation of evidence, as Dallal suggests, because the same jury was to hear each phase. Nor did the district court abuse its discretion by excluding from the liability phase testimony by Times General Counsel George Freeman, which Dallal proposed to use in proving willfulness. Such proof may have been relevant to the issue of damages, but it had no bearing on liability. We are unpersuaded by Dallal’s complaints about the district court’s actions during the testimony of trial witnesses, which reasonably addressed plaintiffs occasionally argumentative style of questioning and, thus, fell well within the district court’s broad discretion. See United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, 44 F.3d 1091, 1095 (2d Cir.1995). We likewise detect no abuse of discretion in the district court’s exclusion of Dallal’s proffered summary charts on the ground that they were more argumentative than evidentiary in nature.
We have considered Dallal’s remaining arguments, and they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
. Although Dallal names as appellees all defendants involved in the original action, he does not challenge the district court's decision, at the close of the trial evidence, dismissing the action against all defendants other than the Times for lack of evidence. Accordingly, we deem any such argument waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).
. Although the record contains some ambiguity about whether Dallal preserved all of the objections to the district court's jury charge that he raises on appeal, we assume for the purposes of our discussion that he did, and we conclude that none has merit.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474544/
|
SUMMARY ORDER
Todd-Murgas was convicted, following a guilty plea, of conspiracy to distribute and to possess with intent to distribute powder and crack cocaine. See 21 U.S.C §§ 841(a)(1), 846. Originally sentenced to a term of 188 months’ incarceration, he here appeals (1) the higher 207-month sentence imposed on initial remand by Judge Munson, and (2) the decision of Chief Judge Mordue on a subsequent Crosby remand not to modify that sentence. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision.
1. The Increased Sentence
On Todd-Murgas’s initial appeal, this court affirmed his conviction but vacated the sentence, identifying error in the district court’s requirement that the government prove uncharged conduct relevant to sentencing—specifically, Todd-Murgas’s alleged role in two drug-related murders— by clear and convincing evidence. See United States v. Cordoba—Murgas, 233 F.3d 704 (2d Cir.2000). On remand, the district court found the homicidal conduct proved by the appropriate preponderance standard and, on that ground, sentenced Todd-Murgas to 207 months’ incarceration, a term 19 months longer than originally imposed but still within his Guidelines range of 188 to 235 months.
Todd-Murgas submits that the sentence violated this court’s remand mandate, which he construes to allow an upward departure from the Guidelines sentencing range pursuant to U.S.S.G. § 5K2.1, but not a higher sentence within the Guidelines range.3 The argument merits little discussion. Our mandate clearly vacated judgment, requiring the district court to resentence defendant after it decided whether the alleged relevant conduct was proved by a preponderance of the evidence. Todd-Murgas agrees that this mandate clearly empowered the district court to rely on such proved conduct to impose a sentence above the Guidelines range. To suggest that the mandate did not permit the more modest action of imposing an increased sentence within the Guidelines range is not only wrong; it is absurd. See generally United States v. Carpenter, 320 F.3d 334, 344-45 (2d Cir.2003) (observing that district court properly follows “spirit” of mandate rather than “letter” to avoid injustice).
Todd-Murgas further argues that the increased sentence is presumptively vindictive because it was based on the same evidence that was before the court at the time of the original sentencing. The argument fails because, following our mandate on remand, the district court applied a lesser burden of proof to its review of this evidence. Where an increased sentence is based on a “changed understanding of the law,” a defendant is afforded no presumption of vindictiveness; he must demonstrate “actual vindictiveness.” United States v. Singletary, 458 F.3d 72, 76-77 (2d Cir.2006) (internal quotation marks omitted). Todd-Murgas fails to point to anything in the record suggesting vindictiveness. Accordingly, we identify *516no error in the district court’s imposition of a higher sentence on our initial remand.
