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https://www.courtlistener.com/api/rest/v3/opinions/8474569/
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SUMMARY ORDER
Petitioner Dian En Jiang, a native and citizen of the People’s Republic of China, seeks review of a May 7, 2008 order of the BIA denying his motion to reopen. In re Dian En Jiang, No. A077 655 757 (B.I.A. May 7, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
*547We 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 Jiang’s untimely motion to reopen because it reasonably found that he 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)(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.
While Jiang argues that the evidence he submitted demonstrates that he will be subject to China’s family planning policy for having two children, the BIA reasonably gave little or no evidentiary weight to Jiang’s documents in light of the adverse credibility determination that was made in his underlying proceedings. 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); see also 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).
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 Jiang’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8474575/
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SUMMARY ORDER
Petitioner Doudou Kane, purportedly a native and citizen of Mauritania, petitions this Court for review of a July 28, 2008 order of the BIA affirming a May 26, 2005 decision of Immigration Judge (“IJ”) George T. Chew, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Doudou Kane, No. A079 577 180 (B.I.A. July 28, 2008), aff'g No. A079 577 180 (Immig. Ct. N.Y. City May 26, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See *553Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. In order to establish his Mauritanian identity and nationality, a threshold element of his claim, see Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006), petitioner submitted a document purporting to be a duplicate filing receipt of a request for a Refugee Identity Card. Using microscopic, instrumental, and comparative examinations, a Forensic Document Examiner at the Forensic Document Laboratory of the U.S. Department of Homeland Security, determined that the document was “counterfeit.” She provided the following bases for that conclusion: (1) “the border and printed images contain toner, which is not the production method for these types of documents,” (2) the “style of lettering, layout of text and border design does not conform to comparable genuine Refugie Identity cards on file,” and (3) “the card contains misspelled words.”
The submission of a fraudulent identification document in support of an asylum application can alone constitute substantial evidence in support of an adverse credibility determination. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.2006); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (“[A] finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner.”); Matter of O-D-, 21 I. & N. Dec. 1079, 1082-84 (BIA 1998) (holding that the presentation by an asylum applicant of an identification document that is found to be counterfeit by forensic experts not only discredits the applicant’s claim as to the critical elements of identity and nationality, but, in the absence of an explanation or rebuttal, also indicates an overall lack of credibility regarding the entire claim).
Petitioner challenges the IJ’s reliance on the forensic examiner’s determination that his identification document was fraudulent, asserting that on its face the forensic report “makes no distinction between an original card issued in 1989 and a duplicate, replacement card issued 13 years later,” and does not state that the document he submitted “was compared to other duplicates” rather than originals.2 The Government responds that the forensic report indicates that the document petitioner submitted was not similar to “these types” of “comparable genuine” documents.
Regardless, even if petitioner’s arguments are plausible, we cannot find that the IJ erred by crediting the conclusion reached by the forensic examiner. See Siewe, 480 F.3d at 168 (“So long as there is a basis in the evidence for a challenged inference, we do not question whether a different inference was available or more likely.”).
Because the IJ reasonably relied on the forensic report, the IJ’s adverse credibility determination was supported by substantial evidence. See Borovikova, 435 F.3d at 157-58; see also Siewe, 480 F.3d at 169-70. Accordingly, the IJ reasonably denied Kane’s application for asylum, withholding of removal, and CAT relief where his claims were each based on the same factual predicate.3 See Paul v. Gonzales, 444 *554F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Kane does not challenge the forensic examiner’s determination that the document was counterfeit on the basis that it contained misspelled words. The fact that the document was a duplicate would have no bearing on that finding. Additionally, while Kane asserts that he was not afforded the opportunity to cross-examine the forensic examiner, he never made that argument before the BIA, and we therefore decline to consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
. Kane does not challenge the BIA's denial of his motion to remand.
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*555
SUMMARY ORDER
Petitioner Tong Yi Chen, a native and citizen of the People’s Republic of China, petitions this Court for review of an August 14, 2008 order of the BIA affirming a June 14, 2007 decision of Immigration Judge (“IJ”) Noel Anne Brennan denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Tong Yi Chen, No. A200-025-495 (B.I.A. Aug. 14, 2008), aff'g No. A200-025-495 (Immig. Ct. N.Y. City Jun. 14, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. See Corovic, 519 F.3d at 95. In finding Chen not credible, the IJ found that: (1) his demeanor was not forthcoming or forthright; (2) his testimony that the Chinese government forced his family to move off their land in 2005 was contradicted by a letter sent from his father in 2007 which listed Chen’s old address as the return address; (3) his testimony that Chinese officials sought him following a confrontation between his family and Chinese officials over the family’s land was implausible given that Chen’s parents were not arrested; (4) he testified inconsistently as to what happened to his original passport; and (5) he submitted a document purporting to be from the Department of Changle City Land Administration Bureau that a Government forensic report found to be false.
In his brief, Chen argues that he reasonably explained the inconsistency between the return address on his father’s 2007 letter and his testimony that the family had moved in 2005. The IJ did not err in rejecting Chen’s explanation, however, because no reasonable factfinder would have been compelled to credit it. See Siewe v. Gonzales, 480 F.3d 160, 167-168 (2d Cir.2007) (“[Wjhere the evidence would support either of competing inferences, the fact that this Court might have drawn one inference does not entitle it to overturn the trial court’s choice of the other.”) (citation omitted). Chen further argues that the IJ’s adverse credibility determination is flawed because the inconsistencies she relied upon were too minor and immaterial to support the denial of relief. Contrary to Chen’s argument, this Court has found that under the REAL ID Act, which applies to Chen’s application for relief, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (emphasis in original); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007) (finding that “the REAL ID Act no longer requires the trier of fact to find a nexus between inconsistencies and the ‘heart of the claim’ ”).
Given the discrepancies the IJ identified, Chen’s submission of a false document, and the IJ’s demeanor finding, substantial evidence supports the IJ’s adverse credibility determination because it was reasonable and Chen identifies nothing in the record compelling a contrary conclusion. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ properly denied his applications for asylum, withholding of removal, and CAT relief because the only evidence that Chen would be persecuted or tortured depended *556on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Because the adverse credibility finding is amply supported by the record, we need not reach the agency’s alternate burden of proof findings.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Petitioner Ping Wang, a native and citizen of the People’s Republic of China, seeks review of an August 15, 2008 order of the BIA denying her motion to reopen. In re Ping Wang, No. A095 467 867 (B.I.A. Aug. 15, 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. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not err in denying Wang’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”). Wang argues that the BIA erred in according diminished weight to the 2008 Fuzhou City Mawei District document because it had a seal and was therefore a reliable document. That argument is unavailing, as that BIA reasonably questioned the document because it was a “black and white copy, does not contain an original signature or seal, has no indicia of authenticity, and otherwise contains no authenticating information (italics added).” 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 IJ).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8474619/
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OPINION
Appellant Brian D’Alfonso was indicted in United States District Court for the Eastexm District of Pennsylvania on 16 counts of mail fraud in violation of 18 U.S.C. § 1341, and 4 counts of the sale of unregistered securities in violation of 15 U.S.C. § 77e(a)(2). The indictment chax'ged that from June of 1998 through April of 2000, D’Alfonso opex'ated a scheme to defraud investors and to obtain money and property under false pretenses. On May 4, 2004, D’Alfonso pleaded guilty to the 16 counts of mail fraud. On February 1, 2005, he was sentenced to a tenn of imprisonment of 60 months on Count 1, and to 15 months of impi’isonment on each of Counts 2 through 16, to run concuxrently with each other and consecutive to Count 1. As part of his plea agreement, D’Alfonso agreed to waive his light to appeal and collaterally challenge his conviction and sentence. D’Alfonso appealed, but we granted the government’s motion to enforce the appellate waiver and dismissed the appeal (C.A. No. 05-1363).
On September 5, 2007, D’Alfonso filed a civil rights action under 42 U.S.C. § 1983 against Carmen DeClerico, an investigator for the Pennsylvania Securities Commission, and two individuals alleged to have acted as informants in his case, Eugene Carpino and Gabriel Santosusso. D’Alfonso alleged that these defendants violated his Fourth Amendment right to be fi’ee from warrantless seax’ches and his Fifth Amendment right to due px’ocess, and he alleged that DeClerico violated his Fourteenth Amendment right to equal protection by selectively prosecuting him. He asserted in the complaint that he hired Carpino and Santosusso in the Spring of 2000 to wox'k at his jewelry store, which was owned by his corporation, Tech-Vest. Carpino and Santosusso removed records containing information on Tech-vest’s investors, financial transactions, and stock transfers from the corporate offices, without a warrant or consent, pursuant to a conspiracy that involved DeClerico. Also in furtherance of the conspiracy, Carpino and Santosusso installed audio listening devices at the jewelry store and removed jewelry and money from the stoxe, -without a warrant or consent. Carpino and Santosusso went on to testify, on January 30, 2003, before a federal grand jury that was considering a pending indictment against D’Alfonso, and they provided incriminating evidence, which D’Alfonso alleges was untruthful. D’Alfonso later amended his complaint to include Elizabeth Ainslee, Esquire, as a defendant.
Just prior to initiating the civil rights action, on August 14, 2007, D’Alfonso filed a motion to vacate sentence under 28 U.S.C. § 2255 in the United States Distxict Coux't for the Eastern District of Pennsylvania, alleging ineffective assistance of trial counsel, Benjamin Cooper, Esquire, and prosecutorial misconduct. He claixned, in pax’t, that the prosecxxtors knowingly permitted perjury before the grand jury and failed to disclose that Carpino and Santosusso were convicted drug dealers and that one was a suspect in an unsolved homicide. The government moved to dismiss the section 2255 motion on the basis of the eollatex'al appeal waiver executed by D’Alfonso in connection with his plea agreement. On April 3, 2008, the sentencing coux’t held an evidentiary hearing on the claim that the plea agreement waiver was unknowing and involuntaxy.
*606While the section 2255 motion proceedings were pending, DeClerico moved to dismiss D’Alfonso’s civil rights complaint on the following grounds: the claims were barred by the two-year statute of limitations applicable to claims under 42 U.S.C. § 1983, the Fourth and Fifth Amendment claims were barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Equal Protection claim could not survive Fed. R. Civ. Pro. 12(b)(6), and damages against DeClerico in his official capacity were barred by the Eleventh Amendment. Carpino also filed a motion to dismiss, raising Heck’s favorable termination rule and the statute of limitations defense. Santosusso did not respond to the complaint. D’Alfonso submitted opposition to the dismissal motions and sought a default against Santosusso.
In an order entered on April 17, 2008, the sentencing court dismissed D’Alfonso’s section 2255 motion, concluding that his waiver with respect to section 2255 proceedings was enforceable because it was knowing and voluntary. The sentencing court credited the testimony of attorney Cooper that he explained the terms of the plea agreement to D’Alfonso, including the waiver provision. The court did not credit D’Alfonso’s testimony to the contrary. D’Alfonso appealed. On September 17, 2008, we declined to issue a certificate of appealability, concluding that “jurists of reason would not debate the [sentencing court’s] conclusions that [D’Alfonso] knowingly and voluntarily waived his right to appeal and collaterally challenge his sentence ... and that enforcing the waiver does not result in a miscarriage of justice. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir.2001).”
Meanwhile, in an order entered on June 2, 2008, the District Court, in the civil rights action, ordered the entry of a default with respect to Santosusso, a state prisoner, see Fed. R. Civ. Pro. 55(a), but the court deferred entry of a judgment against him pending discovery. In an order entered on July 31, 2008, the District Court granted DeClerico’s and Carpino’s motions to dismiss, reasoning that the deprivation of D’Alfonso’s property without a warrant took place before the indictment. Thus, the statute of limitations for the action expired no later than May 4, 2006, two years after he pleaded guilty and well before his civil rights action was filed. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (state statute of limitations for torts applies to civil rights action); Bougher v. University of Pittsburgh, 882 F.2d 74, 78 (3d Cir.1989) (tort action in Pennsylvania has two-year statute of limitations.) Insofar as it appeared that defendant Ainslee had not been served, the District Court gave notice of its intent to dismiss the amended complaint as to her for failure to prosecute. D’Alfonso was directed to respond to the remaining issues in the case.
Just over a year later, in an order entered on August 10, 2009, the District Court dismissed the case as to the remaining defendants, Ms. Ainslee and Santosusso. The District Court was dissatisfied with D’Alfonso’s response concerning the remaining issues and concluded that the action against these defendants could not be maintained, see Fed. R. Civ. Pro. 12(b)(6). In addition, the court reasoned that its time-bar analysis also applied to the remaining defendants, and, with respect to the default entered against Santosusso, D’Alfonso had not taken steps to obtain a judgment, see Fed. R. Civ. Pro. 55(b).
D’Alfonso appeals. Our Clerk granted him leave to appeal informa pauperis and advised him that his appeal was subject to *607summary dismissal under 28 U.S.C. § 1915(e)(2)(B), or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing; he has not done so.
We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. § 1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the appeal at any time if the Court determines that it is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). This appeal lacks an arguable basis in law, because, if D’Alfonso’s claims have already accrued, then his action is time-barred, just as the District Court concluded. If his claims have not yet accrued, because they implicate the validity of his conviction, the action is barred by Heck’s favorable termination rule. Cf. Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir.1980) (court is free to affirm judgment on any basis which finds support in the record).
In Heck, the Supreme Court held that “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” is not cognizable under 42 U.S.C. § 1983, unless the conviction or sentence was “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87, 114 S.Ct. 2364. See also Edwards v. Balisok, 520 U.S. 641, 645-47, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The purpose of the requirement “is to avoid parallel litigation of probable cause and guilt,” and to prevent “the claimant from succeeding in a tort action after having been convicted in the underlying criminal prosecution, which would run counter to the judicial policy against creating two conflicting resolutions arising from the same transaction.” Gilles v. Davis, 427 F.3d 197, 209 (3d Cir.2005).
In Gibson v. Superintendent, N.J. Dep’t of Law and Public Safety, 411 F.3d 427 (3d Cir.2005), we addressed whether Heck applied to Fourth Amendment claims, and we approved of a fact-based inquiry into whether the particular claim implied the invalidity of the underlying conviction. Id. at 450 (“Heck does not set forth a categorical rule that all Fourth Amendment claims accrue at the time of the violation.”). Moreover, in Gibson, we held that an individual’s Equal Protection claim that law enforcement personnel engaged in racially selective law enforcement practices did not begin to run until his conviction had been vacated. Id. at 440-41.
D’Alfonso’s Fourth Amendment and due process claims pertain to the deprivation of his property, specifically Tech-Vest’s records, jewelry and money. His Equal Protection claim pertains to a selective prosecution. It thus may be, as the moving defendants noted, that D’Alfonso’s claims concerning the warrantless removal of his property, and the selective enforcement against him of state securities laws, would, if successful, have the effect of rendering his criminal convictions invalid. Id. at 451,1 Since his conviction and sentence have never been reversed, expunged or declared invalid by any court, any claim that would imply the invalidity of his un*608derlying conviction has not accrued and will not accrue until his conviction has been overturned. See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir.1998) (although state law sets the applicable limitations period, federal law dictates when the action accrues).
In this scenario, D’AJfonso’s civil rights action is barred as premature, rather than barred as having been filed too late, and the dismissal of his amended complaint is on the basis that the claims are not cognizable. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. However, because of doctrines like independent source, inevitable discovery, and harmless error, not all Fourth Amendment claims, if successful, would imply the invalidity of a conviction. Id. at 487 n. 7, 114 S.Ct. 2364. To the extent that D’Alfonso’s claims accrued pri- or to his guilty plea, the District Court properly applied the governing law in concluding that his federal constitutional causes of action were barred by the two-year statute of limitation applicable to torts. See 42 Pa. Cons.Stat. Ann. § 5524 (West 2004). An action brought under 42 U.S.C. § 1983 is subject to the state statute of limitations governing personal injury actions. Wilson, 471 U.S. at 276-278, 105 S.Ct. 1938.
For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
. With respect to the Fourth Amendment and due process claims, D'Alfonso appeared to allege that the defendants deprived him of material, exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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OPINION
PER CURIAM.
Larry Jenkins appeals pro se the District Court’s order granting defendants’ motion to dismiss. For the reasons discussed below, we agree with the District Court’s disposition of the motion and will dismiss the appeal.
I.
Jenkins, currently an inmate at SCIMahanoy, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in District Court against four SCI-Graterford employees, claiming that they violated his Eighth and Fourteenth Amendment rights.
Jenkins alleges that defendants violated his right to due process when, upon his release from the Restrictive Housing Unit (“RHU”), they placed him in administrative custody without notice and a hearing, as is required by Pennsylvania Department of Corrections Administrative Directive (“DC-ADM”) 802. He claims that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they kept him in administrative custody for three months, causing him to suffer emotional, mental, and physical injuries.1 He further claims that defendants violated his right to equal protection when they released sixteen oth*610er inmates from the RHU into the general population, but continued to hold him in administrative custody. He exhausted his administrative remedies. 42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227-28 (3d Cir.2004).
After the District Court granted, without prejudice, defendants’s first motion to dismiss, Jenkins filed an amended complaint. Defendants moved to dismiss the amended complaint, and the District Court granted that motion. Jenkins filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting a motion to dismiss is plenary. See Santiago v. GMAC Mortg. Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court must determine whether the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
III.
Jenkins claims that defendants violated his due process rights by housing him in administrative custody for three months without notice and a hearing, as is required by DC-ADM 802. States “may under certain circumstances create liberty interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Such interests are generally limited to “freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. No liberty interest is involved where the state action does not “present a dramatic departure from the basic conditions of confinement.” Id. State procedures, such as those contained in DC-ADM 802, on their own do not create a due process liberty interest. See, e.g., Rodriguez v. McLoughlin, 214 F.3d 328, 339 (2d Cir.2000); see also United States v. Jiles, 658 F.2d 194, 200 (3d Cir.1981). Jenkins’ three-month confinement in administrative custody does not constitute an atypical or significant hardship. See Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir.1997) (“exposure to the conditions of administrative custody for periods of as long as 15 months ... did not deprive [inmate] of a liberty interest and [ ] he was not entitled to procedural due process protection”). Accordingly, we agree with the District Court that the alleged failure to comply with DC-ADM 802 does not state a claim for a due process violation.
Jenkins next claims that his right to equal protection was violated when sixteen similarly situated inmates were released from the RHU into the general population, but he alone was kept in administrative custody. To demonstrate a denial of equal protection, Jenkins must show that he has been arbitrarily treated differently from similarly situated inmates, and that this difference in treatment bears no rational relation to any legitimate penological interest. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). We agree with the District Court’s conclusion that Jenkins fails to state a claim for an equal protection violation, as he fails to allege that the other inmates had been *611placed in the RHU for the same reasons or in the same form of custody.
Third, Jenkins claims that defendants violated his Eighth Amendment rights by keeping him in administrative custody, where he suffered emotional, mental, and physical injuries. The relevant Eighth Amendment inquiry is whether the alleged deprivation is “sufficiently serious” and whether the inmate has been deprived of the “minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). This requires an inmate to show that “he is incarcerated under conditions posing a substantial risk of serious harm,” and that prison officials demonstrated a “deliberate indifference” to his health or safety. Id. As the District Court explained, Jenkins does not allege that he was denied any basic human need. In fact, Jenkins states that he continues to be treated medically for his head injury. Jenkins does not allege that the air vent fell as the result of any intentional act, and, as a result, he fails to state an Eighth Amendment claim.
Finally, to the extent Jenkins appeals the District Court’s denial of his motion to appoint counsel, the District Court properly denied the motion upon finding that none of Jenkins’ claims had merit.
IV.
After careful consideration, we have concluded that there is no arguable merit to this appeal. Accordingly, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e).
. Jenkins scales Chat he sustained injuries when an air vent fell from the ceiling, striking him in the head.
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SUMMARY ORDER
Petitioner Dian En Jiang, a native and citizen of the People’s Republic of China, seeks review of a May 7, 2008 order of the BIA denying his motion to reopen. In re Dian En Jiang, No. A077 655 757 (B.I.A. May 7, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
*547We 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 Jiang’s untimely motion to reopen because it reasonably found that he 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)(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.
While Jiang argues that the evidence he submitted demonstrates that he will be subject to China’s family planning policy for having two children, the BIA reasonably gave little or no evidentiary weight to Jiang’s documents in light of the adverse credibility determination that was made in his underlying proceedings. 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); see also 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).
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 Jiang’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Bao Yin Huang, a native and citizen of the People’s Republic of China, seeks review of a June 30, 2008 order of the BIA denying his motion to reopen. In re Bao Yin Huang, No. A073 132 479 (B.I.A. Jun. 30, 2008). We assume the parties’ familiarity with the underlying-facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s 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 Huang’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 *549conclusion 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”).
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 Huang’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
Huang’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).
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SUMMARY ORDER
Petitioner Doudou Kane, purportedly a native and citizen of Mauritania, petitions this Court for review of a July 28, 2008 order of the BIA affirming a May 26, 2005 decision of Immigration Judge (“IJ”) George T. Chew, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Doudou Kane, No. A079 577 180 (B.I.A. July 28, 2008), aff'g No. A079 577 180 (Immig. Ct. N.Y. City May 26, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See *553Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. In order to establish his Mauritanian identity and nationality, a threshold element of his claim, see Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006), petitioner submitted a document purporting to be a duplicate filing receipt of a request for a Refugee Identity Card. Using microscopic, instrumental, and comparative examinations, a Forensic Document Examiner at the Forensic Document Laboratory of the U.S. Department of Homeland Security, determined that the document was “counterfeit.” She provided the following bases for that conclusion: (1) “the border and printed images contain toner, which is not the production method for these types of documents,” (2) the “style of lettering, layout of text and border design does not conform to comparable genuine Refugie Identity cards on file,” and (3) “the card contains misspelled words.”
The submission of a fraudulent identification document in support of an asylum application can alone constitute substantial evidence in support of an adverse credibility determination. See Borovikova v. U.S. Dep’t of Justice, 435 F.3d 151, 157-58 (2d Cir.2006); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007) (“[A] finding of fraudulent evidence redounds upon all evidence the probative force of which relies in any part on the credibility of the petitioner.”); Matter of O-D-, 21 I. & N. Dec. 1079, 1082-84 (BIA 1998) (holding that the presentation by an asylum applicant of an identification document that is found to be counterfeit by forensic experts not only discredits the applicant’s claim as to the critical elements of identity and nationality, but, in the absence of an explanation or rebuttal, also indicates an overall lack of credibility regarding the entire claim).
Petitioner challenges the IJ’s reliance on the forensic examiner’s determination that his identification document was fraudulent, asserting that on its face the forensic report “makes no distinction between an original card issued in 1989 and a duplicate, replacement card issued 13 years later,” and does not state that the document he submitted “was compared to other duplicates” rather than originals.2 The Government responds that the forensic report indicates that the document petitioner submitted was not similar to “these types” of “comparable genuine” documents.
Regardless, even if petitioner’s arguments are plausible, we cannot find that the IJ erred by crediting the conclusion reached by the forensic examiner. See Siewe, 480 F.3d at 168 (“So long as there is a basis in the evidence for a challenged inference, we do not question whether a different inference was available or more likely.”).
Because the IJ reasonably relied on the forensic report, the IJ’s adverse credibility determination was supported by substantial evidence. See Borovikova, 435 F.3d at 157-58; see also Siewe, 480 F.3d at 169-70. Accordingly, the IJ reasonably denied Kane’s application for asylum, withholding of removal, and CAT relief where his claims were each based on the same factual predicate.3 See Paul v. Gonzales, 444 *554F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Kane does not challenge the forensic examiner’s determination that the document was counterfeit on the basis that it contained misspelled words. The fact that the document was a duplicate would have no bearing on that finding. Additionally, while Kane asserts that he was not afforded the opportunity to cross-examine the forensic examiner, he never made that argument before the BIA, and we therefore decline to consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
. Kane does not challenge the BIA's denial of his motion to remand.
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*555
SUMMARY ORDER
Petitioner Tong Yi Chen, a native and citizen of the People’s Republic of China, petitions this Court for review of an August 14, 2008 order of the BIA affirming a June 14, 2007 decision of Immigration Judge (“IJ”) Noel Anne Brennan denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Tong Yi Chen, No. A200-025-495 (B.I.A. Aug. 14, 2008), aff'g No. A200-025-495 (Immig. Ct. N.Y. City Jun. 14, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. See Corovic, 519 F.3d at 95. In finding Chen not credible, the IJ found that: (1) his demeanor was not forthcoming or forthright; (2) his testimony that the Chinese government forced his family to move off their land in 2005 was contradicted by a letter sent from his father in 2007 which listed Chen’s old address as the return address; (3) his testimony that Chinese officials sought him following a confrontation between his family and Chinese officials over the family’s land was implausible given that Chen’s parents were not arrested; (4) he testified inconsistently as to what happened to his original passport; and (5) he submitted a document purporting to be from the Department of Changle City Land Administration Bureau that a Government forensic report found to be false.
In his brief, Chen argues that he reasonably explained the inconsistency between the return address on his father’s 2007 letter and his testimony that the family had moved in 2005. The IJ did not err in rejecting Chen’s explanation, however, because no reasonable factfinder would have been compelled to credit it. See Siewe v. Gonzales, 480 F.3d 160, 167-168 (2d Cir.2007) (“[Wjhere the evidence would support either of competing inferences, the fact that this Court might have drawn one inference does not entitle it to overturn the trial court’s choice of the other.”) (citation omitted). Chen further argues that the IJ’s adverse credibility determination is flawed because the inconsistencies she relied upon were too minor and immaterial to support the denial of relief. Contrary to Chen’s argument, this Court has found that under the REAL ID Act, which applies to Chen’s application for relief, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (emphasis in original); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007) (finding that “the REAL ID Act no longer requires the trier of fact to find a nexus between inconsistencies and the ‘heart of the claim’ ”).
Given the discrepancies the IJ identified, Chen’s submission of a false document, and the IJ’s demeanor finding, substantial evidence supports the IJ’s adverse credibility determination because it was reasonable and Chen identifies nothing in the record compelling a contrary conclusion. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ properly denied his applications for asylum, withholding of removal, and CAT relief because the only evidence that Chen would be persecuted or tortured depended *556on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Because the adverse credibility finding is amply supported by the record, we need not reach the agency’s alternate burden of proof findings.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Petitioner Ping Wang, a native and citizen of the People’s Republic of China, seeks review of an August 15, 2008 order of the BIA denying her motion to reopen. In re Ping Wang, No. A095 467 867 (B.I.A. Aug. 15, 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. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not err in denying Wang’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”). Wang argues that the BIA erred in according diminished weight to the 2008 Fuzhou City Mawei District document because it had a seal and was therefore a reliable document. That argument is unavailing, as that BIA reasonably questioned the document because it was a “black and white copy, does not contain an original signature or seal, has no indicia of authenticity, and otherwise contains no authenticating information (italics added).” 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 IJ).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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*603SUMMARY ORDER
Petitioner seeks review of an order of the District Court approving and adopting the Magistrate Judge’s recommendation to grant Respondents’ Motion to Dismiss. We assume the parties’ familiarity with the facts, procedural context, and specification of appellate issues.
We agree with the Magistrate Judge that Petitioner’s damages claims against the prosecutors are barred by absolute prosecutorial immunity because the prosecutors were acting as “officer[s] of the court” when performing all of the actions upon which the claims are predicated. See Van de Kamp v. Goldstein, —— U.S. -, 129 S.Ct. 855, 861, 172 L.Ed.2d 706 (2009) (quotations omitted); see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006). Furthermore, we agree with the Magistrate Judge that the equitable remedies of injunctive and declaratory relief are unavailable absent a showing of irreparable injury and Petitioner has made no showing of any real or immediate threat that he will be wronged again. See City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); see also Shain v. Ellison, 356 F.3d 211, 215-16 (2d Cir.2004).
Notwithstanding the foregoing rulings, this Court is disturbed by the allegations of prosecutorial conduct at issue and by the State of Connecticut’s ostensible refusal in its brief and at oral argument to admit that were those allegations true, the practices would be, if not unconstitutional, likely illegal and certainly improper. Accordingly, we order the Attorney General of the State of Connecticut, within 30 days of this Order, to provide this Court with a detailed report discussing what steps have been taken to address the practice of the State’s Attorney at the Connecticut Superior Court in Bantam, CT, and what steps are being taken to ensure that they will not continue in the future.
For the foregoing reasons, the order of the District Court is AFFIRMED.
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OPINION
Appellant Brian D’Alfonso was indicted in United States District Court for the Eastexm District of Pennsylvania on 16 counts of mail fraud in violation of 18 U.S.C. § 1341, and 4 counts of the sale of unregistered securities in violation of 15 U.S.C. § 77e(a)(2). The indictment chax'ged that from June of 1998 through April of 2000, D’Alfonso opex'ated a scheme to defraud investors and to obtain money and property under false pretenses. On May 4, 2004, D’Alfonso pleaded guilty to the 16 counts of mail fraud. On February 1, 2005, he was sentenced to a tenn of imprisonment of 60 months on Count 1, and to 15 months of impi’isonment on each of Counts 2 through 16, to run concuxrently with each other and consecutive to Count 1. As part of his plea agreement, D’Alfonso agreed to waive his light to appeal and collaterally challenge his conviction and sentence. D’Alfonso appealed, but we granted the government’s motion to enforce the appellate waiver and dismissed the appeal (C.A. No. 05-1363).
On September 5, 2007, D’Alfonso filed a civil rights action under 42 U.S.C. § 1983 against Carmen DeClerico, an investigator for the Pennsylvania Securities Commission, and two individuals alleged to have acted as informants in his case, Eugene Carpino and Gabriel Santosusso. D’Alfonso alleged that these defendants violated his Fourth Amendment right to be fi’ee from warrantless seax’ches and his Fifth Amendment right to due px’ocess, and he alleged that DeClerico violated his Fourteenth Amendment right to equal protection by selectively prosecuting him. He asserted in the complaint that he hired Carpino and Santosusso in the Spring of 2000 to wox'k at his jewelry store, which was owned by his corporation, Tech-Vest. Carpino and Santosusso removed records containing information on Tech-vest’s investors, financial transactions, and stock transfers from the corporate offices, without a warrant or consent, pursuant to a conspiracy that involved DeClerico. Also in furtherance of the conspiracy, Carpino and Santosusso installed audio listening devices at the jewelry store and removed jewelry and money from the stoxe, -without a warrant or consent. Carpino and Santosusso went on to testify, on January 30, 2003, before a federal grand jury that was considering a pending indictment against D’Alfonso, and they provided incriminating evidence, which D’Alfonso alleges was untruthful. D’Alfonso later amended his complaint to include Elizabeth Ainslee, Esquire, as a defendant.
Just prior to initiating the civil rights action, on August 14, 2007, D’Alfonso filed a motion to vacate sentence under 28 U.S.C. § 2255 in the United States Distxict Coux't for the Eastern District of Pennsylvania, alleging ineffective assistance of trial counsel, Benjamin Cooper, Esquire, and prosecutorial misconduct. He claixned, in pax’t, that the prosecxxtors knowingly permitted perjury before the grand jury and failed to disclose that Carpino and Santosusso were convicted drug dealers and that one was a suspect in an unsolved homicide. The government moved to dismiss the section 2255 motion on the basis of the eollatex'al appeal waiver executed by D’Alfonso in connection with his plea agreement. On April 3, 2008, the sentencing coux’t held an evidentiary hearing on the claim that the plea agreement waiver was unknowing and involuntaxy.
*606While the section 2255 motion proceedings were pending, DeClerico moved to dismiss D’Alfonso’s civil rights complaint on the following grounds: the claims were barred by the two-year statute of limitations applicable to claims under 42 U.S.C. § 1983, the Fourth and Fifth Amendment claims were barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Equal Protection claim could not survive Fed. R. Civ. Pro. 12(b)(6), and damages against DeClerico in his official capacity were barred by the Eleventh Amendment. Carpino also filed a motion to dismiss, raising Heck’s favorable termination rule and the statute of limitations defense. Santosusso did not respond to the complaint. D’Alfonso submitted opposition to the dismissal motions and sought a default against Santosusso.
In an order entered on April 17, 2008, the sentencing court dismissed D’Alfonso’s section 2255 motion, concluding that his waiver with respect to section 2255 proceedings was enforceable because it was knowing and voluntary. The sentencing court credited the testimony of attorney Cooper that he explained the terms of the plea agreement to D’Alfonso, including the waiver provision. The court did not credit D’Alfonso’s testimony to the contrary. D’Alfonso appealed. On September 17, 2008, we declined to issue a certificate of appealability, concluding that “jurists of reason would not debate the [sentencing court’s] conclusions that [D’Alfonso] knowingly and voluntarily waived his right to appeal and collaterally challenge his sentence ... and that enforcing the waiver does not result in a miscarriage of justice. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); United States v. Khattak, 273 F.3d 557, 562-63 (3d Cir.2001).”
Meanwhile, in an order entered on June 2, 2008, the District Court, in the civil rights action, ordered the entry of a default with respect to Santosusso, a state prisoner, see Fed. R. Civ. Pro. 55(a), but the court deferred entry of a judgment against him pending discovery. In an order entered on July 31, 2008, the District Court granted DeClerico’s and Carpino’s motions to dismiss, reasoning that the deprivation of D’Alfonso’s property without a warrant took place before the indictment. Thus, the statute of limitations for the action expired no later than May 4, 2006, two years after he pleaded guilty and well before his civil rights action was filed. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (state statute of limitations for torts applies to civil rights action); Bougher v. University of Pittsburgh, 882 F.2d 74, 78 (3d Cir.1989) (tort action in Pennsylvania has two-year statute of limitations.) Insofar as it appeared that defendant Ainslee had not been served, the District Court gave notice of its intent to dismiss the amended complaint as to her for failure to prosecute. D’Alfonso was directed to respond to the remaining issues in the case.
Just over a year later, in an order entered on August 10, 2009, the District Court dismissed the case as to the remaining defendants, Ms. Ainslee and Santosusso. The District Court was dissatisfied with D’Alfonso’s response concerning the remaining issues and concluded that the action against these defendants could not be maintained, see Fed. R. Civ. Pro. 12(b)(6). In addition, the court reasoned that its time-bar analysis also applied to the remaining defendants, and, with respect to the default entered against Santosusso, D’Alfonso had not taken steps to obtain a judgment, see Fed. R. Civ. Pro. 55(b).
D’Alfonso appeals. Our Clerk granted him leave to appeal informa pauperis and advised him that his appeal was subject to *607summary dismissal under 28 U.S.C. § 1915(e)(2)(B), or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing; he has not done so.
We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. § 1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the appeal at any time if the Court determines that it is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). This appeal lacks an arguable basis in law, because, if D’Alfonso’s claims have already accrued, then his action is time-barred, just as the District Court concluded. If his claims have not yet accrued, because they implicate the validity of his conviction, the action is barred by Heck’s favorable termination rule. Cf. Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir.1980) (court is free to affirm judgment on any basis which finds support in the record).
In Heck, the Supreme Court held that “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” is not cognizable under 42 U.S.C. § 1983, unless the conviction or sentence was “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486-87, 114 S.Ct. 2364. See also Edwards v. Balisok, 520 U.S. 641, 645-47, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The purpose of the requirement “is to avoid parallel litigation of probable cause and guilt,” and to prevent “the claimant from succeeding in a tort action after having been convicted in the underlying criminal prosecution, which would run counter to the judicial policy against creating two conflicting resolutions arising from the same transaction.” Gilles v. Davis, 427 F.3d 197, 209 (3d Cir.2005).
In Gibson v. Superintendent, N.J. Dep’t of Law and Public Safety, 411 F.3d 427 (3d Cir.2005), we addressed whether Heck applied to Fourth Amendment claims, and we approved of a fact-based inquiry into whether the particular claim implied the invalidity of the underlying conviction. Id. at 450 (“Heck does not set forth a categorical rule that all Fourth Amendment claims accrue at the time of the violation.”). Moreover, in Gibson, we held that an individual’s Equal Protection claim that law enforcement personnel engaged in racially selective law enforcement practices did not begin to run until his conviction had been vacated. Id. at 440-41.
D’Alfonso’s Fourth Amendment and due process claims pertain to the deprivation of his property, specifically Tech-Vest’s records, jewelry and money. His Equal Protection claim pertains to a selective prosecution. It thus may be, as the moving defendants noted, that D’Alfonso’s claims concerning the warrantless removal of his property, and the selective enforcement against him of state securities laws, would, if successful, have the effect of rendering his criminal convictions invalid. Id. at 451,1 Since his conviction and sentence have never been reversed, expunged or declared invalid by any court, any claim that would imply the invalidity of his un*608derlying conviction has not accrued and will not accrue until his conviction has been overturned. See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir.1998) (although state law sets the applicable limitations period, federal law dictates when the action accrues).
In this scenario, D’AJfonso’s civil rights action is barred as premature, rather than barred as having been filed too late, and the dismissal of his amended complaint is on the basis that the claims are not cognizable. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. However, because of doctrines like independent source, inevitable discovery, and harmless error, not all Fourth Amendment claims, if successful, would imply the invalidity of a conviction. Id. at 487 n. 7, 114 S.Ct. 2364. To the extent that D’Alfonso’s claims accrued pri- or to his guilty plea, the District Court properly applied the governing law in concluding that his federal constitutional causes of action were barred by the two-year statute of limitation applicable to torts. See 42 Pa. Cons.Stat. Ann. § 5524 (West 2004). An action brought under 42 U.S.C. § 1983 is subject to the state statute of limitations governing personal injury actions. Wilson, 471 U.S. at 276-278, 105 S.Ct. 1938.
For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
. With respect to the Fourth Amendment and due process claims, D'Alfonso appeared to allege that the defendants deprived him of material, exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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OPINION
PER CURIAM.
Larry Jenkins appeals pro se the District Court’s order granting defendants’ motion to dismiss. For the reasons discussed below, we agree with the District Court’s disposition of the motion and will dismiss the appeal.
I.
Jenkins, currently an inmate at SCIMahanoy, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in District Court against four SCI-Graterford employees, claiming that they violated his Eighth and Fourteenth Amendment rights.
Jenkins alleges that defendants violated his right to due process when, upon his release from the Restrictive Housing Unit (“RHU”), they placed him in administrative custody without notice and a hearing, as is required by Pennsylvania Department of Corrections Administrative Directive (“DC-ADM”) 802. He claims that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they kept him in administrative custody for three months, causing him to suffer emotional, mental, and physical injuries.1 He further claims that defendants violated his right to equal protection when they released sixteen oth*610er inmates from the RHU into the general population, but continued to hold him in administrative custody. He exhausted his administrative remedies. 42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227-28 (3d Cir.2004).
After the District Court granted, without prejudice, defendants’s first motion to dismiss, Jenkins filed an amended complaint. Defendants moved to dismiss the amended complaint, and the District Court granted that motion. Jenkins filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting a motion to dismiss is plenary. See Santiago v. GMAC Mortg. Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court must determine whether the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
III.
Jenkins claims that defendants violated his due process rights by housing him in administrative custody for three months without notice and a hearing, as is required by DC-ADM 802. States “may under certain circumstances create liberty interests which are protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Such interests are generally limited to “freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. No liberty interest is involved where the state action does not “present a dramatic departure from the basic conditions of confinement.” Id. State procedures, such as those contained in DC-ADM 802, on their own do not create a due process liberty interest. See, e.g., Rodriguez v. McLoughlin, 214 F.3d 328, 339 (2d Cir.2000); see also United States v. Jiles, 658 F.2d 194, 200 (3d Cir.1981). Jenkins’ three-month confinement in administrative custody does not constitute an atypical or significant hardship. See Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir.1997) (“exposure to the conditions of administrative custody for periods of as long as 15 months ... did not deprive [inmate] of a liberty interest and [ ] he was not entitled to procedural due process protection”). Accordingly, we agree with the District Court that the alleged failure to comply with DC-ADM 802 does not state a claim for a due process violation.
Jenkins next claims that his right to equal protection was violated when sixteen similarly situated inmates were released from the RHU into the general population, but he alone was kept in administrative custody. To demonstrate a denial of equal protection, Jenkins must show that he has been arbitrarily treated differently from similarly situated inmates, and that this difference in treatment bears no rational relation to any legitimate penological interest. See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006). We agree with the District Court’s conclusion that Jenkins fails to state a claim for an equal protection violation, as he fails to allege that the other inmates had been *611placed in the RHU for the same reasons or in the same form of custody.
Third, Jenkins claims that defendants violated his Eighth Amendment rights by keeping him in administrative custody, where he suffered emotional, mental, and physical injuries. The relevant Eighth Amendment inquiry is whether the alleged deprivation is “sufficiently serious” and whether the inmate has been deprived of the “minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). This requires an inmate to show that “he is incarcerated under conditions posing a substantial risk of serious harm,” and that prison officials demonstrated a “deliberate indifference” to his health or safety. Id. As the District Court explained, Jenkins does not allege that he was denied any basic human need. In fact, Jenkins states that he continues to be treated medically for his head injury. Jenkins does not allege that the air vent fell as the result of any intentional act, and, as a result, he fails to state an Eighth Amendment claim.
Finally, to the extent Jenkins appeals the District Court’s denial of his motion to appoint counsel, the District Court properly denied the motion upon finding that none of Jenkins’ claims had merit.
IV.
After careful consideration, we have concluded that there is no arguable merit to this appeal. Accordingly, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e).
. Jenkins scales Chat he sustained injuries when an air vent fell from the ceiling, striking him in the head.
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SUMMARY ORDER
Petitioner Mu Juan Chen, a native and citizen of the People’s Republic of China, seeks review of a September 30, 2008 order of the BIA affirming the July 23, 2007 order of an immigration judge (“IJ”) denying her motion to reopen. In re Mu Juan Chen, No. A077 650 589 (B.I.A. Sept. 30, 2008), aff'g No. A077 650 589 (Immig.Ct.N.Y. July 23, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s 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 Chen’s untimely *559motion 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)(h); 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. While Chen argues that the Aird affidavit supports her contention that conditions in China have changed, we have found that “the Aird Affidavits are inadequate to establish the existence of an official policy of forced sterilization and thus insufficient to show that the applicants were likely to face forced sterilization if returned to China.” See Jian Hui Shao, 546 F.3d at 164 (quoting Jin Xiu Chen v. U.S. Dep’t of Justice, 468 F.3d 109, 110 (2d Cir.2006) (internal quotations omitted)). Thus, we cannot find that the BIA abused its discretion in denying Chen’s motion to reopen. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Cai Qin Huang, a native and citizen of the People’s Republic of China, seeks review of a November 13, 2008 order of the BIA denying her motion to reopen. In re Cai Qin Huang, No. A073 162 200 (B.I.A. Nov. 13, 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. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not err in denying Huang’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”). Because the failure to establish a material change in country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion here. See Wei Guang Wang, 437 F.3d at 273.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioners Jing Zhang and Xioaguo Xu, natives and citizens of the People’s Republic of China, seek review of a January 6, 2009 order of the BIA denying their motion to reopen. In re Jing Zhang/Xiaoguo Xu, Nos. A078 696 852/353 (B.I.A. Jan. 6, 2009). 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 err in denying Petitioners’ untimely motion to reopen because it reasonably found that they 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).
Petitioners argue that the agency improperly accorded diminished weight to their evidence, including the sterilization certificates and the Villagers’ Notice. That argument is unavailing. The BIA reasonably discounted the probative value of the sterilization certificates because they were not accompanied by affidavits from the subjects of the certificates or by evidence providing details of the incidents, thereby providing no indication that the Petitioners were similarly situated to their subjects. 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).
*567While Petitioners argue that the BIA abused its discretion by failing to give adequate consideration to the evidence they submitted, evidence that “the [agency] is asked to consider time and again [may be considered] ... in a summary fashion without a reviewing court presuming that [the agency] has abused its discretion.” Wei Guang Wang, 437 F.3d at 275. Indeed, we do not require that the agency “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, 471 F.3d at 338 n. 17.
Petitioners assert that the BIA erred when it mistakenly stated that the 2006 Policy Statement from the Administrative Office of the National Population and Family Planning Committee had already been considered in its precedential decisions. This argument is unavailing, as the 2006 Statement was purportedly issued to address the enforcement of the family planning policy in Fujian Province, which had been considered in its precedential decisions, and not in Zhejiang Province, where Petitioners resided. Cf. Jian Hui Shao, 546 F.3d at 148-49 (requiring an asylum applicant claiming a fear of sterilization based on the birth of more than one child to establish: (1) details of the policy; (2) that the applicant violated the policy; and (3) that the violation would be punished in her local area by perseeutive means).
Because the failure to establish a material change in country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion here. See Wei Guang Wang, 437 F.3d at 273.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Gui Wen Pan, a native and citizen of the People’s Republic of China, seeks review of a February 7, 2008 order of the BIA denying his motion to reopen. In re Gui Wen Pan, No. A072 474 811 (B.I.A. Feb. 7, 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. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Pan’s untimely motion to reopen because it reasonably found that he 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 *569Cir.2006) (finding that the birth of children in the United States was a change in personal circumstances, and not changed circumstances under the regulations); see Jian Huan Guan v. B.I.A., 345 F.3d 47, 49 (2d Cir.2003) (same).
While Pan argues that the evidence he submitted “show[s] the increased brutality of the enforcement of the population control policies of the Communist government,” 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; Wei Guang Wang, 437 F.3d at 275. 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 here. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
Finally, we do not have jurisdiction to review the BIA’s decision declining to sua sponte reopen Pan’s proceedings because such a decision is “entirely discretionary.” See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Qiu Yun Li, a native and citizen of the People’s Republic of China, seeks review of the December 18, 2007 order of the BIA denying her motion to reopen. In Qiu Yun Li, No. A073 546 726 (B.I.A. Dec. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the agency’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). An alien may file one motion to reopen, and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). However, the filing deadline for motions to reopen may, under certain conditions, be equitably tolled if a motion is based on a claim of ineffective assistance of counsel. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). In addition, an applicant may be excused from compliance with the time limitations on motions to reopen if she submits evidence establishing “changed country conditions arising in the country of nationality....” 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Such a motion shall not be granted unless it appears that the evidence offered in support of the motion “is material and was not available and could not have been discovered or presented” at the previous hearing. 8 C.F.R. § 1003.2(c)(1).