2. Crosby Remand
? argues that the district court erred in not following the procedures outlined in United States v. Garcia, 413 F.3d 201, 228-30 (2d Cir.2005), for a Crosby remand when a case is reassigned to a new judge. Because Crosby remands to successor judges are rare, district courts seldom have occasion to consider and apply these procedures. In this case, Todd-Murgas charges that the district court erred in failing to (1) review the full record of the original sentencing, (2) compare the original sentence to the sentence it would have imposed in light of Booker, and (3) produce the defendant in open court.
We address the last point first. In holding that a Crosby remand could proceed before a judge other than the one who imposed the challenged sentence, Garcia identified an important condition: the new “judge must order the defendant produced in open court ... and must afford him an opportunity to be heard,” 413 F.3d at 230 (emphasis added). The government does not dispute that Todd-Murgas was not produced before Chief Judge Mordue (to whom this case was reassigned from Judge Munson after the Crosby remand); rather, it argues that the quoted condition is dictum. The government is mistaken. The identified procedures are pivotal to our holding that, even when a Crosby remand cannot proceed before the original sentencing judge, a successor judge can reliably tell us whether a Booker error was harmless, without which reliable assurance we would be required to order resentencing. See United States v. Garcia, 413 F.3d at 229-30. Because we cannot confidently conclude that the failure to produce ToddMurgas and to afford him an opportunity to address the court had no effect on the district court’s Crosby response, we reluctantly remand this case yet again so that this Garcia requirement can be satisfied.4
In light of this decision, Todd-Murgas’s other procedural challenges require little discussion. The record indicates that Chief Judge Mordue carefully reviewed all materials relevant to the prior sentencing in this case. In such circumstances, we will not assume from a failure explicitly to reference “statements made by the original sentencing judge indicating an inclination to show greater leniency or severity but for the Guidelines mandates,” United States v. Garcia, 413 F.3d at 229 n. 19, that the court overlooked such materials, see United States v. Brown, 514 F.3d 256, 264 (2d Cir.2008) (observing that sentencing judge need not engage in “robotic incantations” or “slavishly follow any particular formula” to demonstrate consideration of required sentencing factors (internal quotation marks omitted)). Nevertheless, on remand, the district court and the parties may pursue the matter further as warranted.
We are similarly disinclined to think that the able district judge failed to perform the comparative analysis detailed in Garcia. See 413 F.3d at 229 (observing that “necessary comparative assessment is most clearly made if the new judge states whether the sentence that judge would have imposed with the benefit of Booker is or is not the same as the challenged sentence”). Here again, any doubt can easily *517be assuaged on remand by a clear statement.5
In sum, although we identify no merit in Todd-Murgas’s challenges to the district court’s imposition of a higher sentence within the Guidelines range on the initial remand in this case, we REMAND once again for further Crosby proceedings consistent with this order.
. Although we did not address Todd-Murgas's challenges to his increased sentence when he first raised them in this court—employing a Crosby remand first to ascertain whether the district court would resentence in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)—we do so here in the interest of efficiency.
. In Garcia, we recognized that, with the consent of the court, the defendant and the government may waive defendant's appearance at a Crosby remand proceeding before a successor judge, 413 F.3d at 230, but no such waiver occurred in this case.
. With the benefit of the Supreme Court’s decisions in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), it should now be clear that a district court’s task on a Crosby remand is not simply to assess the reasonableness of the original sentence. See, e.g., United States v. Jones, 531 F.3d 163, 182 (2d Cir.2008) (observing that, in wake of Kimbrough and Gall, district court must make independent, individualized assessment of appropriate sentence without presuming reasonableness of Guidelines range). Reasonableness is the standard of appellate review. See United States v. Cavera, 550 F.3d 180, 190-91 (2d Cir.2008) (en banc). On a Crosby remand, a district court should indicate whether, with a proper understanding of the advisory nature of the Guidelines and its discretion in weighing the relevant factors identified in 18 U.S.C. § 3553(a), it would have imposed the same sentence.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474546/
|
SUMMARY ORDER
Appellant Samuel De Asis, pro se, appeals from the judgment of the United States District Court for the Eastern District of New York (Irizarry, ,/.), granting the Appellees’ motion to dismiss Appellant’s action brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, the Fifth and Fourteenth Amendments, and New York State law for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court reviews “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); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
Having conducted an independent and de novo review, we conclude, for substantially the same reasons stated by the district court, that Appellant failed to state a claim upon which relief could be granted, and that allowing Appellant to amend his complaint would have been futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000). We need not address Appellant’s claim on appeal that alleged incidents considered to be time-barred by the district court were timely under the continuing violation doctrine, as the inclusion of those events would have no effect on Appellant’s ability to state a claim. We further note that the district court did not err in failing to address Appellant’s claim of municipal liability for negligent supervision, in light of its correct finding that Appellant alleged no underlying constitutional violation. See Segal v. City of New York, 459 F.3d 207, 219-20 (2d Cir.2006) (holding that district court need not reach municipal liability claim where due process claims failed). Finally, insofar as Appellant can be construed as raising a due process claim based on the defendants’ failure to refund a prepaid fine after Appellant successfully challenged his traffic citations, the claim is unavailing because a post-deprivation remedy was available, in the form of an Article 78 mandamus proceeding. See New York State Nat’l Org. for Women v. Pataki, 261 F.3d 156, 168 (2d Cir.2001) (error for court not to have considered the availability of Article 78 proceedings in determining whether the *519state has provided procedural due process).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474548/
|
SUMMARY ORDER
Defendant the Republic of Argentina (“Argentina”) appeals a grant of injunctive relief in favor of plaintiffs, judgment creditors, which bars it from transferring its interest in certain of its own global bonds presently held in trust by Caja de Valores S.A. (“Caja”), an Argentine financial institution, and allegedly on deposit at the Depository Trust Corporation (“DTC”) in New York. Argentina argues that the injunctions must be vacated because they are not supported by the requisite findings. It further asserts that the Uniform Commercial Code, see N.Y. U.C.C. § 8-112(c), and the Foreign Sovereign Immunities Act (“FSIA”), see 28 U.S.C. § 1609, preclude the awarded relief as a matter of law. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our ruling.
The district court initially granted the relief here at issue in the form of ex parte temporary restraining orders (“TROs”) signed on April 18, 22, and 25, 2008. See Fed.R.Civ.P. 65(b)(2). Each TRO states that “Argentina, its servants, employees, agents, representatives, and any person acting in concert with them (including, without limitation, [Caja])1 are restrained and enjoined, pursuant to Fed.R.Civ.P. 65(b), from issuing any instruction to [Caja], or to any other person, to transfer, sell, pledge, loan or otherwise encumber or alienate the [bonds] held by [Caja] at [DTC].” On April 30, 2008, the district court held a hearing as to whether the TROs should be converted into preliminary injunctions. It reserved decision, continuing the TROs in the interim, so that on May 23, 2008, they automatically converted to preliminary injunctions. See Fed.R.Civ.P. 65(b)(2); In re Criminal Contempt Proceedings Against Crawford, 329 F.3d 131, 137-38 (2d Cir.2003) (noting that TRO extended beyond the time limit of Rule 65(b) is treated as preliminary *521injunction). It is from these TROs/preliminary injunctions that Argentina now appeals.
We review a grant of a preliminary injunction for abuse of discretion. Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir.2008). A district court abuses its discretion if it “applies legal standards incorrectly or relies upon clearly erroneous findings of fact, or proceed[s] on the basis of an erroneous view of the applicable law.” Capital Ventures Int’l v. Republic of Argentina, 443 F.3d 214, 222 (2d Cir.2006) (internal quotation marks omitted). Argentina submits that the district court’s injunctive orders are unsupported by any required findings and must, therefore, be vacated.
The law permits a preliminary injunction to issue only where the moving party demonstrates “(1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant’s favor.” Doninger v. Niehoff, 527 F.3d at 47. A court deciding a preliminary injunction motion “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., - U.S. -, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008) (internal quotation marks omitted); see also id. at 378, 382 (identifying abuse of discretion where lower courts “addressed [the relevant] considerations in only a cursory fashion”); Munaf v. Geren, 553 U.S. 674, -, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008) (identifying abuse of discretion where reviewing court “searche[d] the opinions below in vain for any mention of a likelihood of success as to the merits”); Weitzman v. Stein, 897 F.2d 653, 658 (2d Cir.1990) (vacating preliminary injunction where district court had made “no findings whatsoever”).