To merit equitable tolling of the filing deadline for a motion to reopen on the basis of ineffective assistance of counsel, a movant must establish that she exercised due diligence in pursuing her ease during the period of time for which she seeks tolling. See Iavorski v. I.N.S., 232 F.3d 124, 134-35 (2d Cir.2000). The BIA did not abuse its discretion in finding that Li failed to exercise the requisite due diligence. See id. Even if the statements that Li made in her affidavit in support of her motion are assumed to be truthful, she *576alleges only that she consulted two attorneys sometime in 2002 shortly after her former counsel was arrested and indicted for filing fraudulent asylum applications and that she became discouraged and decided not to “pursue the matter any further” when the two attorneys refused to take her case because they did not want to be associated with the scandal. Li did not file her motion to reopen until July 2006, and she offered no evidence that she continued her to pursue in the three to four years that followed her consultations with the two attorneys. She has essentially admitted that she voluntarily abandoned her claim and failed to pursue it between 2002 and 2006 when she retained her current counsel.
Furthermore, the BIA did not abuse its discretion when it found that the documentation that Li submitted in support of her motion to reopen did not suffice to establish either changed country conditions in China or Li’s prima fade eligibility for relief. As the BIA noted, the affidavit from Li’s sister did not constitute “new” evidence because it referred to events that took place in 1999, and nearly seven years had elapsed between Li’s sister’s alleged sterilization and the filing of Li’s motion to reopen. See 8 C.F.R. § 1003.2(c)(1).
With respect to the background evidence that Li submitted, the BIA reasonably found it insufficient to warrant reopening of her proceedings. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). We have previously reviewed the BIA’s consideration of Li’s evidence, and evidence similar to it, and found no error in its conclusion that such evidence was insufficient to establish either material changed country conditions or an objectively reasonably fear of persecution. See id. Li argues that the BIA erred in denying her motion without addressing all the evidence that she submitted. However, the BIA is not required to “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” see id. at 169(internal quotation marks omitted), and this Court 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, 337 n. 17 (2d Cir.2006).
Finally, Li argues that the BIA erred by failing to reopen her proceedings sua sporite. However, we lack jurisdiction to review a decision of the BIA not to exercise its authority to reopen proceedings sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is “entirely discretionary.” Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Yanmei Qian, a native and citizen of the People’s Republic of China, seeks review of a January 30, 2009 order of the BIA affirming the January 31, 2007 decision of Immigration Judge (“IJ”) Gabriel C. Videla denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yanmei Qian, No. A094-824-810 (B.I.A. Jan. 30, 2009), aff'g No. A094-824-810 (Immig. Ct. N.Y. City Jan. 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
PRESENT: WALKER, ROBERT D. SACK, RICHARD C. WESLEY, Circuit Judges.
“Where, as here, the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, wdthout rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we will review both the BIA’s and IJ’s opinions-or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008); see also 8 U.S.C. § 1252(b)(4)(B). For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). “We defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Here, substantial evidence supports the IJ’s adverse credibility determination. In finding that Qian had not testified truthfully, the IJ observed that her testimony was indicative of someone who had memorized information rather than recalled actual events. Qian challenges this finding by labeling it “subjective.” But it is precisely because demeanor is evaluated subjectively and intuitively that we accord the IJ “great deference.” Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006).
The IJ also found that Qian had testified both that her children were born in the *581same hospital and that they were not. Although Qian asserts that she adequately explained this inconsistency, we defer to the Id’s adverse credibility finding because she has not “demonstrate[d] that a reasonable fact-finder would have been compelled to credit [her] testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005) (quotation marks omitted) (emphasis in original). Similarly, while Qian testified that she gave birth to her first child at age 19 and her second child at age 21, the birth certificates she submitted indicated that she was 37 when she gave birth to both children. Qian explained that she did not know that the birth certificates, obtained by her husband, were duplicates listing her age at the time of their August 2006 issuance. However, as the BIA observed, that explanation would not account for her evasive demeanor when she was fust asked how old she was at the time of her children’s births. Finally, because the IJ did not find Qian’s testimony credible, the IJ did not err in noting the absence of documentary evidence that may have corroborated her claim. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007) (per curiam); see also Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir.2006).
Because the record does not compel the conclusion that Qian was credible, the IJ properly denied her application for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). To the extent Qian challenges the IJ’s denial of CAT relief before this Court, we are without jurisdiction to consider that argument because she failed to exhaust her CAT claim before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Sai Ying Zhu, a native and citizen of the People’s Republic of China, seeks review of a July 14, 2008 order of the BIA, affirming the February 2, 2006 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sai Ying Zhu, No. A095 709 786 (B.I.A. July 14, 2008), aff'g No. A095 790 786 (Immig. Ct. N.Y. City Feb. 2, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii).
Upon review of the administrative record, we find that substantial evidence supports the IJ’s adverse credibility determination. The IJ properly relied on inconsistencies between Zhu’s statements during her credible fear interview and her hearing testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 272 (2d Cir.2007). Indeed, during her credible fear interview, Zhu testified that she was unaware that the practice of Falun Gong was illegal in China, that she did not know the *583exercises, that she did not know who founded the practice, and that generally, she did “not know Falun Gong.” However, during her hearing, she was able to state the year Falun Gong was outlawed in China, she recited the five exercises and testified that she regularly practiced three of them, and she stated the name of the founder of the practice. Moreover, although Zhu explained before the IJ that the reason she failed to answer the questions during her credible fear interview was because she was scared, a reasonable fact-finder would not have been compelled to accept this explanation because, as the IJ noted, she had also answered several questions during the credible fear interview in a detailed, consistent manner. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005).
Furthermore, the agency did not err in relying on these inconsistent statements even though they arose in the context of Zhu’s credible fear interview. Where an IJ rests an adverse credibility determination on statements made during such an interview, we closely examine the record of that interview to ensure that it represents a “sufficiently accurate record” of the applicant’s statements to merit consideration. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004). In this case, it is clear that the credible fear interview record provides a sufficiently accurate record because: (1) it appears to be a near-verbatim transcript of the interview; (2) the questions posed were clearly designed to elicit details of an asylum claim; (3) Zhu did not appear reluctant to provide the inspector with information about her experiences in China; and (4) there is no indication that Zhu had any difficulty understanding the questions posed. See id. at 179-80. Inasmuch as the record indicates that the credible fear interview was reliable, the agency did not err in relying on Zhu’s inconsistent statements made at that interview in finding her credibility undermined. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d Cir.2005). Finally, we note that Zhu has failed to exhaust before the BIA the issue of whether she submitted sufficient corroborating evidence to rehabilitate her testimony that she is a Falun Gong practitioner. Therefore, we decline to consider this issue. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
Ultimately, because a reasonable fact-finder would not be compelled to conclude to the contrary, the IJ’s adverse credibility determination was supported by substantial evidence. See Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). Thus, the agency’s denial of Zhu’s applications for asylum and withholding of removal was proper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (recognizing that withholding of removal necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim).
As to Zhu’s claim for relief under the CAT, the agency properly found that Zhu failed to provide credible testimony that she is a Falun Gong practitioner who would be tortured if returned to China. See Paul, 444 F.3d at 156. In addition, the agency did not err in concluding that Zhu failed to establish a likelihood of torture based on her illegal departure from China. We have held that an applicant cannot demonstrate that she is more likely than not to be tortured “based solely on the fact that she is part of the large class of persons who have left China illegally” and on generalized evidence indicating that torture occurs in Chinese prisons. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005); see also Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir.2007). As Zhu provided no basis to conclude that she faces a significant risk of torture, substantial evidence supports the agency’s denial of her application for CAT *584relief. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Fang Zheng Fu, a native and citizen of the People’s Republic of China, seeks review of a November 12, 2008 order of the BIA denying his motion to reopen. In re Fang Zheng Fu, No. A073 226 351 (B.I.A. Nov. 12, 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. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not err in denying Fu’s 2 untimely motion to reopen because it reasonably found that he 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)(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 w^as a change in personal circumstances, and not changed circumstances under the regulations).
Fu argues that the agency erred in discounting the sterilization certificates and the Villagers’ Notice submitted in support of his motion. That argument is unavailing, as the BIA reasonably questioned the reliability of this evidence in light of the concerns expressed by the IJ regarding Fu’s credibility in his underlying proceedings. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-48 (2d Cir.2007) *561(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); see also 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).
While Fu asserts that the BIA abused its discretion by failing to give adequate consideration to his remaining evidence, 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, 471 F.3d at 338 n. 17.
Fu also asserts that BIA had “mistakenly stated that the 2006 Policy Statement from the Administrative Office of the National Population and Family Planning Committee” had already been considered in its precedential decisions. This argument is unavailing, as that statement, which had been considered by the BIA in its previous decisions, was purportedly issued to address the enforcement of the family planning policy in Fujian Province, and not in Zhejiang Province, where Fu resided. Cf. Jian Hui Shao, 546 F.3d at 148-49 (requiring an asylum applicant claiming a fear of sterilization based on the birth of more than one child to establish: (1) details of the specific policy applicable to her case; (2) that the applicant violated the policy; and (3) that the violation would be punished in her local area by measures amounting to persecution).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Cai Qin Huang, a native and citizen of the People’s Republic of China, seeks review of a November 13, 2008 order of the BIA denying her motion to reopen. In re Cai Qin Huang, No. A073 162 200 (B.I.A. Nov. 13, 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. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not err in denying Huang’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”). Because the failure to establish a material change in country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion here. See Wei Guang Wang, 437 F.3d at 273.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Xiaowu Xia-Nmn, a native and citizen of the People’s Republic of China, seeks review of a December 31, 2008 order of the BIA affirming the January 28, 2008 order of an immigration judge (“IJ”) denying his motion to reopen. In re Xiaowu Xia-Nmn, No. A077 783 700 (B.I.A. Dec. 31, 2008), aff'g No. A077 783 700 (Immig.Ct.N.Y. Jan. 28, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements it, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s 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 conclude that the agency did not err in denying Xia’s untimely motion to reopen because it reasonably found that he failed to establish his prima fade eligibility for relief. See Jian Hui Shao, 546 F.3d at 148-49, 174 (requiring an asylum applicant claiming a fear of sterilization based on the birth of more than one child to establish: (1) details of the specific policy applicable to the case; (2) that the applicant violated the policy; and (3) that the violation would be punished by persecutive measures).
While Xia argues that the BIA’s analysis of his evidence was inadequate, evidence that “the [agency] is asked to consider time and again [may be considered] ... in a summary fashion without a reviewing court presuming that [the agency] has abused its discretion.” Wei Guang Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir.2006). Indeed, we have rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Jian Hui Shao, 546 F.3d at 169, and will “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006).
Xia’s argument that the agency erred in according minimal weight to his evidence is unavailing. As the IJ reasonably found, the letter from Xia’s father did not indicate that Xia was similarly situated to the person described in the letter who had allegedly been sterilized after the birth of her second child. Moreover, the agency reasonably found that Xia’s evidence, including the Village Notice, failed to establish that he would face harm amounting to persecution because of the birth of his children in the United States. See Jian Hui Shao, 546 F.3d at 164 (finding that the BIA reasonably concluded that the economic rewards and penalties used to implement the family planning policy in Fujian Province did not necessarily amount to “physical or mental coercion”). Because Xia’s failure to establish prima facie eligibility for relief provides a valid basis for the BIA’s denial of his motion to reopen, we find no abuse of discretion here. See I.N.S. v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
For the foregoing reasons, the petition for review is DENIED. As we have com*565pleted our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioners Jing Zhang and Xioaguo Xu, natives and citizens of the People’s Republic of China, seek review of a January 6, 2009 order of the BIA denying their motion to reopen. In re Jing Zhang/Xiaoguo Xu, Nos. A078 696 852/353 (B.I.A. Jan. 6, 2009). 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 err in denying Petitioners’ untimely motion to reopen because it reasonably found that they 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).
Petitioners argue that the agency improperly accorded diminished weight to their evidence, including the sterilization certificates and the Villagers’ Notice. That argument is unavailing. The BIA reasonably discounted the probative value of the sterilization certificates because they were not accompanied by affidavits from the subjects of the certificates or by evidence providing details of the incidents, thereby providing no indication that the Petitioners were similarly situated to their subjects. 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).
*567While Petitioners argue that the BIA abused its discretion by failing to give adequate consideration to the evidence they submitted, evidence that “the [agency] is asked to consider time and again [may be considered] ... in a summary fashion without a reviewing court presuming that [the agency] has abused its discretion.” Wei Guang Wang, 437 F.3d at 275. Indeed, we do not require that the agency “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, 471 F.3d at 338 n. 17.
Petitioners assert that the BIA erred when it mistakenly stated that the 2006 Policy Statement from the Administrative Office of the National Population and Family Planning Committee had already been considered in its precedential decisions. This argument is unavailing, as the 2006 Statement was purportedly issued to address the enforcement of the family planning policy in Fujian Province, which had been considered in its precedential decisions, and not in Zhejiang Province, where Petitioners resided. Cf. Jian Hui Shao, 546 F.3d at 148-49 (requiring an asylum applicant claiming a fear of sterilization based on the birth of more than one child to establish: (1) details of the policy; (2) that the applicant violated the policy; and (3) that the violation would be punished in her local area by perseeutive means).
Because the failure to establish a material change in country conditions provides a valid basis for denying a motion to reopen, we cannot find that the BIA abused its discretion here. See Wei Guang Wang, 437 F.3d at 273.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Gui Wen Pan, a native and citizen of the People’s Republic of China, seeks review of a February 7, 2008 order of the BIA denying his motion to reopen. In re Gui Wen Pan, No. A072 474 811 (B.I.A. Feb. 7, 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. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the agency did not abuse its discretion in denying Pan’s untimely motion to reopen because it reasonably found that he 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 *569Cir.2006) (finding that the birth of children in the United States was a change in personal circumstances, and not changed circumstances under the regulations); see Jian Huan Guan v. B.I.A., 345 F.3d 47, 49 (2d Cir.2003) (same).
While Pan argues that the evidence he submitted “show[s] the increased brutality of the enforcement of the population control policies of the Communist government,” 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; Wei Guang Wang, 437 F.3d at 275. 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 here. See Wei Guang Wang, 437 F.3d at 273; Jian Hui Shao, 546 F.3d at 169.
Finally, we do not have jurisdiction to review the BIA’s decision declining to sua sponte reopen Pan’s proceedings because such a decision is “entirely discretionary.” See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Qiu Yun Li, a native and citizen of the People’s Republic of China, seeks review of the December 18, 2007 order of the BIA denying her motion to reopen. In Qiu Yun Li, No. A073 546 726 (B.I.A. Dec. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the agency’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). An alien may file one motion to reopen, and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). However, the filing deadline for motions to reopen may, under certain conditions, be equitably tolled if a motion is based on a claim of ineffective assistance of counsel. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). In addition, an applicant may be excused from compliance with the time limitations on motions to reopen if she submits evidence establishing “changed country conditions arising in the country of nationality....” 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Such a motion shall not be granted unless it appears that the evidence offered in support of the motion “is material and was not available and could not have been discovered or presented” at the previous hearing. 8 C.F.R. § 1003.2(c)(1).
To merit equitable tolling of the filing deadline for a motion to reopen on the basis of ineffective assistance of counsel, a movant must establish that she exercised due diligence in pursuing her ease during the period of time for which she seeks tolling. See Iavorski v. I.N.S., 232 F.3d 124, 134-35 (2d Cir.2000). The BIA did not abuse its discretion in finding that Li failed to exercise the requisite due diligence. See id. Even if the statements that Li made in her affidavit in support of her motion are assumed to be truthful, she *576alleges only that she consulted two attorneys sometime in 2002 shortly after her former counsel was arrested and indicted for filing fraudulent asylum applications and that she became discouraged and decided not to “pursue the matter any further” when the two attorneys refused to take her case because they did not want to be associated with the scandal. Li did not file her motion to reopen until July 2006, and she offered no evidence that she continued her to pursue in the three to four years that followed her consultations with the two attorneys. She has essentially admitted that she voluntarily abandoned her claim and failed to pursue it between 2002 and 2006 when she retained her current counsel.
Furthermore, the BIA did not abuse its discretion when it found that the documentation that Li submitted in support of her motion to reopen did not suffice to establish either changed country conditions in China or Li’s prima fade eligibility for relief. As the BIA noted, the affidavit from Li’s sister did not constitute “new” evidence because it referred to events that took place in 1999, and nearly seven years had elapsed between Li’s sister’s alleged sterilization and the filing of Li’s motion to reopen. See 8 C.F.R. § 1003.2(c)(1).
With respect to the background evidence that Li submitted, the BIA reasonably found it insufficient to warrant reopening of her proceedings. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). We have previously reviewed the BIA’s consideration of Li’s evidence, and evidence similar to it, and found no error in its conclusion that such evidence was insufficient to establish either material changed country conditions or an objectively reasonably fear of persecution. See id. Li argues that the BIA erred in denying her motion without addressing all the evidence that she submitted. However, the BIA is not required to “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” see id. at 169(internal quotation marks omitted), and this Court 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, 337 n. 17 (2d Cir.2006).
Finally, Li argues that the BIA erred by failing to reopen her proceedings sua sporite. However, we lack jurisdiction to review a decision of the BIA not to exercise its authority to reopen proceedings sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is “entirely discretionary.” Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
The Petitioners Artan Dalipaj, Roza Dalipaj, and Roarda Dalipaj, natives and citizens of Albania, seek review of a December 29, 2008 order of the BIA affirming the May 8, 2007 decision of Immigration Judge (“IJ”) Michaelangelo Rocco denying the Petitioners’ applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dalipaj, Nos. A095 101 442, A095 101 443, A095 101 444 (B.I.A. Dec. 29, 2008), aff'g Nos. A095 101 442, A095 101 443, A095 101 444 (Immig. Ct. Buffalo May 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s finding that the Petitioners failed to establish that the harm they endured was on account of one of the protected grounds. See 8 U.S.C. § 1101(a)(42); Corovic, 519 F.3d at 95. As the agency found, Artan Dalipaj testified that the individuals who kidnapped his daughter did not express any motive either during or after the kidnapping and that he had “no idea” whether she had been kidnapped for political reasons. He further acknowledged that he and his wife had been members of the Democratic Party for nearly ten years without serious incident. Although he testified to having received anonymous threats related to his involvement in the Democratic Party, the agency reasonably found that he failed to demonstrate a connection between those threats and the kidnapping. Cf. Manzur v. United States Dep’t of Homeland Sec., 494 F.3d 281, 294 (2d Cir.2007) (finding that the agency errs when it does not adequately explain the basis for its conclusion that a petitioner failed to demonstrate a nexus to a protected ground).
The Petitioners assert that the agency failed to accord sufficient weight to their evidence, in particular the written threat they received indicating that Roarda Dalipaj would be kidnapped if Artan Dalipaj did not cease his political activities. However, it is well-settled that the weight afforded to documentary evidence lies largely within the discretion of the agency. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). Here, the agency reasonably declined to accord probative weight to the unauthenticated written threat because it was, implausibly, signed by the same individual who signed a police report indicating that Roarda Dalipaj was kidnapped “for political pressure.” As the agency noted, the Petitioners have at no point explained this discrepancy.
Contrary to the Petitioners’ assertion, the agency did not deny their claims for lack of corroboration. Instead, it found that the evidence the Petitioners submitted — both their testimony and documentary evidence — failed to establish their eligibility for relief. See 8 C.F.R. § 1208.13(a) (“The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act.”).
*579Because substantial evidence supports the IJ’s finding that the Petitioners failed to establish a nexus between the harm they suffered and a protected ground, the IJ properly denied their applications for asylum and withholding of removal. See 8 U.S.C. § 1158(b)(l)(B)(i); Yueqing Zhang v. Gonzales, 426 F.3d 540, 544 (2d Cir.2005). To the extent the Petitioners challenge the IJ’s denial of their request for CAT relief, we are without jurisdiction to consider that argument as they failed to exhaust that claim before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).
Finally, we will not separately address the Petitioners’ argument that the BIA violated their due process rights by denying their applications for relief. This claim is simply a restatement of their argument that the BIA committed reversible error by denying their applications for relief because they failed to adequately corroborate their claims. See United States v. Garcia, 166 F.3d 519, 522 (2d Cir.1999) (rejecting defendant’s effort to “dress up” a “poorly disguised attack on the merits of [a] sentence” by “couching [the] appeal in constitutional terms”).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Yanmei Qian, a native and citizen of the People’s Republic of China, seeks review of a January 30, 2009 order of the BIA affirming the January 31, 2007 decision of Immigration Judge (“IJ”) Gabriel C. Videla denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Yanmei Qian, No. A094-824-810 (B.I.A. Jan. 30, 2009), aff'g No. A094-824-810 (Immig. Ct. N.Y. City Jan. 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
PRESENT: WALKER, ROBERT D. SACK, RICHARD C. WESLEY, Circuit Judges.
“Where, as here, the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, wdthout rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we will review both the BIA’s and IJ’s opinions-or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA.” Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008); see also 8 U.S.C. § 1252(b)(4)(B). For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). “We defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Here, substantial evidence supports the IJ’s adverse credibility determination. In finding that Qian had not testified truthfully, the IJ observed that her testimony was indicative of someone who had memorized information rather than recalled actual events. Qian challenges this finding by labeling it “subjective.” But it is precisely because demeanor is evaluated subjectively and intuitively that we accord the IJ “great deference.” Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006).
The IJ also found that Qian had testified both that her children were born in the *581same hospital and that they were not. Although Qian asserts that she adequately explained this inconsistency, we defer to the Id’s adverse credibility finding because she has not “demonstrate[d] that a reasonable fact-finder would have been compelled to credit [her] testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005) (quotation marks omitted) (emphasis in original). Similarly, while Qian testified that she gave birth to her first child at age 19 and her second child at age 21, the birth certificates she submitted indicated that she was 37 when she gave birth to both children. Qian explained that she did not know that the birth certificates, obtained by her husband, were duplicates listing her age at the time of their August 2006 issuance. However, as the BIA observed, that explanation would not account for her evasive demeanor when she was fust asked how old she was at the time of her children’s births. Finally, because the IJ did not find Qian’s testimony credible, the IJ did not err in noting the absence of documentary evidence that may have corroborated her claim. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007) (per curiam); see also Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir.2006).
Because the record does not compel the conclusion that Qian was credible, the IJ properly denied her application for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). To the extent Qian challenges the IJ’s denial of CAT relief before this Court, we are without jurisdiction to consider that argument because she failed to exhaust her CAT claim before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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11-05-2022
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SUMMARY ORDER
Sai Ying Zhu, a native and citizen of the People’s Republic of China, seeks review of a July 14, 2008 order of the BIA, affirming the February 2, 2006 decision of Immigration Judge (“IJ”) Douglas B. Schoppert, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sai Ying Zhu, No. A095 709 786 (B.I.A. July 14, 2008), aff'g No. A095 790 786 (Immig. Ct. N.Y. City Feb. 2, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. For asylum applications governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii).
Upon review of the administrative record, we find that substantial evidence supports the IJ’s adverse credibility determination. The IJ properly relied on inconsistencies between Zhu’s statements during her credible fear interview and her hearing testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 272 (2d Cir.2007). Indeed, during her credible fear interview, Zhu testified that she was unaware that the practice of Falun Gong was illegal in China, that she did not know the *583exercises, that she did not know who founded the practice, and that generally, she did “not know Falun Gong.” However, during her hearing, she was able to state the year Falun Gong was outlawed in China, she recited the five exercises and testified that she regularly practiced three of them, and she stated the name of the founder of the practice. Moreover, although Zhu explained before the IJ that the reason she failed to answer the questions during her credible fear interview was because she was scared, a reasonable fact-finder would not have been compelled to accept this explanation because, as the IJ noted, she had also answered several questions during the credible fear interview in a detailed, consistent manner. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir.2005).
Furthermore, the agency did not err in relying on these inconsistent statements even though they arose in the context of Zhu’s credible fear interview. Where an IJ rests an adverse credibility determination on statements made during such an interview, we closely examine the record of that interview to ensure that it represents a “sufficiently accurate record” of the applicant’s statements to merit consideration. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004). In this case, it is clear that the credible fear interview record provides a sufficiently accurate record because: (1) it appears to be a near-verbatim transcript of the interview; (2) the questions posed were clearly designed to elicit details of an asylum claim; (3) Zhu did not appear reluctant to provide the inspector with information about her experiences in China; and (4) there is no indication that Zhu had any difficulty understanding the questions posed. See id. at 179-80. Inasmuch as the record indicates that the credible fear interview was reliable, the agency did not err in relying on Zhu’s inconsistent statements made at that interview in finding her credibility undermined. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 398 (2d Cir.2005). Finally, we note that Zhu has failed to exhaust before the BIA the issue of whether she submitted sufficient corroborating evidence to rehabilitate her testimony that she is a Falun Gong practitioner. Therefore, we decline to consider this issue. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
Ultimately, because a reasonable fact-finder would not be compelled to conclude to the contrary, the IJ’s adverse credibility determination was supported by substantial evidence. See Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). Thus, the agency’s denial of Zhu’s applications for asylum and withholding of removal was proper. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (recognizing that withholding of removal necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim).
As to Zhu’s claim for relief under the CAT, the agency properly found that Zhu failed to provide credible testimony that she is a Falun Gong practitioner who would be tortured if returned to China. See Paul, 444 F.3d at 156. In addition, the agency did not err in concluding that Zhu failed to establish a likelihood of torture based on her illegal departure from China. We have held that an applicant cannot demonstrate that she is more likely than not to be tortured “based solely on the fact that she is part of the large class of persons who have left China illegally” and on generalized evidence indicating that torture occurs in Chinese prisons. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005); see also Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir.2007). As Zhu provided no basis to conclude that she faces a significant risk of torture, substantial evidence supports the agency’s denial of her application for CAT *584relief. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.2003).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8474634/
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OPINION
PER CURIAM.
Appellant Mark A. Cronin appeals pro se from an order by the United States District Court for the Eastern District of Pennsylvania dismissing his claims, entering judgment against him, and confirming an arbitration award in favor of Appellee CitiFinancial Services, Inc. (“CitiFinancial”). For the following reasons, we will affirm the District Comb’s decision.
I. Background
On March 27, 2008, Cronin, a licensed attorney proceeding pro se on behalf of himself and a purported class of similarly situated individuals, filed a complaint against CitiFinancial1 in the District Court concerning a loan Cronin had obtained from CitiFinancial in the amount of $6,999.91. In the complaint, Cronin claimed, inter alia, that CitiFinancial violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., by providing inaccurate loan information to consumer credit reporting agencies. Specifically, Cronin alleged that CitiFinancial artificially inflated the amount of Cronin’s loan by reporting an accelerated loan value, including pre-computed interest and finance charges, of approximately $12,000.00, rather than the current unpaid loan balance of approximately $7,000.00. Cronin argued that CitiFinancial’s actions adversely affected his credit reports. In addition, he claimed that CitiFinancial makes a general practice of providing accelerated loan values to consumer credit reporting agencies, which adversely impacts a class comprised of borrowers similarly situated to Cronin.
CitiFinancial moved to stay the proceedings and compel arbitration, based upon an arbitration agreement executed by the parties at the time Cronin obtained the loan. On July 24, 2008, 2008 WL 2944869, the District Court granted CitiFinancial’s motion, concluding that the arbitration agreement was valid and enforceable and applied to Cronin’s claims. The parties proceeded to arbitration, where CitiFinancial raised a counterclaim against Cronin for breach of contract, seeking the loan amount plus accrued interest and attorneys’ fees.
At arbitration, without a hearing, CitiFinaneial prevailed in its defense of Cronin’s claims and obtained an award of $9,668.67 on its breach of contract counterclaim. CitiFinancial then moved in the District Court for confirmation of the arbitral award and Cronin cross-moved to vacate it. On April 16, 2009, 2009 WL 1033613, the District Couib entered an order confirming the arbitration award. The District Comb also dismissed all of Cronin’s claims with prejudice, entered judgment against him, and closed the case.
Cronin filed this timely pro se appeal.
II. Analysis
A.
Cronin argues that the District Court erred by granting CitiFinaneial’s motion to *633compel arbitration. As a threshold matter, CitiFinancial responds that we lack jurisdiction to consider Cronin’s claim because he did not specify in his notice of appeal an intent to appeal the District Court’s July 24, 2008 arbitration order.
Federal Rule of Appellate Procedure 3(c) states that the notice of appeal must “designate the judgment, order or part thereof appealed from.” Fed. R.App. P. 3(c). We liberally construe Rule 3(c)’s requirements. See Pacitti v. Macy’s, 193 F.3d 766, 776 (3d Cir.1999); Drinkwater v. Union Carbide Corp., 904 F.2d 853, 858 (3d Cir.1990). A failure to refer specifically to earlier orders does not necessarily preclude our review of those orders, see Shea v. Smith, 966 F.2d 127, 129 (3d Cir.1992), and an appeal from a final judgment draws into question all prior non-final orders and rulings. See Drinkwater, 904 F.2d at 858. Generally, we will review orders not specified in the notice of appeal where: (1) there is a connection between the specified and unspecified order, (2) the intention to appeal the unspecified order is apparent, and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues. See Pacitti, 193 F.3d at 777; Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998).
The final judgment rule barred Cronin from earlier appealing the District Court’s July 24, 2008 arbitration order. See 28 U.S.C. § 1291; see also 9 U.S.C. § 16. The arbitration order is related to the April 15, 2009 judgment, which, among other things, confirmed the arbitral award. In addition, CitiFinancial had notice of Cronin’s intent to appeal the arbitration order, as he raised the issue in the District Court in his opposition to CitiFinancial’s motion to confirm the arbitral award, and again addressed the issue in his opening appellate brief. See Polonski, 137 F.3d at 144 (stating that “the appellate proceedings clearly manifest an intent to appeal”). The issue has now been fully briefed by both parties on appeal. CitiFinancial has not argued that it will suffer prejudice from our review of the order, and we discern none. See Pacitti, 193 F.3d at 777. We conclude that Cronin’s notice of appeal was sufficient to bring up the District Court’s July 24, 2008 arbitration order for our review.
B.
Cronin argues that the District Court erred in compelling arbitration because the underlying arbitration agreement is unconscionable and unenforceable under our recent decision in Homa v. American Express Co., 558 F.3d 225 (3d Cir.2009). CitiFinancial contends that Cronin waived this argument because he did not raise it before the District Court.
Generally, absent special circumstances, only ai’guments made first to the District Court may be heard on appeal. See Flick v. Borg-Warner Corp., 892 F.2d 285, 288 (3d Cir.1990). CitiFinancial concedes, however, that Cronin argued to the District Court that the arbitration agreement was unconscionable. In addition, in his cross-motion to vacate the arbitral award, Cronin expressly asked the District Court to “reconsider its July 24, 2008 Order in light of a recent ruling by the United States Court of Appeals for the Third Circuit, Homa v. American Express Co.”
CitiFinancial contends that Cronin’s failure to further elaborate upon his argument for Homa’s application prevented the District Court from reviewing the issue and thereby effects a waiver. We disagree. Although further support for the argument applying Homa would have been desirable, it appears to us both that Cronin raised the issue and that the District Court ad*634dressed it.2 The issue has been adequately preserved for our review on appeal, and we will proceed to its merits.
C.
We exercise plenary review over questions of law concerning the applicability and scope of arbitration agreements. Zimmer v. CooperNeff Advisors, Inc., 528 F.3d 224, 228 (3d Cir.2008).
The Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., establishes “a strong federal policy in favor of the resolution of disputes through arbitration.” Alexander v. Anthony Intern., L.P., 341 F.3d 256, 263 (3d Cir.2003) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). However, because arbitration agreements are “enforceable to the same extent as other contracts,” Seus v. John Nuveen & Co., 146 F.3d 175, 178 (3d Cir.1998), an arbitration agreement may be held invalid “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Thus, under FAA § 2, generally applicable state law contract defenses such as unconscionability may be applied to nullify arbitration agreements without contravening the FAA. See Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). Accordingly, pri- or to ordering parties to arbitration, a court must determine whether the parties entered a valid agreement to arbitrate, see Alexander, 341 F.3d at 264 (citing 9 U.S.C. § 2), and the relevant state’s law of contracts guides this determination. Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir.2002).
Cronin argues that his arbitration agreement with CitiFinancial is unconscionable under the public policy of the Commonwealth of Pennsylvania.3 Cronin relies upon Homa, in which we held that an arbitration agreement that completely deprived an individual of the ability to pursue class-wide relief was unconscionable and unenforceable under the public policy of New Jersey. 558 F.3d at 230 (citing Muhammad v. County Bank of Rehoboth Beach, Del., 189 N.J. 1, 912 A.2d 88, 100-01 (2006)). Because New Jersey’s unconscionability defense applies to all sweeping class-action waivers, and not merely those that also compel arbitration, we reached our conclusion without contravening the FAA. Id. Cronin argues that the class action waiver clause in his arbitration agreement with CitiFinancial similarly deprives him of any recourse to a class action.4 As a result, he argues that the arbitration agreement is unconscionable under Pennsylvania law and should not be enforced pursuant to FAA § 2.
CitiFinancial responds that our decision in Gay v. CreditInform, 511 F.3d 369 (3d Cir.2007), rather than Homa, controls this *635case. In Gay, we held that, under Virginia law, an arbitration agreement prohibiting class action litigation did not meet Virginia’s “shock the conscience” test for unconscionability, and was therefore enforceable under the FAA. 511 F.3d at 390. However, because Gay had argued for the application of Pennsylvania law, we noted that the unconscionability argument in that case had support under Pennsylvania law. Id. at 392-93 (citing, inter alia, Lytle v. CitiFinancial Servs., Inc., 810 A.2d 643 (Pa.Super.Ct.2002); Thibodeau v. Comcast Corp., 912 A.2d 874 (Pa.Super.Ct.2006)). Ultimately, we concluded in dicta that Pennsylvania case law “hold[s] that an agreement to arbitrate may be unconscionable simply because it is an agreement to arbitrate.” Id. at 395. As a result, the Pennsylvania courts’ decisions concerning the unconscionability of class action waivers do not set forth a generally applicable principle of contract law permitting an arbitration agreement to be invalidated under FAA § 2.
The parties argue that there may be some tension between the holdings of Homa and Gay concerning the effect of Pennsylvania’s public policy. Specifically, we have not yet directly addressed whether the Pennsylvania decisions on the unconscionability of certain class action waivers set forth a public policy unique to arbitration agreements, or a generally applicable contract defense permitted by FAA § 2. Compare Gay, 511 F.3d at 392-93, with Homa, 558 F.3d at 230. However, we need not resolve that issue today. Instead, we conclude that the class action waiver provision in the parties’ arbitration agreement is not unconscionable under Pennsylvania law.
The Pennsylvania Superior Court has held that Pennsylvania’s public policy rejects contracts mandating individual litigation or arbitration in those cases where “defendant corporations are effectively immunized from redress of grievances.” Thibodeau, 912 A.2d at 885 (Pa.Super.Ct.2006). In Thibodeau, for example, the Superior Court affirmed the trial court’s conclusion that the class action waiver at issue contravened Pennsylvania’s public policy because the plaintiff in that case would be entitled to only minimal damages. According to the trial court’s opinion, which the Superior Court cited with approval, “[ejveryone knows that these claims will never be arbitrated on an individual basis, ... [n]o individual will expend the time, fees, costs and or other expenses necessary for individual litigation or individual arbitration for this small potential recovery.” Id. at 885-86; see also Lytle, 810 A.2d 643 (indicating that a class action waiver may be unconscionable if the potential for recovery of individual damages is insufficient to permit any real ability to pursue legal redress, thereby insulating the defendant from liability for wrongdoing5). Thus, the Superior Court has made clear that Pennsylvania does not deem all arbitration waivers per se unconscionable. Rather, the critical issue is whether the particular class action waiver effectively ensures that a defendant will never face liability for wrongdoing.
In the complaint, Cronin sought actual and punitive damages, costs, and attorneys’ fees — all of which are permitted un*636der the FCRA, see 15 U.S.C. §§ 1681n(a)(l)(A), (a)(2), (a)(3), and are potentially recoverable in an arbitration under that statute. See Johnson v. West Suburban Bank, 225 F.3d 366, 373 (3d Cir.2000) (the full range of statutory rights remain available in arbitration proceedings). We have noted that the statutory ability to recover attorneys’ fees helps to preserve an individual’s ability to pursue claims, even in those situations where the class forum has been foreclosed. Johnson, 225 F.3d at 374; see also, e.g., Thibodeau, 912 A.2d at 885-86 (indicating that an individual’s burden to cover costs and fees is a consideration in determining whether he or she will ever bring an individual claim with a small potential damages recovery).
We conclude that Cronin’s ability to seek actual and punitive damages, costs, and attorneys’ fees rendered his individual FCRA claim sufficiently valuable so that CitiFinancial was not completely insulated from liability, even in light of Cronin’s contractual waiver of the right to pursue a class action. As a result, the class action waiver is not unconscionable under the public policy of Pennsylvania, see Thibodeau, 912 A.2d 874, 885, Lytle, 810 A.2d 643, and the District Court appropriately enforced the arbitration agreement. See 9 U.S.C. § 2.
D.
Finally, Cronin argues that the District Court erred by exercising supplemental jurisdiction over CitiFinancial’s state-law counterclaim against him. 28 U.S.C. § 1367(a); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). We review the District Court’s exercise of jurisdiction for abuse of discretion. See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir.2003).
Section 1367(a) provides: “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy....” 28 U.S.C. § 1367(a). The District Court need not exercise supplemental jurisdiction in all cases. For instance, a district court may decline supplemental jurisdiction where it has “dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). However, where a district court has chosen to exercise supplemental jui'isdiction over a state law claim, the dismissal of the federal claim generally does not eliminate that jurisdiction. See New Rock Asset Partners, L.P. v. Preferred Entity Advancements, 101 F.3d 1492, 1505 (3d Cir.1996); Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474, 479 (3d Cir.1979).
Cronin argues that the dismissal of the federal claim deprived the District Coui*t of jui'isdiction because the state law counterclaim does not share a common nucleus of operative fact with his fedei’al FCRA claim. Without regard to the mei'its of Cronin’s legal ai'gument, we disagree with the premise that the claims are not sufficiently factually related for the exercise of supplemental jurisdiction. Both the FCRA claim and the breach of conti'act counterclaim share a common nucleus of operative fact because they both turn on the terms of the written loan agreement between CitiFinancial and Cronin. Although Cronin argues the claims are unrelated because their legal elements diffei', the legal differences do not affect whether the claims share a common nucleus of fact. See Gibbs, 383 U.S. at 725, 86 S.Ct. 1130. Accordingly, the District Court did not abuse its discretion in retaining supple*637mental jurisdiction over CitiFinancial’s state law counterclaim.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
. Cronin also raised claims against Appellee Washington Mutual Bank, N.A. Those claims were dismissed by stipulation of the parties and the dismissal is not disputed on appeal.
. The District Court concluded that "Homa stated that New Jersey state law would hold that a waiver of class-arbitrations under an arbitration agreement was unconscionable. In this case, however, the plaintiff does not discuss the applicability of any Pennsylvania law beyond that already considered.”
. The parties agree that the law of Pennsylvania governs their arbitration agreement.
. The agreement’s class-action waiver clause provides:
No Class Actions/No Joinder of Parties. You agree that any arbitration proceeding will only consider Your Claims. Claims by and on behalf of other borrowers will not be arbitrated in any proceeding that is considering Your or Our Claims. Because You have agreed to arbitrate all Claims, You may not serve as a class representative or participate as a class member in a putative class action against any party entitled to compel arbitration under this Agreement.
. The Lytle court did not reach a conclusion on the unconscionability of the class action waiver in that case, instead remanding to the trial court with instructions to consider the issue: "the trial court ... may also receive and consider evidence relevant to the Lytles’ argument that the cost associated with individual versus class-based litigation of their claim against CitiFinancial would, in light of the amount of their damages, result in continuing immunity for CitiFinancial....” Lytle, 810 A.2d at 666.
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11-05-2022
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on appeal from orders granting motions to dismiss and summary judgment dated December 19, 2007, and January 12 and 13, 2009, and from a final judgment dated February 10, 2009, entered following a subsequent nonjury trial. Curtis Wood, as administrator of the Estate of Devon Lee Reid, brought these consolidated actions against the City of Lancaster against whom he subsequently voluntarily *642dismissed the case, the County of Lancaster, and certain officers and individuals associated with these entities. Ultimately, all the defendants remaining after the dismissal of the City were completely successful on motions to dismiss and for summary judgment except for corrections officer James Flaherty who prevailed at the trial, and thus the District Court dismissed or rendered judgment against Reid on the entire case.
The action arose in the aftermath of Reid’s arrest and incarceration in the Lancaster County Prison following his altercation with Lancaster City police officers. As a consequence of Reid’s bizarre behavior during confinement, the prison placed him on medical observation and suicide status. Unfortunately, on September 17, 2004, while Reid was in prison he suffered a pulmonary embolism, i.e., a blockage of his pulmonary artery or one of its branches, causing his death. We are not aware of any basis in the record to conclude that by his voluntary action, i.e., a suicide, Reid brought about the embolism.
Notwithstanding the circumstance that Reid died from natural causes his estate brought this action against defendants under 42 U.S.C. § 1983, asserting Eighth and Fourteenth Amendment deliberate indifference claims in which he included claims under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against the County and Prison warden Vincent Guarini, and he also asserted supplemental state law claims. The District Court had jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 28 U.S.C. § 1367, and we have jurisdiction under 28 U.S.C. § 1291. Even though Wood’s notice of appeal recites that he is appealing, inter alia, from the final judgment entered after the nonjury trial on February 10, 2009, he does not challenge the outcome of that trial but, instead, focuses his appeal on the pretrial dispositions. Thus, we are exercising plenary review on this appeal. See Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir.2009); Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 302 (3d Cir.2008).
We have reviewed the comprehensive opinion of the District Court dated January 13, 2009, and comprehensive explanatory order dated December 19, 2007, and are in complete agreement with those dispositions and cannot add anything significant to them. Accordingly, and taking into account the circumstance that Wood has not challenged the February 10, 2009 judgment on this appeal, the orders of December 19, 2007, and January 12 and 13, 2009, and the judgment of February 10, 2009, will be affirmed.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Plaintiff Wimberly, Allison, Tong & Goo, Inc. (‘WATG”) appeals the District Court’s grant of summary judgment to Defendants Travelers Property Casualty Company of America (“Travelers”) and Gulf Underwriters Insurance Group (“Gulf’). The District Court held that Travelers and Gulf did not have a duty to defend WATG in the underlying actions against WATG arising out of a parking garage collapse during construction on the Tropicana Casino Resort in Atlantic City, New Jersey (“Tropicana”).
I. The Underlying Occurrence
In November 2000, WATG, an architectural firm, entered into an Owner-Architect agreement with Tropicana for the construction of a parking garage. On October 30, 2003, six levels of that parking garage collapsed, causing numerous deaths and serious injuries. Govathlay Givens filed the first lawsuit against WATG and numerous other defendants seeking compensatory and punitive damages arising out of injuries he sustained during the collapse. Givens alleged that WATG failed “to perform as a reasonable architect would under the same or similar circumstances,” “failed to properly design the parking garage, failed to properly supervise the con*644struction of the parking garage, failed to provide proper specifications for the construction ... failed to inspect and supervise the work ... and otherwise deviated from the standard of care expected of architects.” A. 314. Givens also alleged that WATG “knew or should have known of the dangerous condition of the parking garage ... but failed to take action ...” and that Given suffered injuries as a “result of the negligence, carelessness, recklessness, and/or willful and wanton conduct of [WATG]....” A. 314-15.
A hotel/restaurant near the site of the garage collapse called Another Time, Inc. also filed a complaint against WATG. Another Time alleged negligence, private nuisance, and public nuisance against numerous defendants, including WATG, and sought compensatory and punitive damages. Specifically, Another Time alleged that defendants “unreasonably interfered with the use and enjoyment of the property of the Plaintiff,” which resulted in economic loss and diminished property value and that defendants interfered with the right of the public to use and traverse the public streets. A. 341-42. The factual allegations against the defendants that formed the basis for Another Time’s claims include violating construction codes, failure to design, construct, and maintain the garage in a way that would ensure it did not collapse, failure to properly supervise the construction, failure to design and follow proper blue prints, and failure to notice warning signs of a danger of collapse.
Many other plaintiffs filed similar suits that were consolidated using a Master Complaint alleging that WATG deviated from the standard of care of professional architects, that the engineering design of the garage did not conform to Occupational Safety and Health Administration (“OSHA”) standards, which caused the collapse of the garage, and that WATG was otherwise careless and negligent. The Master Complaint brought the following claims against all defendants, including WATG: loss of consortium, wrongful death, wrongful death — survivorship, and bystanders’ claims for emotional distress.
II. The Liability Policies
At the time of the garage collapse, WATG had a professional liability policy and an excess professional liability policy with Continental Casualty Company (“CNA”),1 a commercial liability policy with Travelers, and a commercial excess liability policy with Gulf. The Travelers policy covered damages arising out of “ ‘bodily injury’ or ‘property damage’ ” caused by an “ ‘occurrence’ ” in the “ ‘coverage territory.’ ” The Travelers policy also contained the following exclusion:
This insurance does not apply to “bodily injury,” “property damage,” “personal injury” or “advertising injury” arising out of the rendering of or failure to render any professional services by you or any engineer, architect or surveyor who is either employed by you or performing work on your behalf in such capacity.
Professional services include:
1. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, *645field orders, change orders, or drawings and specifications; and
2. Supervisory, inspection, architectural or engineering activities.
A. 136.
The Gulf commercial excess liability policy provided that Gulf would pay the “ ‘ultimate net loss’ ... which the insured becomes legally obligated to pay as damages because of ‘bodily injury,’ ‘property damage,’ ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” A. 179. Gulf agreed to defend any suit for damages that are not payable by the underlying insurance policy, either because the damages were not covered or because the underlying insurance was exhausted by the payment of claims. Like the Travelers policy, the Gulf policy “does not apply to ‘bodily injury,’ ‘property damage,’ ‘personal injury,’ or ‘advertising injury’ arising out of: 1. the rendering of; or 2. failure to render; any professional services by or for you.” A. 166.
III.Denial of Coverage
On April 16, 2004, WATG notified Travelers of the Givens complaint and several other complaints. On May 12, 2004, Travelers denied coverage based on the professional liability exclusion in the policy, stating that “due to the services you and your subcontractors were performing on this construction project, as architects, coverage would be excluded____” A. 1048. WATG subsequently notified Travelers of additional suits that had been filed and asked Travelers to reconsider its coverage position. On December 17, 2004, Travelers again denied coverage but noted that if a claim against WATG was brought that was unrelated to its professional activities, a duty to defend would arise. Travelers further invited WATG to provide Travelers with any additional information that may impact its decision. In March and May 2005, WATG notified Travelers of additional claims but Travelers’ position on the denial of coverage did not change.