We agree with Argentina that continued preliminary injunctive relief in this case presently is unsupported by the requisite findings. At the April 30, 2008 hearing, the district court expressly reserved decision on the issuance of a preliminary injunction, explaining:
I could not say today on the record that is before me, as much as I understand of it — and I have not mastered it at all completely, but I couldn’t say today, I couldn’t rule today that the Republic of Argentina has no interest in what is on deposit or what is on the books of DTC. I couldn’t say that. I couldn’t rule that way. On the basis of what you have said in the last few minutes, it seems to me that there are questions.
I will have to be very frank with you. I don’t know whether discovery is needed or me doing a more thorough job on the papers before me.
But I certainly will reserve decision, and whatever restraining order or whatever I have signed thus far will remain in effect until I make a decision.
Tr. Oral Arg. at 46 (Apr. 30, 2008). While a district may continue a TRO for a brief time, once that time passes, the court must make the findings required to support a preliminary injunction in order to grant ongoing relief. See Fed.R.Civ.P. 65(b)(2); Pan Am. World Airways, Inc. v. Flight Eng’rs’ Int’l Ass’n, PAA Chapter, 306 F.2d 840, 842 (2d Cir.1962) (“There is no statutory authority for ... indefinite, successive extensions of temporary restraining orders.”); see also Fed.R.Civ.P. 52(a)(2) (“In granting ... an interlocutory injunction, the court must ... state the findings and conclusions that support its action.”). Because the district court’s quoted remarks *522do not — and were not intended to — “inform[] us as to its underlying rationale” for a preliminary injunction, much less “discipline its approach to the case before it,” we cannot uphold continued injunctive relief on this record. Inverness Corp. v. Whitehall Labs., 819 F.2d 48, 51 (2d Cir.1987).
The district court’s statement nevertheless suggests the existence of serious merits questions, and the record reflects the possibility that vacating the injunctions would impose undue hardship on plaintiffs, who might thus be deprived of a significant opportunity to execute on their judgments. Accordingly, we do not vacate the injunctions; instead, we “remand the case to the district court for an explanation” as to the propriety of a preliminary injunction. Id.
To Argentina’s contention that no remand is warranted because the relief sought is precluded as a matter of law by N.Y. U.C.C. § 8-112(c) and the FSIA, we observe that, consistent with “our settled practice,” we “allow the district court to address arguments in the first instance.” Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir.2000); accord Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d Cir.2009) (remanding for determination whether Azerbaijani state oil company was state agent for purposes of due process analysis).
For the reasons stated, we REMAND the case with the challenged orders intact, and we instruct the district court to undertake the necessary analysis for a preliminary injunction within ten days of this order or to vacate these temporary orders without prejudice to granting equitable relief in the future upon appropriate findings.
. One of the TROs omits this parenthetical.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474751/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lyndon Armstrong appeals the district court’s order denying his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Armstrong, No. 7:03-cr-00107-F-1 (E.D.N.C. Feb. 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474551/
|
SUMMARY ORDER
Petitioner Mei Yian Chen, a native and citizen of the People’s Republic of China, seeks review of a January 31, 2008 order of the BIA denying her motion to reopen. In re Mei Yian Chen, No. A077 293 491 (B.I.A. Jan. 31, 2008). 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. Mulcasey, 546 F.3d 138, 169 (2d Cir.2008).
In her brief, Chen fails to challenge the BIA’s dispositive finding that she failed to *529demonstrate changed country conditions, thus waiving any such argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Because evidence showing of a material change in circumstances in China is required to excuse Chen’s untimely and number-barred motion to reopen, we need not disturb the agency’s decision. Regardless, 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 Jian Hui Shao, 546 F.3d 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”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474555/
|
SUMMARY ORDER
Petitioner Sun Hoi Wong, a native and citizen of the People’s Republic of China, seeks review of the December 17, 2007 order of the BIA denying his motion to reconsider its denial of his appeal from the IJ’s denial of his motion to reopen. In re Sun Hoi Wong, No. A029 783 680 (B.I.A. Dec. 17, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of motions to reopen and reconsider for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not abuse its discretion in denying Wong’s motions.