On April 16, 2004, WATG also notified Gulf of the underlying lawsuits and requested defense and indemnification. On February 4, 2005, Gulf responded that this request was premature as WATG did not state that primary coverage was exhausted or denied, but nonetheless reserved its right to deny coverage based on the professional liability exclusion. In March 2005, WATG notified Gulf of additional suits and in May 2005 WATG notified Gulf that Travelers was not providing coverage, but Gulf never agreed to defend or indemnify WATG.
IV. Standard of Review
Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c). After giving the non-moving party all reasonable inferences, there is a genuine issue of material fact if a reasonable jury could find for the non-moving party. Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.1997) (citations omitted). Our review of the district court’s grant of summary judgment is plenary. Id. In addition, our review of the interpretation of an insurance contract and the applicability of a policy exclusion is plenary. Harad v. Aetna Cas. & Sur. Co., 839 F.2d 979, 982 (3d Cir.1988).
V. Duty to Investigate
Under New Jersey law,2 after an insured notifies an insurer of a potential claim, the insurer has a duty to promptly investigate the claim and notify the in*646sured of the results of the investigation within a reasonable time. Griggs v. Bertram, 88 N.J. 847, 443 A.2d 163, 170 (1982).
Although the insurer cannot ignore known information simply because it is not included in the complaint, the insurer has no duty to investigate possible ramifications of the underlying suit that could trigger coverage. Rather, the insured being sued is responsible for promptly conveying to its insurance company the information that it believes will trigger coverage.
SL Indus., Inc. v. Am. Motorists Ins. Co., 128 N.J. 188, 607 A.2d 1266, 1272 (1992). Even WATG concedes that the defendants need only perform “some semblance” of an investigation and that this need not be “ ‘fool-proof.’ ” Appellant’s Br. 29 (citing Universal-Rundle Corp. v. Commercial Union Ins. Co., 319 N.J.Super. 223, 725 A.2d 76, 89 (1999)).
WATG claims that the defendants did not even perform a cursory investigation into the claims prior to denying coverage and that the District Court failed to address this issue. While the District Court did not specifically discuss this, it is clear that the defendants fulfilled their duty to investigate the claims. Upon receipt of the letter informing Travelers of the Givens complaint, Dawn Minell, a technical specialist at Travelers, spoke to both WATG’s corporate counsel and “broker.” A. 1034. Minell also reviewed the complete policy and, based on the facts provided as well as the counts in the Givens complaint, decided that coverage should be declined. After Minell denied the claim and WATG challenged this denial, the case was reassigned to Lorraine Ankosko, a senior liability technical specialist. Ankosko immediately obtained outside counsel, John Tinker, to ensure an independent and thorough review of coverage. Tinker sent WATG a seven-page letter outlining Travelers’ reasons for denying coverage and listing numerous documents that were reviewed in making that decision. Furthermore, Tinker asked WATG to provide Travelers with any addition information if “discovery in the underlying case generates facts supporting a claim of liability against [WATG] unrelated to its professional activities....” A. 1084.
Likewise, Clay Woodman, on behalf of Gulf, reviewed numerous documents provided by WATG and wrote a detailed letter to WATG explaining Gulfs denial of coverage. Furthermore, Gulf maintained that WATG’s request for a defense and indemnification was premature because WATG did not indicate that their primary coverage was either exhausted or denied.
Based on the above facts, it is clear that Travelers and Gulf fulfilled their obligation to investigate the underlying claims prior to making a decision on coverage.
VI. Duty to Defend
An insurer has a duty to defend if the allegations in the complaint, on its face, are encompassed by the risks insured against by the policy. W9/PHC Real Estate LP v. Farm Family Cas. Ins. Co., 407 N.J.Super. 177, 970 A.2d 382, 391 (2009) (citations omitted). Coverage is determined by the “nature of the claim” against the insured, not by how the underlying plaintiff chooses to phrase the complaint. SL Indus., Inc., 607 A.2d at 1272. The duty to defend may arise even if the underlying complaint is meritless because an insurer’s duty to defend is broader than its duty to indemnify. W9/PHC Real Estate LP, 970 A.2d at 391 (citing Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 607 A.2d 1255, 1259 (1992)). Insurance policies should be given their plain and ordinary meaning, but should be interpreted “liberally in favor of the insured and strictly against the insurer.” Id. (citations *647omitted). If a complaint is ambiguous it should be interpreted in favor of the insured. Voorhees, 607 A.2d at 1259 (citations omitted). When the underlying complaint contains multiple causes of action, the insurer has a duty to defend until “every covered claim is eliminated.” Id.
Professional liability policies and general liability policies are intended to cover different types of risk. Search EDP, Inc. v. Am. Home Assurance Co., 267 N.J.Super. 587, 632 A.2d 286, 288 (1993). Professional liability policies are intended to cover risks inherent to a particular profession, such as the failure to perform with a standard of skill expected, as opposed to risks that arise as with many types of businesses. Id. For example, the “professional” aspects of a law practice include giving legal advice, filing suits, etc., whereas the commercial aspects include setting up a business, dealing with staff, paying bills, etc. Harad, 839 F.2d at 985. “A professional act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual....” Id. at 984 (quotation omitted). The categorization of a party’s liability is determined based on the activity that party was involved in at the time the liability arose. Id. at 985. “For example, if an attorney, while hosting a real estate closing in his office, places his briefcase on the floor and a colleague trips on it, is injured and sues him, the lawyer’s liability would derive not from the rendering of a professional service, but rather from his operation of a business.” Id.
In analyzing whether a professional services exclusion in a general liability policy applies, courts must examine the “character of the [insured’s] conduct” alleged and the “nature of the services” performed by the insured to determine if the insured’s liability “flowed directly” from a professional activity. Harad, 839 F.2d at 984-85. Some factors that affect this consideration are whether or not the underlying acts of the insured required the specialized skill and knowledge of someone in the insured’s profession, whether the acts were within the normal practice of that profession, and whether the acts were done pursuant to a contract which provided the insured with financial compensation. Atl. Mut. Ins. Co. v. Cont’l Nat’l Am. Ins. Co., 123 N.J.Super. 241, 302 A.2d 177, 181 (1973).
WATG concedes that the professional malpractice exclusions in the policy are valid and applicable to the underlying professional malpractice claims. Appellant’s Br. 41. WATG contends, however, that Travelers and Gulf had a duty to defend the underlying actions because those complaints contained both excluded professional malpractice claims and covered claims, such as personal injury, wrongful death, public and private nuisance, bystander emotional distress, and loss of consortium. WATG highlights the fact that both the Givens complaint and the Another Time complaint allege “general negligence.” Appellant’s Br. 36. In further support of requiring coverage, WATG points out that the Case Information Statements (“CIS”) filed with the underlying complaints did not categorize the complaints as “professional malpractice” and no Affidavits of Merit were filed with the complaints, which are required under New Jersey law if a party alleges professional malpractice.
The bottom line here is that all of the allegations against WATG in the Givens complaint, the Another Time complaint, and the Master Complaint arose out of WATG’s professional services as an architect. WATG’s only involvement with the garage collapse, which is the basis of the underlying suits, is that they had an Owner-Architect agreement with Tropica*648na and were performing as an architectural firm in accordance with that contract. Plaintiffs have not pointed to any allegations of WATG’s conduct that were unrelated to WATG’s professional architectural services. Under the guidance of Harad, it is clear that the “character” of WATG’s “conduct” at issue was professional in “nature” and that therefore WATG’s potential liability “flowed directly” from a professional activity, namely architecture. 839 F.2d at 984-85. As the District Court points out, the fact that the plaintiffs did not file Affidavits of Merit or categorize the claims as professional malpractice on the CIS forms is not dispositive because all of the complaints included numerous defendants, some of whom were acting in a professional capacity and some of whom were not. The District Court was correct in concluding that all of WATG’s actions or failures alleged in the underlying complaints flowed directly from WATG’s professional role as an architect, and that, therefore, the professional services exclusion in both the Travelers and Gulf policies would apply.3
VII. Genuine Issues of Material Fact
On January 29, 2008, both WATG and Defendants filed cross-motions for summary judgment, indicating that all parties believed the matter was ripe for such a decision. The only alleged genuine issues of material fact are discussed above: 1) evidence indicated that there were potentially covered claims of negligence, nuisance, and loss-of consortium alleged in the underlying complaints; 2) no Affidavits of Merit were filed; 3) CIS forms indicated that the underlying claims were not for professional malpractice; and 4) the Another Time complaint alleges loss of business, which is not a damage arising from bodily injury or property damage and therefore does not fall under the policy exclusion. All of these allegations arise from WATG’s role providing professional architectural services and WATG demonstrates no genuine issue of material fact as to the circumstances leading to any of the underlying allegations.
For the reasons set forth above, we will AFFIRM the Order of the District Court.
. WATG alleges that the costs of defense and settlement exceeded the $1 million limit of the CNA primary professional liability policy and the $2 million per occurrence/$5 million aggregate limit of the CNA excess professional liability policy. Specifically, WATG claims that it incurred $2,323,000 in defense costs that were never reimbursed. Appellees contend that WATG’s required contribution to a global settlement was $500,000, which was paid by CNA. Appellees' Br. 15, A. 14, A. 402-03.
. All parties agree that New Jersey law is applicable to this case.
. Therefore, we need not address Gulf's contention that even if the exclusion did not apply, WATG is not entitled to coverage from Gulf because CNA had an undisputed duty to defend all of the underlying claims.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474645/
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OPINION
SMITH, Circuit Judge.
This appeal from summary judgment requires us to interpret a consulting 2 agreement. SmartTran, Inc. (“SmartTran”), a shipping consultant, and Alpine Confections, Inc. (“Alpine”), a candy company, entered into a consulting agreement (the “Agreement”) for shipping advice. Halfway through the Agreement’s term, Alpine underwent a corporate reorganization and was acquired by 1-800-Flowers.com (“Flowers”) and some of Alpine’s subsidiaries were spun off to a new corporation. SmartTran alleges that Alpine and its subsidiaries breached the Agreement by refusing to pay SmartTran consulting fees after the corporate reorganization. SmartTran also alleges that Flowers breached the Agreement, and, in any event, owes SmartTran restitution under the theories of unjust enrichment and quantum meruit. SmartTran and Alpine both moved for summary judgment and the District Court1 granted summary judgment for the defendants, concluding that the Agreement did not provide for payment of fees when SmartTran’s recommendations were not used. We agree with the District Court’s analysis and will affirm its grant of summary judgment.2
*653The Agreement, as a matter of law, did not provide for SmartTran to receive fees where its recommendations were not used. As such, SmartTran’s breach of contract claim against all defendants cannot survive summary judgment. The claims against Alpine’s subsidiaries that were spun off fail for the additional reason that they were not parties to the Agreement and had no obligation to pay SmartTran. The unjust enrichment and quantum meruit claims against Flowers are unsuccessful because Flowers never received any benefit from SmartTran’s consulting services.
I.
SmartTran analyzes companies’ small parcel transportation needs and recommends ways to negotiate discounted contracts with shipping companies, like United Parcel Service (“UPS”). Alpine, prior to the corporate reorganization, was a candy company that also owned other candy companies, including defendants Maxfield Candy Co. (“Maxfield”), Kencraft, Inc. (“Kencraft”), and Harry London (collectively, the “Alpine Defendants”).3
On January 27, 2004, Alpine entered into the Agreement with SmartTran. The Agreement’s prefatory recital explained that SmartTran was to “review [Alpine’s] use of small package transportation services and to determine if [Alpine] can achieve cost savings.” In the Agreement, Alpine warranted that at the time of entering into the Agreement it was not “negotiating a rate discount increase, or decrease in rates, with any small package transportation service provider.” If Alpine received a rate discount increase, or a decrease in applicable rates during the term of the Agreement, SmartTran would aecrue fees as set forth in paragraph seven of the Agreement. That paragraph states that SmartTran is entitled to fifty percent of all savings realized by Alpine through SmartTran’s recommendations:
SmartTran’s fees for services will be as follows:
A. Fifty percent (50%) of all savings realized payable for a period of thirty-six (36) months from the date the savings first become effective.
B. SmartTran shall invoice [Alpine] monthly for the fee earned pursuant to this Agreement which invoice shall be payable within five (5) business days of receipt.
C. SmartTran will not be paid a fee unless savings actually become effective.
The Agreement also required Alpine to pay SmartTran for all fees accrued by Alpine’s “related corporations, subsidiaries, associations, and related businesses which utilize the recommendations submitted by SmartTran.” If Alpine began using SmartTran’s recommendations anytime within two years of the date SmartTran submitted its recommendations, then the fee structure described in paragraph seven applied.
After entering into the Agreement, SmartTran reviewed Alpine’s shipping characteristics and offered recommendations to decrease Alpine’s shipping costs. Alpine used those recommendations to negotiate a contract with UPS (the “Alpine/UPS Contract”), and began shipping under that contract on June 20, 2005. Because the Alpine/UPS Contract provided Alpine lower shipping rates than it re*654ceived prior to utilizing SmartTran’s recommendations, Alpine began paying SmartTran fifty percent of its savings, as required under paragraph seven of the Agreement. Approximately ten months later, in April 2006, Alpine underwent a corporate reorganization. In that reorganization, Maxfield and Kencraft, Alpine’s subsidiaries, became subsidiaries of a newly formed corporation, KDM Holdings (“KDM”), and Flowers purchased Alpine and Harry London.4
The Alpine Defendants continued to pay fees to SmartTran for another six months, through October 2006. On November 3, 2006, KDM Informed SmartTran that it had negotiated a new contract with UPS, effective October 22, 2006, based on Max-field and Keneraft’s shipping characteristics. KDM stated that it would not pay SmartTran fees for shipping that occurred after October 22, 2006, because it had not shipped under the Alpine/UPS Contract after that date. On November 27, 2006, Alpine and Harry London informed SmartTran that as of October 23, 2006, they were no longer shipping under the Alpine/UPS Contract and would not pay SmartTran fees for shipping after that date. After their purchase by Flowers, Alpine and Harry London began shipping under Flowers’s carrier agreement with UPS (the “Flowers/UPS Contract”). That contract provided better shipping rates than the Alpine/UPS Contract.
In response to the Alpine Defendants’ refusals to pay fees, SmartTran filed a complaint in the United States District Court for the Western District of Pennsylvania charging all defendants with breach of contract and the implied duties of good faith and fair dealing, and seeking restitution from Flowers under the theories of quantum meruit and unjust enrichment. SmartTran’s claims are based on its belief that the Agreement entitled it to fees for the entire thirty-six month fee payment period even though the Alpine Defendants ceased shipping under the Alpine/UPS Contract after approximately sixteen months.
SmartTran moved for summary judgment on liability and the defendants moved for summary judgment on liability and damages. The District Court referred the matter to a Magistrate Judge who recommended that SmartTran’s motion for summary judgment be denied and that defendants’ motion be granted. The District Court adopted the Magistrate’s reasoning and granted summary judgment for the defendants. This timely appeal followed.
II.
SmartTran argues that the District Court erred in concluding that the Agreement entitled SmartTran to fees only when its recommendations were actually used by Alpine. On appeal, SmartTran raises four arguments challenging the District Court’s interpretation of the Agreement. As discussed below, none of these arguments justifies reversal of summary judgment for the defendants on the breach of contract and the implied duties of good faith and fair dealing claims.
First, SmartTran argues that the District Court failed to view the evidence in the light most favorable to the non-moving party because it concluded that the Alpine Defendants’ use of SmartTran’s recommendations was a condition precedent to payment. This argument fails at the outset because the Agreement was unambiguous and the interpretation of an *655unambiguous contract is an issue of law, not an issue of fact. Kripp v. Kripp, 578 Pa. 82, 849 A.2d 1159, 1163 (2004). The District Court was not required to interpret the Agreement in the light most favorable to SmartTran because it was interpreting an unambiguous contract as a matter of law.5
Second, SmartTran argues that, once Alpine used its recommendations to effect savings, SmartTran was entitled to 50 percent of all savings that could have been realized by Alpine using SmartTran’s recommendations during the following 36 months, even if Alpine ceased to use those recommendations during the 36-month period. On the other hand, Alpine insists that, once Alpine used SmartTran’s recommendations to effect savings, SmartTran was entitled only to 50 percent of all savings generated by the use of those recommendations over the ensuing 36 months. Alpine is clearly correct. It contracted to pay for the right to utilize SmartTran’s recommendations a fee based on “all small package savings effected by SmartTran” and no savings were effected by Smart-Tran’s recommendations after Alpine stopped shipping under the Alpine/UPS Contract.
Third, SmartTran argues that the Alpine Defendants’ course of conduct shows that they shared the same understanding of the Agreement as SmartTran. The conduct identified by SmartTran consisted of Alpine and Harry London employees questioning the legal implications of the Agreement for the corporate reorganization and the Alpine Defendants’ payments of fees to SmartTran until October 2006. Neither of these activities establishes a course of conduct supporting SmartTran’s interpretation of the Agreement.
Alpine and Harry London’s questioning of the legal implications of the Agreement for the corporate reorganization had nothing to do with the parties’ course of conduct under the Agreement. For example, SmartTran cites a March 16, 2006, email from a Harry London executive asking questions about the Agreement:
Is the contract with Alpine or some other entity? What is the term? What are the provisions in the event the Flowers deal happens — is this a liability that Flowers will assume? Can KDM be carved out? Are there other factors to be considered?
This email only suggests that a Harry London executive did not have a complete understanding of the Agreement — not that Harry London agreed with SmartTran’s interpretation of the Agreement. To establish a course of conduct, one must actually be acting under the contract. The Alpine Defendants’ payments until October 2006 also fail to support SmartTran’s argument because Kencraft, Maxfield, and Harry London all shipped under the Alpine/UPS Contract and accrued fees until the end of that month. These payments fail to establish a course of conduct supporting SmartTran’s view that it should receive fees under the Agreement even when its recommendations were not used.
Finally, SmartTran argues that it is entitled to fees even if the Alpine Defendants were no longer shipping under the Alpine/UPS Contract because the Alpine Defendants benefitted from the lower rates in the Alpine/UPS Contract in negotiating their own contracts with UPS. For *656Alpine and Harry London, the record belies SmartTran’s assertion. After being purchased by Flowers, Alpine and Harry London shipped under the Flowers/UPS Contract, a contract that had earlier been negotiated independently by Flowers and with no assistance from SmartTran. For Maxfield and Kencraft, SmartTran’s argument may have some merit. Those two companies negotiated a new contract and perhaps benefitted from SmartTran’s recommendations in negotiating that contract. As described in the next section, however, any such claims against Maxfield and Ken-craft fail because they were not signatories to the Agreement.
III.
The breach of contract and the implied duties of good faith and fair dealing claims against Maxfield and Kencraft also fail because neither company was a signatory to the Agreement. See Electron Energy Corp. v. Short, 408 Pa.Super. 563, 597 A.2d 175, 177 (1991) (“[0]ne cannot be liable for a breach of contract unless one is a party to that contract.”). Nowhere in the Agreement are Alpine’s subsidiaries obligated to pay SmartTran for their use of SmartTran’s recommendations. Alpine was responsible for payment of all fees accrued by its subsidiaries. As such, neither Maxfield nor Kencraft can be held liable for breaches arising from the Agreement. SmartTran’s argument that there is a genuine issue of material fact as to whether Maxfield and Kencraft benefitted from its recommendations in the negotiation of their new contract with UPS fails because they were not obligated to pay SmartTran under the Agreement. Thus, any such claim would be one for unjust enrichment and SmartTran does not allege that Maxfield and Kencraft were unjustly enriched.
IV.
No genuine issues of material fact exist for the unjust enrichment and quantum meruit claims against Flowers. It is undisputed that SmartTran never performed any work for Flowers and never played any role in Flowers’s negotiation of the Flowers/UPS Contract. Thus, Flowers never benefitted from SmartTran’s services and was never unjustly enriched. See AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988, 991 (Pa.Super.Ct.2001). SmartTran’s quantum meruit claim fails for the same reason. See id.
V.
The Agreement, as a matter of law, did not entitle SmartTran to fees if its recommendations were not used and Flowers never received any benefit from Smart-Tran’s recommendations. Thus, we will affirm the District Court’s grant of summary judgment for the defendants.
. The District Court exercised diversity jurisdiction over this case, 28 U.S.C. § 1332(a)(1), and we review its grant of summary judgment under 28 U.S.C. § 1291.
. We exercise "plenary review over the District Court's grant of summary judgment." Shuman ex rel. Shertzer v. Penn Manor Sch. Dist. 422 F.3d 141, 146 (3d Cir.2005) (internal quotation omitted). A court should grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that títere is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying that standard, "a court must view the facts in the *653light most favorable to the nonmoving party and draw all inferences in that party's favor.'' Shuman, 422 F.3d at 146 (internal quotation omitted).
. Fannie Farmer was named as a defendant, but the parties now agree that Fannie Farmer is a brand name and not a company.
. After the corporate reorganization, Alpine changed its name to Fannie May Confections Brand, Inc., but for the purposes of this opinion we will continue to refer to the company as Alpine.
. Recognizing that it cannot survive summary judgment without an ambiguity in the Agreement, SmartTran claims that the District Court concluded that the Agreement was ambiguous. This claim is baseless — the District Court did not find ambiguity in the Agreement.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474646/
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OPINION OF THE COURT
PER CURIAM.
T. Barry Gray, proceeding -pro se, appeals an order of the United States District Court for the Eastern District of Pennsylvania denying his motion to proceed in fo7-ma pauperis and an order denying his motion for reconsideration. For the reasons discussed below, we will vacate the District Court’s orders and remand for further proceedings.
Gray filed a pro se motion to proceed in forma paupe7is in connection with a civil rights action. Gray filed his motion individually and as executor of the estate of his mother, Thelma Gray. The District Court denied the motion, noting that Gray had only, submitted an affidavit regarding his financial condition and that he had not indicated whether the estate was solvent and still being administered.
Gray filed a motion for reconsideration and attested that the estate was insolvent and was still being administered. The District Court denied the motion. In a subsequent opinion, the District Court explained that this action was the third attempt by Gray family members to have a federal court adjudicate a mortgage foreclosure dispute previously decided in state court. The District Court found the complaint legally frivolous under 28 U.S.C. § 1915(e)(2)(B), stating that there is no possible legal theory upon which Gray could obtain relief. This appeal followed.
*658We have jurisdiction pursuant to 28 U.S.C. § 1291. Sinwell v. Shapp, 536 F.2d 15, 16 (3d Cir.1976). We review the denial of a motion to proceed in forma pauperis and the denial of a motion for reconsideration for abuse of discretion. See Sinwell, 536 F.2d at 19 (informa pauperis motion); Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999) (motion for reconsideration).
In this Circuit, leave to proceed in forma pauperis is based on a showing of indigence. Deutsch v. United States, 67 F.3d 1080, 1084 n. 5 (3d Cir.1995). The court reviews the litigant’s financial statement, and, if convinced that he or she is unable to pay the court costs and filing fees, the court will grant leave to proceed in forma pauperis. Id. In cases where leave is granted, the court thereafter considers the separate question whether the complaint should be dismissed as frivolous or malicious under 28 U.S.C. § 1915(e)(2)(B). See id. (discussing the standard for dismissal in former § 1915(d), which is now set forth in § 1915(e)(2)(B)). The District Court thus abused its discretion in denying Gray in forma pauperis status on his own behalf based on a determination that the complaint is legally frivolous. See Sinwell, 536 F.2d at 19 (holding that the district court abused its discretion in denying informa pauperis status based on a finding of improper venue rather than on economic status).
The District Court’s denial of in forma pauperis status to the estate, however, was correct on other grounds. See Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 333 n. 8 (3d Cir.2000) (noting appellate court may affirm a decision on a ground other than that relied on by the district court). Only natural persons may proceed in forma pauperis under 28 U.S.C. § 1915. Rowland v. California Men’s Colony, 506 U.S. 194, 196, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Because an estate is not a natural person, it may not so proceed.1 Accordingly, we will vacate the District Court’s orders and remand for further proceedings. On remand, the District Court shall address whether Gray is entitled to proceed in forma pauperis on his own behalf.2
. This appeal also raises a question as to whether Gray, as a non-lawyer, may represent the estate. See, e.g., Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir.1997) (holding that an executor may not proceed pro se when the estate has beneficiaries or creditors other than the litigant). Based on our decision that the estate may not proceed in forma pauperis, it is unnecessary to reach this question.
. We do not imply any disagreement with the District Court's ultimate conclusion as to the viability of Gray's complaint. The decision of whether the complaint is subject to dismissal, however, must await the determination of whether Gray is entitled to proceed in forma pauperis. If he is or if he pays the necessary filing fee, dismissal could not properly occur unless and until Gray actually files his complaint.
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11-05-2022
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Daryl Douglas Dennison pleaded guilty to distribution and possession with intent to distribute cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1). He appeals the denial of his motion to reduce his sentence. We will affirm.
I.
Dennison pleaded guilty to distribution and possession with intent to distribute crack cocaine and was sentenced to 180 months of imprisonment with three years of supervised release. The District Court adopted the Presentence Investigation Report (“PSR”) with a modification. Based on Dennison’s offense level and criminal history category, the PSR calculated an advisory Sentencing Guidelines range of 151 to 188 months.
The PSR also found Dennison to be a career offender. A career offender is a defendant, eighteen years of age or older, convicted of a felony involving violence or a controlled substance and with “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S. Sentencing Guideline Manual § 4B1.1 (2008). The PSR calculated Dennison’s sentence using § 2D1.1, the drug offense table and a gun enhancement of two levels under § 2D1.1(b)(1).1 However, upon motions by both Dennison and the Government, the gun enhancement was deleted from the calculation. By removing the two level enhancement, Dennison’s offense level was 29 under both the *660drug table and the career offender provision.2 On February 15, 2007, the District Court sentenced Dennison to 180 months of imprisonment and three years supervised release using a total offense level of 29.
In November 2007, the Sentencing Commission reduced the base offense levels for crack cocaine offenses under § 2Dl.l(c) by two levels. U.S. Sentencing Guideline Manual app. C, Amend. 706 (2007). The Sentencing Commission later declared Amendment 706 applied retroactively, effective March 3, 2008. U.S.S.G. Manual § 1B1.10(a) (2008).
Subsequently, Dennison moved the District Court to reduce his sentence under 18 U.S.C. § 3582(c)(2),3 relying on Amendment 706. The District Court denied Dennison’s motion, stating that despite the Amendment, Dennison’s guideline range remained the same and thus he was not entitled to a reduction under 18 U.S.C. § 3582(c)(2). Dennison timely appeals the District Court’s denial of his motion.4 We review a court’s decision to deny a motion for reduction of sentence under § 3582(c)(2) for abuse of discretion. See United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009).
II.
Dennison argues 18 U.S.C. § 3582(c)(2) authorizes a reduction in sentence even absent a change to the sentencing range. Although his sentencing range would not change because of the career offender provision, Dennison asserts the “based on” language of § 3582(c)(2) requires only an amended guideline to be part of the overall calculation of the original sentence in order to warrant a reduction. Because the District Court reviewed § 2D1.1 in calculating his sentence,5 Dennison claims his sentencing range was “based on” an amended portion of the guidelines and entitles him to application of Amendment 706.
The District Court did not abuse its discretion in refusing to reduce Dennison’s sentence. Congress requires any sentence reduction pursuant to a guideline amendment to be consistent with applicable policy statements issued by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2); see also United States v. Dillon, 572 F.3d 146, 149 (3d Cir.2009) (holding U.S.S.G. § 1B1.10 unaffected by U.S. v. Booker and binding on district courts through 18 U.S.C. § 3582(c)(2)). The policy statement provides: “[a] reduction in the defendant’s *661term of imprisonment is ... not authorized under 18 U.S.C. § 3582(c)(2) if an amendment ... does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10 (a)(2)(B). Accordingly, a defendant is not entitled to a reduction under § 3582(c)(2) when the amendment does not change the overall guideline calculation. United States v. Mateo, 560 F.3d 152, 154-55 (3d Cir.2009) (citing United States v. Caraballo, 552 F.3d 6, 10 (1st Cir.2008)).
Amendment 706 affects only § 2Dl.l(c) of the Sentencing Guidelines. It does not alter the application of the career offender offense level required by § 4B1.1. See Mateo, 560 F.3d at 155 (“Amendment 706 ... has no effect on the application of the career offender offense level”); see also United States v. Forman, 553 F.3d 585, 589 (7th Cir.2009) (per curiam) (finding Amendment 706 “provides no benefit to career offenders.”); United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir.2008) (“Amendment 706 had no effect on the career offender guidelines in § 4B1.1.”).
III.
Dennison contends the District Court explicitly relied on the drug offense level in § 2D1.1, not the career criminal provision, in calculating his sentence.6 Dennison’s sentencing range is 151 to 188 months of imprisonment irrespective of Amendment 706. In calculating Dennison’s sentence, the District Court correctly determined he was a career offender and relied on § 4B1.1 as the higher available base offense level upon calculation of his sentence. Thus, the drug offense level did not factor into the District Court’s guideline calculation and the Amendment is not applicable. Accordingly, Dennison’s sentencing range does not merit a reduction under 18 U.S.C. § 3582(c)(2).7 Therefore, the District Court did not abuse its discretion in denying Dennison’s motion for a reduction of sentence.
IV.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. This calculation resulted in an offense level of 34 less a three level reduction for acceptance of responsibility under § 3El.l(a) and (b) or a total offense level of 31.
. At the time of Dennison's sentencing, both § 2D 1.1 and § 4B1.1 provided a base offense level of 32. Section 4B1.1 is to be used when the base offense level provided is higher than the offense level under the crime specific provision. U.S.S.G. Manual § 4Bl.l(b).
. 18 U.S.C. § 3582(c)(2) provides a district court may reduce a defendant's sentence whose "term of imprisonment [is] based on a sentencing range that has subsequently been lowered by the Sentencing Commission." A court can reduce a sentence, "after considering the factors set forth in § 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id.
. The District Court had jurisdiction to review Dennison's motion for reduction of sentence under 18 U.S.C. § 3742(a). We have jurisdiction over Dennison's appeal pursuant to 28 U.S.C. § 1291.
. Dennison's argument hinges on the fact that the District Court must consider the drug offense level. Essentially, Dennison argues because a district court must look at § 2D 1.1 in order to compare its offense level to the career offender provision, the ultimate sentence is "based on” § 2D1.1 even if the offense level provided is not used in the overall calculation.
. One court has held that when the career offender provision “unfairly overestimates” the severity of the crime, the lower offense level can be appropriate. United States v. Poindexter, 550 F.Supp.2d 578, 582 (E.D.Pa.2008). Unlike Poindexter, the District Court here did not find using the career offender provision "unfairly overestimated” Dennison's sentence.
Rather, both the career criminal offender level and the drug base offense level were 32 at the time of Dennison's initial sentence. Moreover, given that the District Court reconsidered its sentence on Dennison's motion and declined to grant a reduction because "[t]he guideline range remains the same under the retroactive amendment," it is clear that the District Court based its original determination on the career offender provision.
. Dennison also argues the rule of lenity requires a reduction of his sentence. We previously rejected the rule of lenity argument as it pertains to Amendment 706 and § 3582(c)(2), finding the statute unambiguous. United States v. John Doe, 564 F.3d 305, 315 (3d Cir.2009); see also Mateo, 560 F.3d at 155 (stating the language of § 3582(c)(2) is clear).
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OPINION
PER CURIAM.
Lolita Arango, a state prisoner proceeding pro se, appeals from the District Court’s order granting defendant’s motion to dismiss. Because the appeal does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In September 2008, Arango, an inmate incarcerated at SCI-Cambridge Springs, Pennsylvania, filed a pro se civil rights action against the prison superintendent, *665Rhonda Winstead, alleging that her due process rights were violated in connection with a disciplinary proceeding. Arango claimed that prison officials wrongly accused her of sexual harassment and failed to follow proper procedures in investigating the incident, resulting in a finding of misconduct. As punishment, Arango was subject to a thirty-day cell restriction and she was removed from participating in a Sex Offender Program for six months. Winstead moved to dismiss Arango’s complaint, and in July 2009, the District Court granted the motion, dismissing the case. The court concluded that Arango’s due process claim was not cognizable under 42 U.S.C. § 1983, as it was precluded by the “favorable termination rule” announced in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Arango now appeals from order of the District Court dismissing her complaint under Fed. R.Civ.P. 12(b)(6).
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary view over the District Court’s dismissal. See Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). Summary action is warranted when no substantial question is presented on appeal. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to “[tjhreadbare recitals of the elements of a cause of action, supported by mere eonclusory statements.” Id.
The District Court ruled that Arango’s due process claim was not cognizable under 42 U.S.C. § 1983 because of the “favorable termination rule” announced in Heck and extended to prison disciplinary sanctions that alter the duration of the prisoner’s incarceration in Edwards. Under that rule, a § 1983 plaintiff cannot seek damages for harm caused by actions that implicate the validity of the fact or length of her confinement, unless she can prove that the sanction has been reversed, invalidated, or called into question by a grant of federal habeas corpus relief. Heck, 512 U.S. at 486-87, 114 S.Ct. 2364; Edwards, 520 U.S. at 646-48, 117 S.Ct. 1584. This bar applies not only to requests for money damages, but also to requests for equitable and declaratory relief. See Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). However, claims that relate only to the conditions, and not the fact or duration, of incarceration are not subject to the favorable termination rule. See Wilkinson, 544 U.S. at 82, 125 S.Ct. 1242; Torres v. Fauver, 292 F.3d 141, 145, 150 (3d Cir.2002).
Arango challenges the prison officials’ actions that resulted in her placement in 1’estricted housing for thirty days and removal from a prison program. Because these sanctions did not alter the length of her incarceration, the success of her claim would not “necessarily imply the invalidity” of the fact or duration of her confinement. Edwards, 520 U.S. at 646, 117 S.Ct. 1584; Torres, 292 F.3d at 150. Thus, Ar*666ango’s claim is not subject to the favorable termination rule and is cognizable under 42 U.S.C. § 1983.
Although Arango’s due process claim is cognizable under 42 U.S.C. § 1983, to survive a Fed.R.CivP. 12(b)(6) motion to dismiss, her complaint “must contain sufficient factual matter” to state a plausible claim of a deprivation of a liberty interest protected by the Due Process Clause. Iqbal, 129 S.Ct. at 1949. The Supreme Court has recognized that “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Asquithv. Dep’t of Corr., 186 F.3d 407, 410 (3d Cir.1999) (quoting Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). Due process applies only where the conditions of confinement impose “atypical and significant hardship[s] on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Placement in administrative segregation for days or months at a time or transfers to more restrictive custody do not implicate a pro tected liberty interest. See Torres, 292 F.3d at 150; Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir.2002). Nor does removal from a prison program, as restriction from participation in prison programs is among the conditions of confinement that an inmate may reasonably anticipate during her incarceration. See James v. Quinlan, 866 F.2d 627, 629 (3d Cir.1989). Therefore, Arango’s complaint, alleging that she was removed from a program and placed in thirty days restrictive housing, did not state a plausible violation of a protected liberty interest.
We have held that when a complaint is dismissed for failure to state a claim upon which relief may be granted, a plaintiff should be granted the opportunity to amend her complaint unless amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir.2002). Given that, as discussed above, there are no facts to infer that Arango was deprived of a protected liberty interest, we conclude that it would have been futile for the District Court to provide Arango with leave to amend her complaint before granting the motion to dismiss.1
Because Arango’s due process claim implicated only the conditions, and not the fact or duration, of her confinement, the District Court erred in ruling that the claim was not cognizable under 42 U.S.C. § 1983. However, a Fed.R.Civ.P. 12(b)(6) dismissal was appropriate because Arango’s complaint did not state a deprivation of a protected liberty interest, and we will summarily affirm the District Court’s grant of defendant’s motion to dismiss for that reason. Appellant’s motion for a certificate of appealability is denied as unnecessary.
. Furthermore, Arango was provided with both notice and an opportunity to respond to this very issue, as defendant’s motion to dismiss argued that Arango's complaint failed to allege a protected liberty interest.
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OPINION
PER CURIAM.
Petitioner Darryl Lamont Franklin, a federal prisoner proceeding pro se, filed this mandamus petition pursuant to 28 *674U.S.C. § 1651(a), requesting, among other things, that we order the District Court to adjudicate petitioner’s motion under Rule 59(e), and toll the time for appealing the District Court’s judgment. For the reasons that follow, we will deny the petition.
I.
Franklin is currently serving a 205-month sentence based on a conviction in the Eastern District of Pennsylvania for violating the Hobbs Act, see 18 U.S.C § 1951, and related offenses. On November 15, 2000, we affirmed the sentence and conviction. See United States v. Franklin, 248 F.3d 1131 (3d Cir.2000) (table). In 2002, Franklin filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence. This motion was denied. Franklin subsequently filed a pro se motion to amend judgment which was denied on May 17, 2002. On May 15, 2003, we denied Franklin’s request for a certificate of appealability.
On August 4, 2004, Franklin filed a pro se motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). The District Court denied Franklin’s motion without prejudice as a second or successive motion under 28 U.S.C. § 2255. On August 27, 2008, Franklin filed a pro se motion for “independent action” pursuant to Fed. R.Civ.P. 60(d)(3). In connection with the motion, Franklin also submitted several sets of interrogatories for defense counsel Glennis Clark and Assistant United States Attorney (“AUSA”) Robert E. Goldman. The District Court denied the motion, and a second copy filed by Franklin, as improper attempts to assert successive § 2255 claims. On November 12, 2008, Franklin filed a pro se motion under Rule 59(e) that was denied as time-barred.1 On January 20, 2009, Franklin filed a motion to correct the record in connection with his Rule 59(e) motion that was denied as moot.
On September 22, 2009, Franklin filed the instant mandamus petition, seeking an order compelling the District Court to (1) file into the record interrogatories that were served upon AUSA Robert E. Goldman; (2) file into the record Franklin’s “Motion to Correct the Record,” and adjudicate his Rule 59(e) motion; (3) toll his time to file an appeal under Fed. R.App. P. 4(a)(4)(A)(iv); and (4) send him a courtesy copy of the record or docket entry of all motions and interrogatories that have been filed and served upon AUSA Robert E. Goldman.
II.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). As a precondition to the issuance of the writ, the petitioner must establish that the writ will not be used as a substitute for the regular appeals process, that there is no alternative remedy or other adequate means to obtain the desired relief, and that the right to the relief sought is “clear and indisputable.” Id.; see also In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005); Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). Franklin’s petition does not meet these strict requirements.
At the outset we note that Franklin’s requests that we compel the District Court to docket Franklin’s motion and interrogatories and rule on his Rule 59(e) motion are moot. The interrogatories directed to AUSA Goldman were filed in the District Court on October 3, 2008 (docket entry *675102); Franklin’s motion to correct was filed on January 20, 2009 (docket entry 111) and dismissed as moot on January 29, 2009; and Franklin’s motion pursuant to Rule 59(e) (docket entry 109),2 was considered by the District Court and denied on December 8, 2008.
With respect to Franklin’s request for a courtesy copy of the docket, there is no indication that Franklin has ever sought or been denied such relief from the District Court or any other source. Mandamus is intended to provide a remedy for a party only if “there are no other adequate means of relief and the right to the writ is clear and indisputable.” First Jersey Sec., Inc. v. Bergen, 605 F.2d 690, 700 (3d Cir.1979); Kerr, 426 U.S. 394, at 403, 96 S.Ct. 2119. Because Franklin has other potential avenues of relief available to him, he has not met the strict standards for mandamus relief.
Finally, as to Franklin’s request for an order directing the District Court to toll his time to file an appeal under Fed. R.App. P. 4(a)(4)(A)(iv), he has failed to make a request redressable on a mandamus petition. It is not the District Court’s role or responsibility to determine whether a petitioner is entitled to tolling under Fed. R.App. P. 4(a)(4)(A)(iv). See, e.g., Jackson v. Crosby, 375 F.3d 1291, 1295 (11th Cir.2004) (noting that when a timely Rule 59(e) motion has been filed, tolling under Fed. R.App. P. 4(a)(4) is automatic). Therefore, mandamus can not be used to compel the District Court to toll the time for Franklin to file an appeal. Furthermore, Franklin has made no argument with respect to the timeliness of any appeal, nor is it even clear from the petition which order of the District Court Franklin is seeking to appeal.3
Thus, we find no basis for granting Franklin’s petition for writ of mandamus. Franklin’s mandamus petition will be denied.
. The District Court also ordered that, to the extent the pleading could be construed as a renewed motion under Rule 60(d)(3), it was denied.
. Although the text of docket entry 109 reads "(Pro se) Motion to Alter or Amend 60 Judgment,” the document filed is Franklin’s motion to alter or amend judgment pursuant to Rule 59(e).
. If Franklin is alleging that he did not receive a decision in time to file an appeal, any remedy would be pursuant to Fed. R.App. P. 4(a)(6). Franklin has not moved for such relief in the District Court and it appears that the time for making such a request expired several months before Franklin flied his mandamus petition.
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OPINION
BARRY, Circuit Judge.
Plaintiff Tyra Coleman, along with others, brought this action in the U.S. District Court for the Eastern District of Pennsylvania against her employer, Blockbuster, Inc. (“Blockbuster”), alleging discriminatory training and termination of her employment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981. The District Court, after concluding that Coleman was unable to establish a prima facie case of discrimination, granted Blockbuster’s motion for summary judgment, and Coleman appealed.1 We will affirm.
I. BACKGROUND
On September 8, 2003, Tyra Coleman was hired as a Blockbuster store manager trainee by district manager Cari-Ann Urbanek. She was promoted to store manager at the Grays Ferry, Philadelphia Blockbuster store a few months later. After a series of disciplinary infractions during her nine months with Blockbuster, her employment was terminated on June 22, 2004.
A. Blockbuster’s Progressive Discipline Policy
Blockbuster’s disciplinary policies aim to provide consistency when dealing with employee performance issues and, at the same time, retain enough flexibility to take *678“into consideration the nature of the policy-violation as well as previous disciplinary actions for each individual.” (App. at 331.) Blockbuster’s Employee Handbook makes clear that where there has been a performance violation, “the seriousness and history of [that] violation must be taken into account.” (Id.) Corrective action usually progresses as follows: verbal warning, written warning, final warning, and ultimately, termination. The Handbook is explicit that an employee’s status is “at-will” and that disciplinary measures may be accelerated.
Violations prompting corrective action are broadly classified into three categories, and while the “list of violations is not meant to be all-inclusive,” it is instructive. (Id.) Moreover, any corrective action ultimately “will depend on the exact nature of the offense.” (Id. at 332.) Class A violations, or gross violations, are “very serious and may be grounds for immediate termination.” (Id.) Examples of Class A violations include borrowing money from the cash drawer, disregarding Blockbuster’s policies, engaging in harassing behavior, and making racial slurs. “[G]ross negligence that endangers people or property” is also a violation, and employees are prohibited from “[allowing any non-Blockbuster personnel ... into the store or other Blockbuster facility outside of normal business hours or into unauthorized areas during normal business hours.” (Id. at 335.) Class B violations, or major violations, include negligent conduct that could endanger others and that puts “Blockbuster in a position of possible legal liability.” (Id.) “Opening store late and/or closing store early without District Leader’s permission” is also punishable as a Class B offense. (Id. at 336.) When an employee commits his or her first Class B offense, “the employee may receive a final written warning and be advised that a recurrence may be grounds for termination.” (Id.) Blockbuster’s Standard Operating Procedures (“Operating Procedures”) also make clear that if an “employee is already on Progressive Discipline at the time another violation is committed, he or she may be subject to more stringent penalties even though the later violation is a different type from the earlier one.”2 (Id. at 345.) Finally, Class C violations, or minor violations, include excessive absenteeism, violation of company dress code standards, and “unsatisfactory job performance.” (Id. at 336.) At the first commission of a Class C violation, the employee “may be given a verbal warning ..., [and on] further occurrences, one or more written warnings may be conducted before termination.” (Id.)
B. Coleman’s Employment at Blockbuster
On January 14, 2004, Coleman was assigned to be the store manager at Blockbuster’s Grays Ferry location. Stores are inspected to ensure that they are up to the appropriate level of operational and merchandising standards. When making this assessment, evaluators use the “Model Store Checklist,” and all stores must score an eight or greater. (Id. at 386.) After an evaluation of Coleman’s store on March 2, 2004, the store was given a score of 4.3. Coleman was given a supplemental checklist to improve her store’s condition, and she represented at a meeting on March 9 that she would have her store up to the appropriate standard by April 2. On April 9, however, the store was again evaluated and given a score of 5. Coleman received written corrective action, which cited her “[fjailure to meet performance standard-Store Standards.” (Id.) Coleman and Ur*679banek signed the Corrective Action Record on April 20, 2004.
Coleman received a second Corrective Action Report that same day, this time for her failure to conduct cycle counts on a daily basis; indeed, there had been no cycle counts for nine days.3 Despite signing the Corrective Action Report, Coleman maintained that the failure to perform cycle counts is not listed as a Class A, B, or C offense, and that she was not responsible for carrying out the cycle counts. The Corrective Action Report notes that as store manager, “it is Tyra’s responsibility to ensure that all other employees are also performing their cycle counts.” (Id. at 387.) This discipline was considered a “final warning.” (Id.)
A third Corrective Action Report was issued to Coleman on June 11, 2004. This Report resulted from two alleged infractions: first, Coleman missed a mandatory team meeting on June 7, 2004, and second, Coleman brought her two year-old grandson to work with her. Coleman was instructed to attend all mandatory meetings and reminded not to bring non-employees into the workplace either before or after the store’s scheduled business hours. The consequences portion of the document reads: “Failure to improve will result in termination of employment.” (Id. at 388.) This document notes Coleman’s two prior offenses, is signed by both Coleman and Urbanek, and is marked “final warning.”
Coleman’s termination resulted from an episode that occurred on June 15, 2004. The exact details of what transpired that day are in dispute, but the basic narrative is not. At some point during her shift, Coleman learned that her minor son was having a medical emergency and, having no one else to be with him, she called Urbanek to request permission to close the store early and leave work. Urbanek’s exact response is unclear, but Coleman’s understanding is that she said, “I’m not telling you not to attend to your son, and I’m not telling you not to close the store.” (Id. at 764.) Coleman then claims that Urbanek called her back and reminded her to make certain that the register was properly secured. Whatever this exchange meant, it left Coleman with the impression that she was free to do what she needed to do. On June 22, 2004, Coleman’s employment at Blockbuster was terminated as a result of her closing the store early on June 15. The Employee Separation Form noted Coleman’s disciplinary history: a written warning on April 20 for “store appearance,” a final written warning on April 20 for “failure to protect comp, assets-cycle counts,” and another final written warning on June 11 for “attendance and non-employee in store.” (Id. at 384.)
II. STANDARD OF REVIEW
We exercise plenary review of the District Court’s order granting summary judgment and apply the same standard the Court was required to apply: whether there are any genuine issues of material fact sufficient to permit a reasonable jury to find in favor of the plaintiff. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 362 (3d Cir.2008). In conducting our review, we must view “the facts and any reasonable inferences drawn therefrom in the light most favorable to the party opposing the motion.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004) (quoting InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 160 (3d Cir.2003)). We have jurisdiction under 28 U.S.C. § 1291.
*680III. DISCUSSION
Employment discrimination claims under Title VII and § 1981 are analyzed pursuant to the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green., 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 499 (3d Cir.1999) (“[T]he elements of employment discrimination under Title VII are identical to the elements of a section 1981 claim.”) (internal citations omitted). Accordingly, Coleman bore the initial burden of setting out a prima facie case of discrimination by a preponderance of the evidence. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The burden then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for the employee’s [termination].” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Finally, the plaintiff must then prove by a preponderance of the evidence “that the employer’s proffered reasons were merely a pretext for discrimination, and not the real motivation for the unfavorable job action.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.2003); see Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742.
There is no dispute as to the first three elements of Coleman’s prima facie case: (a) she is African-American, (b) she was qualified for the position that she held, and (c) she suffered an adverse employment action when she was terminated by Blockbuster. At the fourth prong, however, the District Court determined that Coleman failed to offer “evidence that she was terminated under circumstances that give rise to an inference of unlawful termination.” (App. at 29.) Thus, the Court granted summary judgment on Coleman’s Title VTI and § 1981 claims.
On appeal, Coleman argues that the District Court applied too harsh a standard when assessing this final prong of the prima facie case. We disagree. The Court recognized that the aim of the prima facie test is to discern “whether the employer is treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.’ ” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir.1999) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). It proceeded to look for just that, but did not find that Coleman’s case gave rise to an inference of discrimination.
Even assuming arguendo that Coleman established a prima facie case, her claim must nonetheless fail because she is unable to demonstrate that Blockbuster’s proffered legitimate, nondiscriminatory reason for termination “was merely a pretext for unlawful discrimination.” Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir.2000). Demonstrating pretext is a “difficult burden.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). Doing so requires that the plaintiff “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes, 32 F.3d at 764; see Hampton v. Tinton Falls Police Dep’t, 98 F.3d 107, 113 (3d Cir.1996). Making a judgment about whether pretext exists is “a fact-based inquiry,” Kautz v. Met-Pro Corp., 412 F.3d 463, 468 (3d Cir.2005), and so the plaintiff “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them *681unworthy of credence,” Fuentes, 32 F.3d at 765 (internal citations omitted).
Blockbuster came forward with solid evidence to demonstrate that the reason for Coleman’s termination was her dereliction of duty. In accordance with its progressive discipline policy, Coleman’s earlier performance deficiencies did not result in immediate termination. She was first given a written warning for failing to keep the store up to standards, and then issued a final warning for not making certain that routine cycle checks were performed. When she missed a meeting and brought a young child into the store against policy, she was not terminated but, rather, was issued a second written warning. By the time Coleman closed the store early on June 15, she had a record of disciplinary problems, and had been issued two final warnings. Thus, the corrective action followed the progression articulated in the Handbook.
Coleman disputes many of the facts related to the earlier disciplines. For example, she argues that the cycle counts were not her responsibility and that she informed Urbanek that she would miss the June 7 training session but make it up at a later date. Nonetheless, Coleman signed each of these reports at the time they were issued. She also argues that certain of her actions that resulted in some form of discipline were not explicitly listed as Class A, B, or C violations; however, the Handbook is clear at the outset that the “list of violations is not meant to be all-inclusive.” (App. at 331.) As to the June 15 store closure that resulted in her termination, whether Coleman legitimately thought that she had permission to close is not material because there is no evidence even suggesting that her termination was motivated by race. In any event, Coleman argues, “you have to commit the same action over and over again before you’re terminated.” (Id. at 360.) This argument is directly at odds with Blockbuster’s Operating Procedures, which make clear that an employee who has already been disciplined “at the time another violation is committed ... may be subject to more stringent penalties even though the later violation is a different type from the earlier one.” (Id. at 345 (emphasis added).)
Coleman also cites what she describes as “evidence” in her effort to establish pretext. She refers, without any substantiation, to a Caucasian employee in her store who “got away with murder” and was not terminated. (Id. at 360.) She points to yet another employee, Greg Zielinski, who was not terminated, but instead, given a final warning when he closed his store too early. Coleman incorrectly describes him as “similarly situated,” but as Zielinski’s Corrective Action Record indicates, he had no prior disciplinary infractions at the time he was disciplined. Coleman marshals other “contextual evidence of discrimination,” but that “evidence” is page after page of anecdotes overheard and unsubstantiated allegations, all of it having little or nothing to do with her termination or with discrimination.
IV. CONCLUSION
Coleman has not shown “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in Blockbuster’s reasons for terminating her such that a factfinder could “rationally find them unworthy of credence.” See Fuentes, 32 F.3d at 765; see also Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir.1999). The order of the District Court will be affirmed.
. Some of die other plaintiffs filed notices of appeal, but Coleman is the only one who has pressed an appeal.
. Coleman was aware of the Operating Procedures. (App. at 764.)
. Cycle counts are mandatory tasks used to track a store's inventory. They require an employee to "do blind counts on the required product, and then status the item to check for variances” in inventory. (App. at 387.)
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OPINION
PER CURIAM.
Petitioner Jair Izquierdo petitions for review of a decision rendered by the Board of Immigration Appeals on June 25, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Izquierdo is a native and citizen of Peru. He identifies himself as homosexual. He entered the United States as a nonimmigrant visitor in October 2001, stayed longer than permitted, and was served with a notice to appear in June 2006. Izquierdo conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming he suffered past perse*683eution and fears future persecution in Peru on account of his sexual orientation.
On October 16, 2006, after a hearing, the IJ issued an oral decision. He held that Izquierdo was not eligible for asylum because he applied more than one year after arriving in the United States. The IJ also held that Izquierdo failed to meet his burden of proof to establish eligibility for withholding of removal or protection under the CAT. He therefore denied Izquierdo’s applications.
Izquierdo appealed to the BIA, challenging the denial of asylum and withholding of removal.1 The BIA affirmed the IJ’s decision and dismissed the appeal on June 25, 2008. This timely petition for review followed.
II. Analysis
Izquierdo challenges the denial of withholding of removal.2 To qualify for relief, Izquierdo bore the burden of demonstrating a “clear probability” of future persecution, by showing “it is more likely than not” that he would be persecuted if he were to return to Peru. See INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A) ]; INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). This Court reviews the determination under the deferential substantial evidence standard. Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004). Thus, “[t]o reverse the BIA finding we must find that the evidence not only supports that conclusion [that Izquierdo would more likely than not suffer persecution], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
A.
Izquierdo attempted to prove that he suffered past persecution in Peru and, as a result, is entitled to a rebuttable presumption that he would also face future persecution. See Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir.2003). “To establish eligibility for asylum on the basis of past persecution, an applicant must show: (1) an incident, or incidents that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces a government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003).
Izquierdo testified to an unfortunate history of sexual abuse, which he suffered at the hands of his cousin when Izquierdo was a child between the ages of 8 and 14.3 Izquierdo testified that the abuse concluded in 1990, but that he waited to report the abuse to the police until years later, in *6841999 or 2000. The BIA found that the police took Izquierdo’s abuse report, but Izquierdo failed to follow up on or assist with the investigation.4 Accordingly, the BIA held that Izquierdo failed to establish that the government was unable or unwilling to protect him from the sexual abuse. See Abdulrahman, 330 F.3d at 592.
Izquierdo bore the burden of demonstrating in some manner that the police would have been unable or unwilling to protect him at the time the abuse occurred. See, e.g., Fiadjoe v. Atb’y Gen., 411 F.3d 135, 161 (3d Cir.2005) (citing extensive record evidence showing that government would have been unwilling to protect sexually enslaved girl even had the abuse been reported). Izquierdo contends he met this burden by demonstrating that country conditions were such that it would have been futile to involve the police.5 In support, he cites evidence of country conditions in Peru, including reports from 2003 and 2005 of police involvement in and indifference to incidents of mistreatment of gay people. However, this evidence concerns events more than a decade after Izquierdo’s alleged abuse concluded. Izquierdo presented no evidence of conditions in Peru prior to 1990 and, as a result, nothing appears in the record regarding whether or not it would have been futile for Izquierdo to seek police assistance at that time.
Izquierdo attempts to sidestep this problem by contending that his documents demonstrate that persecution “persisted well after the abuse of Petitioner by his cousin.... ” However, he provides no evidentiary basis for the proposition that the conditions for gay people in Peru in 2003 and 2005 were the same as the conditions that existed prior to 1990. Izquierdo bore the burden to establish his eligibility for relief. See Mulanga v. Ashcroft, 349 F.3d 123, 133 (3d Cir.2003). The BIA concluded that he failed to meet that burden, and Izquierdo has not demonstrated that the evidence he presented compels a contrary conclusion.6 See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812.
B.
Izquierdo’s remaining claims are closely related, and all concern his effort to establish a “pattern or practice” of persecution of gay men in Peru. See 8 C.F.R. §§ 1208.13(b) (2) (iii) (A), 1208.16(b)(2)(i). To meet his burden, Izquierdo was re*685quired to present objective evidence demonstrating that persecution is “systemic, pervasive, or organized.” See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). In cases where, as here, “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, [this Court has] authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review the rejection of Izquierdo’s claim under the substantial evidence standard. Chen, 376 F.3d at 223.
In his oral decision, the IJ erroneously concluded that, as a matter of law, he lacked authority to find a pattern or practice of persecution of gay men in Peru because there was no existing statute or appellate court decision squarely addressing the issue. The BIA correctly recognized that the IJ erred, and that the regulations permitted Izquierdo to attempt to present evidence establishing a pattern or practice of persecution. However, the BIA concluded that the IJ’s error was harmless because Izquierdo failed to meet his burden of proof under the correct standard.
Izquierdo claims that the IJ “implicitly found that there was sufficient evidence” to establish a pattern or practice of persecution, and the BIA wrongfully set aside the IJ’s findings of fact and substituted its own to conclude that no pattern or practice of persecution exists. We disagree. Although the IJ acknowledged evidence of serious problems concerning the treatment of gay men in Peru, see A.R. 69, he did not determine as a matter of law whether such treatment is “systematic, pervasive, or organized,” as required to constitute a pattern or practice of persecution. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). The BIA concluded that the IJ’s factfinding was not clearly erroneous, see BIA Decision, A.R. 4, and then appropriately applied the correct legal standard to those facts. See 8 C.F.R. § 1003.1(d)(3)(h) (the BIA may review questions of law de novo).
Izquierdo next contends that the BIA failed to consider all of his pattern or practice evidence, and as a result, reversal is warranted. However, the record reflects that the BIA considered Izquierdo’s evidence. For instance, Izquierdo claims that the BIA ignored a 2005 report from the Canadian Immigration and Refugee Board stating that gay people in Peru faced “extensive discrimination” and that homosexuality was “taboo.” However, the BIA expressly cited that same report for support that conditions for homosexual people in Peru are improving. See A.R. 4. Moreover, although we require the BIA to demonstrate an understanding of the petitioner’s claims and a review of the evidentiary record, see Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002), we do not demand a mechanical and rigid accounting of every piece of evidence. Here, the BIA’s decision reveals that it adequately reviewed the record and considered Izquierdo’s claims.
In addition, because Izquierdo presented records that were out of date — some by more than a decade — and therefore not reflective of current country conditions in Peru, the BIA also took administrative notice of a recent 2007 State Department report. Izquierdo objects, contending that it was error to consider the report, and that the BIA should have allowed him the opportunity to rebut its contents. Again, we disagree. The BIA is permitted to take administrative notice of certain facts within its area of expertise, see 8 C.F.R. § 1003.1(d)(3)(iv); Zubeda v. Ashcroft, 333 F.3d 463, 479 (3d Cir.2003), including State Department Country reports. See 67 Fed.Reg. 54878, 54892-3 (Aug. 27, 2002) (listing DOS country condition reports as an ex*686ample of what was intended by the term “official documents” in the regulation). Indeed, this Court has encouraged the BIA to view applicants’ claims in light of current country conditions. See Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir.2004). Under the regulations, Izquierdo should have anticipated that the BIA could take notice of recent country conditions in rendering its decision.
In sum, Izquierdo bore the burden of demonstrating the existence of a pattern or practice of persecution of gay men in Peru. The BIA concluded that the objective evidence was insufficient and, as a result, Izquierdo failed to meet that burden. We have closely reviewed the record and conclude that it does not compel a contrary conclusion. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. The BIA’s decision rests upon substantial evidence.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. On appeal to the BIA, Izquierdo did not challenge the denial of protection under the CAT. Accordingly, he may not raise any issue concerning his CAT claim in his petition for review. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
. Izquierdo does not challenge the denial of his asylum claim on the grounds that he did not apply within one year of arrival in the United States and failed to present extraordinary circumstances excusing the delay. See INA §§ 208(a)(2)(B), (D) [8 U.S.C. §§ 1158(a)(2)(B), (D)]. This Court would lack jurisdiction to entertain a challenge to that determination in any event. See INA § 208(a)(3) [8 U.S.C. § 1158(a)(3)]; Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir.2006).
.Izquierdo also alleged past persecution based upon events in 2001, when he was an adult. According to Izquierdo, these were attacks and attempts at extortion led by the same cousin who had abused him as a child. The IJ found that Izquierdo’s testimony concerning these attacks was not credible and the BIA affirmed. Izquierdo does not dispute this conclusion.
. Izquierdo argues that follow up with police would have been futile. In support, he refers to his testimony that the police made him repeat his description of the abuse in a public area and demanded that he produce witnesses. While Izquierdo's testimony demonstrates some degree of police insensitivity, we disagree that it compels the conclusion that follow-up would have been "pointless.”
. Izquierdo also argues that the BIA erred by imposing a requirement that he should have reported the abuse when it occurred. We are sympathetic to the fact that Izquierdo was a child at the time, and agree that a contemporaneous report to authorities is not an absolute prerequisite. See Fiadjoe, 411 F.3d at 161. However, we disagree that the BIA imposed such an absolute requirement. Rather, we read the BIA’s decision as having considered Izquierdo's delay in reporting as relevant to determining whether Izquierdo met his burden to establish that police were "unable or unwilling to control” the abuse.
.In addition, because Izquierdo traveled to the United States and then returned to Peru in 2001, the BIA held that Izquierdo’s decision to return to Peru undermined his claim of a subjective fear of persecution. Izquierdo argues that his return to Peru does not undermine his claim because he is entitled to a rebuttable presumption of a fear of future persecution. Izquierdo is incorrect. An applicant must actually establish past persecution in order receive the benefit of the rebut-table presumption of a well-founded fear of future persecution. See Li v. Att'y Gen., 400 F.3d 157, 163 (3d Cir.2005).
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OPINION
McKEE, Circuit Judge.
Timothy Do appeals the sentence that was imposed after he pled guilty to distrib*687uting and possessing methylenedioxymethamphetamine (“ecstasy”) in violation of 21 U.S.C. § 841(a)(1). See Sentencing Hearing Transcripts, 45 (Jan. 3, 2008). He argues that the district court erred in failing to apply 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 (the “safety valve” provision) to reduce his sentence, and that the court erroneously included an additional 8,000 ecstasy pills in the guideline calculation. For the reasons set forth below, we will affirm.1
I.
As we write primarily for the parties who are familiar with the facts of this case, we need not recite the factual or procedural history in detail.
Under the safety valve provision of the United States Code and the United States Sentencing Guidelines, a district court may depart from an otherwise applicable mandatory minimum sentence if five statutory requirements are satisfied.2 18 U.S.C. § 3553(f); and U.S.S.G. § 5C1.2. A defendant must prove that he/she satisfies each of those five requirements by a preponderance of the evidence. Sabir, 117 F.3d at 754; United States v. Wilson, 106 F.3d 1140, 1141 (3d Cir.1997). Here, the district court found that Do had not established that he had provided “all information and evidence ... concerning the offense ...,” as required by the fifth element. 18 U.S.C. § 3553(f)(5). See Sabir, 117 F.3d at 754.
We reject Do’s argument that the this was clear error because the district court’s conclusion is, at a minimum, “plausible in light of the record.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Although the record established that Do was involved in drug trafficking during the six-months he lived in Philadelphia, he claimed that he did not know the last name or address of his suppliers or customers and failed to successfully contact them after his arrest.
Moreover, Do’s accounts of his drug involvement were inconsistent and contrary to the record. His phone records and border crossing records suggested that his true supplier was in Canada. Yet, Do insisted on claiming that his supplier was local. Do stated that he was given the 15,000 ecstasy pills on consignment in Philadelphia on December 19, 2006. Although he owed the supplier $50,000 for those pills, Do’s calls to the alleged local supplier went unanswered. Meanwhile, Do’s phone *688records indicated that he called a Toronto phone number over 37 times in December of 2006. Border crossing records showed that Do crossed into Canada on December 17, 2006. After his arrest, Do received multiple calls from the same Toronto phone number he called in December. Yet, Do offered no evidence pertaining to a Toronto connection except to state that the number he had called belonged to his cousin.
The district court’s conclusion that Do’s information was “less than forthcoming,” “not credible,” and “inconsistent,” App. at 95-96, is therefore totally consistent with this record, and we agree that Do failed to meet his burden of proving that he qualified for the application of the safety valve provision.
II.
Do also argues that the district court committed clear error by including an additional 8,000 ecstasy pills in its guideline calculations. However, since the district court correctly refused to apply the safety valve provision of the guidelines, we need not reach that issue.3 The statutorily prescribed mandatory minimum sentence of 120 months imprisonment applied and the court had no authority to impose a lesser sentence. Thus, a lesser drug quantity would not have reduced his sentence.
III.
For the foregoing reasons, we will affirm the sentencing judgment of the district court.
. We review the district court’s conclusions of law de novo, and afford clear error review to the district court’s factual findings. United States v. Sabir, 117 F.3d 750, 752 (3d Cir.1997).
. The five requirements are: "(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substance Act; and (5) not later than the time of the sentence hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement." 18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2 (adopting identical language).
. Both parties agree that Do's second argument is relevant only if we reverse the district court's conclusion as to the applicability of the safety valve provision. See Appellant Br. at 19 n. 7; Appellee Br. at 31-32.
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OPINION
PER CURIAM.
Isan Contant appeals from an order of the United States District Court for the Middle District of Pennsylvania, which denied his petition for a writ of habeas corpus.
Contant is a citizen of Trinidad and Tobago. He entered the United States in 2004 on a tourist visa, and stayed longer than permitted. In October 2007, he was convicted and sentenced to one year imprisonment and two years probation for criminal possession of cocaine in New York.1 In December 2007, the Department of Homeland Security charged Contant with being removable because he had overstayed his visa. Contant was taken into custody on March 7, 2008 and was ordered detained without bond.
On May 20, 2008, an Immigration Judge (IJ) conducted a redetermination hearing and denied Contant release on bond. Contant appealed, and the BIA affirmed on July 16, 2008, finding that Contant had failed to demonstrate that he was not a danger to the community.
*694Contant filed an 1-360 visa self-petition under the Violence Against Women Act, and was issued a notice on June 27, 2008 that he was prima facie eligible for relief under the Act.2 However, the Acting Director of the Vermont Service Center also informed him by letter of the same date that “a decision on your petition has been delayed” and that it could give him “no definite time frame for when your petition will be adjudicated.”
Contant filed the instant habeas petition pursuant to 28 U.S.C. § 2241 in October 2008, claiming that his indefinite detention without review was unreasonable and violated his right to due process. Contant then had a removal hearing on November 18, 2008, but the IJ continued the hearing pending a decision on the 1-360 petition. While the habeas petition was pending, the IJ, in a December 2, 2008 decision, again reiterated that Contant was a danger to the community, and observed that the pending 1-360 petition did not represent a changed circumstance warranting redetermination of bond. The District Court denied Contant’s habeas petition on February 20, 2009, 2009 WL 427244, and Contant filed a timely notice of appeal.3
Where the district court denied habeas relief without an evidentiary hearing, our review is plenary. Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir.2004). The District Court held, and the parties agree, that the authority for Contant’s detention is 8 U.S.C. § 1226(a). That statute provides that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States,” and authorizes the Attorney General to continue to detain the alien, release the alien on bond, or release the alien on parole. Id.
As the District Court noted, neither Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), nor Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), directly applies here. Zadvydas concerned the prolonged detention of aliens subject to a final order of removal. Those aliens are detained pursuant to 8 U.S.C. § 1231(a)(6), which authorizes post-removal-period detention. The Supreme Court held that this statute, when “read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States,” and thus does not “permit indefinite detention.” Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491. The Supreme Court determined that six months was a presumptively reasonable period of detention, and held that an alien must be released after that time if he could show that there was no significant likelihood of his removal in the reasonably foreseeable future. Id. at 701, 121 S.Ct. 2491.
Unlike the petitioners in Zadvydas, Contant is being detained “pending a decision on whether [he] is to be removed from the United States,” 8 U.S.C. § 1226(a). See Zadvydas, 533 U.S. at 697, 121 S.Ct. 2491 (noting that “post-removal-period detention, unlike detention pending a determination of removability ... has no obvious termination point”). Moreover, there is no indication that Contant cannot be deported to Trinidad and Tobago following an unfavorable removability decision. See id. at 699, 121 S.Ct. 2491 (removal was not *695reasonably foreseeable because the United States lacked an extradition treaty with the deportees’ home countries, and no other country would accept them). Rather, Contant’s removal proceedings were continued — at his own request — while his visa petition was pending. According to the Government, Contant’s visa petition has now been denied and his removal proceedings can proceed. Accordingly, although we cannot say exactly when Contant’s removal proceedings will be completed, Contant does not find himself in a “removable-but-unremovable limbo” similar to the petitioners in Zadvydas. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 347, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005).
As the District Court correctly noted, Contant’s situation is more similar to that faced by the petitioner in Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir.2008), who was detained for over three years while seeking administrative and judicial review of his removal order. The Ninth Circuit determined that the detention was authorized by § 1226(a), which the Court construed, consistent with Zadvydas, as limiting the Attorney General’s detention authority to the period “reasonably necessary” to effectuate the alien’s removal. Id. at 1063. Although it acknowledged there was “some degree of uncertainty as to when [the] detention [would] conclude” and that the petitioner’s “removal ha[d] certainly been delayed by his pursuit of judicial review,” the Court held that the detention was not indefinite because the petitioner “remain[ed] capable of being removed — even if it ha[d] not yet finally been determined that he should be removed.” Id. at 1065 (emphasis in original). Similarly, although Contant has been detained for a lengthy period of time — as of this writing, approximately nineteen months — he remains capable of being removed, and a decision on his removability appears likely in the reasonably foreseeable future.
Kim involved an alien detained during the pendency of removal proceedings pursuant to 8 U.S.C. § 1226(c), which provides for mandatory detention of certain criminal aliens. The petitioner in Kim argued that § 1226(c) violated his due process rights because it did not require the INS to determine that he posed either a danger to society or a flight risk. Id. at 514, 123 S.Ct. 1708. The Supreme Court held that the mandatory detention without an individualized determination was constitutionally permissible. 538 U.S. at 531, 123 S.Ct. 1708. In reaching that conclusion, the Court emphasized the short period of time that most aliens are detained pursuant to § 1226(c), noting that in 85% of cases the alien’s removal proceedings were completed in an average time of 47 days. Id. at 529, 123 S.Ct. 1708.
To the extent Contant relies on Kim to contrast his lengthy detention with the average detention period for persons detained pursuant to § 1226(c), that comparison is inapposite. Unlike the mandatory detention statute at issue in Kim, § 1226(a) provides for individualized detention determinations. Aliens detained pursuant to § 1226(a) may be released if they demonstrate they would not pose a danger to property or persons and they are likely to appear for any future proceedings. 8 C.F.R. § 236.1(c)(8). The alien may request a bond redetermination hearing before an IJ. 8 C.F.R. § 236.1(d)(1). An IJ may grant an alien’s request for bond redetermination where the alien has shown that his “circumstances have changed materially since the prior bond redetermination.” 8 C.F.R. § 1003.19(e). The alien may appeal the IJ’s bond decision to the BIA. 8 C.F.R. § 236.1(d)(3). Contant was afforded the review provided by these regulations. *696Moreover, like the petitioner in Kim, Contant’s unusually lengthy period of detention pending a decision on his removability is attributable to his own request for a continuance. See Kim, 538 U.S. at 530, 123 S.Ct. 1708 (noting that petitioner’s detention period of 6 months, which was longer than the average period of 47 days, was due to his own request for a continuance of his removal hearing).
In sum, Contant’s detention is not “indefinite,” as there is no indication that he could not be removed to Trinidad and Tobago if he is ordered removed, and the end of his detention is reasonably foreseeable; i.e., at the conclusion of his removal proceedings. We will therefore affirm the District Court’s judgment.4
. The latest information in the record is that the conviction is still on direct appeal.
. Content's visa petition apparently alleged that he had been subjected to battery or extreme cruelty by his U.S.-citizen spouse.
. Contant also filed a motion for reconsideration in the District Court, which was denied on April 27, 2009. As Contant did not file a notice of appeal of that decision, it is not before us. Fed. R.App. P. 4(a)(4)(B)(ii).
. Contant's motion to expedite is granted; his motion for release on bail pending appeal is denied.
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OPINION
PER CURIAM.
Xi Quang Tang, a native and citizen of China, entered the United States in November 2005. He appeared before an Immigration Judge (“IJ”) and conceded that he was removable for entering without being admitted or paroled. See Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i) ]. Tang filed an applica*698tion for asylum, withholding of removal, and relief under the Convention Against Torture. He alleged that he suffered past persecution, and feared persecution in the future, on account of his religion. Tang claimed that he had been a member of an “underground” Christian church whose parishioners were targeted for arrest. After a warrant for Tang’s arrest was published on the town bulletin board, he was fired from his job. He then left town for a friend’s house, where he remained in hiding for several months before leaving for the United States. In support of his claim, Tang submitted a Chinese baptismal document, a photograph of the choir performing in the underground church, and the warrant for his arrest. He also provided a “Certifícate of Baptism” from a Philadelphia church, photographs of the baptism ceremony, and statements from his sister and the friend with whom he stayed while in hiding.
The IJ denied relief, finding that Tang provided inconsistent testimony, lacked sufficient knowledge of Christianity and China’s church registration policies, and failed to provide reasonably expected corroboration. Tang appealed to the Board of Immigration Appeals (“BIA”), arguing that the IJ’s credibility determination was not supported by substantial evidence. The BIA adopted and affirmed the IJ’s decision, concluding that Tang “has failed to resolve the numerous credibility issues raised by the [IJ] and has not provided an explanation for his lack of corroborating evidence.” Tang filed a timely petition for review.
We have jurisdiction under INA § 242 [8 U.S.C. § 1252].1 Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this Court reviews the decisions of both the BIA and the IJ. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). Our review of these decisions is for substantial evidence, considering whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir.2009) (internal citation omitted). We will uphold an adverse credibility determination under the substantial evidence standard “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir.2008) (internal citation omitted). Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”2 INA § 242(b)(4) *699[8 U.S.C. § 1252(b)(4) ]; see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009).
We conclude that the IJ’s adverse credibility determination is not supported by substantial evidence. The primary inconsistency cited by the IJ involved the photograph of the choir performing at the “underground” church, which Tang claimed was located in a single family residence.3 See Administrative Record (“A.R.”), 97-98, 260. The IJ concluded that the photograph appeared to show “an auditorium sized facility.”4 Tang’s attorney attempted to elicit details about the church building on direct examination, but the IJ would not allow it, asking, “[wjhat’s the relevance of what kind of building?” A.R. 80. Tang’s attorney explained that the building could indicate that it was an unregistered church. Id. But the IJ did not relent, stating, “I have no background as to, if, if a church is registered or not. So [Tang] can testify until, all day, and unless you give me some background on it, I can’t make these deductions.”5 Id. Tang did discuss the size of the church building on cross examination, however, testifying that “[p]eople [in his town] built pretty big houses,” that his church was located in a two-story house, and that the house was “a little bigger than [the approximately 15 x 30 foot courtroom], much more in length.” Id. at 105-06. The IJ acknowledged that “[i]t’s a big court, I mean, relatively that would be a big house.” Id. at 106. Moreover, because the photograph did not provide a full view of the room, the IJ should not have expected “indicia of it being a personal family residence.”
*700In addition, the IJ’s conclusions regarding Tang’s alleged lack of knowledge are not supported by substantial evidence. The IJ found that Tang did not know “the basis for China’s church registration policy,” “failed to demonstrate any basic knowledge about Christianity,” and was unaware of the denominational affiliation, if any, of his church in China. First, the IJ unreasonably required Tang to demonstrate an understanding of the reasons behind China’s policies toward religion.6 Cf. Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.2006) (“the critical showing that an applicant must make ... is that he has suffered past persecution, or fears future persecution, on the basis of religion,” not that he has detailed knowledge about a religion). And Tang did recognize that his church was targeted because “it is apparently [an] illegal organization.” A.R. 104. Further, the IJ’s conclusion that Tang “failed to demonstrate any basic knowledge about Christianity” is incorrect. When asked by the IJ to state “[j]ust the important things” he had learned about Christianity, Tang replied that “[w]e all have sins. Jesus uses blood to, to wash away ours sins. After we die Jesus will help us so we can, so we could go to Heaven.” A.R. 87. In addition, the IJ improperly faulted Tang because he did not know the denomination of the church he attended in China. Although the IJ concluded that “[t]here was no evidence presented that churches in China do not have denominations,” it does not follow that Tang’s church must have been classified by religious doctrine or that Tang would have knowledge of such a classification. See Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n. 2 (8th Cir.2005).
Finally, even if the IJ reasonably required evidence corroborating Tang’s “Christian affiliation in the United States,” the IJ’s examination of whether such evidence had been provided was inadequate. In denying relief based on a lack of corroboration, the IJ must conduct the following three-part inquiry: (1) an identification of facts for which it is reasonable to expect corroboration; (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he has not, (3) an analysis of whether the applicant has adequately explained his failure to do so. See Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006). Here, the IJ concluded that Tang could have submitted a letter from his pastor, a statement from the relative who first took him to the church, or the study material he used to prepare for his baptism. The IJ also rejected Tang’s explanation that he had left his baptism study materials at home and that his preacher did not have time to testify. Importantly, however, the IJ failed to address other evidence corroborating Tang’s membership in the Philadelphia church, such as his “Certificate of Baptism” and photographs of his baptism ceremony. See Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir.2006) (recognizing that an IJ must “actually consider” the evidence presented by a party).
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order of May 6, 2008, and remand for further proceedings consistent with this opinion.
. The Government argues that Tang failed to exhaust his administrative remedies "with respect to each individual element" of the IJ's decision. We disagree. In his brief to the Board, Tang asserted that the IJ "incorrectly determined that [his] testimony was not credible." See Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006) (stating that "so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.”). In addition, the Board, citing to numerous pages from the transcript, referred to Tang's “contradictory testimony, prior statements, and material inconsistencies," as well as his failure to provide corroborating documentation. See Lin v. Att'y Gen., 543 F.3d 114, 122-23 (3d Cir.2008) (noting that exhaustion may occur when the BIA sua sponte considers an issue).
. Because Tang's asylum application was filed after the effective date of the REAL ID Act (May 11, 2005), the IJ was allowed to make a credibility determination “without regard to whether an inconsistency, inaccuracy, *699or falsehood goes to the heart of the applicant’s claim----" INA § 208(b)(l)(B)(iii) [8 U.S.C. § 1158(b)(l)(B)(iii) ]. We conclude that the adverse credibility determinations in this case cannot survive even under this new provision, the lawfulness of which we have not considered.
.The only other inconsistency cited by the IJ pertained to Tang’s Chinese baptismal document, which indicated that he was baptized on November 15, 2000. Tang testified, however, that he was baptized in November 2001. Tang explained that the date on the document was a "mistake.” We conclude that this date discrepancy does not provide substantial evidence in support of the IJ's adverse credibility finding, particularly in light of Tang's otherwise consistent account and other pertinent documentary evidence. See INA § 208(b)(l)(B)(iii) [8 U.S.C. § 1158(b)(l)(B)(iii) ]. The IJ found that those "other documents contradicted [Tang's] ... claim that he was a member of an unregistered underground Christian church, which violated China's laws and therefore caused the government to seek his arrest.” In reaching this conclusion, however, the IJ failed to address a March 18, 2005, warrant to "arrest religion member” Tang, a letter from Tang’s sister describing village officials’ efforts to locate Tang, and a "certificate” from the friend with whom Tang stayed indicating that Tang had "escaped” because “he was want[ed] by [the] Police Bureau for religion belief.” See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007) (holding that IJ "failed to take into account relevant and persuasive evidence that would not only explain the alleged inconsistencies, but would also support [the petitioner's] allegations of ... persecution.”).
. The IJ also focused on perceived inconsistencies concerning the number of people who belonged to Tang’s church. Tang initially testified that there were "[a] little over 10” members. A.R. 92. According to the IJ, Tang "later doubled the size of the membership from 10 to 20 when confronted with the photograph of the choir.” This is not an accurate characterization of Tang's testimony. Responding to a question from the IJ that was unrelated to the photograph, Tang in fact stated that there were ”[o]ver 10 but less than 20” members. Id. at 105.
. Notably, the IJ failed to acknowledge that the record contained the Department of State Country Reports, in which the registration of "house churches” in China is discussed.
. The IJ suggested that Tang's church was properly registered with Chinese authorities because he "did not dispute that there was a sanctioned affiliation between his church and the government.” This is a mischaracterization of Tang’s testimony. He first asserted that there was no affiliation, then stated that he was not sure whether an affiliation existed between his church and a nearby public school.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474673/
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OPINION
PER CURIAM.
Sean Pressley, a Pennsylvania prisoner proceeding pro se, filed an action under 42 U.S.C. § 1983 alleging violations of his procedural due process and Eighth Amendment rights. The District Court entered summary judgment in favor of the defendants. On appeal, Pressley argues, among other things, that the District Court erred in entering summary judgment on his procedural due process claims. We will remand the ease to the District Court.
In 2001, Pressley was incarcerated at the State Correctional Institute at Greene in Waynesville, Pennsylvania (“SCI-Greene”). Between March 29 and August 20, 2001, Pressley was charged with thirteen counts of misconduct at SCI-Greene. Following three institutional disciplinary proceedings, he was sentenced to 1080 days’ disciplinary custody in the Restricted Housing Unit (“RHU”). He served roughly two years of the sentence at SCI-Green, and the remaining year at the State Correctional Institution in Camp Hill, Pennsylvania (“SCI-Camp Hill”).1
In December 2001, Pressley filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of Pennsylvania against vari*703ous employees of the Pennsylvania Department of Corrections (“DOC”). In August 2002, Pressley filed an amended complaint in which he alleged that he was denied procedural due process at his disciplinary proceedings because he had not been given notice of the charges against him, and was otherwise precluded from participating in the hearings. Pressley also alleged that he was denied due process when the defendants deducted money from his inmate account without providing him with notice and an opportunity to be heard. Pressley further alleged that his Eighth Amendment rights had been violated because, for example, he was denied a proper diet, was exposed to contaminated utensils, and was given dirty garments.
In January 2003, Pressley sought leave to file a second amended complaint. A Magistrate Judge granted Pressley’s request, and Pressley filed his pleading. Soon thereafter, however, the defendants objected, claiming that they had never been served with a copy of the new complaint. As a result, by order entered February 4, 2003, the Magistrate Judge ordered the second amended complaint stricken from the record. Pressley appealed the Magistrate Judge’s order to the District Court, but the court affirmed the Magistrate Judge’s decision. In April 2003, Pressley submitted another motion to the Magistrate Judge requesting leave to file a second amended complaint. The Magistrate Judge denied this request as well, explaining to Pressley that he had again failed to serve the defendants, and had also failed to attach a copy of the proposed second amended complaint to his motion. As before, Pressley appealed to the District Court, and the District Court affirmed. Pressley apparently sought leave to amend his complaint at least once more, in November 2004, but the Magistrate Judge denied that request as well.
The District Court found that Superintendent Blaine, Deputy Superintendent Miller, Hearing Examiner Bitner, members of the Program Review Board, and D’Eletto and Torrets (who were involved in the disciplinary hearing appeals process) were entitled to judgment as a matter of law. (Dist. Ct. Memorandum Opinion & Order, May 17, 2006.) As a result, when the motion for summary judgment was filed, the only defendants left in the case were the corrections officers directly involved in the disputed misconduct reports and hearings. The motion asked for summary judgment on Pressley’s Eighth and Fourteenth Amendment claims. On February 8, 2008, 544 F.Supp.2d 446, the District Court2 granted the motion and entered judgment in favor of the defendants. This appeal followed.3
II.
A. District Court’s Order Striking Pressley’s Motion for Leave to File Second Amended Complaint
Pressley first claims that the District Court abused its discretion by denying his request for leave to file a second amended complaint. As noted above, Pressley was able to initially amend his complaint in August 2002, but was subsequently denied permission to file a second amended complaint on three separate occasions. Pressley now challenges the first of these three denials — i.e., the Magistrate Judge’s February 4, 2003 order striking the second *704amended complaint and the District Court’s February 21, 2008 order affirming the same. The Magistrate Judge had granted Pressley leave to file a second amended complaint, and Pressley did so, but the defendants objected, claiming that they had not been served with a copy thereof. As a result, the Magistrate Judge ordered the second amended complaint stricken from the record. Pressley now admits that, at the time that the defendants filed their objections, he had not yet properly served them, but claims that he did in fact mail a copy of the pleading soon thereafter. Pressley contends that the defendants never informed the Magistrate Judge that he had corrected his error, even though there was ample time to do so before the Magistrate Judge ruled on their objections.
Even assuming, however, that the District Court was, as Pressley alleges, ill-informed as to whether he had eventually effected service, he has not demonstrated how he was prejudiced by the Court’s error. Nothing prevented Pressley from returning to the Magistrate Judge with another motion seeking leave to file a second amended complaint, and, in fact, Pressley did just that. Although his second attempt was equally unsuccessful, his lack of success was due to his own error, not the Magistrate Judge’s. See Ranke v. Sanofi-Synthelabo, Inc., 436 F.3d 197, 206 (3d Cir.2006) (holding that a failure to submit a draft amended complaint is fatal to a request for leave to amend). Therefore, Pressley has not demonstrated that he is entitled to any relief on this basis.4
B. Defendant’s Failure to Produce Requested Discovery
Pressley next argues that the District Court erred by ruling on the defendants’ summary judgment motion before discovery was completed. Pressley states that, on June 15, 2005, he filed a motion to compel discovery, which the District Court granted. According to Pressley, however, the defendants never produced the requested discovery. Pressley claims that he notified the court of their failure to do so during a telephone conference on March 26, 2007, but that the Court instructed him to save his argument for his brief in opposition to the defendant’s motion for summary judgment. Although Pressley did include an argument on the issue in his brief, the District Court apparently saw no basis for relief. Pressley now argues that, because the District Court failed to order the defendants to produce the requested documents, he was unable to sufficiently support his Eighth Amendment claims.
We cannot discern any error in the District Court’s actions. As noted above, the District Court instructed Pressley to set forth his argument in his brief in opposition to the defendants’ motion for summary judgment. Although he did include an argument in his brief, he failed to identify the documents he sought, or demonstrate how those documents would support his claims. Instead, he simply asserted that the defendants’ failure to disclose the “requested discovery” prejudiced him “by limiting his ability to adequately respond *705to their claims.” (Brief in Opposition to Defendants’ Motion for Summary Judgment 8.) Without further guidance as to the nature or relevance of the requested discovery, the District Court had no reason to delay adjudication of the defendants’ motion for summary judgment.
C. Due Process Claims
Next, Pressley challenges the District Court’s order granting the defendants’ motion for summary judgment on his Fourteenth Amendment due process claims. We review a District Court’s order granting summary judgment de novo. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). Summary judgment is proper only if it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir.2002).
1. Misconduct Hearings
Pressley first argues that the District Court erred in concluding that the duration of his placement in disciplinary custody in the RHU, and the attendant hardships of such confinement, did not give rise to a protected liberty interest. He also argues that the court erred in finding that the defendants afforded him all of the process that he was due at his disciplinary proceedings.
In analyzing a procedural due process claim, the first step is to determine whether the nature of the interest is encompassed within the Fourteenth Amendment’s protection. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Once we determine that the interest is protected, the question becomes what process is due to protect it. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
a. Pressley’s Liberty Interest
Procedural due process rights are triggered by deprivation of a legally cognizable liberty interest. For a prisoner, such a deprivation occurs when the prison “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In determining whether a protected liberty interest exists, the court must consider: (1) the duration of the disciplinary confinement; and (2) the conditions of that confinement in relation to other prison conditions. Id. Because of the fact-specific nature of this test, our cases engaging in this inquiry have reached differing outcomes. Compare Leamer v. Fauver, 288 F.3d 532, 545 (3d Cir.2002) (denial of the right to participate in a sex offender treatment program that was “mandated and promised” by New Jersey law implicated a protected liberty interest), and Shoats v. Horn, 213 F.3d 140, 144 (3d Cir.2000) (eight year’s in administrative confinement, during which inmate was locked in his cell for all but two hours per week, denied contact with his family, and prohibited from visiting the library or “participating in any education, vocational, or other organization activities,” implicated a protected liberty inter est), with Smith v. Mensinger, 293 F.3d 641, 645, 654 (3d Cir.2002) (seven months in disciplinary confinement did not implicate a liberty interest), Torres v. Fauver, 292 F.3d 141, 151-52 (3d Cir.2002) (disciplinary detention for fifteen days and administrative segregation for 120 days was not atypical treatment in New Jersey prisons and therefore did not implicate a protected liberty interest), and Griffin v. Vaughn, 112 F.3d 703, 706-09 (3d Cir.1997) (administrative detention, which imposed strict restrictions on outside contact *706and personal conveniences, did not implicate a protected liberty interest).
In this case, the District Court held that Pressley failed to establish that his sentence of 1080 days in disciplinary custody constituted an “atypical and significant hardship” sufficient to trigger a liberty interest under Sandin. In reaching this conclusion, the Court relied on our nonprecedential opinion in which we held that a prisoner who was sentenced to 930 days in disciplinary confinement failed to state facts, or submit evidence, showing that he was subject to conditions that met the Sandin requirement. The District Court compared the length of Pressley’s sentence to the 930-day sentence in that case, and reasoned that “[i]f 930 days does not [constitute] an atypical and significant hardship, a mere five months more does not either.” (Dist. Ct. Feb. 8, 2008 Memorandum and Order 19, 544 F.Supp.2d at 455.)
This analysis does not comport with the fact-specific inquiry required by San-din. As set forth above, to determine whether Pressley endured an atypical and significant hardship, the District Court was required to examine the duration of his disciplinary confinement, and the actual conditions of that confinement, in relation to the hardships endured by other prisoners. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293. Instead, the District Court compared the duration of Pressley’s sentence to that of another prisoner and presumed that the conditions Pressley faced in disciplinary custody were identical to that inmate’s. This analysis did not meet the Sandin standard and we will remand the matter to the District Court to conduct a further inquiry. See Davis v. Barrett, 576 F.3d 129, 134-135 (2d Cir.2009) (remanding matter for further fact-finding on the issue of the actual conditions of prisoner’s confinement in comparison to ordinary prison conditions). Needless to say, we express no opinion on the outcome of that inquiry in this case.
b. The Process that Pressley was Due
In the alternative, the District Court concluded that Pressley received the process he would have been due had he met the Sandin standard. It is well established that “[pjrison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Rather, due process prohibits the deprivation of a prisoner’s liberty interest at a disciplinary hearing unless the prisoner is given: (1) an impartial decision-making body; (2) twenty-four hour notice of the charges; (3) an opportunity to call witnesses and present documentary evidence; (4) assistance from a representative; and (5) a written decision explaining the evidence relied upon. Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir.1992). In addition, the disciplinary decision must be supported by at least “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Pressley submitted a detailed declaration setting forth the events that form the basis of his claims. He averred that several corrections officers, whom he identifies by name, prepared misconduct reports, which he identifies by date and number, charging him with various offenses, but that he was not served with the reports or the accompanying “inmate version and witness forms.” (DeclJH 4-21.) Pressley further averred that, when he appeared at the hearing on these charges on April 2, 2001, he informed Hearing Officer Ansell that he had not received copies of “any of the misconduct reports, any inmate version or witness forms to marshal the facts, *707prepare a defense, request witnesses or submit a written version.” (Decl.H 23.)
Pressley contends that the Hearing Officer told him that he would be given copies and returned him to his cell. (Decl.H 24.) According to Pressley:
“I assumed that the hearing would be reschedule^] allowing me time to review the misconduct reports, prepare a defense, request witnesses and submit a written version. Later that day I received six rationales stating that at the above hearing I told [defendant Ansell that I did not want to be at the hearing, that this was witnessed by defendants Wisyauski and McClure, and that the hearings were held in absentee [sic].”
(Decl.HH 25-26.)
At the hearing, Pressley was found guilty of all charges, sentenced to an aggregate of 330 days in disciplinary confinement, and ordered to pay restitution. (Decl.H 27.) He avers that, when Corrections Officer Hawkenbery came to his cell to ask whether he wanted a hearing on the assessments resulting from the misconduct charges, Pressley said that he did. (Decl.HH 28-31.) Nonetheless, he was “denied an assessment hearing because defendant Hawkenbery and Patterson falsely stated that I did not want one and a lein[sic] was placed on my inmate account.” (Decl.H 32.)
Pressley then makes similar statements about a second set of misconduct reports issued against him, (Decl.HH 34-38), and avers that:
“On 7-9-01 a hearing was held on the afore mentioned misconduct reports at which time Defendant Ansell refused to allow Plaintiff his properly requested assistant, to view video evidence and evidence of the names and number of inmates housed on I-C Pod for the purpose of identifying inmates that I sought to testify and was likely to lead to my innocence or mitigate my guilt.”
(Decl.H 39.)
The hearing was held in absentia, at which time he was found guilty of all charges, sentenced to an aggregate of 660 days in disciplinary confinement, and ordered to pay restitution. (Decl.HH 41.) According to Pressley, corrections officers again ignored his explicit requests for a hearing on the assessment. (DecLHH 42-45.) Pressley attests to similar facts regarding a third misconduct hearing, which resulted in a sentence of 120 days in disciplinary confinement and restitution. (DecLHH 48-53.) He contends that he was denied an assessment hearing on these charges as well. (DecLHH 54-57.)