The BIA reasonably found that Wong failed to demonstrate that the BIA made any legal or factual error in denying his untimely motion to reopen. See 8 C.F.R. § 1003.2(b)(1); see also Jin Ming Liu, 439 F.3d at 111. Indeed, the BIA did not err in finding that Wong failed to submit sufficient evidence of changed circumstances in China, which was required to succeed on both his family planning and religious claims. 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); see Wei Guang Wang v. B.I.A, 437 F.3d 270, 273 (2d Cir.2006) (finding that the birth of children in the United States was a change in personal circumstances, and not changed circumstances under the regulations); Jian Hui Shao, 546 F.3d at 169.
We decline to consider Wong’s due process arguments as he failed to exhaust them before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
*535For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474558/
|
SUMMARY ORDER
Petitioner Ain Gin Chen, a native and citizen of the People’s Republic of China, seeks review of a December 6, 2007 order of the BIA denying her motion to reopen. In re Ain Gin Chen, No. A073 507 641 (B.I.A. Dec. 6, 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. See 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 conclude that the agency did not abuse its discretion in denying Chen’s untimely motion to reopen because it reasonably found that she failed to submit sufficient evidence of changed circumstances in China. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(2); see Wei Guang Wang v. B.I.A., 437 F.3d 270, 273 (2d Cir.2006) (finding that the birth of children in the United States was a change in personal circumstances, and not changed circumstances under the regulations).
Chen argues that the BIA abused its discretion in failing to undertake an individualized review of her evidence to find that she did not establish either changed circumstances in China or prima facie eligibility for relief. However, the BIA may evaluate evidence that it “is asked to consider time and again ... in a summary fashion without a reviewing court presuming that it has abused its discretion.” Wei Guang Wang, 437 F.3d at 275. While Chen correctly states that the BIA did not explicitly address the Village Notice in its decision, 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 eompellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d cir.2006).
Furthermore, even if we were to determine that the BIA erred in failing to address the Village Notice, remand would be futile here because the agency may reasonably decline to credit such unauthenticated evidence based on an underlying determination by the agency that the petitioner was not credible — a determination previously made by the agency in this case. See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007) (holding that even if a decision contains errors, it “will not be vacated and remanded if doing so would be futile”); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.2007) (relying on the doctrine falsus in uno, falsus in omnibus to conclude that the agency may decline to credit documentary evidence submitted with a motion to reopen by an individual who was found not credible in the underlying proceeding) (citing Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007)).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule *537of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474559/
|
*538
SUMMARY ORDER
Petitioner Shen Wu, a native and citizen of the People’s Republic of China, seeks review of a November 30, 2007 order of the BIA denying his motion to reopen. In re Shen Wu, No. A076 785 862 (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. See 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 Wu’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”). Wu’s argument that the BIA failed to give particularized attention to his evidence is unavailing, as 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). Wu asserts that “[t]he new evidence of changes in the implementation and enforcement of the family planning policy in [his] province are changes in conditions arising in China.” However, the BIA reasonably deemed his evidence, including the letter from his father, “inadequate” to establish changed country conditions in China. See Xiao Ji Chen, 471 F.3d at 342 (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ); Jian Hui Shao, 546 F.3d at 148-49, 169, 174.
Finally, Wu’s argument that he is entitled to file a successive asylum application without complying with the requirements for a motion to reopen 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474562/
|
SUMMARY ORDER
Petitioner Sai Feng Lin, a native and citizen of the People’s Republic of China, seeks review of a November 13, 2007 order of the BIA denying her motion to reopen. In re Sai Feng Lin, No. A095 161 781 (B.I.A. Nov. 13, 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. See 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 conclude that the agency did not abuse its discretion in denying Lin’s un*540timely 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”). Lin argues that the agency erred in discounting the evidence she submitted, including the Shouzhan Town Notice, to conclude that she did not establish changed circumstances in China. That argument is unavailing, as the BIA reasonably questioned the reliability of this evidence in light of the adverse credibility determination rendered by the agency 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).
While Lin asserts that the BIA abused its discretion by failing to give adequate consideration to the evidence she submitted, 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).
Because the BIA reasonably concluded that Lin failed to establish a material change in circumstances in China, and such failure provides a valid basis for the BIA’s denial of her motion to reopen, we find no abuse of discretion here. 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474552/
|
SUMMARY ORDER
Petitioner Mei Yian Chen, a native and citizen of the People’s Republic of China, seeks review of a January 31, 2008 order of the BIA denying her motion to reopen. In re Mei Yian Chen, No. A077 293 491 (B.I.A. Jan. 31, 2008). 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. Mulcasey, 546 F.3d 138, 169 (2d Cir.2008).
In her brief, Chen fails to challenge the BIA’s dispositive finding that she failed to *529demonstrate changed country conditions, thus waiving any such argument. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Because evidence showing of a material change in circumstances in China is required to excuse Chen’s untimely and number-barred motion to reopen, we need not disturb the agency’s decision. Regardless, 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 Jian Hui Shao, 546 F.3d 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”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474554/
|
SUMMARY ORDER
Petitioner Chun Hua Zhang, a native and citizen of the People’s Republic of China, seeks review of a January 31, 2008 order of the BIA denying her motion to reopen. In re Chun Hua Zhang, No. A077 341 473 (B.I.A. Jan. 31, 2008). 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. See 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 conclude that the agency did not abuse its discretion in denying Zhang’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 *531“[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”). Zhang argues that the BIA abused its discretion when it failed to consider a 2006 notice purportedly issued by the “Population and Family Planning Bureau of Changle City,” as evidence that persons with two or more children born in the United States are forcibly sterilized in China. That argument is unavailing because the BIA reasonably questioned the probative weight of that redacted document because it did not relate to Zhang or her husband, was not an original document, and was not authenticated. Cf. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir.2005) (holding that an IJ may not reject an asylum-seeker’s document solely because the document was not authenticated pursuant to the regulations). The BIA’s rejection of the 2006 notice was also reasonable in light of the adverse credibility determination that had been rendered against Zhang in her underlying proceedings. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-48 (2d Cir.2007) (finding no error in the BIA’s refusal to credit an unauthenticated document 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).
While Zhang argues that the BIA abused its discretion by failing to conduct an individualized analysis of the evidence she submitted, 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).
Zhang’s argument that she is entitled to file a successive asylum application based on the birth of her children in the United States and her recent religious activity 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474556/
|
SUMMARY ORDER
Petitioner Sun Hoi Wong, a native and citizen of the People’s Republic of China, seeks review of the December 17, 2007 order of the BIA denying his motion to reconsider its denial of his appeal from the IJ’s denial of his motion to reopen. In re Sun Hoi Wong, No. A029 783 680 (B.I.A. Dec. 17, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of motions to reopen and reconsider for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the agency did not abuse its discretion in denying Wong’s motions.
The BIA reasonably found that Wong failed to demonstrate that the BIA made any legal or factual error in denying his untimely motion to reopen. See 8 C.F.R. § 1003.2(b)(1); see also Jin Ming Liu, 439 F.3d at 111. Indeed, the BIA did not err in finding that Wong failed to submit sufficient evidence of changed circumstances in China, which was required to succeed on both his family planning and religious claims. 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); see Wei Guang Wang v. B.I.A, 437 F.3d 270, 273 (2d Cir.2006) (finding that the birth of children in the United States was a change in personal circumstances, and not changed circumstances under the regulations); Jian Hui Shao, 546 F.3d at 169.