Pressley states that he has been in segregation a total of “seven consecutive years and some odd months,” (Deel.H62), although it is unclear how much of that time is part of the present 1080 day-sentence. Pressley notes that he has pursued administrative appeals on all of the misconduct reports issued against him, and although he did receive a reduction in his sentence for certain other charges, he did not receive a reduction for any of the misconduct charges at issue in this action. (DecLHH 59-60.)
Pressley further avers that, while serving his sentence on these charges, he was “housed on an atmosphere of excessive violence where officers used mental and physical abuse,” (Decl.H 63); was “served with a lower calorie diet than that served to the prison population which resulted in substantial weight loss of approximately 50 pounds,” (Decl.H 65); was “subject to contaminated and unsanitary food service wear resulting in food poisoning type symptoms of vomiting and the runs,” (Decl.H 67); and that there were “occasions where he requested emergency medical and dental, however, the nurses would re*708fuse to come to the unit to assess his ailments which resulted in undue pain,” (DeclJ 69). Pressley alleges that his complaints about these conditions went ignored.
In support of his declaration, Pressley attached a detailed “Conditions Chart” in which he compared the conditions of prisoners in the general population with those in the Restrictive Housing Unit, as well as those in the Special Management Unit where he was confined. The chart shows the amount of time each population is given for activities like exercise, employment, library access, and education, and describes the procedures for meals, showers, phone calls, visitors, cell cleaning and health care. The chart also includes other aspects of prison life such as access to the commissary, cable, haircuts, and association with others. Pressley also submitted a declaration of disputed facts in which he recites most of the statements in his declaration.
The District Court entered judgment in favor of the defendants on these claims on the ground that Pressley failed to “identify how he was prejudiced in his ability to provide a defense by the alleged failure to receive advance written notice of the charges.” (Dist. Ct. Feb. 8, 2008 Memorandum and Order 23.) However, the court did not address any of Pressley’s other allegations. Given that Pressley set forth several facts that, if proven at trial, might establish a violation of his due process rights under Wolff, and given that the defendants disputed many of these facts, summary judgment was not appropriate.5
To the extent that the District Court relied on our decision in Shoats v. Horn, it was error to do so. Shoats held that a prisoner who was placed in administrative confinement for eight years was afforded all the process he was due because an “ ‘informal, nonadversary review’ at which the prisoner has the opportunity to state his views satisfies the requirements of due process.” Id. at 144 (quoting Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). Relying on this case, the District Court found that, even assuming that Pressley did not receive the protections owed to him under Wolff, “he can show no [due process] violation because he received regular periodic reviews by the Program Review Committee (PRC).” (Dist. Ct. Feb. 8, 2008 Memorandum and Order 23.) However, the minimal procedures outlined in Hewitt are sufficient only if the restraint is for administrative — rather than disciplinary — reasons; if the restraint is imposed for disciplinary reasons, the procedures required by Wolff apply. Stevenson v. Carroll, 495 F.3d 62, 70-71 (3d Cir.2007). Therefore, whether Pressley received periodic reviews by the PRC was not relevant to the due process inquiry.
Finally, Pressley challenges the District Court’s entry of summary judgment on his property interest claim. In his amended complaint, Pressley alleged that he was denied due process when the defendants deducted money from his inmate account (as restitution for his alleged destruction of government property) without providing him an opportunity to be
2. Assessment Hearings *709heard. Specifically, he contends that one of the defendant corrections officers said that if Pressley wished to attend his assessment hearings he had to sign a form. However, he refused to do so because he believed that it was not necessary in order to obtain a hearing. According to the defendants, however, if Pressley wished to attend the hearings, he was required to sign the Notice of Assessments delivered to him in the space provided for this purpose. See DOC Policy 1.7.5 HVIJB. l.d (Dkt # 129-2, p. 2.) Because he did not do so, the hearings proceeded without him.
The District Court recognized that Pressley had a property interest in the funds held in his prison account, see Higgins v. Beyer, 293 F.3d 683, 693 (3d Cir.2002), but entered judgment in favor of the defendants on the ground that Pressley was afforded all the process that he was due because they complied with DOC procedures and gave him an opportunity to request a hearing. While Pressley argues that his oral request should have been sufficient, he does not contest the fact that he refused to sign the requisite form.6 As a result, there was not a genuine issue as to whether he was afforded an opportunity to attend his assessment hearings in accordance with his rights under the Fourteenth Amendment. Therefore, the District Court properly entered summary judgment in favor of the defendants on this claim.
III.
For the reasons set forth above, we will affirm in part, vacate in part, and remand the matter for further proceedings consistent with this opinion.
. Pressley is presently incarcerated at the State Correctional Institution at Mahanoy.
. In February 2005, the parties consented to having a Magistrate Judge try their case. To avoid confusion, however, we will refer to the Magistrate Judge as the “District Court” when referring to post-February 2005 events.
. In May 2007, after the defendants moved for summary judgment, Pressley filed a motion for relief from judgment in which he challenged the Magistrate Judge's February 4, 2003 order striking his amended complaint. The District Court denied relief on the ground that Pressley had failed to provide an adequate explanation for why he had waited four years to bring this challenge. To the extent that Pressley now seeks review of the District Court's order, we note that he has failed to present any argument in support of his claim. Therefore, he has waived this issue on appeal. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
. In their brief in support of their motion for summary judgment, the defendants argued that Pressley's due process claim was governed by this Court's decision in Shoats v. Horn, 213 F.3d 140 (3d Cir.2000), which, as discussed below, concerns post-hearing review of administrative — not disciplinary— placements. As a result, the defendants did not specifically dispute Pressley's account of what took place at his disciplinary hearings. That said, the defendants did set forth facts in their Statement of Undisputed Facts that created questions of fact precluding summary judgment.
. Although Pressley argues on appeal that he never received notice of the assessment hearings to begin with, he did not make this argument to the District Court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474675/
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Gary Smith was indicted on charges of possessing cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Prior to trial, Smith moved to suppress evidence obtained during a search of his mother’s residence, which the District Court denied. The jury found Smith guilty of both charges. After trial, Smith filed a motion for judgment of acquittal pursuant to Rule 29, Fed.R.Crim. P., which the court denied. Smith appeals from the District Court’s orders denying his suppression motion and his Rule 29 motion. We will affirm.
I.
We write for the parties, and so we discuss the underlying facts and history only to the extent necessary to resolve the issues Smith raises on appeal. On October 2, 2006, Philadelphia Police Officer Gary Francis received an anonymous tip that a man named “Gary” (later identified as Smith) was supplying crack cocaine to drug dealers on the 100 block of East Pleasant Street, that Gary drove a black Monte Carlo with a specified license plate number, and that Gary lived at 136 East Pleasant Street. Officer Francis verified the details of this tip with a confidential informant who had proven reliable in the past. The informant further indicated that *711Smith visited one of his dealers down the block at 156 East Pleasant Street on a regular basis.
On October 2, 2006, the confidential informant made a controlled drug buy from one Charles Wright outside of 156 East Pleasant Street. The next day, police officers conducting surveillance observed Smith exiting 136 East Pleasant, entering 156 East Pleasant, and returning to 136 East Pleasant multiple times; each time that Smith entered 136 East Pleasant, he entered without knocking or otherwise seeking permission. On October 10, 2006, the surveilling officers observed Smith exit 136 East Pleasant, approach his Monte Carlo across the street, reach down to the floorboard, and remove a clear plastic bag; Smith then approached a man on the street, extracted a small object from the bag, and gave it to the man in return for money. Smith then gave the plastic bag to a second man and drove away. The confidential informant purchased crack cocaine from this second man later that day.
Based upon this information, Officer Francis prepared an affidavit in support of an application for a search warrant for 136 East Pleasant Street. The affidavit described the preceding events in detail, including the officers’ observations that Smith appeared to have engaged in a drug sale shortly after leaving the residence. It also listed the Police Department’s “police photograph number” (“PPN”) for Smith and for Wright. The affidavit noted that a criminal records check for Wright indicated that he had a prior arrest for narcotics; apart from Smith’s PPN, the affidavit made no reference to Smith’s criminal record, which included a conviction for illegal weapons possession.
The magistrate issued a search warrant for 136 East Pleasant Street on October 11, 2006, which the officers executed later that day.1 Resting on top of a tall cabinet in the dining room were a loaded firearm, ammunition, two plastic bags containing 161.07 grams of crack cocaine, a digital scale, two forms of picture identification for Smith, and mail addressed to Smith at the 136 East Pleasant Street address. The officers seized these items and arrested Smith, who had arrived as the officers were conducting the search.
Before trial, Smith moved to suppress the items recovered during the search, arguing that Officer Francis’s affidavit did not establish probable cause for the search and that the affidavit demonstrated a reckless disregard for the truth which undermined the basis for the magistrate’s probable cause determination. The District Court denied Smith’s motion. After the jury found Smith guilty on both counts of the indictment, Smith filed a motion seeking a judgment of acquittal pursuant to Rule 29, Fed. R.Crim. P., which the District Court denied. This timely appeal followed.
II.
Smith appeals the District Court’s March 26, 2008 order denying his motion to suppress and the December 24, 2008 order denying his motion for a judgment of acquittal.2 We conclude that the District Court properly denied both motions.
With regard to the order denying his suppression motion,3 Smith raises two ar*712guments: he contends, first, that the contents of Officer Francis’s affidavit failed to establish probable cause for the search of his residence, and, second, that facts omitted from the affidavit rendered it misleading and undermined the magistrate’s probable cause finding. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Neither argument is persuasive.
First, the magistrate had a substantial basis to conclude that there was probable cause to search 136 East Pleasant Street.4 Francis’s affidavit revealed that Smith had unrestricted access to the residence in question; that Smith appeared to have engaged in a drug sale shortly after exiting the residence; and that Smith frequently shuttled back and forth between 136 East Pleasant and 156 East Pleasant, where, according to the confidential informant, Smith’s drug distributor resided and where the informant made two controlled drug buys. We have recognized that “[i]f there is probable cause to believe that someone committed a crime, then the likelihood that that person’s residence contains evidence of the crime increases,” and that, with regard to drug crimes in particular, “evidence ... is likely to be found where the [drug] dealers reside.” United States v. Burton, 288 F.3d 91, 103 (3d Cir.2002) (citations omitted).
Application of the inference that drug dealers often store evidence of drug crimes in their residences is predicated on evidence of “three preliminary premises: (1) that the person suspected of drug dealing is actually a drug dealer; (2) that the place to be searched is possessed by, or the domicile of, the dealer; and (3) that the home contains contraband linking it to the dealer’s drug activities.” Id. at 104. Smith primarily argues that there was no evidence supporting the third premise. We disagree and find that there was ample evidence linking 136 East Pleasant Street to Smith’s drug dealing activities. The proximity of Smith’s residence to his drug activities, and the fact that he shuttled back and forth between 136 East Pleasant Street and the site of controlled buys and his own suspected sale of cocaine, satisfied the third prong of the Burton test. See Jones, 994 F.2d at 1057 (the fact that defendants’ homes were near the site of the crime made the homes “a likely repository for evidence”). Based upon the totality of the circumstances disclosed in Francis’s affidavit, the magistrate had a substantial basis for finding that there was a “fair probability that contraband or evidence of a crime” would be found in the residence. United States v. Bond, 581 F.3d 128, 139 (3d Cir.2009) (citation omitted).
Nor can we agree with Smith that Francis’s affidavit demonstrated a “reckless disregard for the truth” such that the District Court erred in not suppressing the fruits of the search. Franks, 438 U.S. at 171, 98 S.Ct. 2674. Smith suggests that by including his and Wright’s PPNs in the affidavit, which disclosed Wright’s prior *713narcotics arrest but did not specify the details of Smith’s own criminal history, Francis “recklessly omit[ted] facts that any reasonable person would want to know” — ie., the fact that Smith’s own criminal histoiy did not include drug crimes — and thereby tainted the magistrate’s probable cause finding. United States v. Yusuf, 461 F.3d 374, 383 (3d Cir.2006) (citation omitted). Smith’s argument fails, because, once we engage in the Franks exercise of “supplying the omitted information to the original affidavit,” id., it is abundantly apparent that probable cause for the search would still exist, even if the original affidavit had spelled out that Smith’s prior arrest was for unlawful weapons possession and not for drug crimes. That is, the basis for the magistrate’s probable cause finding was Francis’s recounting of Smith’s own activities as observed by the officers and the informant; the finding of probable cause did not even remotely turn on whether or not Smith had a history of narcotics arrests.
Finally, we conclude that the District Court properly denied Smith’s Rule 29 motion. Our review of whether a jury verdict was based upon sufficient evidence is highly deferential; the verdict must be sustained if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (citation omitted, emphasis in original). Smith contends that there was insufficient evidence to support the jury’s finding that he had constructive possession of the drugs and firearm found atop the cabinet at 136 East Pleasant Street.
We disagree. Constructive possession, which can be proved by circumstantial evidence, “requires an individual to have the power and intent to exercise both dominion and control over the object he or she is charged with possessing.” United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.2008) (citation omitted). As the Government argues, the evidence presented at trial was sufficient to establish Smith’s constructive possession of the contraband: Smith had unfettered access to 136 East Pleasant Street (where the only other known residents were an elderly woman and a young child), Smith engaged in a suspicious transaction resembling a drug sale outside 136 East Pleasant Street, and, critically, the drugs and firearm were located atop a tall cabinet next to two forms of picture identification of Smith and mail addressed to Smith at the 136 East Pleasant Street address. Viewing the evidence in the light most favorable to the Government, we agree with the District Court that the jury could rationally have found beyond a reasonable doubt that Smith constructively possessed the firearm and narcotics.
III.
For the foregoing reasons, we will affirm the judgment of conviction.5
.A woman believed to be Smith's mother and a child believed to be his son were in the residence at the time that the officers executed the search warrant.
. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291.
. “We review the district court's denial of the motion to suppress for clear error as to the underlying facts, but exercise plenary review *712as to its legality in light of the court's properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (internal quotations, citations, and brackets omitted).
. "When faced with a challenge to a magistrate’s probable cause determination, a reviewing court must remember that its role is limited .... [to] ensuring] that the magistrate had a substantial basis for concluding that probable cause existed.” United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993) (citation omitted). Probable cause exists if the totality of the circumstances create a "fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Bond, 581 F.3d 128, 139 (3d Cir.2009) (citation omitted).
. On October 6, 2009, nearly eight months after this appeal was filed, Smith sought leave to file a supplemental brief to address an issue related to his sentence which was not raised in his initial submission and not preserved in this appeal. We denied Smith's motion as filed, but stated that the brief could be submitted for our information, subject to our subsequent decision on whether to treat the untimely brief as filed. We conclude that Smith has waived his argument concerning his sentence, see Brenner v. Local 514, United Broth. of Carpenters and Joiners of America, 927 F.2d 1283, 1298 (3d Cir.1991) ("the fed*714eral and local rules of procedure requiring the appellant's brief to include a statement of the issues presented for appeal, see Fed. R.App. P. 28(a)(l)(3); Third Circuit Rule 21(l)(A)(d), would be without significance were we to countenance failure to include an issue, absent extraordinary circumstances”), and that, in any event, his argument is foreclosed by our decision in United States v. Abbott, 574 F.3d 203, 211 (3d Cir.2009).
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OPINION
PER CURIAM.
Akintoye Omatsola Laoye appeals from the BIA’s final order of removal for failure to maintain his F-l student status. He is a native and citizen of Nigeria who entered this country in 1996 as a J-2 non-immigrant exchange visitor. He adjusted to F-1 nonimmigrant student status when he began college studies at Monmouth University in New Jersey in 1998. In 2004, the Department of Homeland Security (DHS) charged Laoye with removal based on his conviction of an aggravated felony in October 2003 (for endangering the life of a child under N.J.S.A. 2C:24-4(a)). Laoye was placed in ICE detainment from February 2004 through July 2006. In 2007, the Government conceded that it could not sustain the aggravated felony removal charge in light of our decision in Stubbs v. Att’y Gen., 452 F.3d 251 (3d Cir.2006),1 and the IJ made a finding to that effect. (AR 100-101.)
After Stubbs was decided, however, the DHS brought new removal charges pursuant to INA § 237(a)(1)(C)(i), alleging that Laoye failed to maintain his F-l student status, including the two and one-half year period in which Laoye was in ICE detainment on the unsustainable removal charge. Specifically, the DHS charged that Laoye failed to attend Monmouth University in the Fall semester of 2002 and that he had not attended college after 2003. (AR 129-130.) It submitted a letter from an Assistant General Counsel at Monmouth University dated June 1, 2006, confirming Laoye’s lapse in attendance. (AR 123.) Laoye was represented by counsel, John J. Garzón, Esq. Laoye’s removal proceeding was continued pending his pursuit of reinstatement at Monmouth University and an adjustment of status by means of an 1-130 petition. In October 2006, Laoye’s wife filed a new 1-130 petition (a previous petition had been denied), which was terminated in March 2007. By April 2007, Laoye’s reinstatement application had been denied and his appeal was pending.2 At the September 2007 removal hearing, Garzón conceded that Laoye was not in status as a non-immigrant F-l visitor in 2002 and “since 2003.”3 (AR 95 & 103.) Garzón informed the IJ that Laoye would not be filing an application for asylum, withholding of removal or CAT relief. (Id.) The IJ found that Laoye was “out of status” for part of 2002 and “since 2003,” based on Laoye’s admission to the DHS charge and Monmouth University’s June 2006 letter. (Id. at 103-104.) Thus, the IJ found that Laoye was removable as an “out of status” F-l student. (AR 109.) The IJ continued the matter to February 2008, however, pending confirmation of Laoye’s reinstatement status and regarding the termination of his 1-130 petition. (AR 104-105.)
Laoye appeared pro se at the February 2008 removal hearing, informing the IJ that Garzón was not present because Laoye could not come up with the money *716to retain him. (AR 108.) The IJ proceeded with the hearing. Laoye submitted Garzon’s entire file on the matter, which included, among other things, a letter from Monmouth University dated February 2, 2004, denying Laoye’s appeal of the University’s decision to suspend him for the 2004 Spring semester and informing him that he could return as a student in May 2004. (AR 121-122.) After reviewing Laoye’s submissions, the IJ found that Laoye had no relief because he was an out of status student. (AR 55 & 109.) The IJ denied voluntary departure as a matter of discretion and ordered deportation to Nigeria. (AR 56.)
The BIA dismissed Laoye’s pro se appeal. It agreed with the IJ that Laoye’s admission to the removal charge and the University’s June 1, 2006 letter established clear and convincing evidence that Laoye was in violation of his non-immigrant student status. (BIA Op., AR 2.) Thus, the BIA agreed that Laoye vras removable under INA § 237(a)(l)(C)(i). (Id.) Laoye argued that the IJ erred in ruling against him because he was already back at school at the time of the hearing and he was working on his reinstatement. Moreover, he contended that he could show that he was enrolled in classes for 2002 but could not attend due to medical problems. He submitted a letter from Monmouth University dated February 29, 2008, stating that he was currently enrolled for the 2008 Spring semester and was attending classes. (AR 14.) The letter also indicated that the University viewed F-l reinstatement as unnecessary in light of Laoye’s pending 1-130 petition. (Id.) The BIA rejected Laoye’s arguments, holding that he was not eligible for reinstatement because he had been out of status since 2003, well beyond the five months allowed under 8 C.F.R. § 214.2(f)(16)(i)(A), and he failed to show that he was otherwise eligible. (BIA Op., AR 3.) The BIA ruled that remand was not necessary for the IJ’s consideration of Monmouth University’s 2008 letter because Laoye failed to file a motion to reopen for that purpose and because the letter indicated that the University had not reinstated Laoye. (Id.) The BIA also held that the IJ did not abuse his discretion in proceeding with the removal hearing where Laoye’s attorney had filed a motion to withdraw a day earlier and did not appear. (Id.) The BIA noted that Laoye failed to comply with the conditions for a claim for ineffectiveness of counsel under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). (Id.) The BIA rejected Laoye’s argument that he was eligible for adjustment of status, noting that there was no record evidence that Laoye appealed the denial of his wife’s first 1-130 petition in July 2005. (Id.) The BIA declined to address Laoye’s arguments regarding the aggravated felony removal charge because the IJ did not find Laoye removable under INA § 237(a)(2)(A)(iii). (Id. at 3.) Laoye filed a timely petition for review pro se.
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[Wjhen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review a decision on deportability for reasonable, substantial, and probative evidence. See 8 U.S.C. § 1229a(c)(3)(A).
An F-l student is admitted into the United States for the period in which he pursues a full course of studies at an educational institution approved by the DHS. See 8 C.F.R. § 214.2(f)(5) (defining “duration of status”). An F-l student is considered to be maintaining his F-l status if he *717is making normal progress toward completing a course of study. Id. If a student falls out of status (i.e., he is no longer attending school), he may seek reinstatement from the district director, provided he has not been out of status for more than five months or he demonstrates that the failure to request reinstatement within five months was due to exceptional circumstances and that he filed the request for reinstatement as promptly as possible. See 8 C.F.R. § 214.2(f)(16)(i)(A). The student also has to meet five other criteria before he can be reinstated. See §§ 214.2(f)(i)(16)(B)(F). Neither the IJ nor the BIA has authority to reinstate F-l status or to review the DHS’s decision denying reinstatement. See Matter of Yazdani, 17 I. & N. Dec. 626, 628-29 (BIA 1981).
Substantial record evidence supports the BIA’s conclusion that the DHS met its burden of showing that Laoye was deportable as an “out of status” F-l student. The BIA based its decision on Laoye’s admission to the DHS’s charge that he had not attended classes at Monmouth University since 2003, which is supported by the University’s letter detailing Laoye’s absence from college for the same time period. Both of Amanda Laoye’s I-130 petitions were denied and Laoye’s application for reinstatement was denied. Absent record evidence showing that Laoye was eligible for these forms of relief, the BIA properly affirmed the IJ’s final order of removal.
In his petition for review, Laoye contends that his absence from college in the Fall of 2002 was approved by the University for medical reasons and thus, he was not “out of status” for that time period. He says that he did not attend college in 2003 because he was suspended. Laoye points to memoranda from the University allegedly corroborating his claim. Neither Laoye’s arguments nor his supporting documents were submitted to the IJ or the BIA. The claims are not exhausted and, thus, this Court has no jurisdiction to consider them. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003) (holding that this Court lacks jurisdiction to review arguments not raised before the BIA because they are not exhausted). Because the documents are not in the administrative record, this Court cannot review them. Laoye must first file a motion to reopen before the IJ or the BIA.
Laoye also claims that he is eligible for reinstatement under 8 C.F.R. § 214.2(f)(16)(i)(F) because his mandatory detention by ICE from February 2004 to July 2006 prevented him from maintaining his college studies due to circumstances beyond his control. Indeed, it appears that Monmouth University was willing to take him back as a student in May 2004, while he was in ICE detention. Although we are not unsympathetic to this claim, we lack jurisdiction to consider it because Laoye has not exhausted it in immigration court or in the BIA. See Abdulrahman, 330 F.3d at 594-95. Thus, why the DHS continues to press Laoye for failing to keep up his college studies while he was in ICE detention—based solely on a removal charge that the DHS later conceded was not sustainable—is not properly before us today.
Laoye also maintains that he has recently re-applied for F-l status.4 As for this petition for review, however, the record only includes the DHS’s denial of the 2006 reinstatement application. There is no rec*718ord evidence that Laoye (or the University on his behalf) had reapplied for F-l status.5 The Board’s decision cannot be faulted based on the record it had before it.
Upon careful and thorough review of Laoye’s petition for review, we conclude that his remaining arguments lack merit. Accordingly, we will deny the petition for review. Laoye’s motion for leave to file a supplemental appendix and the DHS’s motion to strike are denied.
. In Stubbs, we held that a conviction under N.J.S.A. 2C:24-4(a) is insufficient to constitute “sexual abuse of a minor” under the INA.
. Laoye's reinstatement application is not in evidence and there is no record evidence of the outcome of his appeal. Laoye does not claim that his reinstatement appeal was granted.
.At the same hearing, the DHS conceded that the aggravated felony removal charge for which Laoye was detained for two and one-half years was unsustainable.
. Laoye also argues that so long as the DHS retains possession of his passport, he will be unable to comply with the reinstatement process. (See Informal Brief at 3.)
. The 2006 reinstatement application and documentation of the DHS's reasons for denial are not in the record.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Jesus Frias-Cisneros1 appeals his sentence to a term of 99 months’ imprisonment and 5 years’ supervised release for conspiring to distribute and possess with intent to distribute between 15 and 50 kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846. Frias-Cisneros contends that the District Court failed to adequately consider the factors specified in 18 U.S.C. § 3553, and that it did not prop*720erly account for his immigration status or the poor conditions of his pretrial confinement. We will affirm the judgment of the District Court.
Jurisdiction and Standards of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
In reviewing a sentence, our standard of review depends on whether the asserted sentencing errors were raised before the district court. If they were, we review for abuse of discretion. United States v. Russell, 564 F.3d 200, 203 (3d Cir.2009). If they were not, we review for plain error. Id.
When reviewing a sentence for abuse of discretion, we consider whether the sentence was procedurally correct and, if so, whether it was substantively reasonable. United States v. Sevilla, 541 F.3d 226, 230 (3d Cir.2008). To satisfy the procedural dimension of this standard, “[t]he record must disclose meaningful consideration of the relevant statutory factors and the exercise of independent judgment, based on a weighing of the relevant factors, in arriving at a final sentence.” United States v. Grier, 475 F.3d 556, 571-72 (en banc) (3d Cir.2007). However, judges need not explicitly discuss each of the § 3553(a) factors on the record. United, States v. Charles, 467 F.3d 828, 831 (3d Cir.2006).
When we review for plain error, we consider whether the District Court committed an error that was plain — i.e., “clear or obvious” — and affected the substantial rights of the defendant. Russell, 564 F.3d at 203-04 (citations and internal quotation marks omitted).
Discussion
Defendant challenges his sentence on three grounds. He first argues that the District Court failed to discuss any of the § 3553(a) factors other than “the nature and circumstances of the offense and the history and characteristics of the defendant,” § 3553(a)(1). Specifically, defendant claims that the Court should have considered (1) the low likelihood that he would commit another offense, including because he has diabetes and will likely be deported after serving his sentence; (2) the lower sentences imposed on some of his co-defendants; (3) his limited role in the offense; (4) his cooperation with the Government; (5) unspecified Sentencing Commission policy statements; and (6) in connection with the evaluation under § 3553(a)(3) of “the kinds of sentences available,” the poor conditions at Passaic County Jail.
We find that the Court adequately considered and discussed the § 3553 factors in arriving at a sentence. The Court explicitly discussed defendant’s background, cooperation, and “high level” role in the conspiracy, as well as the “extraordinary” scale of the conspiracy. This recitation implicitly addressed “the seriousness of the offense” and the need “to protect the public from further crimes of the defendant.” § 3553(a)(2)(A), (C). By discussing the “extraordinary” nature of the conspiracy, Frias-Cisneros’s “high level” role in it, and his “limited” cooperation after his arrest, the Court essentially rejected the arguments that a lower sentence would have been justified because the other defendants had received lower sentences or because Frias-Cisneros had played only a limited role in the conspiracy and had cooperated with the Government. As to the remaining issues raised by defendant, there was no reason for the Court to address them. Although Frias-Cisneros mentioned his diabetes to the Court, neither he nor defense counsel argued at sentencing that this made him less likely *721to engage in future criminal activity. Similarly, no one argued at sentencing that he should receive a lighter sentence because he would be unlikely to commit further offenses in the United States due to his pending deportation. Finally, it is not clear from defendant’s argument which policy statements the Court should have found “pertinent” to the sentencing under § 3553(a)(5), or how the Court should have considered the conditions of pretrial detention in selecting from “the kinds of sentences available” under § 3553(a)(3).
Defendant’s second argument is that the Court should have adjusted his sentence based on the poor conditions at Passaic County Jail, where defendant was detained prior to sentencing. Defendant claims that the conditions at the jail “fall below modern standards of decency” and that the Court should have “remedied] [this] constitutional violation in imposing a sentence.” In support of this argument, defendant cites general Eighth Amendment law and three cases where district courts granted departures or variances because of “sub-standard pre-trial confinement” conditions. Defendant also makes a vague argument that the poor conditions at the jail — specifically, a history of murders and assaults (none of which had to do with defendant), and the fact that defendant received a death threat from a criminal associate while both were held at the jail — amounted to a due process violation.
The District Court did not abuse its discretion in declining to adjust the sentence based on these conditions. Defendant has pointed to nothing in § 3553 or our case law that requires a sentencing judge to take into account the conditions of pretrial detention in fashioning a sentence. Nor does he cite any cases that support his contention that the remedy for an asserted due process violation during pretrial confinement is a reduced sentence. Moreover, the Court in fact did try to remedy the problem by asking the Bureau of Prisons to remove defendant to a federal facility as quickly as possible.
Defendant’s final argument is that the District Court should have given him a reduced sentence in order to avoid an unwarranted sentencing disparity caused by his status as an immigrant. Specifically, defendant contends that, unlike U.S. citizens, he will be ineligible for release into a halfway house at the end of his sentence, credits for participation in a residential drug or alcohol abuse program, and designation to a minimum security prison. Defendant concedes, however, that he did not raise this issue before the District Court. We therefore review this claim for plain error, and we see no basis for concluding that the District Court erred in failing to adjust the sentence based on defendant’s immigrant status. We will therefore affirm the judgment of the District Court.
. Defendant's brief spells his last name as ''Farias-Cisneros.” However, because the caption and the relevant District Court docuonents all use the "Frias-Cisneros” spelling, we do as well.
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JUDGMENT ORDER
WEIS, Circuit Judge.
After consideration of all contentions raised by appellant, it is
ADJUDGED AND ORDERED that the judgment of the District Court entered February 27, 2009, 2009 WL 499460, be and is hereby affirmed. Costs will not be taxed.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Natalie Henlon was convicted by a jury of (1) conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846 and (2) possessing with intent to distribute 100 grams of a mixture containing heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. The District Court sentenced Henlon to 46 months, notwithstanding the guideline range of 51 to 63 months. On appeal, Henlon argues that the District Court erred in its jury instructions, refusal to give the jury a special interrogatory, and guideline calculation because Henlon believed the controlled substance at issue in the offense was marijuana, when it was actually heroin.
On February 23, 2006, Postal Inspector John Roethel discovered that a package addressed to “F. Turner” at 25 New Rose Street, Trenton, N.J., (“25 New Rose”) contained heroin. 25 New Rose was Hen-Ion’s home address. Roethel set up a controlled delivery of the package and a prosecutor obtained an anticipatory search warrant for 25 New Rose. On February 24, 2006, a detective set up surveillance of 25 *729New Rose while Roethel, dressed in an undercover capacity as a letter carrier, delivered the package to that address. Around 11:00 a.m., Henlon’s co-defendants Debrie Coates and James Tucker parked in front of 25 New Rose for about eleven minutes. At one point, Coates knocked on the front door, but no one answered. Coates and Tucker left, but drove by the residence again at 11:48 a.m. and 11:55 a.m. Around noon, Roethel arrived and knocked on the door. Co-defendant Anique Johnson answered, initially refused the package, and then accepted it. As soon as Roethel’s postal truck began to drive away, Coates and Tucker pulled up next to Roethel and asked him if he had a package for 25 New Rose. Roethel told them that he had just delivered a package to that address. Henlon arrived at 25 New Rose around 12:10 p.m., just before authorities executed the search warrant. Coates and Tucker returned to Henlon’s residence after the execution of the warrant and were detained. Officers searched Henlon’s home and found the package of heroin, marijuana, and a digital scale. The package contained 606.4 grams of heroin. Coates and Tucker both entered into plea agreements with the government and stated that they believed that the package contained marijuana. Henlon gave two statements to police; after numerous denials, she stated that she thought the package contained “weed.”
Henlon argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the District Court was required to instruct the jury that it could convict Henlon of the offense charged only by finding that she knew the substance she trafficked was heroin as opposed to marijuana.1 We apply an abuse of discretion standard to determine if the District Court erred in refusing to give a requested jury instruction and exercise plenary review to determine if the jury instructions stated the proper legal standard. United States v. Jimenez, 513 F.3d 62, 74 (3d Cir.2008).
In United States v. Barbosa, the defendant (“Barbosa”) believed that he was distributing heroin when he was actually distributing cocaine base. 271 F.3d 438 (3d Cir.2001). In that case, we specifically considered whether or not “Barbosa’s lack of intent to traffic in cocaine base, brought about because of his mistake of fact concerning drug identity, would be yet another fact that the jury was bound to find under the teachings of Apprendi.” Id. at 457. We noted that the drug trafficking statutes require specific knowledge or intent only as to a general category of unlawful substances and that Apprendi did not change the Government’s mens rea burden. Id. at 458. We stated, “[tjhus, we leave undisturbed our jurisprudence with respect to the mens rea requirement, which only requires the Government to prove the defendant’s knowledge that he was trafficking in a controlled substance.” Id. at 459. Thus, we have clearly held that, post-Apprendi, a defendant may be punished for the drug he actually possessed even if he intended to possess another. Id.
Henlon submits that Barbosa should be re-evaluated because the Third Circuit expressed pre-Apprendi logic in Barbosa (a post-Apprendi case). Henlon bases this assertion, in large part, on the following quote from Barbosa:
Accordingly, we now formally adopt the uniform and persuasive reasoning of pr e-Apprendi federal appellate authority, which held essentially that a defendant who is in actual possession of a particular controlled substance, while intending to distribute another, may be *730punished for the drug with which he is found to be in possession.
271 F.3d at 459.
In Barbosa we adopted the pre-Apprendi authority because we found, after extensive analysis, that Apprendi did not change the law regarding this particular issue. Therefore, the District Court did not err by refusing to charge the jury that it had to determine what particular type of controlled substance Henlon intended to possess.
Henlon also asks this Court to vacate her sentence and remand her case for resentencing because the District Court failed to give the jury a special verdict sheet to determine the particular controlled substance that Henlon believed was in the package, to enable the court to apply the proper sentencing guideline. As explained above, Henlon may be convicted of and punished for possessing and intending to distribute heroin, even if she believed that the controlled substance at issue was marijuana. Therefore, the District Court did not err by refusing to submit a special interrogatory to the jury regarding the particular controlled substance Henlon believed was in the package.
We review the District Court’s sentence for reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentencing court is required to 1) calculate the guidelines sentence; 2) rule on any departure motions; and 8) consider any relevant 18 U.S.C. § 3553(a) factors. United States v. Ali, 508 F.3d 136, 142 (3d Cir.2007). Henlon contends that it was unreasonable for the District Court to apply the heroin sentencing guideline rather than the marijuana guideline. Henlon states that the District Court acted unreasonably in failing to consider whether or not the marijuana guideline was more applicable under 18 U.S.C. § 3553. The Government correctly points out that although Henlon continually uses the term “reasonable,” her objection is actually to the first step of the District Court’s sentencing process: electing to apply the heroin guideline as opposed to the marijuana guideline. The Barbosa court determined that Barbosa “should be sentenced based upon cocaine base — the drug he actually transported ...” 271 F.3d at 461. As discussed above, the District Court did not commit an error of law by punishing Henlon for possessing and intending to distribute heroin though she believed the package contained marijuana. The District Court applied the correct guideline, reduced the offense level due to Henlon’s minor role in the offense and her safety valve eligibility, and granted Henlon a downward variance from the resulting guideline range. Therefore, Henlon’s sentence was not unreasonable.
For the reasons set forth above, we will AFFIRM the judgment of the District Court.
. Henlon concedes that there was no question about either the identity or the weight of the drugs involved in this case. Appellant's Br. 19.
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OPINION
PER CURIAM.
Petitioner Satilmis Manti is a native and citizen of Turkey and an ethnic Kurd. He seeks review of a final order of removal, predicating relief on his contention that he fears persecution and/or torture on account of his ethnicity should he be removed to Turkey. For the reasons that follow, we will deny Manti’s petition for review.
I.
Manti entered the United States in January 2006, without being admitted or paroled, and he was placed in removal proceedings. To block his removal, he applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). At a hearing before the IJ, Manti testified to having suffered several acts of physical and verbal abuse from ethnic Turks. He pointed to the following instances of mistreatment during his years in highsehool: I) he was forced to sit alone at a desk while other students (non-Kurds) sat in pairs; 2) a “friend” stabbed him in the hand with a pencil, and the teacher subsequently threw Manti out of class; 3) other students would push and trip him two or three times a week and tell Manti that he had no right to have an education; and 4) one of Manti’s teachers inexplicably lowered a test score to 46 after first announcing that he had scored a 70.
Manti testified that after highsehool, he began working on a farm owned by a fellow Kurd. During the two years he worked on the farm, local Turks physically harmed him a total of fifteen to twenty times, though Manti never needed medical treatment after any of those incidents. Manti further testified that he eventually started working on the family farm, and that at some point the harvest was burned to the ground. He did not know who destroyed the harvest, however, nor could he remember when the alleged arson took place. In addition, Manti recalled an incident where four individuals surrounded him and one hit him in the eye with a rock, and another incident where he was slapped twice by a police officer. Manti testified that the final straw was when he found his car lit on fire after breakfast one day; though he could not recall when it happened, it was after that event that Manti decided to leave for the United States.
The IJ found that Manti was not credible or persuasive, and that material inconsistencies within and between his testimony and his asylum application had not been sufficiently explained. The IJ concluded that even if she were to believe Manti’s story, Manti had nonetheless failed to establish a pattern and practice of persecution of Kurds in Turkey, or a well-founded fear of such future persecution. The IJ also concluded that Manti had failed to establish a claim under the CAT. Finding no available grounds for relief, the IJ ordered that Manti be removed to his native Turkey. The Board of Immigration Appeals (“BIA”) adopted and affirmed the Id’s decision, and dismissed Manti’s appeal.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[W]hen the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the *733decisions of both the IJ and BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because Manti filed his asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go the heart of his claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n. 5 (3d Cir.2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Manti’s demeanor, the plausibility of his stoiy, and the consistency of his statements. See 8 U.S.C. § 1158(b)(l)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
III.
Manti first argues in his brief that the IJ’s adverse credibility determination is not supported by substantial evidence. He contends that he “supplied adequate and convincing explanations for the discrepancies and omissions cited by the IJ.” For example, to explain his inability to remember the year his farm’s harvest was burned down, Manti points to his testimony that he was “kind of nervous” at the hearing. Moreover, when questioned by the IJ as to why Manti had omitted a large number of the alleged assaults from his affidavit, Manti responded that it was because they were not as important as other incidents, such as when his friend stabbed him in the hand with a pencil. Manti argues in his brief that “it is reasonable to believe that [he] would remember an event which resulted in a permanent scar more vividly than multiple incidents that did not result in any physical scarring.” We cannot say the IJ erred in finding these explanations are deficient and, after reviewing the record as whole, we are unable to say that “no reasonable factfinder could conclude as [she] did” in finding that Manti was not credible. Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).
Even without the IJ’s adverse credibility determination, Manti’s claims fail to meet any standard for immigration relief. The acts of past physical violence described by Manti lack the requisite severity of “persecution,” and many are more properly characterized as schoolyard bullying. See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom’ ”) (quotation omitted). Likewise, none of those incidents rise to the level of “severe physical or mental pain or suffering” for purposes of establishing relief under the CAT. See Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc). Additionally, Manti’s testimony that he was “slapped” by the police does not demonstrate that he was, or is likely to be, tortured “at the instigation of[,] or with the consent or acquiescence of[,] a public official or other person acting in an official capacity.” Id. at 189; 8 C.F.R. § 208.18(a)(1).
The IJ noted that “[Manti’s] brothers who are Kurdish live in the same area where presumptively he would return to, ... they are apparently fine. There’s no reason to think he would be treated worse than them if he went back.” We agree. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (“when family members remain in petitioner’s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner’s well-founded fear of future persecution is diminished”). We also agree with the BIA that the documentary evidence of record does not demon*734strate a pattern or practice of persecution of Kurdish people in Turkey. See Wong v. Att’y Gen., 539 F.3d 225, 233 (3d Cir.2008) (“[i]t is well-established that an alien may demonstrate that his/her well-founded fear of persecution is objectively reasonable by documentary or expert evidence about the conditions in a given country”)- The Government correctly points out that, at most, the documentary evidence reveals that “individuals who publicly asserted their Kurdish identity risked censure, harassment, or prosecution.”
For the foregoing reasons, we conclude both that the IJ’s adverse credibility determination is supported by substantial evidence, and that the BIA did not err in determining that Manti is unlikely to be persecuted or tortured upon removal to Turkey. Accordingly, we will deny the petition for review.
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OPINION
PER CURIAM.
Aristides Martinez, proceeding pro se, appeals the District Court’s order granting summary judgment in favor of International Brotherhood of Electrical WorkersIBEW Local Union No. 98 (“the Union”). For the reasons discussed below, we will affirm.
I.
Martinez, a self-described “Hispanic American man born in Bogota, Colombia,” was a member of the Union during his employment as a video editor at WTXF29, a Fox Television station in Philadelphia. He was sixty-four years-old when WTXF29 hired him in 1996. In July 2003, Martinez received a written warning for poor job performance, and he received a second written warning in September 2003 for a number of job errors. WTXF29 issued a third performance warning in November 2003 and a “last and final” warning in February 2004 for an unexcused failure to come to work on Super Bowl Sunday. Each document warned that his poor performance could result in termination.
Following the July 2003 warning, Martinez met with the Union’s business agent, Larry DelSpechio, to discuss the warning and Martinez’s concerns about staff and management. DelSpechio advocated informally for Martinez with management, but did not file a grievance. Martinez wrote to DelSpechio again after he received the November 2003 warning to express his version of events and his belief that the Union was required to protect him from false *739accusations. DelSpechio again met with Martinez and management, but did not file a grievance.
WTXF29 suspended Martinez in April 2004 after he verbally abused a co-worker; he refused to participate in the subsequent investigation. On May 4, 2004, WTXF29 fired Martinez. The Union filed a grievance two days later, which WTXF29 rejected. The Union did not pursue arbitration under the collective bargaining agreement based on its determination that WTXF29 properly fired Martinez for cause and that the Union could not prevail at arbitration.
Martinez alleges that he was subjected to “hostility, resentment, and contempt” and harassment from fellow Union members because of his age and ethnicity. He complained in writing to both WTXF29 and the Union about one co-worker in particular, Jamal Northern. The Union dismissed the complaint. Martinez filed complaints against WTXF29 with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. The record does not show that Martinez pursued any action against the Union prior to filing suit.
Martinez filed this complaint in October 2006, alleging that the Union provided only minimal representation during the investigation that followed his suspension and did not pursue his case through arbitration. He claims that the Union discriminated against him on the basis of age and national origin, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c), respectively. He further claims that such discrimination violates the Pennsylvania Human Relations Act (PHRA), 48 Pa. Const. Stat. §§ 951-963. Martinez filed an amended complainant in November 2007, adding claims under the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-531, and § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The Union filed a motion for summary judgment, which the District Court granted on May 27, 2009. Martinez filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing a District Court order granting of summary judgment, we apply the same test that the District Court applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.2001). Summary judgment is proper when, viewing the evidence in the light most favorable to the non-moving party and drawing all inferences in that party’s favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 232; Fed.R.Civ.P. 56(c). The party opposing summary judgment “may not rest upon the mere allegations or denials of the ... pleading,” but “must set forth specific facts showing that there is a genuine issue for trial.” Saldana, 260 F.3d at 232 (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
III.
A. LMRDA and LMRA Claims
The District Court dismissed Martinez’s LMRDA and LMRA claims because he did not exhaust internal remedies. Union members are required to exhaust the grievance and arbitration remedies contained in a collective bargaining agreement prior to filing suit under the LMRA. Anjelino v. New York Times Co., 200 F.3d 73, 99 (3d Cir.1999); Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1538 (3d Cir.1992). *740Claims brought pursuant to the LMRDA are properly dismissed where the claimant “cannot demonstrate a ‘valid reason’ for failing to exhaust internal procedures.” Anjelino, 200 F.3d at 99 (quoting Pawlak v. Greenawalt, 628 F.2d 826, 830-31 (3d Cir.1980)). Because Martinez has not demonstrated that he exhausted the Union’s internal grievance procedures prior to filing his complaint, we will affirm the dismissal of these claims.
B. Title VII, ADEA, and PHRA Claims
The District Court concluded that Martinez made insufficient showings to defeat summary judgment on his claims under Title VII, the ADEA, and the PHRA. Martinez claims that the Union: 1) knew of and failed to intervene when WTXF29 discriminated against him; 2) discriminated against him when it handled its representation of him differently from its representation of other Union members; and 3) failed to protect him from harassment and discriminatory conduct from other Union members.
Under Title VII, a Union is barred from discriminating against its members based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(c); see also Anjelino, 200 F.3d at 95-96 (a union may be held liable if it “instigated or actively supported” the discrimination). Both the ADEA, 29 U.S.C. § 623(c), and the PHRA, 43 Pa. Const. Stat. § 955(c), mirror Title VIPs language and apply to Unions. Title VII prohibits discriminatory employment practices based upon an individual’s “race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-2(c). A plaintiff carries the initial burden of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case, a Title VII plaintiff must demonstrate that: 1) he belongs to a protected class; 2) he was qualified for the position; 3) he was subject to an adverse employment action; and 4) the adverse action was under circumstances giving rise to an inference of discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.2003).
That Martinez is a Colombian citizen of Hispanic descent, is over forty yeai’s-old, and was qualified for his position at WTXF29 is not in dispute. The relevant question, therefore, is whether he had been subject to an adverse employment action under circumstances suggesting discrimination.
1. Employer Action
Martinez first claims that the Union failed to intervene when WTXF29 fired him for discriminatory reasons. The District Court properly found that the Union cannot be held liable for WTXF29’s alleged discrimination against Martinez unless the Union took an active role in the discrimination. See Anjelino, 200 F.3d at 95 (1999). Martinez did not proffer any evidence of such conduct. The Court also concluded that, because it had already determined that WTXF29 did not discriminate against him, see Martinez v. Fox Broad. Co., No. 06-04537, 2008 WL 4425099, at *6, 8, Martinez was collaterally estopped from relitigating the issue. See generally, Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 209 (3d Cir.2001).