We decline to consider Wong’s due process arguments as he failed to exhaust them before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
*535For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474557/
|
SUMMARY ORDER
Petitioner Ain Gin Chen, a native and citizen of the People’s Republic of China, seeks review of a December 6, 2007 order of the BIA denying her motion to reopen. In re Ain Gin Chen, No. A073 507 641 (B.I.A. Dec. 6, 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. See 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 conclude that the agency did not abuse its discretion in denying Chen’s untimely motion to reopen because it reasonably found that she failed to submit sufficient evidence of changed circumstances in China. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(2); see Wei Guang Wang v. B.I.A., 437 F.3d 270, 273 (2d Cir.2006) (finding that the birth of children in the United States was a change in personal circumstances, and not changed circumstances under the regulations).
Chen argues that the BIA abused its discretion in failing to undertake an individualized review of her evidence to find that she did not establish either changed circumstances in China or prima facie eligibility for relief. However, the BIA may evaluate evidence that it “is asked to consider time and again ... in a summary fashion without a reviewing court presuming that it has abused its discretion.” Wei Guang Wang, 437 F.3d at 275. While Chen correctly states that the BIA did not explicitly address the Village Notice in its decision, 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 eompellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d cir.2006).
Furthermore, even if we were to determine that the BIA erred in failing to address the Village Notice, remand would be futile here because the agency may reasonably decline to credit such unauthenticated evidence based on an underlying determination by the agency that the petitioner was not credible — a determination previously made by the agency in this case. See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007) (holding that even if a decision contains errors, it “will not be vacated and remanded if doing so would be futile”); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.2007) (relying on the doctrine falsus in uno, falsus in omnibus to conclude that the agency may decline to credit documentary evidence submitted with a motion to reopen by an individual who was found not credible in the underlying proceeding) (citing Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007)).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule *537of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474560/
|
*538
SUMMARY ORDER
Petitioner Shen Wu, a native and citizen of the People’s Republic of China, seeks review of a November 30, 2007 order of the BIA denying his motion to reopen. In re Shen Wu, No. A076 785 862 (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. See 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 Wu’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”). Wu’s argument that the BIA failed to give particularized attention to his evidence is unavailing, as 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). Wu asserts that “[t]he new evidence of changes in the implementation and enforcement of the family planning policy in [his] province are changes in conditions arising in China.” However, the BIA reasonably deemed his evidence, including the letter from his father, “inadequate” to establish changed country conditions in China. See Xiao Ji Chen, 471 F.3d at 342 (finding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ); Jian Hui Shao, 546 F.3d at 148-49, 169, 174.
Finally, Wu’s argument that he is entitled to file a successive asylum application without complying with the requirements for a motion to reopen 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).
|
01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8474563/
|
SUMMARY ORDER
Petitioner Hong Ching Shi, a native and citizen of the People’s Republic of China, seeks review of a February 4, 2008 order of the BIA denying his motion to reopen. In re Hong Ching Shi, No. A077 322 529 (B.I.A. Feb. 4, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the BIA did not err in denying Shi’s untimely motion to reopen or in finding him ineligible to file a successive asylum application.
Shi argues that the BIA failed to consider evidence that he submitted to establish changed country conditions regarding the heightened enforcement of the family-planning policy in Fujian Province. His argument as unavailing as the BIA acknowledged the evidence that Shi submitted and *542reasonably found that it was either available prior to his merits hearing before the IJ and therefore did not constitute new, previously unavailable evidence of changed country conditions, or that the evidence was similar to that which Shi had submitted to the immigration court in support of his underlying application for relief. Cf. Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) (finding that a BIA does not abuse its discretion by denying a motion to reconsider where the motion merely repeats arguments that the BIA had previously rejected). To the extent that Shi relies on the 2006 Country Report, we reviewed the BIA’s determination that the 2006 Country Report did not suffice to establish a reasonable possibility that the petitioner would be subjected to persecution if removed to China and found no basis for concluding that the BIA’s conclusion was erroneous. See Jian Hui Shao, 546 F.3d at 159.
In addition, Shi failed to exhaust before the BIA his argument that he was entitled to file a successive asylum application based on changed personal circumstances. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 121-22, 124 (2d Cir.2007). In any event, this argument is foreclosed by our decision in 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).
|
01-04-2023
|
11-05-2022
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.