2. The Union’s Representation of Martinez
Martinez next claims that the Union did not represent him as zealously as it had represented other Union members. Pursuant to the collective bargaining agreement between the Union and WTXF29, Martinez could have demanded arbitration following the completion of a *741two-step grievance process. The Union did not file a grievance until after Martinez was fired, rather than when he was suspended, and then decided not to pursue arbitration. The District Court concluded that Martinez failed to show that his fellow Union members were similarly situated, and, as a result, failed to establish that he received differential treatment. See Kline v. Kansas City, Mo., Fire Dept., 175 F.3d 660, 670-71 (8th Cir.1999) (“similarly situated” means similar “in all relevant respects”); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.1998) (same). We agree with the District Court’s conclusion that, although the Union’s decision not to pursue arbitration constituted an “adverse action,” Martinez failed to show sufficient evidence that the circumstances of that decision suggested discrimination. See Sarullo, 352 F.3d at 797-98. Accordingly, the District Court properly granted summary judgment in favor of the Union on this claim.
3. Harassment
Martinez claims that his co-workers subjected him to racially-motivated and age-related abuse, and alleges that the Union overlooked the harassment. He mentions one fellow Union member, Jamal Northern, in particular. To establish a claim under Title VII because of an intimidating or offensive work environment, a plaintiff must show that: 1) he suffered intentional discrimination because of his national origin; 2) the discrimination was pervasive and regular; 3) the discrimination detrimentally affected him; 4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and 5) there is a basis for vicarious liability. Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2001). As the District Court correctly found, although Martinez did establish that he and Northern had an adversarial relationship, he did not show any evidence of discriminatory harassment by any Union member. Moreover, the District Court properly concluded that, even if Martinez could point to evidence of discriminatory harassment, he could not show that the Union “instigated or actively supported” the harassment. See Anjelino, 200 F.3d at 95-96.1
C. Negligent Infliction of Emotional Distress
The District Court correctly declined to exercise jurisdiction over Martinez’s state law claims, once it decided to grant the Union summary judgment on his federal law claims.
D. Discovery Order
Finally, Martinez claims the District Court abused its discretion in limiting discovery, namely, limiting DelSpechio’s deposition to three hours and denying him the opportunity to depose a Union shop steward to challenge DelSpechio’s credibility. In denying Martinez’s motion for reconsideration, the District Court clarified that its original order did not prevent the shop steward from appearing voluntarily for deposition. Moreover, the District Court properly held that credibility determinations are inappropriate in the summary judgment context. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
IV.
Upon review of the record, we conclude that the District Court correctly granted the Union’s motion for summary judgment *742for substantially the same reasons given in the District Court’s memorandum opinion. As the appeal does not present a substantial question, we -will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
. As the District Court noted, the Union did investigate Northern's conduct regarding Martinez in 2004, and concluded that it was not actionable. WTXF resolved a 2002 dispute between the two men in favor of Martinez.
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OPINION
COWEN, Circuit Judge.
Jose dos Santos, a native and citizen of Brazil, seeks review of a final order issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for review.
*743The parties are familiar with the background of this case, and so we provide only a summary of the proceedings. In 1986, Santos was admitted to the United States as a lawful permanent resident. In 2002, he was convicted in Connecticut of possession of marijuana with intent to sell (Conn. Gen. Stat § 21a-277(b));1 he was sentenced to three years of incarceration, suspended after ninety days, with three years of probation. In 2003, upon returning to the United States from a family trip to Portugal, Santos was charged with inadmissibility under INA § 212(a)(2)(A)(i)(II) as an alien convicted of a state controlled substances offense and section 212(a)(2)(C) as an alien known or believed to be an illicit trafficker of a controlled substance. Santos applied for cancellation of removal under section 240A(a) for a permanent resident and for withholding of removal under section 241(b)(3). After a hearing, in June 2006, the Immigration Judge (“IJ”) denied Santos’s applications and ordered him removed as an arriving alien. The IJ denied the application for cancellation of removal under section 240A(a) as pretermitted, concluding that Santos’s conviction was an “aggravated felony” and that he was therefore ineligible for cancellation of removal under section 240A. The IJ also denied withholding of removal under section 241(b)(3), finding that Santos had not established that his life or freedom would be threatened upon a protected ground if he returned to Brazil. By an order dated May 15, 2008, the BIA dismissed the appeal, finding no basis to overturn the IJ’s determination that the Connecticut conviction was for a drug trafficking offense under INA § 212(a)(2)(C). This petition for review followed.
We have jurisdiction to consider Santos’s legal argument that he was not convicted of an aggravated felony and exercise plenary review over the BIA’s conclusion. See Garcia v. Attorney General, 462 F.3d 287, 290-91 (3d Cir.2006). The term “aggravated felony” includes an offense that includes “illicit trafficking in a controlled substance (as defined in 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” Evanson v. Attorney General, 550 F.3d 284, 288 (3d Cir.2008) (citing 8 U.S.C. § 1101(a)(43)(B)) (internal quotations omitted). A state drug conviction constitutes an aggravated felony for removal purposes if (1) it would be punishable as a felony under the federal Controlled Substances Act, or (2) it is a state law felony and includes an illicit trafficking element. Evanson, 550 F.3d at 288. In this case, the BIA confined its decision to the IJ’s determination that Santos’s drug conviction was an aggravated felony under the second approach, specifically, that the Connecticut offense contained a “trafficking element,” meaning that it involved “the unlawful trading or dealing of a controlled substance.” See Gerbier v. Holmes, 280 F.3d 297, 305 (3d Cir.2002).2
*744Generally, when determining whether an alien’s conviction is for an aggravated felony, the court may look only to the statutory definition of the offense, and may not consider the particular facts underlying a conviction. See Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir.2004). See also Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 2300, 174 L.Ed.2d 22 (2009) (citing Steele v. Blackman, 236 F.3d 130, 136 (3d Cir.2001)), noting that the categorical approach is applied when courts determine whether a crime involves “illicit trafficking in a controlled substance” fox-purposes of 8 U.S.C. § 1101(a)(43)(B). However, an exception to this “categorical” approach pex-mits a court to look beyond the face of the statute to certain undexiying facts when, as here, the statute of conviction “invites inquiry” into the specifics of the conviction, such as when the statute is phrased in the disjunctive. See Singh, 383 F.3d at 148; Valansi v. Ashcroft, 278 F.3d 203, 214 (3d Cir.2002) (examining underlying facts when “some, but not all” convictions under statute would qualify as aggx-avated felony).
The Connecticut statute penalizes “[a]ny person who manufactures, distributes, sells, px-escribes, dispenses, compounds, tx-anspox-ts with the intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance. ...” Conn. Gen. Stat § 21a-277(b). As Santos argues in his bx-ief, it is not eategox-ically clear that trafficking is an element of his offense under the Connecticut statute because remunex-ation is not a required element of the cx-ime. The Coux-t tnay look to the underlying facts of the conviction and may consult the state court guilty plea colloquy, among other things. See Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (noting that courts may examine the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented).
The administx-ative record contains a transcript of Santos’s guilty plea hearing. During the proceedings, the state prosecutor recited the facts leading to Santos’s drug arrest. In summary, Santos was in a parked vehicle with others when officers witnessed what appeax-ed to be a drug transaction. Santos received what appeared to be money from an individual and passed a small plastic bag to the payor. The police uncovered quantities of marijuana, small Ziploc bags, a digital scale, and $400 cash from in the vehicle. When the state coux-t judge asked Santos whether the facts recited by the prosecutor wex-e essentially correct, Santos denied that a transaction took place. Then, after Santos conferx-ed with counsel, the judge repeated the quex-y regarding the prosecutor’s recitation of the facts, asking, “And my question to you is: Are those facts essentially correct?” Saixtos answered, “Yes, sir.” (IJ Decision at 10-11, quoting guilty plea transcript at 7.) Santos argues that the transcript indicates only that he pleaded guilty to the “essential facts.” That is, Santos argues that he expressed agreement with only the facts that satisfied the essential elements to sustain a conviction under the Connecticut statute, which does not require remuneration. We recognize that Santos contends that he nowhere acknowledged that a sale or tx-ansaction occurred, see Pet’r Br. at 15, but the transcript belies Santos’s assex-tion. Although *745the state court judge referred to the elements of the offense earlier during the colloquy, the transcript reflects that Santos affirmed the “essential correctness” of the facts recited by the prosecutor.
Santos has submitted a letter pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure containing a new argument based on our decision in Evanson v. Attorney General, 550 F.3d 284 (3d Cir.2008). Evanson involved a Pennsylvania statute criminalizing possession of marijuana with the intent to distribute. The BIA found that the offense involved 0.4841 pounds of marijuana, and based on the large drug quantity, the BIA concluded that the offense was an aggravated felony under the hypothetical federal felony doctrine. Id. at 288. On review, we concluded that the petitioner’s crime would not be considered an aggravated felony when documents properly consulted using the modified categorical approach did not provide proof of the amount of marijuana involved or remuneration. Id. at 293-94.3 The situation in Evanson differs from Santos’s case because no transcript of the plea colloquy was presented in Evanson, as it was here. Santos’s reliance on Evanson is unavailing.
For the foregoing reasons, we agree with the BIA’s decision. We will deny the petition for review.
. The BIA decision states that Santos's conviction was under Conn. Gen. Stat § 21a-277(b). The record is ambiguous on this point. The state court judgment sheet supports the BIA’s statement that the conviction was under section 21a-277(b), but the transcript of Santos's guilty plea hearing indicates that he pleaded guilty to a substituted information charging him with a violation of section 21a-277(a), a charge that carries greater penalties than subsection (b) of that statute. The parties in their briefs dispute the applicable subsection, but the discrepancy does not affect the outcome of the case. As will be discussed, an aggravated felony can be found even under the less serious offense of subsection (b).
. There is no dispute that Santos's Connecticut offense is a state law felony, with its maximum penalty a term of imprisonment not to exceed seven years. Conn. Gen. Stat. § 21a-277(b). We need not discuss the "hypothetical felony route” for determining *744the aggravated felony question, which requires that the offense be punishable as a felony under the federal Controlled Substances Act regardless of whether it is a state law felony or not. Gerbier, 280 F.3d at 306.
. We rejected the government's argument that it could properly consult the criminal information, including charges in counts of which the petitioner in Evanson was not convicted, and the judgment of sentence.
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OPINION
BARRY, Circuit Judge.
The Attorney General of the State of New Jersey filed an administrative complaint against Philip Getson, D.O., seeking the suspension or revocation of his medical license. Dr. Getson filed a complaint in federal court, asking the District Court to enjoin the state administrative proceeding and declare that it violated his due process rights. The District Court dismissed the complaint based on Younger abstention. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We will affirm.
I.
A. The Administrative Complaint Against Dr. Getson
On July 12, 2005, the Attorney General filed an administrative complaint against Dr. Getson, alleging that he had committed gross negligence, multiple acts of negligence, and professional misconduct, in violation of N.J. Stat. Ann. § 45:l-21(c), (d), and (e); violated regulations of the Board of Medical Examiners, in violation of N.J. Stat. Ann. § 45:l-21(h); and engaged in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense, in violation of N.J. Stat. Ann. § 45:l-21(b), by: (1) repeatedly deviating from acceptable medical standards and failing to follow applicable requirements for written prescriptions; (2) failing to properly supervise his Advanced Practice Nurse; (3) making and maintaining medical records that failed to meet regulatory standards; and (4) repeatedly miscoding services when billing. The Attorney General sought the suspension or revocation of Dr. Getson’s medical license, as well as civil penalties and costs. The administrative complaint was supported by two expert reports — a lengthy report involving a review of the medical records for nine of Dr. Getson’s patients, and a brief report which concluded that one of his patients had not been treated in accordance with the applicable standards of care. Dr. Get-son submitted a rebuttal expert report by Albert Talone, D.O. Dr. Talone noted that he had reviewed the medical records for seven of Dr. Getson’s patients and concluded that Dr. Getson “met the applicable standards of care for the treatment” of these patients. (App. at 223.)
In January 2006, Steven Lomazow, M.D., a member of the Board of Medical Examiners, contacted Dr. Talone and made “derogatory remarks” about Dr. Getson and “negative comments” about Dr. Talone’s participation in Dr. Getson’s case.1 (Id. at 52-53.) Dr. Talone refused to talk to Dr. Lomazow about Dr. Getson. Dr. Getson’s attorney notified the Board of this conversation, and Dr. Lomazow recused from any participation in Dr. Get-son’s case. The Attorney General’s Office *752later informed Dr. Getson’s counsel that the other Board members all confirmed that none of them had spoken to Dr. Lomazow about the substance of Dr. Getson’s case.
The following month, Dr. Talone received another phone call, this time from a “lobbyist who was advised by a prominent elected official (the identity of whom was withheld by [Dr. Getson’s] attorney) that the official knew that there was a ‘problem between Dr. Lomazow and Dr. Tallone [sic].’ ” (Id. at 54-55.) Dr. Getson’s attorney informed the Attorney General’s Office of this contact and stated that Dr. Talone felt “intimidated and pressured to cease serving as an expert for Dr. Getson.” (Id. at 240.) By letter dated March 13, 2006, an Assistant Attorney General informed Dr. Getson’s attorney that these allegations had been referred to the Division Ethics Officer for review.2
A plenary hearing on the administrative complaint against Dr. Getson before Administrative Law Judge (“ALJ”) Joseph Martone has been rescheduled several times, and it appears that no hearing has yet been held. After the ALJ conducts the hearing, he will issue a decision containing his recommended findings of fact and conclusions of law. N.J. Stat. Ann. § 52:14B-10(c). The Board of Medical Examiners will then accept, reject, or modify the ALJ’s decision, but must clearly state its reasons for doing so. Id. Dr. Getson may appeal the Board’s decision to the Appellate Division. N.J. Ct. R. 2:2-3(a)(2).
B. Dr. Getson’s Federal Complaint
On July 30, 2007, Dr. Getson filed a ninety-nine page complaint in the District of New Jersey against the State of New Jersey, the Attorney General of the State of New Jersey, and a host of other defendants, including the New Jersey Board of Medical Examiners and each of its members, and ALJ Martone in his official capacity. Dr. Getson alleged that the defendants violated his due process rights under the Fourteenth Amendment to the U.S. Constitution, Ms civil rights pursuant to 42 U.S.C. § 1983, and several New Jersey statutes, including the Administrative Procedures Act, N.J. Stat. Ann. § 52:14B-1 et seq., and the Civil Rights Act, N.J. Stat. Ann. § 10:6-2. He sought a declaratory judgment and an injunction prohibiting the ALJ and the Board from holding any hearings, deliberating, or taking any other action with respect to his medical license.
The defendants moved to dismiss the complaint pursuant to Rule 12(b)(6), arguing that the Younger• abstention doctrine prevented the District Court from enjoining the pending state administrative proceeding. Fed.R.Civ.P. 12(b)(6). The District Court granted the motion. This timely appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the District Court’s decision to abstain for abuse of discretion. We exercise plenary review, however, over the underlying legal determinations of whether the abstention requirements have been met.” Zahl v. Harper, 282 F.3d 204, 208 (3d Cir.2002) (citations omitted). Rule 12(b)(6) dismissal orders are subject to de novo review. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008).
III.
A. The Younger Abstention Doctrine
“Younger abstention is a legal doctrine granting federal courts discretion to ab*753stain from exercising jurisdiction over a claim when resolution of that claim would interfere with an ongoing state proceeding.” Kendall v. Russell, 572 F.3d 126, 130 n. 3 (3d Cir.2009) (citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). “Abstention is appropriate when: (1) there is a pending state judicial proceeding; (2) the proceeding implicates important state interests; and (3) the state proceeding affords an adequate opportunity to raise constitutional challenges.” Zahl v. Harper, 282 F.3d 204, 209 (3d Cir.2002) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). The District Court correctly concluded that these requirements had been met, and Dr. Getson does not dispute that conclusion.
Zahl is very much on point. In Zahl, the plaintiff (a licensed anesthesiologist) sought to restrain the New Jersey Board of Medical Examiners from proceeding with a pending administrative complaint against him, arguing that two of the administrative counts — those alleging Medicare fraud — were preempted by the Medicare statutes. The District Court abstained pursuant to Younger, and we affirmed. We found, first, that the state administrative proceeding was “clearly judicial in nature,” given that it was being conducted pursuant to New Jersey statutory and regulatory authority with a right to appeal the administrative decision to the state courts. Zahl, 282 F.3d at 209 (citations omitted). Second, we noted that “New Jersey has a heavy and traditional interest in regulating the practice of medicine within its borders,” and that such regulation is an important element of the state’s police power. Id. at 209, 210-11. Third, we concluded that the plaintiff could raise his federal constitutional claim in the course of the state administrative proceeding and before the Appellate Division of the Superior Court on appeal. Id. at 209-10 (citation omitted).
B. Exceptions to Younger Abstention
Even when these requirements are met, it is inappropriate to abstain under Younger if the plaintiff establishes that “(1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist, such as proceedings pursuant to a flagrantly unconstitutional statute, such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.” Schall v. Joyce, 885 F.2d 101, 106 (3d Cir.1989) (citing Middlesex County Ethics Comm., 457 U.S. at 435, 102 S.Ct. 2515). Dr. Getson argues that both exceptions to Younger abstention are applicable here.
1. Bad Faith
A prosecution or proceeding is conducted in “bad faith” for abstention purposes when it is brought “without hope” of success. Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); see also Dombrowski v. Pfister, 380 U.S. 479, 482, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (plaintiffs alleged that threats to enforce anti-communism statutes were “not made with any expectation of securing valid convictions” but rather to harass and discourage the assertion of civil rights). Whether or not Dr. Getson ultimately prevails in the state administrative proceeding, there can be little question that that proceeding was not instituted by the Attorney General without any expectation of success. Dr. Schapiro opined that Dr. Getson deviated from the applicable standards of medical care at least forty-five times in a variety of ways. Dr. Get-son, of course, challenges the merits of *754these conclusions, and argues that the statutes cited in the expert reports and administrative complaint do not support the allegations against him. These contentions do not, however, establish that the administrative proceeding was brought in bad faith.3 Notably, Dr. Getson has not suggested that the administrative complaint was brought to retaliate against him or to discourage him from exercising his constitutional rights. See Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 199 (2d Cir.2002) (bad faith exception applicable only when plaintiff shows “that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive”).
Because it cannot be said that the administrative complaint was brought “without hope” of success and because there is no other indication of bad faith, the District Court correctly concluded that Dr. Getson did not allege facts sufficient to support his claim that this exception to the Younger abstention doctrine was applicable.4
2. Extraordinary Circumstances
Dr. Getson also argues that the Board of Medical Examiners is biased against him, constituting an “extraordinary circumstance” warranting a federal court’s intervention. The Supreme Court has stated that “such circumstances must be ‘extraordinary in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.” Kugler v. Helfant, 421 U.S. 117, 125, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975).5 The state agency or court must be “incapable of fairly and fully adjudicating the federal issues before it” for this exception to apply. Id. at 124, 95 S.Ct. 1524.
In Kugler, the plaintiff (a municipal court judge) alleged that he had been coerced by members of the Supreme Court of New Jersey to testify before a grand jury in violation of his Fifth Amendment rights. The plaintiff sought to enjoin the resulting criminal proceedings against him, arguing that the justices’ involvement constituted “extraordinary circumstances” that compromised the fairness of the state court proceedings. The Supreme Court disagreed, concluding that “the objectivity of the entire New Jersey court system has [not] been irretrievably impaired.” 421 U.S. at 127, 95 S.Ct. 1524. Instead, the Supreme Court stressed as a remedy the possible disqualification of biased judges, provided for by court rule. Id. at 127-28, 95 S.Ct. 1524 (citing N.J. Ct. R. 1:12-1 to 1:12-3); see also Aetna Life Ins. Co. v. *755Lavoie, 475 U.S. 813, 822, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (due process violation may occur when judge has a “direct, personal, substantial, pecuniary interest” in the proceedings) (internal quotations and citation omitted).
Dr. Getson has alleged only that Dr. Lomazow is biased against him, and that this animus has tainted the entire Board of Medical Examiners. Dr. Lomazow recused from participating in Dr. Getson’s case, however, just days after his conversation with Dr. Talone. The other members of the Board have represented that they did not talk to Dr. Lomazow about Dr. Getson’s case, and Dr. Getson has not suggested to the contrary. Although Dr. Getson argues that the phone call from the “lobbyist” to Dr. Talone regarding the “prominent elected official” is further evidence of the Board’s bias, this call related solely to Dr. Lomazow and not to the other Board members.
While we must accept Dr. Getson’s factual allegations as true, he must provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Dr. Getson’s “naked assertion” of bias was clearly insufficient to withstand the motion to dismiss. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). He did not and does not allege facts supporting his claim that he will not receive fair treatment before the Board, particularly given the recusal of Dr. Lomazow. Cf. Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (district court properly did not abstain where board members “were incompetent by reason of bias to adjudicate the issues before it” because of personal financial interests in the proceeding). There are simply no “extraordinary circumstances” warranting federal court intervention into this pending state proceeding.
IV.
We will affirm the order of the District Court.
. Because we are reviewing the District Court’s Rule 12(b)(6) dismissal of Dr. Get-son's complaint, we must accept his factual allegations as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
. Dr. Getson states that the Attorney General’s Office “has simply ignored [his] bias complaints and conducted no such inquiry.” (Appellant's Br. at 29; App. at 57.)
.The cases on which Dr. Getson relies are inapposite. See Herz v. Degnan, 648 F.2d 201, 209-10 (3d Cir.1981) (the bad faith exception may apply where a psychologist’s license was revoked by the Attorney General in blatant non-compliance with applicable statutes); Chiropractic Alliance of New Jersey v. Parisi, 854 F.Supp. 299, 306-07 (D.N.J.1994) (the bad faith exception may apply where plaintiff alleged that state-actor defendants were attempting extortion); Wichert v. Walter, 606 F.Supp. 1516, 1521-22 (D.N.J.1985) (declining to abstain where teacher disciplinary proceeding was brought to harass and retaliate against plaintiff for making political comments).
. The District Court did not, as Dr. Getson suggests, improperly resolve any factual disputes to reach this conclusion, and instead found that Dr. Getson had not pled sufficient facts to state a claim of bad faith so as to preclude application of Younger.
. As an example, the Supreme Court has indicated that a "flagrantly and patently” unconstitutional statute would qualify as an "extraordinary circumstance.” Kugler, 421 U.S. at 125 n. 4, 95 S.Ct. 1524 (quoting Younger v. Harris, 401 U.S. 37, 53-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). No such allegation is made here.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Mai’tin Zamarripa-Carrillo pleaded guilty to illegal reentry after deportation. He appeals only his sentence of 57 months of imprisonment, three years of supervised release, and a special assessment of $100.00. We will affirm.
I.
Zamarripa-Carrillo, a citizen of Mexico, pleaded guilty to a single count of reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). There was no plea agreement. Based on Zamarripa-Carrillo’s offense level and criminal history category, the Presentence Investigation Report (“PSR”) calculated an advisory Sentencing Guidelines range of 63-78 months. At the sentencing hearing held on June 18, 2008, the District Court granted the Government’s motion for an additional one-level reduction for Zamarripa-Carrillo’s timely acceptance of responsibility, which reduced the advisory Guidelines range to 57-71 months. In his sentencing memorandum and at the sentencing hearing, Zamarripa-Carrillo requested a downward variance from the *761recommended Guidelines range based on both his personal circumstances and on the fact that he was arrested in a district that lacked a fast-track program for handling reentry cases. Had such a fast-track program been available, ZamarripaCarrillo asserted, he would have participated in it and received a lower sentence. Having heard from Zamarripa-Carrillo and the Government, and having considered the PSR and the sentencing recommendations of the Probation Department and the Government, the District Court found that “the appropriate sentence for [Zamarripa-Carrillo] is within the guideline range.” (App.37.) Accordingly, the court imposed a sentence of 57 months of imprisonment, three years of supervised release, and a special assessment of $100.00. This timely appeal followed.1
II.
Zamarripa-Carrillo’s single contention on appeal is that the District Court committed a procedural error by treating the Sentencing Guidelines as mandatory when it denied his request for a downward variance based on the lack of a fast-track program in the Eastern District of Pennsylvania. Zamarripa-Carrillo bases his contention on one comment made by the District Court during the sentencing hearing — that Zamarripa-Carrillo could “make [his argument that the disparity in sentences caused by fast-track programs is unfair] to the United States Congress.” (App.33.) This statement, Zamarripa-Carrillo contends, rendered his sentence procedurally unreasonable.
The record makes clear that the District Court did not treat the Sentencing Guidelines as mandatory. The District Court listened to and considered Zamarripa-Carrillo’s argument regarding the sentencing disparity caused by the lack of a fast-track program and the Government’s argument that a variance on that basis was not appropriate, and decided not to accept Zamarripa-Carrillo’s argument:
This Court has considered the defense’s argument in reference to the fast-track programs that exist in other jurisdictions that do not exist here in the Eastern District of Pennsylvania.
We find that this argument is not accepted by this Court. We find that the appropriate sentence for this defendant is within the guideline range.
(App.37.) Further, in response to the Government’s query concerning the basis for the court’s denial of the requested variance, the court acknowledged its discretion to vary from the Guidelines: “this Court is obviously aware that we have the ability and the discretion to depart and vary from the sentencing guidelines, but it is this Court’s decision not to under these circumstances that are presented in this case.” (App.43.)
We see no procedural error in the District Court’s determination. In United States v. Arrelucea-Zamudio, 581 F.3d 142 (3d Cir.2009), which was decided after Zamarripa-Carrillo’s sentencing hearing and after the parties submitted them briefs in this appeal, we clarified our previous decision in United States v. Vargas, 477 F.3d 94, 101 (3d Cir.2007), in light of the Supreme Court’s decision in Kimbrough. In Arrelucea-Zamudio, we held “a sentencing judge has the discretion to consider a variance under the totality of the [18 U.S.C.] § 3553(a) factors ... on the basis *762of a defendant’s fast-track argument, and that such a variance would be reasonable in an appropriate case.” 581 F.3d at 149. We specified that Vargas’s holding that it is not an abuse of a sentencing judge’s discretion to decline to vary on the basis of fast-track disparity remains viable post-Kimbrough. Id. at 148-49.
Although the District Court did not have the benefit of our decision in Arrelucea-Zamudio at Zamarripa-Carrillo’s sentencing, it did not conclude — as the district court did in Arrelucea-Zamudio — that it was prohibited from considering Zamarripa-Carrillo’s fast-track disparity argument. To the contrary, the District Court explicitly acknowledged the advisory nature of the Sentencing Guidelines with respect to the fast-track argument. It found no unwarranted disparity, and then considered the remaining 18 U.S.C. § 3553(a) factors in light of all of the relevant evidence and arguments before it. It recognized its authority to impose a sentence below the advised range, but it determined a sentence within the Guidelines was reasonable and a downward variance was inappropriate.
Zamarripa-Carrillo contends the District Court’s statement regarding making his argument to Congress demonstrates that it misunderstood its authority to consider his fast-track argument. We disagree. We have recognized that “because district court judges render sentencing decisions orally and spontaneously from the bench after the presentation of numerous arguments, we do not expect them to deliver ‘a perfect or complete statement of all of the surrounding law.’ ” Vargas, 477 F.3d at 101 (quoting United States v. Cooper, 437 F.3d 324, 330 n. 8 (3d Cir.2006)); see also Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.”) (citation omitted). Here, the District Court made sufficiently clear that it had considered Zamarripa-Carrillo’s fast-track argument with respect to the § 3553(a) factors, but had found the argument unpersuasive in light of the evidence before it. This was a proper exercise of discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Arrelucecu-Zamudio, and resulted in a procedurally reasonable determination of Zamarripa-Carrillo’s sentence. Furthermore, the sentence was substantively reasonable.
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 3742(a). We review the District Court’s sentencing decision under the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007).
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OPINION
PER CURIAM.
Ossie Robert Trader, a federal prisoner, petitions this Court for a writ of mandamus ordering the District Court for a public hearing on his “Motion for a Speedy Trial,” which he filed on March 2, 1995. Trader subsequently pleaded guilty and was sentenced. He has challenged his conviction and sentence on direct appeal and collateral review, but to no avail.
This is Trader’s fifth attempt to revive his Speedy Trial Act claims by petitioning for a writ of mandamus. See In re Trader, 322 Fed.Appx. 203 (3d Cir.2009); 285 Fed.Appx. 973 (3d Cir.2008); 226 Fed.Appx. 100 (3d Cir.2007); 161 Fed.Appx. 205 (3d Cir.2006). However, as this Court has repeatedly informed Trader, his speedy trial motion was terminated due to his guilty plea entered three months later in June 1995. See also, Washington v. Sobina, 475 F.3d 162, 166 & n. 5 (3d Cir.2007) (per curiam) (speedy trial rights are waived by an unconditional and voluntary guilty plea). A guilty plea may not be challenged through a petition for a writ of mandamus.
Accordingly, the petition for a writ of mandamus is denied.
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OPINION
PER CURIAM.
Petitioner Jair Izquierdo petitions for review of a decision rendered by the Board of Immigration Appeals on June 25, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Izquierdo is a native and citizen of Peru. He identifies himself as homosexual. He entered the United States as a nonimmigrant visitor in October 2001, stayed longer than permitted, and was served with a notice to appear in June 2006. Izquierdo conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming he suffered past perse*683eution and fears future persecution in Peru on account of his sexual orientation.
On October 16, 2006, after a hearing, the IJ issued an oral decision. He held that Izquierdo was not eligible for asylum because he applied more than one year after arriving in the United States. The IJ also held that Izquierdo failed to meet his burden of proof to establish eligibility for withholding of removal or protection under the CAT. He therefore denied Izquierdo’s applications.
Izquierdo appealed to the BIA, challenging the denial of asylum and withholding of removal.1 The BIA affirmed the IJ’s decision and dismissed the appeal on June 25, 2008. This timely petition for review followed.
II. Analysis
Izquierdo challenges the denial of withholding of removal.2 To qualify for relief, Izquierdo bore the burden of demonstrating a “clear probability” of future persecution, by showing “it is more likely than not” that he would be persecuted if he were to return to Peru. See INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A) ]; INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). This Court reviews the determination under the deferential substantial evidence standard. Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004). Thus, “[t]o reverse the BIA finding we must find that the evidence not only supports that conclusion [that Izquierdo would more likely than not suffer persecution], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
A.
Izquierdo attempted to prove that he suffered past persecution in Peru and, as a result, is entitled to a rebuttable presumption that he would also face future persecution. See Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir.2003). “To establish eligibility for asylum on the basis of past persecution, an applicant must show: (1) an incident, or incidents that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces a government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003).
Izquierdo testified to an unfortunate history of sexual abuse, which he suffered at the hands of his cousin when Izquierdo was a child between the ages of 8 and 14.3 Izquierdo testified that the abuse concluded in 1990, but that he waited to report the abuse to the police until years later, in *6841999 or 2000. The BIA found that the police took Izquierdo’s abuse report, but Izquierdo failed to follow up on or assist with the investigation.4 Accordingly, the BIA held that Izquierdo failed to establish that the government was unable or unwilling to protect him from the sexual abuse. See Abdulrahman, 330 F.3d at 592.
Izquierdo bore the burden of demonstrating in some manner that the police would have been unable or unwilling to protect him at the time the abuse occurred. See, e.g., Fiadjoe v. Atb’y Gen., 411 F.3d 135, 161 (3d Cir.2005) (citing extensive record evidence showing that government would have been unwilling to protect sexually enslaved girl even had the abuse been reported). Izquierdo contends he met this burden by demonstrating that country conditions were such that it would have been futile to involve the police.5 In support, he cites evidence of country conditions in Peru, including reports from 2003 and 2005 of police involvement in and indifference to incidents of mistreatment of gay people. However, this evidence concerns events more than a decade after Izquierdo’s alleged abuse concluded. Izquierdo presented no evidence of conditions in Peru prior to 1990 and, as a result, nothing appears in the record regarding whether or not it would have been futile for Izquierdo to seek police assistance at that time.
Izquierdo attempts to sidestep this problem by contending that his documents demonstrate that persecution “persisted well after the abuse of Petitioner by his cousin.... ” However, he provides no evidentiary basis for the proposition that the conditions for gay people in Peru in 2003 and 2005 were the same as the conditions that existed prior to 1990. Izquierdo bore the burden to establish his eligibility for relief. See Mulanga v. Ashcroft, 349 F.3d 123, 133 (3d Cir.2003). The BIA concluded that he failed to meet that burden, and Izquierdo has not demonstrated that the evidence he presented compels a contrary conclusion.6 See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812.
B.
Izquierdo’s remaining claims are closely related, and all concern his effort to establish a “pattern or practice” of persecution of gay men in Peru. See 8 C.F.R. §§ 1208.13(b) (2) (iii) (A), 1208.16(b)(2)(i). To meet his burden, Izquierdo was re*685quired to present objective evidence demonstrating that persecution is “systemic, pervasive, or organized.” See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). In cases where, as here, “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, [this Court has] authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review the rejection of Izquierdo’s claim under the substantial evidence standard. Chen, 376 F.3d at 223.
In his oral decision, the IJ erroneously concluded that, as a matter of law, he lacked authority to find a pattern or practice of persecution of gay men in Peru because there was no existing statute or appellate court decision squarely addressing the issue. The BIA correctly recognized that the IJ erred, and that the regulations permitted Izquierdo to attempt to present evidence establishing a pattern or practice of persecution. However, the BIA concluded that the IJ’s error was harmless because Izquierdo failed to meet his burden of proof under the correct standard.
Izquierdo claims that the IJ “implicitly found that there was sufficient evidence” to establish a pattern or practice of persecution, and the BIA wrongfully set aside the IJ’s findings of fact and substituted its own to conclude that no pattern or practice of persecution exists. We disagree. Although the IJ acknowledged evidence of serious problems concerning the treatment of gay men in Peru, see A.R. 69, he did not determine as a matter of law whether such treatment is “systematic, pervasive, or organized,” as required to constitute a pattern or practice of persecution. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). The BIA concluded that the IJ’s factfinding was not clearly erroneous, see BIA Decision, A.R. 4, and then appropriately applied the correct legal standard to those facts. See 8 C.F.R. § 1003.1(d)(3)(h) (the BIA may review questions of law de novo).
Izquierdo next contends that the BIA failed to consider all of his pattern or practice evidence, and as a result, reversal is warranted. However, the record reflects that the BIA considered Izquierdo’s evidence. For instance, Izquierdo claims that the BIA ignored a 2005 report from the Canadian Immigration and Refugee Board stating that gay people in Peru faced “extensive discrimination” and that homosexuality was “taboo.” However, the BIA expressly cited that same report for support that conditions for homosexual people in Peru are improving. See A.R. 4. Moreover, although we require the BIA to demonstrate an understanding of the petitioner’s claims and a review of the evidentiary record, see Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002), we do not demand a mechanical and rigid accounting of every piece of evidence. Here, the BIA’s decision reveals that it adequately reviewed the record and considered Izquierdo’s claims.
In addition, because Izquierdo presented records that were out of date — some by more than a decade — and therefore not reflective of current country conditions in Peru, the BIA also took administrative notice of a recent 2007 State Department report. Izquierdo objects, contending that it was error to consider the report, and that the BIA should have allowed him the opportunity to rebut its contents. Again, we disagree. The BIA is permitted to take administrative notice of certain facts within its area of expertise, see 8 C.F.R. § 1003.1(d)(3)(iv); Zubeda v. Ashcroft, 333 F.3d 463, 479 (3d Cir.2003), including State Department Country reports. See 67 Fed.Reg. 54878, 54892-3 (Aug. 27, 2002) (listing DOS country condition reports as an ex*686ample of what was intended by the term “official documents” in the regulation). Indeed, this Court has encouraged the BIA to view applicants’ claims in light of current country conditions. See Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir.2004). Under the regulations, Izquierdo should have anticipated that the BIA could take notice of recent country conditions in rendering its decision.
In sum, Izquierdo bore the burden of demonstrating the existence of a pattern or practice of persecution of gay men in Peru. The BIA concluded that the objective evidence was insufficient and, as a result, Izquierdo failed to meet that burden. We have closely reviewed the record and conclude that it does not compel a contrary conclusion. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. The BIA’s decision rests upon substantial evidence.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. On appeal to the BIA, Izquierdo did not challenge the denial of protection under the CAT. Accordingly, he may not raise any issue concerning his CAT claim in his petition for review. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
. Izquierdo does not challenge the denial of his asylum claim on the grounds that he did not apply within one year of arrival in the United States and failed to present extraordinary circumstances excusing the delay. See INA §§ 208(a)(2)(B), (D) [8 U.S.C. §§ 1158(a)(2)(B), (D)]. This Court would lack jurisdiction to entertain a challenge to that determination in any event. See INA § 208(a)(3) [8 U.S.C. § 1158(a)(3)]; Sukwanputra v. Gonzales, 434 F.3d 627, 633 (3d Cir.2006).
.Izquierdo also alleged past persecution based upon events in 2001, when he was an adult. According to Izquierdo, these were attacks and attempts at extortion led by the same cousin who had abused him as a child. The IJ found that Izquierdo’s testimony concerning these attacks was not credible and the BIA affirmed. Izquierdo does not dispute this conclusion.
. Izquierdo argues that follow up with police would have been futile. In support, he refers to his testimony that the police made him repeat his description of the abuse in a public area and demanded that he produce witnesses. While Izquierdo's testimony demonstrates some degree of police insensitivity, we disagree that it compels the conclusion that follow-up would have been "pointless.”
. Izquierdo also argues that the BIA erred by imposing a requirement that he should have reported the abuse when it occurred. We are sympathetic to the fact that Izquierdo was a child at the time, and agree that a contemporaneous report to authorities is not an absolute prerequisite. See Fiadjoe, 411 F.3d at 161. However, we disagree that the BIA imposed such an absolute requirement. Rather, we read the BIA’s decision as having considered Izquierdo's delay in reporting as relevant to determining whether Izquierdo met his burden to establish that police were "unable or unwilling to control” the abuse.
.In addition, because Izquierdo traveled to the United States and then returned to Peru in 2001, the BIA held that Izquierdo’s decision to return to Peru undermined his claim of a subjective fear of persecution. Izquierdo argues that his return to Peru does not undermine his claim because he is entitled to a rebuttable presumption of a fear of future persecution. Izquierdo is incorrect. An applicant must actually establish past persecution in order receive the benefit of the rebut-table presumption of a well-founded fear of future persecution. See Li v. Att'y Gen., 400 F.3d 157, 163 (3d Cir.2005).
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OPINION
McKEE, Circuit Judge.
Timothy Do appeals the sentence that was imposed after he pled guilty to distrib*687uting and possessing methylenedioxymethamphetamine (“ecstasy”) in violation of 21 U.S.C. § 841(a)(1). See Sentencing Hearing Transcripts, 45 (Jan. 3, 2008). He argues that the district court erred in failing to apply 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 (the “safety valve” provision) to reduce his sentence, and that the court erroneously included an additional 8,000 ecstasy pills in the guideline calculation. For the reasons set forth below, we will affirm.1
I.
As we write primarily for the parties who are familiar with the facts of this case, we need not recite the factual or procedural history in detail.
Under the safety valve provision of the United States Code and the United States Sentencing Guidelines, a district court may depart from an otherwise applicable mandatory minimum sentence if five statutory requirements are satisfied.2 18 U.S.C. § 3553(f); and U.S.S.G. § 5C1.2. A defendant must prove that he/she satisfies each of those five requirements by a preponderance of the evidence. Sabir, 117 F.3d at 754; United States v. Wilson, 106 F.3d 1140, 1141 (3d Cir.1997). Here, the district court found that Do had not established that he had provided “all information and evidence ... concerning the offense ...,” as required by the fifth element. 18 U.S.C. § 3553(f)(5). See Sabir, 117 F.3d at 754.
We reject Do’s argument that the this was clear error because the district court’s conclusion is, at a minimum, “plausible in light of the record.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Although the record established that Do was involved in drug trafficking during the six-months he lived in Philadelphia, he claimed that he did not know the last name or address of his suppliers or customers and failed to successfully contact them after his arrest.
Moreover, Do’s accounts of his drug involvement were inconsistent and contrary to the record. His phone records and border crossing records suggested that his true supplier was in Canada. Yet, Do insisted on claiming that his supplier was local. Do stated that he was given the 15,000 ecstasy pills on consignment in Philadelphia on December 19, 2006. Although he owed the supplier $50,000 for those pills, Do’s calls to the alleged local supplier went unanswered. Meanwhile, Do’s phone *688records indicated that he called a Toronto phone number over 37 times in December of 2006. Border crossing records showed that Do crossed into Canada on December 17, 2006. After his arrest, Do received multiple calls from the same Toronto phone number he called in December. Yet, Do offered no evidence pertaining to a Toronto connection except to state that the number he had called belonged to his cousin.
The district court’s conclusion that Do’s information was “less than forthcoming,” “not credible,” and “inconsistent,” App. at 95-96, is therefore totally consistent with this record, and we agree that Do failed to meet his burden of proving that he qualified for the application of the safety valve provision.
II.
Do also argues that the district court committed clear error by including an additional 8,000 ecstasy pills in its guideline calculations. However, since the district court correctly refused to apply the safety valve provision of the guidelines, we need not reach that issue.3 The statutorily prescribed mandatory minimum sentence of 120 months imprisonment applied and the court had no authority to impose a lesser sentence. Thus, a lesser drug quantity would not have reduced his sentence.
III.
For the foregoing reasons, we will affirm the sentencing judgment of the district court.
. We review the district court’s conclusions of law de novo, and afford clear error review to the district court’s factual findings. United States v. Sabir, 117 F.3d 750, 752 (3d Cir.1997).
. The five requirements are: "(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substance Act; and (5) not later than the time of the sentence hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement." 18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2 (adopting identical language).
. Both parties agree that Do's second argument is relevant only if we reverse the district court's conclusion as to the applicability of the safety valve provision. See Appellant Br. at 19 n. 7; Appellee Br. at 31-32.
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OPINION
GARTH, Circuit Judge:
Charlene and Richard Good (“the Goods”), husband and wife, own rental properties located at 250-260 Race Street in Sunbury, Pennsylvania (“the Properties”). Charlene Good managed the Properties while Richard Good worked as a car dealer.
On August 9, 2004, the Sunbury City Council passed a resolution establishing a procedure whereby Sunbury could designate property as “nuisance property” if that property was subject to three “founded” police or municipal code violations within a twelve-month period. On July 25, 2005, and August 6, 2005, the Sunbury Code Office sent letters to the Goods advising them of several complaints and violations regarding the Properties. On August 8, 2005, the Sunbury City Council voted to designate the Properties as a “nuisance” because tenants of the Properties allegedly had failed to remove or properly contain their garbage on more than three occasions, in violation of the International Property Maintenance Code.2
The nuisance designation was subsequently published in the local newspaper and announced on local television stations. The Goods objected to this label, claiming that the procedure for nuisance designation did not meet due process standards, that there was no procedure to challenge a nuisance designation, and that the terms “founded” and “nuisance,” as they applied relative to the August 9, 2004 resolution, were not adequately defined. On September 13, 2005, the City Council removed the Properties from the “nuisance” list.
Allegedly as a result of her Properties being deemed a nuisance for slightly over a month, Charlene Good claims to have suffered severe psychological and emotional harm. She provided an expert report from her psychologist supporting this contention, and Sunbury’s own expert concurred that Mrs. Good suffered from Post Traumatic Stress Disorder as a result of Sunbury’s conduct.
The Goods filed suit in District Court on November 22, 2006, alleging violations of 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendment Due Process Clauses, as well as supplemental state law claims for defamation, intentional infliction of emotional distress, and invasion of privacy. Sunbury moved for summary judgment on December 4, 2007. On February 5, 2008, the District Court granted summary judgment for Sunbury on the Fifth Amendment claim because “the Fifth Amendment is not applicable to state action.” Memorandum and Order, Good v. City of Sun-*690bury, NO. 06-CV-2268, 2008 WL 339483 (EJD.Pa. Feb. 5, 2008) (“D.C.Op.”) at 8.
The District Court also granted summary judgment on the Fourteenth Amendment claim because the Goods suffered no loss aside from stigmatization and because “psychological injury is not a loss or deprivation that is independent of the stigmatization of the property owner as a result of the negative labeling of the property.” Id. at 12. The court declined to exercise supplemental jurisdiction over the state law claims and thus dismissed the case. Id. at 13.
The Goods timely appealed with regard to their Fourteenth Amendment claim.
I.
“Our review of the District Court’s grant or denial of summary judgment is plenary, and we apply the same standard that the District Court applied in determining whether summary judgment was appropriate.” Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 218 (3d Cir.2009) (quoting Norfolk S. Ry. v. Basell USA Inc., 512 F.3d 86, 91 (3d Cir.2008)). Summary judgment is warranted if, drawing all inferences in favor of the non-moving party, “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.CivP. 56(c). Since there are no disputed facts in this case, we must decide, as a matter of law, whether the psychological harm alleged to have been suffered by Charlene Good as a result of the government’s actions is sufficient to sustain a constitutional due process claim based on harm to reputation.
II.
“To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures available to him did not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000)). Since we find that the Goods fail to allege a sufficient deprivation, we affirm the District Court’s denial of the claim on that basis, and therefore need not engage in an analysis of whether the procedures available to them provided sufficient due process of law.
The Goods argue that the psychological harm suffered by Charlene Good is a sufficient deprivation to sustain a constitutional due process claim for harm to reputation. The Goods reason that mental health implicates one’s right to life and liberty because psychological injury can lead to death and disease and the foreclosure of future opportunities. Thus, they argue, psychological harm is distinct from harm to reputation.
The law is well settled that defamation, “standing alone and apart from any other governmental action,” is insufficient to state a claim for relief under 42 U.S.C. § 1983 and the Fourteenth Amendment. Paul v. Davis, 424 U.S. 693, 694, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Rather,
it is clear that reputation alone is not an interest protected by the Due Process Clause. Rather, to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest. This has been referred to as the “stigma-plus” test.
Dee v. Borough of Dunmore, 549 F.3d 225, 233-34 (3d Cir.2008) (quoting Clark v. *691Twp. of Falls, 890 F.2d 611, 619 (3d Cir.1989), and Hill, 455 F.3d at 236) (internal quotation marks and citations omitted). However, while it is established that an allegation of harm to some additional interest (i.e., the “plus” factor) is needed to sustain a due process claim based on defamation, exactly what qualifies as a sufficiently “tangible interest! ],” Paul, 424 U.S. at 701, 96 S.Ct. 1155, is less clear, and has been the source of “some confusion.” Baraka v. McGreevey, 481 F.3d 187, 208 (3d Cir.2007).
Fortunately, we need not attempt the difficult task of clarifying precisely what type of interests are sufficiently “tangible” to satisfy the “plus” element of the “stigma-plus” test, because our analysis of the Goods’ due process claim requires only a determination of whether or not the emotional distress alleged by Mrs. Good is sufficiently tangible to satisfy the “plus” element.
Our holding in Baraka is highly instructive in this regard. In Baraka, we addressed the claims of a former poet laureate of New Jersey, Amiri Baraka, whose controversial remarks about the September 11 terrorist attacks prompted the state’s governor to suggest that Baraka was anti-Semitic. Baraka, 481 F.3d at 194. The governor and legislature subsequently abolished the position of poet laureate, and Baraka sued, alleging, inter alia, that he was deprived of a constitutionally protected interest in his reputation. Id. at 194-95.
In addressing Baraka’s claim, we noted that “[r]eputational harm can constitute a protected interest [only] when coupled with an additional deprivation of a protected right or interest.” Id. at 208. We held that Baraka had failed to plead an additional deprivation of a protected interest or shown a foreclosure of future opportunities to couple with his reputational harm, and therefore affirmed the District Court’s dismissal for failure to state a claim for deprivation of a constitutionally protected interest in his reputation. Id. at 209.
Of particular interest to the case sub judice is the fact that although “Baraka allege[d] defendants caused ‘irreparable damages to his reputation, embarrassment, humiliation and emotional distress,’ ” id. at 209 n. 17 (emphasis added), we nonetheless found that he failed to plead the “plus” factor necessary to the “stigma-plus” test. Accordingly, in Baraka we at least strongly suggested that the emotional distress suffered attendant to reputational harm does not constitute a valid “plus” factor for purposes of the “stigma plus” requirement. This conclusion is buttressed by our earlier holding in Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073 (3d Cir.1997), where we held that the plaintiff, who alleged harm in the form of, inter alia, “emotional ... injury,” id. at 1076, “has not suffered a deprivation beyond the injury to his reputation [and therefore] has not pleaded a valid claim based on a violation of his liberty interests.” Id. at 1078.
An analysis of the interests that have we found to be sufficiently tangible “plus” factors, particularly when contrasted with those that we have deemed insufficiently tangible, leads to the same conclusion regarding the interest at issue here as do our holdings in Baraka and Kelly.
We have found a sufficiently tangible “plus” when the claimed harm was an injury to a right “created and defined by state statutory law and the [relevant collective bargaining agreement],” Dee, 549 F.3d at 234; a deprivation of the “liberty to pursue a calling or occupation,” Thomas v. Independence Twp., 463 F.3d 285, 297 (3d Cir.2006); “an injury to [plaintiffs] reputation while in the exercise of [her] constitutional right” to free speech, Merkle v. Upper *692Dublin Sch. Dist., 211 F.3d 782, 797 (3d Cir.2000); and a “constructive discharge” and consequent damage to plaintiffs “ability to earn a living.” Hill, 455 F.3d at 232-33.
In contrast, we have found the plaintiffs would-be “plus” too ethereal — and therefore insufficient to support a reputation-based due process claim — when the claimed harm was the “possible loss of future employment opportunities,” Clark, 890 F.2d at 620; the “temporary removal from [customary] duties,” Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 492 (3d Cir.1998); the “den[ial of] a promotion and transfer[ ] ... from the position of manager ... to a [lower] supervisory position,” Robb v. City of Philadelphia, 733 F.2d 286, 293 (3d Cir.1984); and even outright “financial harm,” Sturm v. Clark, 835 F.2d 1009, 1013 (3d Cir.1987).
Finally, we note that, in addition to the collective weight of our precedent cited above, there is a sound policy argument militating against a finding that the Goods’ claim is legally cognizable. If we were to hold that the emotional trauma resulting from government defamation was, without more, sufficient to constitute the “plus” factor necessary in a Fourteenth Amendment due process liberty claim, virtually every defamation plaintiff would have a constitutional claim ready-made to survive at least to summary judgment, because defamatory remarks or acts, by their very nature, often cause severe distress to their target. Cf. Merkle, 211 F.3d at 797 (“This court has warned against equating a state defamation claim with a cause of action under section 1983 predicated on the Fourteenth Amendment.”) (quoting Kelly, 107 F.3d at 1078) (quotation marks and alterations omitted). The end result would be the effective elimination of the “plus” requirement of the “stigma-plus” test.
III.
Based on the foregoing, we conclude that Mrs. Good’s alleged psychological injury is not sufficient to satisfy the “plus” element of the “stigma-plus” test, and consequently that the Goods fail to claim sufficient deprivation to support their Fourteenth Amendment due process claim. We therefore hold that the Goods’ due process claim fails as a matter of law.3 The District Court’s grant of summary judgment in favor of the City of Sunbury, and against the Goods, will be affirmed.
. Tenants allegedly left bags of trash and loose garbage lying in and around the back yards of the rental units.
. In so holding, we do not mean to imply that we in any way discount, dismiss or belittle the seriousness of the psychological trauma allegedly suffered by Mrs. Good. Throughout our opinion, we speak of the tangible (or intangible) nature of interests only as that term was used by the Supreme Court in Paul. As such, our conclusion that Mrs. Good's alleged psychological injury is not ‘tangible’ should be taken only to mean that, as a matter of law, it lacks the requisite sufficiency to stand as the “plus” factor in the “stigma-plus” test.
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OPINION
PER CURIAM.
Isan Contant appeals from an order of the United States District Court for the Middle District of Pennsylvania, which denied his petition for a writ of habeas corpus.
Contant is a citizen of Trinidad and Tobago. He entered the United States in 2004 on a tourist visa, and stayed longer than permitted. In October 2007, he was convicted and sentenced to one year imprisonment and two years probation for criminal possession of cocaine in New York.1 In December 2007, the Department of Homeland Security charged Contant with being removable because he had overstayed his visa. Contant was taken into custody on March 7, 2008 and was ordered detained without bond.
On May 20, 2008, an Immigration Judge (IJ) conducted a redetermination hearing and denied Contant release on bond. Contant appealed, and the BIA affirmed on July 16, 2008, finding that Contant had failed to demonstrate that he was not a danger to the community.
*694Contant filed an 1-360 visa self-petition under the Violence Against Women Act, and was issued a notice on June 27, 2008 that he was prima facie eligible for relief under the Act.2 However, the Acting Director of the Vermont Service Center also informed him by letter of the same date that “a decision on your petition has been delayed” and that it could give him “no definite time frame for when your petition will be adjudicated.”
Contant filed the instant habeas petition pursuant to 28 U.S.C. § 2241 in October 2008, claiming that his indefinite detention without review was unreasonable and violated his right to due process. Contant then had a removal hearing on November 18, 2008, but the IJ continued the hearing pending a decision on the 1-360 petition. While the habeas petition was pending, the IJ, in a December 2, 2008 decision, again reiterated that Contant was a danger to the community, and observed that the pending 1-360 petition did not represent a changed circumstance warranting redetermination of bond. The District Court denied Contant’s habeas petition on February 20, 2009, 2009 WL 427244, and Contant filed a timely notice of appeal.3
Where the district court denied habeas relief without an evidentiary hearing, our review is plenary. Bakhtriger v. Elwood, 360 F.3d 414, 417 (3d Cir.2004). The District Court held, and the parties agree, that the authority for Contant’s detention is 8 U.S.C. § 1226(a). That statute provides that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States,” and authorizes the Attorney General to continue to detain the alien, release the alien on bond, or release the alien on parole. Id.
As the District Court noted, neither Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), nor Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), directly applies here. Zadvydas concerned the prolonged detention of aliens subject to a final order of removal. Those aliens are detained pursuant to 8 U.S.C. § 1231(a)(6), which authorizes post-removal-period detention. The Supreme Court held that this statute, when “read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States,” and thus does not “permit indefinite detention.” Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491. The Supreme Court determined that six months was a presumptively reasonable period of detention, and held that an alien must be released after that time if he could show that there was no significant likelihood of his removal in the reasonably foreseeable future. Id. at 701, 121 S.Ct. 2491.
Unlike the petitioners in Zadvydas, Contant is being detained “pending a decision on whether [he] is to be removed from the United States,” 8 U.S.C. § 1226(a). See Zadvydas, 533 U.S. at 697, 121 S.Ct. 2491 (noting that “post-removal-period detention, unlike detention pending a determination of removability ... has no obvious termination point”). Moreover, there is no indication that Contant cannot be deported to Trinidad and Tobago following an unfavorable removability decision. See id. at 699, 121 S.Ct. 2491 (removal was not *695reasonably foreseeable because the United States lacked an extradition treaty with the deportees’ home countries, and no other country would accept them). Rather, Contant’s removal proceedings were continued — at his own request — while his visa petition was pending. According to the Government, Contant’s visa petition has now been denied and his removal proceedings can proceed. Accordingly, although we cannot say exactly when Contant’s removal proceedings will be completed, Contant does not find himself in a “removable-but-unremovable limbo” similar to the petitioners in Zadvydas. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 347, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005).
As the District Court correctly noted, Contant’s situation is more similar to that faced by the petitioner in Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir.2008), who was detained for over three years while seeking administrative and judicial review of his removal order. The Ninth Circuit determined that the detention was authorized by § 1226(a), which the Court construed, consistent with Zadvydas, as limiting the Attorney General’s detention authority to the period “reasonably necessary” to effectuate the alien’s removal. Id. at 1063. Although it acknowledged there was “some degree of uncertainty as to when [the] detention [would] conclude” and that the petitioner’s “removal ha[d] certainly been delayed by his pursuit of judicial review,” the Court held that the detention was not indefinite because the petitioner “remain[ed] capable of being removed — even if it ha[d] not yet finally been determined that he should be removed.” Id. at 1065 (emphasis in original). Similarly, although Contant has been detained for a lengthy period of time — as of this writing, approximately nineteen months — he remains capable of being removed, and a decision on his removability appears likely in the reasonably foreseeable future.
Kim involved an alien detained during the pendency of removal proceedings pursuant to 8 U.S.C. § 1226(c), which provides for mandatory detention of certain criminal aliens. The petitioner in Kim argued that § 1226(c) violated his due process rights because it did not require the INS to determine that he posed either a danger to society or a flight risk. Id. at 514, 123 S.Ct. 1708. The Supreme Court held that the mandatory detention without an individualized determination was constitutionally permissible. 538 U.S. at 531, 123 S.Ct. 1708. In reaching that conclusion, the Court emphasized the short period of time that most aliens are detained pursuant to § 1226(c), noting that in 85% of cases the alien’s removal proceedings were completed in an average time of 47 days. Id. at 529, 123 S.Ct. 1708.
To the extent Contant relies on Kim to contrast his lengthy detention with the average detention period for persons detained pursuant to § 1226(c), that comparison is inapposite. Unlike the mandatory detention statute at issue in Kim, § 1226(a) provides for individualized detention determinations. Aliens detained pursuant to § 1226(a) may be released if they demonstrate they would not pose a danger to property or persons and they are likely to appear for any future proceedings. 8 C.F.R. § 236.1(c)(8). The alien may request a bond redetermination hearing before an IJ. 8 C.F.R. § 236.1(d)(1). An IJ may grant an alien’s request for bond redetermination where the alien has shown that his “circumstances have changed materially since the prior bond redetermination.” 8 C.F.R. § 1003.19(e). The alien may appeal the IJ’s bond decision to the BIA. 8 C.F.R. § 236.1(d)(3). Contant was afforded the review provided by these regulations. *696Moreover, like the petitioner in Kim, Contant’s unusually lengthy period of detention pending a decision on his removability is attributable to his own request for a continuance. See Kim, 538 U.S. at 530, 123 S.Ct. 1708 (noting that petitioner’s detention period of 6 months, which was longer than the average period of 47 days, was due to his own request for a continuance of his removal hearing).
In sum, Contant’s detention is not “indefinite,” as there is no indication that he could not be removed to Trinidad and Tobago if he is ordered removed, and the end of his detention is reasonably foreseeable; i.e., at the conclusion of his removal proceedings. We will therefore affirm the District Court’s judgment.4
. The latest information in the record is that the conviction is still on direct appeal.
. Content's visa petition apparently alleged that he had been subjected to battery or extreme cruelty by his U.S.-citizen spouse.
. Contant also filed a motion for reconsideration in the District Court, which was denied on April 27, 2009. As Contant did not file a notice of appeal of that decision, it is not before us. Fed. R.App. P. 4(a)(4)(B)(ii).
. Contant's motion to expedite is granted; his motion for release on bail pending appeal is denied.
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OPINION
PER CURIAM.
Xi Quang Tang, a native and citizen of China, entered the United States in November 2005. He appeared before an Immigration Judge (“IJ”) and conceded that he was removable for entering without being admitted or paroled. See Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i) ]. Tang filed an applica*698tion for asylum, withholding of removal, and relief under the Convention Against Torture. He alleged that he suffered past persecution, and feared persecution in the future, on account of his religion. Tang claimed that he had been a member of an “underground” Christian church whose parishioners were targeted for arrest. After a warrant for Tang’s arrest was published on the town bulletin board, he was fired from his job. He then left town for a friend’s house, where he remained in hiding for several months before leaving for the United States. In support of his claim, Tang submitted a Chinese baptismal document, a photograph of the choir performing in the underground church, and the warrant for his arrest. He also provided a “Certifícate of Baptism” from a Philadelphia church, photographs of the baptism ceremony, and statements from his sister and the friend with whom he stayed while in hiding.
The IJ denied relief, finding that Tang provided inconsistent testimony, lacked sufficient knowledge of Christianity and China’s church registration policies, and failed to provide reasonably expected corroboration. Tang appealed to the Board of Immigration Appeals (“BIA”), arguing that the IJ’s credibility determination was not supported by substantial evidence. The BIA adopted and affirmed the IJ’s decision, concluding that Tang “has failed to resolve the numerous credibility issues raised by the [IJ] and has not provided an explanation for his lack of corroborating evidence.” Tang filed a timely petition for review.
We have jurisdiction under INA § 242 [8 U.S.C. § 1252].1 Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this Court reviews the decisions of both the BIA and the IJ. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). Our review of these decisions is for substantial evidence, considering whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir.2009) (internal citation omitted). We will uphold an adverse credibility determination under the substantial evidence standard “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir.2008) (internal citation omitted). Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”2 INA § 242(b)(4) *699[8 U.S.C. § 1252(b)(4) ]; see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009).
We conclude that the IJ’s adverse credibility determination is not supported by substantial evidence. The primary inconsistency cited by the IJ involved the photograph of the choir performing at the “underground” church, which Tang claimed was located in a single family residence.3 See Administrative Record (“A.R.”), 97-98, 260. The IJ concluded that the photograph appeared to show “an auditorium sized facility.”4 Tang’s attorney attempted to elicit details about the church building on direct examination, but the IJ would not allow it, asking, “[wjhat’s the relevance of what kind of building?” A.R. 80. Tang’s attorney explained that the building could indicate that it was an unregistered church. Id. But the IJ did not relent, stating, “I have no background as to, if, if a church is registered or not. So [Tang] can testify until, all day, and unless you give me some background on it, I can’t make these deductions.”5 Id. Tang did discuss the size of the church building on cross examination, however, testifying that “[p]eople [in his town] built pretty big houses,” that his church was located in a two-story house, and that the house was “a little bigger than [the approximately 15 x 30 foot courtroom], much more in length.” Id. at 105-06. The IJ acknowledged that “[i]t’s a big court, I mean, relatively that would be a big house.” Id. at 106. Moreover, because the photograph did not provide a full view of the room, the IJ should not have expected “indicia of it being a personal family residence.”
*700In addition, the IJ’s conclusions regarding Tang’s alleged lack of knowledge are not supported by substantial evidence. The IJ found that Tang did not know “the basis for China’s church registration policy,” “failed to demonstrate any basic knowledge about Christianity,” and was unaware of the denominational affiliation, if any, of his church in China. First, the IJ unreasonably required Tang to demonstrate an understanding of the reasons behind China’s policies toward religion.6 Cf. Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir.2006) (“the critical showing that an applicant must make ... is that he has suffered past persecution, or fears future persecution, on the basis of religion,” not that he has detailed knowledge about a religion). And Tang did recognize that his church was targeted because “it is apparently [an] illegal organization.” A.R. 104. Further, the IJ’s conclusion that Tang “failed to demonstrate any basic knowledge about Christianity” is incorrect. When asked by the IJ to state “[j]ust the important things” he had learned about Christianity, Tang replied that “[w]e all have sins. Jesus uses blood to, to wash away ours sins. After we die Jesus will help us so we can, so we could go to Heaven.” A.R. 87. In addition, the IJ improperly faulted Tang because he did not know the denomination of the church he attended in China. Although the IJ concluded that “[t]here was no evidence presented that churches in China do not have denominations,” it does not follow that Tang’s church must have been classified by religious doctrine or that Tang would have knowledge of such a classification. See Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n. 2 (8th Cir.2005).
Finally, even if the IJ reasonably required evidence corroborating Tang’s “Christian affiliation in the United States,” the IJ’s examination of whether such evidence had been provided was inadequate. In denying relief based on a lack of corroboration, the IJ must conduct the following three-part inquiry: (1) an identification of facts for which it is reasonable to expect corroboration; (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he has not, (3) an analysis of whether the applicant has adequately explained his failure to do so. See Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006). Here, the IJ concluded that Tang could have submitted a letter from his pastor, a statement from the relative who first took him to the church, or the study material he used to prepare for his baptism. The IJ also rejected Tang’s explanation that he had left his baptism study materials at home and that his preacher did not have time to testify. Importantly, however, the IJ failed to address other evidence corroborating Tang’s membership in the Philadelphia church, such as his “Certificate of Baptism” and photographs of his baptism ceremony. See Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir.2006) (recognizing that an IJ must “actually consider” the evidence presented by a party).
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order of May 6, 2008, and remand for further proceedings consistent with this opinion.
. The Government argues that Tang failed to exhaust his administrative remedies "with respect to each individual element" of the IJ's decision. We disagree. In his brief to the Board, Tang asserted that the IJ "incorrectly determined that [his] testimony was not credible." See Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006) (stating that "so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.”). In addition, the Board, citing to numerous pages from the transcript, referred to Tang's “contradictory testimony, prior statements, and material inconsistencies," as well as his failure to provide corroborating documentation. See Lin v. Att'y Gen., 543 F.3d 114, 122-23 (3d Cir.2008) (noting that exhaustion may occur when the BIA sua sponte considers an issue).
. Because Tang's asylum application was filed after the effective date of the REAL ID Act (May 11, 2005), the IJ was allowed to make a credibility determination “without regard to whether an inconsistency, inaccuracy, *699or falsehood goes to the heart of the applicant’s claim----" INA § 208(b)(l)(B)(iii) [8 U.S.C. § 1158(b)(l)(B)(iii) ]. We conclude that the adverse credibility determinations in this case cannot survive even under this new provision, the lawfulness of which we have not considered.
.The only other inconsistency cited by the IJ pertained to Tang’s Chinese baptismal document, which indicated that he was baptized on November 15, 2000. Tang testified, however, that he was baptized in November 2001. Tang explained that the date on the document was a "mistake.” We conclude that this date discrepancy does not provide substantial evidence in support of the IJ's adverse credibility finding, particularly in light of Tang's otherwise consistent account and other pertinent documentary evidence. See INA § 208(b)(l)(B)(iii) [8 U.S.C. § 1158(b)(l)(B)(iii) ]. The IJ found that those "other documents contradicted [Tang's] ... claim that he was a member of an unregistered underground Christian church, which violated China's laws and therefore caused the government to seek his arrest.” In reaching this conclusion, however, the IJ failed to address a March 18, 2005, warrant to "arrest religion member” Tang, a letter from Tang’s sister describing village officials’ efforts to locate Tang, and a "certificate” from the friend with whom Tang stayed indicating that Tang had "escaped” because “he was want[ed] by [the] Police Bureau for religion belief.” See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007) (holding that IJ "failed to take into account relevant and persuasive evidence that would not only explain the alleged inconsistencies, but would also support [the petitioner's] allegations of ... persecution.”).
. The IJ also focused on perceived inconsistencies concerning the number of people who belonged to Tang’s church. Tang initially testified that there were "[a] little over 10” members. A.R. 92. According to the IJ, Tang "later doubled the size of the membership from 10 to 20 when confronted with the photograph of the choir.” This is not an accurate characterization of Tang's testimony. Responding to a question from the IJ that was unrelated to the photograph, Tang in fact stated that there were ”[o]ver 10 but less than 20” members. Id. at 105.
. Notably, the IJ failed to acknowledge that the record contained the Department of State Country Reports, in which the registration of "house churches” in China is discussed.
. The IJ suggested that Tang's church was properly registered with Chinese authorities because he "did not dispute that there was a sanctioned affiliation between his church and the government.” This is a mischaracterization of Tang’s testimony. He first asserted that there was no affiliation, then stated that he was not sure whether an affiliation existed between his church and a nearby public school.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474672/
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OPINION
PER CURIAM.
Sean Pressley, a Pennsylvania prisoner proceeding pro se, filed an action under 42 U.S.C. § 1983 alleging violations of his procedural due process and Eighth Amendment rights. The District Court entered summary judgment in favor of the defendants. On appeal, Pressley argues, among other things, that the District Court erred in entering summary judgment on his procedural due process claims. We will remand the ease to the District Court.
In 2001, Pressley was incarcerated at the State Correctional Institute at Greene in Waynesville, Pennsylvania (“SCI-Greene”). Between March 29 and August 20, 2001, Pressley was charged with thirteen counts of misconduct at SCI-Greene. Following three institutional disciplinary proceedings, he was sentenced to 1080 days’ disciplinary custody in the Restricted Housing Unit (“RHU”). He served roughly two years of the sentence at SCI-Green, and the remaining year at the State Correctional Institution in Camp Hill, Pennsylvania (“SCI-Camp Hill”).1
In December 2001, Pressley filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of Pennsylvania against vari*703ous employees of the Pennsylvania Department of Corrections (“DOC”). In August 2002, Pressley filed an amended complaint in which he alleged that he was denied procedural due process at his disciplinary proceedings because he had not been given notice of the charges against him, and was otherwise precluded from participating in the hearings. Pressley also alleged that he was denied due process when the defendants deducted money from his inmate account without providing him with notice and an opportunity to be heard. Pressley further alleged that his Eighth Amendment rights had been violated because, for example, he was denied a proper diet, was exposed to contaminated utensils, and was given dirty garments.
In January 2003, Pressley sought leave to file a second amended complaint. A Magistrate Judge granted Pressley’s request, and Pressley filed his pleading. Soon thereafter, however, the defendants objected, claiming that they had never been served with a copy of the new complaint. As a result, by order entered February 4, 2003, the Magistrate Judge ordered the second amended complaint stricken from the record. Pressley appealed the Magistrate Judge’s order to the District Court, but the court affirmed the Magistrate Judge’s decision. In April 2003, Pressley submitted another motion to the Magistrate Judge requesting leave to file a second amended complaint. The Magistrate Judge denied this request as well, explaining to Pressley that he had again failed to serve the defendants, and had also failed to attach a copy of the proposed second amended complaint to his motion. As before, Pressley appealed to the District Court, and the District Court affirmed. Pressley apparently sought leave to amend his complaint at least once more, in November 2004, but the Magistrate Judge denied that request as well.
The District Court found that Superintendent Blaine, Deputy Superintendent Miller, Hearing Examiner Bitner, members of the Program Review Board, and D’Eletto and Torrets (who were involved in the disciplinary hearing appeals process) were entitled to judgment as a matter of law. (Dist. Ct. Memorandum Opinion & Order, May 17, 2006.) As a result, when the motion for summary judgment was filed, the only defendants left in the case were the corrections officers directly involved in the disputed misconduct reports and hearings. The motion asked for summary judgment on Pressley’s Eighth and Fourteenth Amendment claims. On February 8, 2008, 544 F.Supp.2d 446, the District Court2 granted the motion and entered judgment in favor of the defendants. This appeal followed.3
II.
A. District Court’s Order Striking Pressley’s Motion for Leave to File Second Amended Complaint
Pressley first claims that the District Court abused its discretion by denying his request for leave to file a second amended complaint. As noted above, Pressley was able to initially amend his complaint in August 2002, but was subsequently denied permission to file a second amended complaint on three separate occasions. Pressley now challenges the first of these three denials — i.e., the Magistrate Judge’s February 4, 2003 order striking the second *704amended complaint and the District Court’s February 21, 2008 order affirming the same. The Magistrate Judge had granted Pressley leave to file a second amended complaint, and Pressley did so, but the defendants objected, claiming that they had not been served with a copy thereof. As a result, the Magistrate Judge ordered the second amended complaint stricken from the record. Pressley now admits that, at the time that the defendants filed their objections, he had not yet properly served them, but claims that he did in fact mail a copy of the pleading soon thereafter. Pressley contends that the defendants never informed the Magistrate Judge that he had corrected his error, even though there was ample time to do so before the Magistrate Judge ruled on their objections.
Even assuming, however, that the District Court was, as Pressley alleges, ill-informed as to whether he had eventually effected service, he has not demonstrated how he was prejudiced by the Court’s error. Nothing prevented Pressley from returning to the Magistrate Judge with another motion seeking leave to file a second amended complaint, and, in fact, Pressley did just that. Although his second attempt was equally unsuccessful, his lack of success was due to his own error, not the Magistrate Judge’s. See Ranke v. Sanofi-Synthelabo, Inc., 436 F.3d 197, 206 (3d Cir.2006) (holding that a failure to submit a draft amended complaint is fatal to a request for leave to amend). Therefore, Pressley has not demonstrated that he is entitled to any relief on this basis.4
B. Defendant’s Failure to Produce Requested Discovery
Pressley next argues that the District Court erred by ruling on the defendants’ summary judgment motion before discovery was completed. Pressley states that, on June 15, 2005, he filed a motion to compel discovery, which the District Court granted. According to Pressley, however, the defendants never produced the requested discovery. Pressley claims that he notified the court of their failure to do so during a telephone conference on March 26, 2007, but that the Court instructed him to save his argument for his brief in opposition to the defendant’s motion for summary judgment. Although Pressley did include an argument on the issue in his brief, the District Court apparently saw no basis for relief. Pressley now argues that, because the District Court failed to order the defendants to produce the requested documents, he was unable to sufficiently support his Eighth Amendment claims.
We cannot discern any error in the District Court’s actions. As noted above, the District Court instructed Pressley to set forth his argument in his brief in opposition to the defendants’ motion for summary judgment. Although he did include an argument in his brief, he failed to identify the documents he sought, or demonstrate how those documents would support his claims. Instead, he simply asserted that the defendants’ failure to disclose the “requested discovery” prejudiced him “by limiting his ability to adequately respond *705to their claims.” (Brief in Opposition to Defendants’ Motion for Summary Judgment 8.) Without further guidance as to the nature or relevance of the requested discovery, the District Court had no reason to delay adjudication of the defendants’ motion for summary judgment.
C. Due Process Claims
Next, Pressley challenges the District Court’s order granting the defendants’ motion for summary judgment on his Fourteenth Amendment due process claims. We review a District Court’s order granting summary judgment de novo. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). Summary judgment is proper only if it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir.2002).
1. Misconduct Hearings
Pressley first argues that the District Court erred in concluding that the duration of his placement in disciplinary custody in the RHU, and the attendant hardships of such confinement, did not give rise to a protected liberty interest. He also argues that the court erred in finding that the defendants afforded him all of the process that he was due at his disciplinary proceedings.
In analyzing a procedural due process claim, the first step is to determine whether the nature of the interest is encompassed within the Fourteenth Amendment’s protection. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Once we determine that the interest is protected, the question becomes what process is due to protect it. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
a. Pressley’s Liberty Interest
Procedural due process rights are triggered by deprivation of a legally cognizable liberty interest. For a prisoner, such a deprivation occurs when the prison “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In determining whether a protected liberty interest exists, the court must consider: (1) the duration of the disciplinary confinement; and (2) the conditions of that confinement in relation to other prison conditions. Id. Because of the fact-specific nature of this test, our cases engaging in this inquiry have reached differing outcomes. Compare Leamer v. Fauver, 288 F.3d 532, 545 (3d Cir.2002) (denial of the right to participate in a sex offender treatment program that was “mandated and promised” by New Jersey law implicated a protected liberty interest), and Shoats v. Horn, 213 F.3d 140, 144 (3d Cir.2000) (eight year’s in administrative confinement, during which inmate was locked in his cell for all but two hours per week, denied contact with his family, and prohibited from visiting the library or “participating in any education, vocational, or other organization activities,” implicated a protected liberty inter est), with Smith v. Mensinger, 293 F.3d 641, 645, 654 (3d Cir.2002) (seven months in disciplinary confinement did not implicate a liberty interest), Torres v. Fauver, 292 F.3d 141, 151-52 (3d Cir.2002) (disciplinary detention for fifteen days and administrative segregation for 120 days was not atypical treatment in New Jersey prisons and therefore did not implicate a protected liberty interest), and Griffin v. Vaughn, 112 F.3d 703, 706-09 (3d Cir.1997) (administrative detention, which imposed strict restrictions on outside contact *706and personal conveniences, did not implicate a protected liberty interest).
In this case, the District Court held that Pressley failed to establish that his sentence of 1080 days in disciplinary custody constituted an “atypical and significant hardship” sufficient to trigger a liberty interest under Sandin. In reaching this conclusion, the Court relied on our nonprecedential opinion in which we held that a prisoner who was sentenced to 930 days in disciplinary confinement failed to state facts, or submit evidence, showing that he was subject to conditions that met the Sandin requirement. The District Court compared the length of Pressley’s sentence to the 930-day sentence in that case, and reasoned that “[i]f 930 days does not [constitute] an atypical and significant hardship, a mere five months more does not either.” (Dist. Ct. Feb. 8, 2008 Memorandum and Order 19, 544 F.Supp.2d at 455.)
This analysis does not comport with the fact-specific inquiry required by San-din. As set forth above, to determine whether Pressley endured an atypical and significant hardship, the District Court was required to examine the duration of his disciplinary confinement, and the actual conditions of that confinement, in relation to the hardships endured by other prisoners. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293. Instead, the District Court compared the duration of Pressley’s sentence to that of another prisoner and presumed that the conditions Pressley faced in disciplinary custody were identical to that inmate’s. This analysis did not meet the Sandin standard and we will remand the matter to the District Court to conduct a further inquiry. See Davis v. Barrett, 576 F.3d 129, 134-135 (2d Cir.2009) (remanding matter for further fact-finding on the issue of the actual conditions of prisoner’s confinement in comparison to ordinary prison conditions). Needless to say, we express no opinion on the outcome of that inquiry in this case.
b. The Process that Pressley was Due
In the alternative, the District Court concluded that Pressley received the process he would have been due had he met the Sandin standard. It is well established that “[pjrison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Rather, due process prohibits the deprivation of a prisoner’s liberty interest at a disciplinary hearing unless the prisoner is given: (1) an impartial decision-making body; (2) twenty-four hour notice of the charges; (3) an opportunity to call witnesses and present documentary evidence; (4) assistance from a representative; and (5) a written decision explaining the evidence relied upon. Griffin v. Spratt, 969 F.2d 16, 19 (3d Cir.1992). In addition, the disciplinary decision must be supported by at least “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Pressley submitted a detailed declaration setting forth the events that form the basis of his claims. He averred that several corrections officers, whom he identifies by name, prepared misconduct reports, which he identifies by date and number, charging him with various offenses, but that he was not served with the reports or the accompanying “inmate version and witness forms.” (DeclJH 4-21.) Pressley further averred that, when he appeared at the hearing on these charges on April 2, 2001, he informed Hearing Officer Ansell that he had not received copies of “any of the misconduct reports, any inmate version or witness forms to marshal the facts, *707prepare a defense, request witnesses or submit a written version.” (Decl.H 23.)
Pressley contends that the Hearing Officer told him that he would be given copies and returned him to his cell. (Decl.H 24.) According to Pressley:
“I assumed that the hearing would be reschedule^] allowing me time to review the misconduct reports, prepare a defense, request witnesses and submit a written version. Later that day I received six rationales stating that at the above hearing I told [defendant Ansell that I did not want to be at the hearing, that this was witnessed by defendants Wisyauski and McClure, and that the hearings were held in absentee [sic].”
(Decl.HH 25-26.)
At the hearing, Pressley was found guilty of all charges, sentenced to an aggregate of 330 days in disciplinary confinement, and ordered to pay restitution. (Decl.H 27.) He avers that, when Corrections Officer Hawkenbery came to his cell to ask whether he wanted a hearing on the assessments resulting from the misconduct charges, Pressley said that he did. (Decl.HH 28-31.) Nonetheless, he was “denied an assessment hearing because defendant Hawkenbery and Patterson falsely stated that I did not want one and a lein[sic] was placed on my inmate account.” (Decl.H 32.)
Pressley then makes similar statements about a second set of misconduct reports issued against him, (Decl.HH 34-38), and avers that:
“On 7-9-01 a hearing was held on the afore mentioned misconduct reports at which time Defendant Ansell refused to allow Plaintiff his properly requested assistant, to view video evidence and evidence of the names and number of inmates housed on I-C Pod for the purpose of identifying inmates that I sought to testify and was likely to lead to my innocence or mitigate my guilt.”
(Decl.H 39.)
The hearing was held in absentia, at which time he was found guilty of all charges, sentenced to an aggregate of 660 days in disciplinary confinement, and ordered to pay restitution. (Decl.HH 41.) According to Pressley, corrections officers again ignored his explicit requests for a hearing on the assessment. (DecLHH 42-45.) Pressley attests to similar facts regarding a third misconduct hearing, which resulted in a sentence of 120 days in disciplinary confinement and restitution. (DecLHH 48-53.) He contends that he was denied an assessment hearing on these charges as well. (DecLHH 54-57.)
Pressley states that he has been in segregation a total of “seven consecutive years and some odd months,” (Deel.H62), although it is unclear how much of that time is part of the present 1080 day-sentence. Pressley notes that he has pursued administrative appeals on all of the misconduct reports issued against him, and although he did receive a reduction in his sentence for certain other charges, he did not receive a reduction for any of the misconduct charges at issue in this action. (DecLHH 59-60.)
Pressley further avers that, while serving his sentence on these charges, he was “housed on an atmosphere of excessive violence where officers used mental and physical abuse,” (Decl.H 63); was “served with a lower calorie diet than that served to the prison population which resulted in substantial weight loss of approximately 50 pounds,” (Decl.H 65); was “subject to contaminated and unsanitary food service wear resulting in food poisoning type symptoms of vomiting and the runs,” (Decl.H 67); and that there were “occasions where he requested emergency medical and dental, however, the nurses would re*708fuse to come to the unit to assess his ailments which resulted in undue pain,” (DeclJ 69). Pressley alleges that his complaints about these conditions went ignored.
In support of his declaration, Pressley attached a detailed “Conditions Chart” in which he compared the conditions of prisoners in the general population with those in the Restrictive Housing Unit, as well as those in the Special Management Unit where he was confined. The chart shows the amount of time each population is given for activities like exercise, employment, library access, and education, and describes the procedures for meals, showers, phone calls, visitors, cell cleaning and health care. The chart also includes other aspects of prison life such as access to the commissary, cable, haircuts, and association with others. Pressley also submitted a declaration of disputed facts in which he recites most of the statements in his declaration.
The District Court entered judgment in favor of the defendants on these claims on the ground that Pressley failed to “identify how he was prejudiced in his ability to provide a defense by the alleged failure to receive advance written notice of the charges.” (Dist. Ct. Feb. 8, 2008 Memorandum and Order 23.) However, the court did not address any of Pressley’s other allegations. Given that Pressley set forth several facts that, if proven at trial, might establish a violation of his due process rights under Wolff, and given that the defendants disputed many of these facts, summary judgment was not appropriate.5
To the extent that the District Court relied on our decision in Shoats v. Horn, it was error to do so. Shoats held that a prisoner who was placed in administrative confinement for eight years was afforded all the process he was due because an “ ‘informal, nonadversary review’ at which the prisoner has the opportunity to state his views satisfies the requirements of due process.” Id. at 144 (quoting Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). Relying on this case, the District Court found that, even assuming that Pressley did not receive the protections owed to him under Wolff, “he can show no [due process] violation because he received regular periodic reviews by the Program Review Committee (PRC).” (Dist. Ct. Feb. 8, 2008 Memorandum and Order 23.) However, the minimal procedures outlined in Hewitt are sufficient only if the restraint is for administrative — rather than disciplinary — reasons; if the restraint is imposed for disciplinary reasons, the procedures required by Wolff apply. Stevenson v. Carroll, 495 F.3d 62, 70-71 (3d Cir.2007). Therefore, whether Pressley received periodic reviews by the PRC was not relevant to the due process inquiry.
Finally, Pressley challenges the District Court’s entry of summary judgment on his property interest claim. In his amended complaint, Pressley alleged that he was denied due process when the defendants deducted money from his inmate account (as restitution for his alleged destruction of government property) without providing him an opportunity to be
2. Assessment Hearings *709heard. Specifically, he contends that one of the defendant corrections officers said that if Pressley wished to attend his assessment hearings he had to sign a form. However, he refused to do so because he believed that it was not necessary in order to obtain a hearing. According to the defendants, however, if Pressley wished to attend the hearings, he was required to sign the Notice of Assessments delivered to him in the space provided for this purpose. See DOC Policy 1.7.5 HVIJB. l.d (Dkt # 129-2, p. 2.) Because he did not do so, the hearings proceeded without him.
The District Court recognized that Pressley had a property interest in the funds held in his prison account, see Higgins v. Beyer, 293 F.3d 683, 693 (3d Cir.2002), but entered judgment in favor of the defendants on the ground that Pressley was afforded all the process that he was due because they complied with DOC procedures and gave him an opportunity to request a hearing. While Pressley argues that his oral request should have been sufficient, he does not contest the fact that he refused to sign the requisite form.6 As a result, there was not a genuine issue as to whether he was afforded an opportunity to attend his assessment hearings in accordance with his rights under the Fourteenth Amendment. Therefore, the District Court properly entered summary judgment in favor of the defendants on this claim.
III.
For the reasons set forth above, we will affirm in part, vacate in part, and remand the matter for further proceedings consistent with this opinion.
. Pressley is presently incarcerated at the State Correctional Institution at Mahanoy.
. In February 2005, the parties consented to having a Magistrate Judge try their case. To avoid confusion, however, we will refer to the Magistrate Judge as the “District Court” when referring to post-February 2005 events.
. In May 2007, after the defendants moved for summary judgment, Pressley filed a motion for relief from judgment in which he challenged the Magistrate Judge's February 4, 2003 order striking his amended complaint. The District Court denied relief on the ground that Pressley had failed to provide an adequate explanation for why he had waited four years to bring this challenge. To the extent that Pressley now seeks review of the District Court's order, we note that he has failed to present any argument in support of his claim. Therefore, he has waived this issue on appeal. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
. In their brief in support of their motion for summary judgment, the defendants argued that Pressley's due process claim was governed by this Court's decision in Shoats v. Horn, 213 F.3d 140 (3d Cir.2000), which, as discussed below, concerns post-hearing review of administrative — not disciplinary— placements. As a result, the defendants did not specifically dispute Pressley's account of what took place at his disciplinary hearings. That said, the defendants did set forth facts in their Statement of Undisputed Facts that created questions of fact precluding summary judgment.
. Although Pressley argues on appeal that he never received notice of the assessment hearings to begin with, he did not make this argument to the District Court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474674/
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Gary Smith was indicted on charges of possessing cocaine base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Prior to trial, Smith moved to suppress evidence obtained during a search of his mother’s residence, which the District Court denied. The jury found Smith guilty of both charges. After trial, Smith filed a motion for judgment of acquittal pursuant to Rule 29, Fed.R.Crim. P., which the court denied. Smith appeals from the District Court’s orders denying his suppression motion and his Rule 29 motion. We will affirm.
I.
We write for the parties, and so we discuss the underlying facts and history only to the extent necessary to resolve the issues Smith raises on appeal. On October 2, 2006, Philadelphia Police Officer Gary Francis received an anonymous tip that a man named “Gary” (later identified as Smith) was supplying crack cocaine to drug dealers on the 100 block of East Pleasant Street, that Gary drove a black Monte Carlo with a specified license plate number, and that Gary lived at 136 East Pleasant Street. Officer Francis verified the details of this tip with a confidential informant who had proven reliable in the past. The informant further indicated that *711Smith visited one of his dealers down the block at 156 East Pleasant Street on a regular basis.
On October 2, 2006, the confidential informant made a controlled drug buy from one Charles Wright outside of 156 East Pleasant Street. The next day, police officers conducting surveillance observed Smith exiting 136 East Pleasant, entering 156 East Pleasant, and returning to 136 East Pleasant multiple times; each time that Smith entered 136 East Pleasant, he entered without knocking or otherwise seeking permission. On October 10, 2006, the surveilling officers observed Smith exit 136 East Pleasant, approach his Monte Carlo across the street, reach down to the floorboard, and remove a clear plastic bag; Smith then approached a man on the street, extracted a small object from the bag, and gave it to the man in return for money. Smith then gave the plastic bag to a second man and drove away. The confidential informant purchased crack cocaine from this second man later that day.
Based upon this information, Officer Francis prepared an affidavit in support of an application for a search warrant for 136 East Pleasant Street. The affidavit described the preceding events in detail, including the officers’ observations that Smith appeared to have engaged in a drug sale shortly after leaving the residence. It also listed the Police Department’s “police photograph number” (“PPN”) for Smith and for Wright. The affidavit noted that a criminal records check for Wright indicated that he had a prior arrest for narcotics; apart from Smith’s PPN, the affidavit made no reference to Smith’s criminal record, which included a conviction for illegal weapons possession.
The magistrate issued a search warrant for 136 East Pleasant Street on October 11, 2006, which the officers executed later that day.1 Resting on top of a tall cabinet in the dining room were a loaded firearm, ammunition, two plastic bags containing 161.07 grams of crack cocaine, a digital scale, two forms of picture identification for Smith, and mail addressed to Smith at the 136 East Pleasant Street address. The officers seized these items and arrested Smith, who had arrived as the officers were conducting the search.
Before trial, Smith moved to suppress the items recovered during the search, arguing that Officer Francis’s affidavit did not establish probable cause for the search and that the affidavit demonstrated a reckless disregard for the truth which undermined the basis for the magistrate’s probable cause determination. The District Court denied Smith’s motion. After the jury found Smith guilty on both counts of the indictment, Smith filed a motion seeking a judgment of acquittal pursuant to Rule 29, Fed. R.Crim. P., which the District Court denied. This timely appeal followed.
II.
Smith appeals the District Court’s March 26, 2008 order denying his motion to suppress and the December 24, 2008 order denying his motion for a judgment of acquittal.2 We conclude that the District Court properly denied both motions.
With regard to the order denying his suppression motion,3 Smith raises two ar*712guments: he contends, first, that the contents of Officer Francis’s affidavit failed to establish probable cause for the search of his residence, and, second, that facts omitted from the affidavit rendered it misleading and undermined the magistrate’s probable cause finding. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Neither argument is persuasive.
First, the magistrate had a substantial basis to conclude that there was probable cause to search 136 East Pleasant Street.4 Francis’s affidavit revealed that Smith had unrestricted access to the residence in question; that Smith appeared to have engaged in a drug sale shortly after exiting the residence; and that Smith frequently shuttled back and forth between 136 East Pleasant and 156 East Pleasant, where, according to the confidential informant, Smith’s drug distributor resided and where the informant made two controlled drug buys. We have recognized that “[i]f there is probable cause to believe that someone committed a crime, then the likelihood that that person’s residence contains evidence of the crime increases,” and that, with regard to drug crimes in particular, “evidence ... is likely to be found where the [drug] dealers reside.” United States v. Burton, 288 F.3d 91, 103 (3d Cir.2002) (citations omitted).
Application of the inference that drug dealers often store evidence of drug crimes in their residences is predicated on evidence of “three preliminary premises: (1) that the person suspected of drug dealing is actually a drug dealer; (2) that the place to be searched is possessed by, or the domicile of, the dealer; and (3) that the home contains contraband linking it to the dealer’s drug activities.” Id. at 104. Smith primarily argues that there was no evidence supporting the third premise. We disagree and find that there was ample evidence linking 136 East Pleasant Street to Smith’s drug dealing activities. The proximity of Smith’s residence to his drug activities, and the fact that he shuttled back and forth between 136 East Pleasant Street and the site of controlled buys and his own suspected sale of cocaine, satisfied the third prong of the Burton test. See Jones, 994 F.2d at 1057 (the fact that defendants’ homes were near the site of the crime made the homes “a likely repository for evidence”). Based upon the totality of the circumstances disclosed in Francis’s affidavit, the magistrate had a substantial basis for finding that there was a “fair probability that contraband or evidence of a crime” would be found in the residence. United States v. Bond, 581 F.3d 128, 139 (3d Cir.2009) (citation omitted).
Nor can we agree with Smith that Francis’s affidavit demonstrated a “reckless disregard for the truth” such that the District Court erred in not suppressing the fruits of the search. Franks, 438 U.S. at 171, 98 S.Ct. 2674. Smith suggests that by including his and Wright’s PPNs in the affidavit, which disclosed Wright’s prior *713narcotics arrest but did not specify the details of Smith’s own criminal history, Francis “recklessly omit[ted] facts that any reasonable person would want to know” — ie., the fact that Smith’s own criminal histoiy did not include drug crimes — and thereby tainted the magistrate’s probable cause finding. United States v. Yusuf, 461 F.3d 374, 383 (3d Cir.2006) (citation omitted). Smith’s argument fails, because, once we engage in the Franks exercise of “supplying the omitted information to the original affidavit,” id., it is abundantly apparent that probable cause for the search would still exist, even if the original affidavit had spelled out that Smith’s prior arrest was for unlawful weapons possession and not for drug crimes. That is, the basis for the magistrate’s probable cause finding was Francis’s recounting of Smith’s own activities as observed by the officers and the informant; the finding of probable cause did not even remotely turn on whether or not Smith had a history of narcotics arrests.
Finally, we conclude that the District Court properly denied Smith’s Rule 29 motion. Our review of whether a jury verdict was based upon sufficient evidence is highly deferential; the verdict must be sustained if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996) (citation omitted, emphasis in original). Smith contends that there was insufficient evidence to support the jury’s finding that he had constructive possession of the drugs and firearm found atop the cabinet at 136 East Pleasant Street.
We disagree. Constructive possession, which can be proved by circumstantial evidence, “requires an individual to have the power and intent to exercise both dominion and control over the object he or she is charged with possessing.” United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.2008) (citation omitted). As the Government argues, the evidence presented at trial was sufficient to establish Smith’s constructive possession of the contraband: Smith had unfettered access to 136 East Pleasant Street (where the only other known residents were an elderly woman and a young child), Smith engaged in a suspicious transaction resembling a drug sale outside 136 East Pleasant Street, and, critically, the drugs and firearm were located atop a tall cabinet next to two forms of picture identification of Smith and mail addressed to Smith at the 136 East Pleasant Street address. Viewing the evidence in the light most favorable to the Government, we agree with the District Court that the jury could rationally have found beyond a reasonable doubt that Smith constructively possessed the firearm and narcotics.
III.
For the foregoing reasons, we will affirm the judgment of conviction.5
.A woman believed to be Smith's mother and a child believed to be his son were in the residence at the time that the officers executed the search warrant.
. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291.
. “We review the district court's denial of the motion to suppress for clear error as to the underlying facts, but exercise plenary review *712as to its legality in light of the court's properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (internal quotations, citations, and brackets omitted).
. "When faced with a challenge to a magistrate’s probable cause determination, a reviewing court must remember that its role is limited .... [to] ensuring] that the magistrate had a substantial basis for concluding that probable cause existed.” United States v. Jones, 994 F.2d 1051, 1055 (3d Cir.1993) (citation omitted). Probable cause exists if the totality of the circumstances create a "fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Bond, 581 F.3d 128, 139 (3d Cir.2009) (citation omitted).
. On October 6, 2009, nearly eight months after this appeal was filed, Smith sought leave to file a supplemental brief to address an issue related to his sentence which was not raised in his initial submission and not preserved in this appeal. We denied Smith's motion as filed, but stated that the brief could be submitted for our information, subject to our subsequent decision on whether to treat the untimely brief as filed. We conclude that Smith has waived his argument concerning his sentence, see Brenner v. Local 514, United Broth. of Carpenters and Joiners of America, 927 F.2d 1283, 1298 (3d Cir.1991) ("the fed*714eral and local rules of procedure requiring the appellant's brief to include a statement of the issues presented for appeal, see Fed. R.App. P. 28(a)(l)(3); Third Circuit Rule 21(l)(A)(d), would be without significance were we to countenance failure to include an issue, absent extraordinary circumstances”), and that, in any event, his argument is foreclosed by our decision in United States v. Abbott, 574 F.3d 203, 211 (3d Cir.2009).
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OPINION
PER CURIAM.
Akintoye Omatsola Laoye appeals from the BIA’s final order of removal for failure to maintain his F-l student status. He is a native and citizen of Nigeria who entered this country in 1996 as a J-2 non-immigrant exchange visitor. He adjusted to F-1 nonimmigrant student status when he began college studies at Monmouth University in New Jersey in 1998. In 2004, the Department of Homeland Security (DHS) charged Laoye with removal based on his conviction of an aggravated felony in October 2003 (for endangering the life of a child under N.J.S.A. 2C:24-4(a)). Laoye was placed in ICE detainment from February 2004 through July 2006. In 2007, the Government conceded that it could not sustain the aggravated felony removal charge in light of our decision in Stubbs v. Att’y Gen., 452 F.3d 251 (3d Cir.2006),1 and the IJ made a finding to that effect. (AR 100-101.)
After Stubbs was decided, however, the DHS brought new removal charges pursuant to INA § 237(a)(1)(C)(i), alleging that Laoye failed to maintain his F-l student status, including the two and one-half year period in which Laoye was in ICE detainment on the unsustainable removal charge. Specifically, the DHS charged that Laoye failed to attend Monmouth University in the Fall semester of 2002 and that he had not attended college after 2003. (AR 129-130.) It submitted a letter from an Assistant General Counsel at Monmouth University dated June 1, 2006, confirming Laoye’s lapse in attendance. (AR 123.) Laoye was represented by counsel, John J. Garzón, Esq. Laoye’s removal proceeding was continued pending his pursuit of reinstatement at Monmouth University and an adjustment of status by means of an 1-130 petition. In October 2006, Laoye’s wife filed a new 1-130 petition (a previous petition had been denied), which was terminated in March 2007. By April 2007, Laoye’s reinstatement application had been denied and his appeal was pending.2 At the September 2007 removal hearing, Garzón conceded that Laoye was not in status as a non-immigrant F-l visitor in 2002 and “since 2003.”3 (AR 95 & 103.) Garzón informed the IJ that Laoye would not be filing an application for asylum, withholding of removal or CAT relief. (Id.) The IJ found that Laoye was “out of status” for part of 2002 and “since 2003,” based on Laoye’s admission to the DHS charge and Monmouth University’s June 2006 letter. (Id. at 103-104.) Thus, the IJ found that Laoye was removable as an “out of status” F-l student. (AR 109.) The IJ continued the matter to February 2008, however, pending confirmation of Laoye’s reinstatement status and regarding the termination of his 1-130 petition. (AR 104-105.)
Laoye appeared pro se at the February 2008 removal hearing, informing the IJ that Garzón was not present because Laoye could not come up with the money *716to retain him. (AR 108.) The IJ proceeded with the hearing. Laoye submitted Garzon’s entire file on the matter, which included, among other things, a letter from Monmouth University dated February 2, 2004, denying Laoye’s appeal of the University’s decision to suspend him for the 2004 Spring semester and informing him that he could return as a student in May 2004. (AR 121-122.) After reviewing Laoye’s submissions, the IJ found that Laoye had no relief because he was an out of status student. (AR 55 & 109.) The IJ denied voluntary departure as a matter of discretion and ordered deportation to Nigeria. (AR 56.)
The BIA dismissed Laoye’s pro se appeal. It agreed with the IJ that Laoye’s admission to the removal charge and the University’s June 1, 2006 letter established clear and convincing evidence that Laoye was in violation of his non-immigrant student status. (BIA Op., AR 2.) Thus, the BIA agreed that Laoye vras removable under INA § 237(a)(l)(C)(i). (Id.) Laoye argued that the IJ erred in ruling against him because he was already back at school at the time of the hearing and he was working on his reinstatement. Moreover, he contended that he could show that he was enrolled in classes for 2002 but could not attend due to medical problems. He submitted a letter from Monmouth University dated February 29, 2008, stating that he was currently enrolled for the 2008 Spring semester and was attending classes. (AR 14.) The letter also indicated that the University viewed F-l reinstatement as unnecessary in light of Laoye’s pending 1-130 petition. (Id.) The BIA rejected Laoye’s arguments, holding that he was not eligible for reinstatement because he had been out of status since 2003, well beyond the five months allowed under 8 C.F.R. § 214.2(f)(16)(i)(A), and he failed to show that he was otherwise eligible. (BIA Op., AR 3.) The BIA ruled that remand was not necessary for the IJ’s consideration of Monmouth University’s 2008 letter because Laoye failed to file a motion to reopen for that purpose and because the letter indicated that the University had not reinstated Laoye. (Id.) The BIA also held that the IJ did not abuse his discretion in proceeding with the removal hearing where Laoye’s attorney had filed a motion to withdraw a day earlier and did not appear. (Id.) The BIA noted that Laoye failed to comply with the conditions for a claim for ineffectiveness of counsel under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). (Id.) The BIA rejected Laoye’s argument that he was eligible for adjustment of status, noting that there was no record evidence that Laoye appealed the denial of his wife’s first 1-130 petition in July 2005. (Id.) The BIA declined to address Laoye’s arguments regarding the aggravated felony removal charge because the IJ did not find Laoye removable under INA § 237(a)(2)(A)(iii). (Id. at 3.) Laoye filed a timely petition for review pro se.
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[Wjhen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review a decision on deportability for reasonable, substantial, and probative evidence. See 8 U.S.C. § 1229a(c)(3)(A).
An F-l student is admitted into the United States for the period in which he pursues a full course of studies at an educational institution approved by the DHS. See 8 C.F.R. § 214.2(f)(5) (defining “duration of status”). An F-l student is considered to be maintaining his F-l status if he *717is making normal progress toward completing a course of study. Id. If a student falls out of status (i.e., he is no longer attending school), he may seek reinstatement from the district director, provided he has not been out of status for more than five months or he demonstrates that the failure to request reinstatement within five months was due to exceptional circumstances and that he filed the request for reinstatement as promptly as possible. See 8 C.F.R. § 214.2(f)(16)(i)(A). The student also has to meet five other criteria before he can be reinstated. See §§ 214.2(f)(i)(16)(B)(F). Neither the IJ nor the BIA has authority to reinstate F-l status or to review the DHS’s decision denying reinstatement. See Matter of Yazdani, 17 I. & N. Dec. 626, 628-29 (BIA 1981).
Substantial record evidence supports the BIA’s conclusion that the DHS met its burden of showing that Laoye was deportable as an “out of status” F-l student. The BIA based its decision on Laoye’s admission to the DHS’s charge that he had not attended classes at Monmouth University since 2003, which is supported by the University’s letter detailing Laoye’s absence from college for the same time period. Both of Amanda Laoye’s I-130 petitions were denied and Laoye’s application for reinstatement was denied. Absent record evidence showing that Laoye was eligible for these forms of relief, the BIA properly affirmed the IJ’s final order of removal.
In his petition for review, Laoye contends that his absence from college in the Fall of 2002 was approved by the University for medical reasons and thus, he was not “out of status” for that time period. He says that he did not attend college in 2003 because he was suspended. Laoye points to memoranda from the University allegedly corroborating his claim. Neither Laoye’s arguments nor his supporting documents were submitted to the IJ or the BIA. The claims are not exhausted and, thus, this Court has no jurisdiction to consider them. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003) (holding that this Court lacks jurisdiction to review arguments not raised before the BIA because they are not exhausted). Because the documents are not in the administrative record, this Court cannot review them. Laoye must first file a motion to reopen before the IJ or the BIA.
Laoye also claims that he is eligible for reinstatement under 8 C.F.R. § 214.2(f)(16)(i)(F) because his mandatory detention by ICE from February 2004 to July 2006 prevented him from maintaining his college studies due to circumstances beyond his control. Indeed, it appears that Monmouth University was willing to take him back as a student in May 2004, while he was in ICE detention. Although we are not unsympathetic to this claim, we lack jurisdiction to consider it because Laoye has not exhausted it in immigration court or in the BIA. See Abdulrahman, 330 F.3d at 594-95. Thus, why the DHS continues to press Laoye for failing to keep up his college studies while he was in ICE detention—based solely on a removal charge that the DHS later conceded was not sustainable—is not properly before us today.
Laoye also maintains that he has recently re-applied for F-l status.4 As for this petition for review, however, the record only includes the DHS’s denial of the 2006 reinstatement application. There is no rec*718ord evidence that Laoye (or the University on his behalf) had reapplied for F-l status.5 The Board’s decision cannot be faulted based on the record it had before it.
Upon careful and thorough review of Laoye’s petition for review, we conclude that his remaining arguments lack merit. Accordingly, we will deny the petition for review. Laoye’s motion for leave to file a supplemental appendix and the DHS’s motion to strike are denied.
. In Stubbs, we held that a conviction under N.J.S.A. 2C:24-4(a) is insufficient to constitute “sexual abuse of a minor” under the INA.
. Laoye's reinstatement application is not in evidence and there is no record evidence of the outcome of his appeal. Laoye does not claim that his reinstatement appeal was granted.
.At the same hearing, the DHS conceded that the aggravated felony removal charge for which Laoye was detained for two and one-half years was unsustainable.
. Laoye also argues that so long as the DHS retains possession of his passport, he will be unable to comply with the reinstatement process. (See Informal Brief at 3.)
. The 2006 reinstatement application and documentation of the DHS's reasons for denial are not in the record.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Jesus Frias-Cisneros1 appeals his sentence to a term of 99 months’ imprisonment and 5 years’ supervised release for conspiring to distribute and possess with intent to distribute between 15 and 50 kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846. Frias-Cisneros contends that the District Court failed to adequately consider the factors specified in 18 U.S.C. § 3553, and that it did not prop*720erly account for his immigration status or the poor conditions of his pretrial confinement. We will affirm the judgment of the District Court.
Jurisdiction and Standards of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
In reviewing a sentence, our standard of review depends on whether the asserted sentencing errors were raised before the district court. If they were, we review for abuse of discretion. United States v. Russell, 564 F.3d 200, 203 (3d Cir.2009). If they were not, we review for plain error. Id.
When reviewing a sentence for abuse of discretion, we consider whether the sentence was procedurally correct and, if so, whether it was substantively reasonable. United States v. Sevilla, 541 F.3d 226, 230 (3d Cir.2008). To satisfy the procedural dimension of this standard, “[t]he record must disclose meaningful consideration of the relevant statutory factors and the exercise of independent judgment, based on a weighing of the relevant factors, in arriving at a final sentence.” United States v. Grier, 475 F.3d 556, 571-72 (en banc) (3d Cir.2007). However, judges need not explicitly discuss each of the § 3553(a) factors on the record. United, States v. Charles, 467 F.3d 828, 831 (3d Cir.2006).
When we review for plain error, we consider whether the District Court committed an error that was plain — i.e., “clear or obvious” — and affected the substantial rights of the defendant. Russell, 564 F.3d at 203-04 (citations and internal quotation marks omitted).
Discussion
Defendant challenges his sentence on three grounds. He first argues that the District Court failed to discuss any of the § 3553(a) factors other than “the nature and circumstances of the offense and the history and characteristics of the defendant,” § 3553(a)(1). Specifically, defendant claims that the Court should have considered (1) the low likelihood that he would commit another offense, including because he has diabetes and will likely be deported after serving his sentence; (2) the lower sentences imposed on some of his co-defendants; (3) his limited role in the offense; (4) his cooperation with the Government; (5) unspecified Sentencing Commission policy statements; and (6) in connection with the evaluation under § 3553(a)(3) of “the kinds of sentences available,” the poor conditions at Passaic County Jail.
We find that the Court adequately considered and discussed the § 3553 factors in arriving at a sentence. The Court explicitly discussed defendant’s background, cooperation, and “high level” role in the conspiracy, as well as the “extraordinary” scale of the conspiracy. This recitation implicitly addressed “the seriousness of the offense” and the need “to protect the public from further crimes of the defendant.” § 3553(a)(2)(A), (C). By discussing the “extraordinary” nature of the conspiracy, Frias-Cisneros’s “high level” role in it, and his “limited” cooperation after his arrest, the Court essentially rejected the arguments that a lower sentence would have been justified because the other defendants had received lower sentences or because Frias-Cisneros had played only a limited role in the conspiracy and had cooperated with the Government. As to the remaining issues raised by defendant, there was no reason for the Court to address them. Although Frias-Cisneros mentioned his diabetes to the Court, neither he nor defense counsel argued at sentencing that this made him less likely *721to engage in future criminal activity. Similarly, no one argued at sentencing that he should receive a lighter sentence because he would be unlikely to commit further offenses in the United States due to his pending deportation. Finally, it is not clear from defendant’s argument which policy statements the Court should have found “pertinent” to the sentencing under § 3553(a)(5), or how the Court should have considered the conditions of pretrial detention in selecting from “the kinds of sentences available” under § 3553(a)(3).
Defendant’s second argument is that the Court should have adjusted his sentence based on the poor conditions at Passaic County Jail, where defendant was detained prior to sentencing. Defendant claims that the conditions at the jail “fall below modern standards of decency” and that the Court should have “remedied] [this] constitutional violation in imposing a sentence.” In support of this argument, defendant cites general Eighth Amendment law and three cases where district courts granted departures or variances because of “sub-standard pre-trial confinement” conditions. Defendant also makes a vague argument that the poor conditions at the jail — specifically, a history of murders and assaults (none of which had to do with defendant), and the fact that defendant received a death threat from a criminal associate while both were held at the jail — amounted to a due process violation.
The District Court did not abuse its discretion in declining to adjust the sentence based on these conditions. Defendant has pointed to nothing in § 3553 or our case law that requires a sentencing judge to take into account the conditions of pretrial detention in fashioning a sentence. Nor does he cite any cases that support his contention that the remedy for an asserted due process violation during pretrial confinement is a reduced sentence. Moreover, the Court in fact did try to remedy the problem by asking the Bureau of Prisons to remove defendant to a federal facility as quickly as possible.
Defendant’s final argument is that the District Court should have given him a reduced sentence in order to avoid an unwarranted sentencing disparity caused by his status as an immigrant. Specifically, defendant contends that, unlike U.S. citizens, he will be ineligible for release into a halfway house at the end of his sentence, credits for participation in a residential drug or alcohol abuse program, and designation to a minimum security prison. Defendant concedes, however, that he did not raise this issue before the District Court. We therefore review this claim for plain error, and we see no basis for concluding that the District Court erred in failing to adjust the sentence based on defendant’s immigrant status. We will therefore affirm the judgment of the District Court.
. Defendant's brief spells his last name as ''Farias-Cisneros.” However, because the caption and the relevant District Court docuonents all use the "Frias-Cisneros” spelling, we do as well.
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JUDGMENT ORDER
WEIS, Circuit Judge.
After consideration of all contentions raised by appellant, it is
ADJUDGED AND ORDERED that the judgment of the District Court entered February 27, 2009, 2009 WL 499460, be and is hereby affirmed. Costs will not be taxed.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
United Food and Commercial Workers and Participating Food Industry Employers, Tri-State Health & Welfare Fund, et al., (“Tri-State Fund” or the “Fund”) appeal following a bench trial. At trial the Fund sought to recover delinquent retiree health and welfare contributions from Super Fresh Food Markets (“Super Fresh”) and The Great Atlantic and Pacific Tea Company, Inc. (“A&P”). The Fund also sought a determination that Super Fresh and A&P were alter-egos and/or joint employers and were therefore jointly and severally liable for the delinquent benefits.
The Fund
The Fund is a jointly administered multi-employer and multi-union employee benefit plan that is largely funded by participating employers’ contributions pursuant to their respective collective bargaining agreements (“CBAs”). An Agreement and Declaration of Trust (“Trust Agreement”) created and governs the administration of the Fund. The Trust Agreement states that the Board of Trustees of the Fund (the “Trustees”) has the authority to administer the Fund on behalf of the participants and beneficiaries. However, this authority must be exercised “consistent with” the CBAs and is “subject to” the CBAs. App. 8-9.
The CBAs
Super Fresh executed Participation Agreements (“PAs”) with Local Unions 27, 1358, and 1360 that obligated it to contribute to the Fund as required under its CBAs with the unions. Likewise, A&P entered a similar CBA and PA with Local 1360. The Super Fresh CBAs contained a Preamble (the “separateness preamble”), which stated that Super Fresh and A&P “are different and separate operating retail units.” App. 10-11, 13, 16. Article 25 of the CBAs stated that Super Fresh agreed to make contributions on behalf of “eligible associates,” meaning active employees. App. 11, 13, 17. The CBAs also contained unlimited Maintenance of Benefit clauses (“MOBs”), which indicate that if the cost of the benefits exceeds the contribution rate agreed to in the CBA, the Trustees may increase the contribution rate to maintain that level of benefits. Under Appendix C of the Super Fresh *724CBAs, the employer was to pay monthly a dollar rate (contribution rate) multiplied by the number of active employees. Appendix C specifically references that this monthly contribution provides coverage for active employee benefits and retiree benefits, including “Retiree BC/Med/Surgical, Retiree Rx Drug, Retiree Vision, and Retiree Dental.” App. 1605. Appendix C of the Super Fresh CBAs also stated that “all questions involving Health & Welfare, not specifically set forth herein, shall be determined by the provisions of the Agreement and Declaration of Trust governing the Plan.” App. 14, 16, 22, 25. The A&P CBA is similar to the Super Fresh CBAs, but it does not contain the separateness preamble, nor does it specifically reference retiree benefits.
The Retiree Benefits Methodology
Prior to May 2003, employers contributed to the Fund as set forth in the CBAs based on the number of active employees in the Fund and a component of that contribution was used to pay for retiree benefits as to the entire Fund. This methodology resulted in large discrepancies for some employers between the number of their own retirees and the amount they were paying to finance retirement benefits for the retirees in the Fund, so the Trustees revised the methodology in order to address these discrepancies. Pursuant to the methodology change, each employer was required to contribute based on its number of active employees and its number of retired employees in the Fund.
While it is understandable that the Trustees would want to correct this discrepancy, they did not have authority to do so in a way that contradicted the CBAs. The District Court found that the change in the funding methodology was impermissible and did not reach the issue of the reasonableness of the change.
The Transfer Back to the Fund
In 2003, Local 27 Super Fresh employees, Local 27 Super Fresh retirees, and Local 27 A&P retirees were transferred from the Tri-state Fund to the Local 56 Benefit Fund. In October 2004, Local 27 and Super Fiesh began negotiating over a successor CBA, and a memorandum of agreement (“MOA”) was signed on July 27, 2005. A&P was not a party to the MOA and the separateness preamble was carried over onto the new MOA. The initial MOA included Super Fresh’s agreement to transfer active employees currently participating in Local 56 to the Tri-state Fund, but did not mention Super Fresh or A&P retirees. After Local 27 threatened to strike, Super Fresh agreed to include retirees in the fund, but did not specify that this included A&P retirees. A new MOA was signed and Super Fresh agreed to pay for Super Fresh retirees pursuant to the new methodology. The Trustees requested that the transfer be memorialized in a Participation Agreement and a few drafts of this agreement went back and forth between the parties. Super Fresh rejected a draft of the PA that referenced A&P retirees and returned a draft that “explicitly exclud[ed]” A&P. App. 43. The signed PA defines the “Employer” as Super Fresh, states that the “Employer” will contribute for each of the “Employer’s retirees” and does not mention A&P or its retirees. App. 44. The District Court determined that A&P retirees were not part of the PA and that Super Fresh was not required to contribute for A&P retirees. Because the District Court found that the PA was unambiguous, that Court did not reach the question of whether Super Fresh and A&P are alter egos.
Legal Standard
We review findings of fact for clear error and defer to the District *725Court’s credibility determinations but review conclusions of law de novo. Pension Benefit Guar. Corp. v. White Consol. Indus., 215 F.3d 407, 409 (3d Cir.2000). “[C]ontract interpretation-the determination of ‘what ideas [the contract] language induces in other persons’ — is a question of fact reviewed under the clearly erroneous standard, whereas contract construction— ‘the determination of the legal relations of the parties’ to the contract-is a question of law reviewed under the de novo standard.” Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 229-30 (3d Cir.2007) (citations omitted). When reviewing for clear error, findings of fact may only be overturned if they are “completely devoid of a credible evidentiary basis or bears no rational relationship to the supporting data.” Id. at 230. The question of whether the terms of a CBA are ambiguous is a question of law. United Mine Workers of Am. v. Rocho Trucking, 897 F.2d 1248, 1252 (3d Cir.1990). We review the District Court’s ruling on the admissibility of evidence for abuse of discretion. Moyer v. United Dominion Indus., 473 F.3d 532, 542 (3d Cir.2007).
The Trustees did not have the authority to change the funding methodology for retiree benefits
The District Court found that the Trustees did not have the authority to change the methodology because the change contradicted the written provisions of the applicable CBAs, which provided that the “employer would be obligated to pay the established rate per each active employee.” App. 53-54. Both parties agree that we review this finding for clear error.
Appellants argue that the CBAs do not establish a methodology for determining contribution for retiree benefits, but merely state that employers are required to contribute to the Fund based on their number of active employees. Because the CBAs did not “specifically” establish any methodology for distributing retiree benefits, Appellants contend that the Trustees had broad authority to formulate provisions for the payment of benefits under the Trust Agreement as long as the changes are “subject to” and “consistent with” the CBAs. Appellants concede that the CBAs require employers to multiply the number of active employees by a dollar amount, and this dollar amount accounts for both the costs of active and retiree employee benefits, but urge that the CBAs do not contain a methodology by which the dollar amount is calculated.
The District Court concluded that the CBAs clearly stated that the employer’s contribution would be determined by a monthly dollar rate multiplied by their active employees and the language of the Trust Agreement manifests an intent that the CBAs should prevail because it clearly states that the powers of the Trustees are “subject to” and must be “consistent with” the CBAs. Because the change in methodology contradicted the written terms of the CBAs, the District Court found that the Trustees lacked the authority to implement it.
The District Court’s conclusions are supported by the record. Appendix C of the Super Fresh CBAs indicates that part of the employer’s overall contribution would go to retiree benefits and the method in which these contributions were distributed may well have been within the discretion of the trustees. There is only one overall contiibution methodology — i.e. based on their number of active employees (times a dollar rate) — that is set forth specifically in the CBAs. The unlimited MOBs may have given the trustees the authority to raise the dollar rate per active employee, but they did not have the authority to contra-*726diet the bargained-for CBAs by requiring the employers to contribute per retiree.
Appellants next contend that, as a third party beneficiary of the CBAs, the Fund can adopt rules that conflict with the CBAs as long as these are not arbitrary or capricious and that the District Court erred in excluding evidence concerning the reasonableness of the Trustees’ decision. However, as cited by Appellants, the arbitrary and capricious standard is only relevant if the Trustees had discretion with respect to the exercise of a power. Moench v. Robertson, 62 F.3d 553, 566 (3d Cir.1995) (citing Restatement (Second) of Trusts § 187).
Appellants do not dispute that the Trust Agreement mandated that any changes the Trustees made were “subject to” and had to be “consistent with” the CBAs. The Trust Agreement governs the Trustees’ authority and the District Court found that the change in methodology was not consistent with the CBAs, therefore the Trustees did not have the authority to make the change under the Trust Agreement. The arbitrary/capricious standard does not apply unless the Trustees had the authority under the Trust Agreement to change the methodology. See Moench, 62 F.3d at 566 (“[wjhere discretion is conferred upon the trustee with respect to an exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion.”) (citation omitted). Therefore, the District Court did not err in not considering the Trustees’ decision under an arbitrary and capricious standard.
Super Fresh was not liable to remit retiree contributions for A&P retirees who transferred to the Tri-State Fund
It is undisputed that Super Fresh and Local 27 negotiated an MOA and a PA for the transfer of Super Fresh retirees to the Tri-State Fund. The District Court found that the Participation Agreement was unambiguous in that it did not include A&P retirees and did not allow appellants to introduce evidence that Super Fresh/ A&P are alter egos.1 The Court further held that even if the PA were ambiguous, the extrinsic evidence established that Super Fresh did not agree to transfer and pay for A&P retirees.
Appellants state that it is well-established that alter-ego/joint employer theories of liability can be used to recover delinquent contributions under Section 515 of ERISA. Here, however, if the PA conclusively says that Super Fresh did not agree to fund A&P retirees, as the District Court held, then there are no delinquent contributions. As the District Court pointed out, even if Super Fresh and A&P were alter egos, they could still contract to pay for transfer Super Fresh retirees only; “either it was an agreement to pay for Super Fresh and A&P retirees or it was an agreement to pay for Super Fresh retirees period. It doesn’t really matter that *727they might be parading around as the same company....” App. 243.
Appellants argue that if the Trustees viewed the name Super Fresh as encompassing A&P because they believed they were one and the same, then the reference to Super Fresh retirees could be read to include A&P retirees. This argument is weakened, however, by the inclusion of the separateness preamble and, in particular, the fact that one version of the PA that explicitly referenced A&P retirees was rejected by Super Fresh and replaced with a draft that omitted A&P retirees. In addition, the Local 27 President specifically told the Super Fresh representative during negotiations that A&P retirees should also be included in the transfer. This demonstrates that both parties realized that A&P and Super Fresh were not the same entity. The District Court was correct in finding that the PA did not encompass A&P retirees and therefore evidence as to alter-ego liability was irrelevant because there were no delinquent contributions.
Lastly, appellants contend that the District Court made clearly erroneous findings of fact with regard to the negotiations leading up to the MOA and the PA. These facts would only be relevant if the MOA or the PA were ambiguous as to which retirees were transferred to the Fund. Because the District Court did not err in concluding that these agreements were unambiguous, we need not reach this issue.
For the reasons set forth above, we will AFFIRM the Order of the District Court.
. Appellees maintain that this objection is waived on appeal because Appellants never actually proffered this evidence and there was no ruling on its admissibility. Appellants respond that they did not waive this argument because they opposed bifurcation of the trial on the alter-ego theory. Trial counsel for appellants initially expressed some hesitation regarding bifurcation and that it would be difficult to decide some of the issues in a vacuum. The trial counsel also told the District Court that it would be difficult to deal with the Local 27 transfer issue without the alter-ego/joint employer claim. The Court never precluded this evidence, but held that it was premature and irrelevant if the Court found that the contract did not include A&P retirees. Because counsel objected to the bifurcation of this issue, we will consider it.
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OPINION OF THE COURT
RENDELL, Circuit Judge.
Natalie Henlon was convicted by a jury of (1) conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846 and (2) possessing with intent to distribute 100 grams of a mixture containing heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. The District Court sentenced Henlon to 46 months, notwithstanding the guideline range of 51 to 63 months. On appeal, Henlon argues that the District Court erred in its jury instructions, refusal to give the jury a special interrogatory, and guideline calculation because Henlon believed the controlled substance at issue in the offense was marijuana, when it was actually heroin.
On February 23, 2006, Postal Inspector John Roethel discovered that a package addressed to “F. Turner” at 25 New Rose Street, Trenton, N.J., (“25 New Rose”) contained heroin. 25 New Rose was Hen-Ion’s home address. Roethel set up a controlled delivery of the package and a prosecutor obtained an anticipatory search warrant for 25 New Rose. On February 24, 2006, a detective set up surveillance of 25 *729New Rose while Roethel, dressed in an undercover capacity as a letter carrier, delivered the package to that address. Around 11:00 a.m., Henlon’s co-defendants Debrie Coates and James Tucker parked in front of 25 New Rose for about eleven minutes. At one point, Coates knocked on the front door, but no one answered. Coates and Tucker left, but drove by the residence again at 11:48 a.m. and 11:55 a.m. Around noon, Roethel arrived and knocked on the door. Co-defendant Anique Johnson answered, initially refused the package, and then accepted it. As soon as Roethel’s postal truck began to drive away, Coates and Tucker pulled up next to Roethel and asked him if he had a package for 25 New Rose. Roethel told them that he had just delivered a package to that address. Henlon arrived at 25 New Rose around 12:10 p.m., just before authorities executed the search warrant. Coates and Tucker returned to Henlon’s residence after the execution of the warrant and were detained. Officers searched Henlon’s home and found the package of heroin, marijuana, and a digital scale. The package contained 606.4 grams of heroin. Coates and Tucker both entered into plea agreements with the government and stated that they believed that the package contained marijuana. Henlon gave two statements to police; after numerous denials, she stated that she thought the package contained “weed.”
Henlon argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the District Court was required to instruct the jury that it could convict Henlon of the offense charged only by finding that she knew the substance she trafficked was heroin as opposed to marijuana.1 We apply an abuse of discretion standard to determine if the District Court erred in refusing to give a requested jury instruction and exercise plenary review to determine if the jury instructions stated the proper legal standard. United States v. Jimenez, 513 F.3d 62, 74 (3d Cir.2008).
In United States v. Barbosa, the defendant (“Barbosa”) believed that he was distributing heroin when he was actually distributing cocaine base. 271 F.3d 438 (3d Cir.2001). In that case, we specifically considered whether or not “Barbosa’s lack of intent to traffic in cocaine base, brought about because of his mistake of fact concerning drug identity, would be yet another fact that the jury was bound to find under the teachings of Apprendi.” Id. at 457. We noted that the drug trafficking statutes require specific knowledge or intent only as to a general category of unlawful substances and that Apprendi did not change the Government’s mens rea burden. Id. at 458. We stated, “[tjhus, we leave undisturbed our jurisprudence with respect to the mens rea requirement, which only requires the Government to prove the defendant’s knowledge that he was trafficking in a controlled substance.” Id. at 459. Thus, we have clearly held that, post-Apprendi, a defendant may be punished for the drug he actually possessed even if he intended to possess another. Id.
Henlon submits that Barbosa should be re-evaluated because the Third Circuit expressed pre-Apprendi logic in Barbosa (a post-Apprendi case). Henlon bases this assertion, in large part, on the following quote from Barbosa:
Accordingly, we now formally adopt the uniform and persuasive reasoning of pr e-Apprendi federal appellate authority, which held essentially that a defendant who is in actual possession of a particular controlled substance, while intending to distribute another, may be *730punished for the drug with which he is found to be in possession.
271 F.3d at 459.
In Barbosa we adopted the pre-Apprendi authority because we found, after extensive analysis, that Apprendi did not change the law regarding this particular issue. Therefore, the District Court did not err by refusing to charge the jury that it had to determine what particular type of controlled substance Henlon intended to possess.
Henlon also asks this Court to vacate her sentence and remand her case for resentencing because the District Court failed to give the jury a special verdict sheet to determine the particular controlled substance that Henlon believed was in the package, to enable the court to apply the proper sentencing guideline. As explained above, Henlon may be convicted of and punished for possessing and intending to distribute heroin, even if she believed that the controlled substance at issue was marijuana. Therefore, the District Court did not err by refusing to submit a special interrogatory to the jury regarding the particular controlled substance Henlon believed was in the package.
We review the District Court’s sentence for reasonableness under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentencing court is required to 1) calculate the guidelines sentence; 2) rule on any departure motions; and 8) consider any relevant 18 U.S.C. § 3553(a) factors. United States v. Ali, 508 F.3d 136, 142 (3d Cir.2007). Henlon contends that it was unreasonable for the District Court to apply the heroin sentencing guideline rather than the marijuana guideline. Henlon states that the District Court acted unreasonably in failing to consider whether or not the marijuana guideline was more applicable under 18 U.S.C. § 3553. The Government correctly points out that although Henlon continually uses the term “reasonable,” her objection is actually to the first step of the District Court’s sentencing process: electing to apply the heroin guideline as opposed to the marijuana guideline. The Barbosa court determined that Barbosa “should be sentenced based upon cocaine base — the drug he actually transported ...” 271 F.3d at 461. As discussed above, the District Court did not commit an error of law by punishing Henlon for possessing and intending to distribute heroin though she believed the package contained marijuana. The District Court applied the correct guideline, reduced the offense level due to Henlon’s minor role in the offense and her safety valve eligibility, and granted Henlon a downward variance from the resulting guideline range. Therefore, Henlon’s sentence was not unreasonable.
For the reasons set forth above, we will AFFIRM the judgment of the District Court.
. Henlon concedes that there was no question about either the identity or the weight of the drugs involved in this case. Appellant's Br. 19.
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OPINION
PER CURIAM.
Aristides Martinez, proceeding pro se, appeals the District Court’s order granting summary judgment in favor of International Brotherhood of Electrical WorkersIBEW Local Union No. 98 (“the Union”). For the reasons discussed below, we will affirm.
I.
Martinez, a self-described “Hispanic American man born in Bogota, Colombia,” was a member of the Union during his employment as a video editor at WTXF29, a Fox Television station in Philadelphia. He was sixty-four years-old when WTXF29 hired him in 1996. In July 2003, Martinez received a written warning for poor job performance, and he received a second written warning in September 2003 for a number of job errors. WTXF29 issued a third performance warning in November 2003 and a “last and final” warning in February 2004 for an unexcused failure to come to work on Super Bowl Sunday. Each document warned that his poor performance could result in termination.
Following the July 2003 warning, Martinez met with the Union’s business agent, Larry DelSpechio, to discuss the warning and Martinez’s concerns about staff and management. DelSpechio advocated informally for Martinez with management, but did not file a grievance. Martinez wrote to DelSpechio again after he received the November 2003 warning to express his version of events and his belief that the Union was required to protect him from false *739accusations. DelSpechio again met with Martinez and management, but did not file a grievance.
WTXF29 suspended Martinez in April 2004 after he verbally abused a co-worker; he refused to participate in the subsequent investigation. On May 4, 2004, WTXF29 fired Martinez. The Union filed a grievance two days later, which WTXF29 rejected. The Union did not pursue arbitration under the collective bargaining agreement based on its determination that WTXF29 properly fired Martinez for cause and that the Union could not prevail at arbitration.
Martinez alleges that he was subjected to “hostility, resentment, and contempt” and harassment from fellow Union members because of his age and ethnicity. He complained in writing to both WTXF29 and the Union about one co-worker in particular, Jamal Northern. The Union dismissed the complaint. Martinez filed complaints against WTXF29 with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission. The record does not show that Martinez pursued any action against the Union prior to filing suit.
Martinez filed this complaint in October 2006, alleging that the Union provided only minimal representation during the investigation that followed his suspension and did not pursue his case through arbitration. He claims that the Union discriminated against him on the basis of age and national origin, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c), respectively. He further claims that such discrimination violates the Pennsylvania Human Relations Act (PHRA), 48 Pa. Const. Stat. §§ 951-963. Martinez filed an amended complainant in November 2007, adding claims under the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §§ 401-531, and § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. The Union filed a motion for summary judgment, which the District Court granted on May 27, 2009. Martinez filed a timely notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing a District Court order granting of summary judgment, we apply the same test that the District Court applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.2001). Summary judgment is proper when, viewing the evidence in the light most favorable to the non-moving party and drawing all inferences in that party’s favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 232; Fed.R.Civ.P. 56(c). The party opposing summary judgment “may not rest upon the mere allegations or denials of the ... pleading,” but “must set forth specific facts showing that there is a genuine issue for trial.” Saldana, 260 F.3d at 232 (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
III.
A. LMRDA and LMRA Claims
The District Court dismissed Martinez’s LMRDA and LMRA claims because he did not exhaust internal remedies. Union members are required to exhaust the grievance and arbitration remedies contained in a collective bargaining agreement prior to filing suit under the LMRA. Anjelino v. New York Times Co., 200 F.3d 73, 99 (3d Cir.1999); Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1538 (3d Cir.1992). *740Claims brought pursuant to the LMRDA are properly dismissed where the claimant “cannot demonstrate a ‘valid reason’ for failing to exhaust internal procedures.” Anjelino, 200 F.3d at 99 (quoting Pawlak v. Greenawalt, 628 F.2d 826, 830-31 (3d Cir.1980)). Because Martinez has not demonstrated that he exhausted the Union’s internal grievance procedures prior to filing his complaint, we will affirm the dismissal of these claims.
B. Title VII, ADEA, and PHRA Claims
The District Court concluded that Martinez made insufficient showings to defeat summary judgment on his claims under Title VII, the ADEA, and the PHRA. Martinez claims that the Union: 1) knew of and failed to intervene when WTXF29 discriminated against him; 2) discriminated against him when it handled its representation of him differently from its representation of other Union members; and 3) failed to protect him from harassment and discriminatory conduct from other Union members.
Under Title VII, a Union is barred from discriminating against its members based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(c); see also Anjelino, 200 F.3d at 95-96 (a union may be held liable if it “instigated or actively supported” the discrimination). Both the ADEA, 29 U.S.C. § 623(c), and the PHRA, 43 Pa. Const. Stat. § 955(c), mirror Title VIPs language and apply to Unions. Title VII prohibits discriminatory employment practices based upon an individual’s “race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-2(c). A plaintiff carries the initial burden of establishing a prima facie case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a prima facie case, a Title VII plaintiff must demonstrate that: 1) he belongs to a protected class; 2) he was qualified for the position; 3) he was subject to an adverse employment action; and 4) the adverse action was under circumstances giving rise to an inference of discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.2003).
That Martinez is a Colombian citizen of Hispanic descent, is over forty yeai’s-old, and was qualified for his position at WTXF29 is not in dispute. The relevant question, therefore, is whether he had been subject to an adverse employment action under circumstances suggesting discrimination.
1. Employer Action
Martinez first claims that the Union failed to intervene when WTXF29 fired him for discriminatory reasons. The District Court properly found that the Union cannot be held liable for WTXF29’s alleged discrimination against Martinez unless the Union took an active role in the discrimination. See Anjelino, 200 F.3d at 95 (1999). Martinez did not proffer any evidence of such conduct. The Court also concluded that, because it had already determined that WTXF29 did not discriminate against him, see Martinez v. Fox Broad. Co., No. 06-04537, 2008 WL 4425099, at *6, 8, Martinez was collaterally estopped from relitigating the issue. See generally, Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 209 (3d Cir.2001).
2. The Union’s Representation of Martinez
Martinez next claims that the Union did not represent him as zealously as it had represented other Union members. Pursuant to the collective bargaining agreement between the Union and WTXF29, Martinez could have demanded arbitration following the completion of a *741two-step grievance process. The Union did not file a grievance until after Martinez was fired, rather than when he was suspended, and then decided not to pursue arbitration. The District Court concluded that Martinez failed to show that his fellow Union members were similarly situated, and, as a result, failed to establish that he received differential treatment. See Kline v. Kansas City, Mo., Fire Dept., 175 F.3d 660, 670-71 (8th Cir.1999) (“similarly situated” means similar “in all relevant respects”); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir.1998) (same). We agree with the District Court’s conclusion that, although the Union’s decision not to pursue arbitration constituted an “adverse action,” Martinez failed to show sufficient evidence that the circumstances of that decision suggested discrimination. See Sarullo, 352 F.3d at 797-98. Accordingly, the District Court properly granted summary judgment in favor of the Union on this claim.
3. Harassment
Martinez claims that his co-workers subjected him to racially-motivated and age-related abuse, and alleges that the Union overlooked the harassment. He mentions one fellow Union member, Jamal Northern, in particular. To establish a claim under Title VII because of an intimidating or offensive work environment, a plaintiff must show that: 1) he suffered intentional discrimination because of his national origin; 2) the discrimination was pervasive and regular; 3) the discrimination detrimentally affected him; 4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and 5) there is a basis for vicarious liability. Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2001). As the District Court correctly found, although Martinez did establish that he and Northern had an adversarial relationship, he did not show any evidence of discriminatory harassment by any Union member. Moreover, the District Court properly concluded that, even if Martinez could point to evidence of discriminatory harassment, he could not show that the Union “instigated or actively supported” the harassment. See Anjelino, 200 F.3d at 95-96.1
C. Negligent Infliction of Emotional Distress
The District Court correctly declined to exercise jurisdiction over Martinez’s state law claims, once it decided to grant the Union summary judgment on his federal law claims.
D. Discovery Order
Finally, Martinez claims the District Court abused its discretion in limiting discovery, namely, limiting DelSpechio’s deposition to three hours and denying him the opportunity to depose a Union shop steward to challenge DelSpechio’s credibility. In denying Martinez’s motion for reconsideration, the District Court clarified that its original order did not prevent the shop steward from appearing voluntarily for deposition. Moreover, the District Court properly held that credibility determinations are inappropriate in the summary judgment context. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
IV.
Upon review of the record, we conclude that the District Court correctly granted the Union’s motion for summary judgment *742for substantially the same reasons given in the District Court’s memorandum opinion. As the appeal does not present a substantial question, we -will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
. As the District Court noted, the Union did investigate Northern's conduct regarding Martinez in 2004, and concluded that it was not actionable. WTXF resolved a 2002 dispute between the two men in favor of Martinez.
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OPINION
BARRY, Circuit Judge.
Appellant Maria Nunez pleaded guilty to conspiracy to commit food stamp fraud, and was sentenced to a forty-three month term of imprisonment. Her appeal is before us pursuant to 18 U.S.C. §§ 3557 & 3742(a) and 28 U.S.C. § 1291. We will affirm.
I. BACKGROUND
On March 20, 2008, Maria Nunez pleaded guilty to an indictment charging her with knowingly and willfully conspiring with others to use, transfer, acquire, alter, and possess coupons, authorization cards, and access devices, contrary to 7 U.S.C. § 2024(b)(1), and in violation of 18 U.S.C. § 371. The conduct at issue was a scheme whereby Nunez, who owned and operated a Newark, New Jersey grocery store, instructed employees to make illegal cash distributions to customers in exchange for food stamps without selling grocery items. Nunez was arrested in 2000 and released on bail. She then absconded to the Dominican Republic, where she remained until December 29, 2007, when she was apprehended by U.S. Marshals. Since the time of her initial arrest, many of the subordinates in her scheme, some of whom included members of her family, have been convicted for their participation in the food stamp conspiracy.
On her return to the United States, Nunez entered into a plea agreement, which stated that the “offense involved losses totaling more than $500,000 but less than $800,000.” (Appellant’s App. at 12.) Based on this figure, the parties agreed that the “total Guidelines offense level applicable to defendant [Nunez] is 19.” (Id. at 13.) Of course, the plea agreement was also clear that the “sentence to be imposed upon defendant is within the sole discretion of the sentencing judge....” (Id. at 8.)1 Furthermore, Nunez was informed *747that the sentencing judge “may make independent factual findings and may reject any or all of the stipulations entered into by the parties.” (Id. at 9.) At the Rule 11 hearing, the District Court confirmed with Nunez that “any stipulations or agreements between [she] and the Government as to what the applicable facts or Guideline suggestions are in this matter are not binding on the Court if the presentence report or other sources” demonstrated their inaccuracy. (Appellee’s App. at 19.) Nunez confirmed her understanding, and the Court accepted her guilty plea.
At sentencing, the District Court reviewed the presentence investigation report, and noted that, of the total amount in food stamp benefits purchased by Nunez’s store, “approximately $1,482,864 represented fraudulent, illegal, cash for benefits transactions.” (Appellant’s App. at 24.) The amount, $1,482,864, was much larger than the amount stipulated to in the plea agreement. The Court had used the $1,482,864 figure when calculating the guidelines for other members of the conspiracy, namely, the four cashiers from Nunez’s store, and it declined to make an exception for Nunez, especially when it was she who orchestrated the scheme, evaded trial and sentencing for years after having fled to the Dominican Republic, and made no showing that the presentence report’s figure was inaccurate. As a result of using the $1,482,864 figure, there was an eleven-level increase in the base offense level instead of the ten-level increase that would have resulted from using the figure agreed to in the plea agreement.2
Ultimately, Nunez’s total offense level was calculated to be 22, and her criminal history category was I. The District Court imposed a sentence of forty-three months’ incarceration, which was within the Guideline range found by the Court. Nunez appeals, challenging the eleven-level increase in her base offense for the amount of loss and the substantive reasonableness of her sentence.
II. DISCUSSION
Nunez contests the eleven-level increase for the following reasons: first, the government agreed that the loss amount was no greater than $800,000; second, the presentence report describes the $1,482,864 figure as merely an approximation; and third, Nunez never admitted to, nor has there been any demonstration via bank records of, loss greater than $800,000. She argues, also, that her age and health problems, as well as the lighter sentences served by her co-conspirators, justified a shorter sentence pursuant to 18 U.S.C. § 3553.
We review the District Court’s factual findings as to the amount of loss for clear error. United States v. Brennan, 326 F.3d 176, 194 (3d Cir.2003); United States v. Cherry, 10 F.3d 1003, 1009 (3d Cir.1993) (district court’s factual findings overturned only if clearly erroneous). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (internal marks omitted). The amount of loss need not be exact, and the sentencing court “need only make a reasonable estimate of the loss, given the available information,” United States v. Jimenez, 513 *748F.3d 62, 86 (3d Cir.2008) (quoting U.S.S.G. § 2F1.1 cmt.).
Nunez’s first argument, that the District Court should have adopted the loss amount set out in the plea agreement because the government agreed to it, can be dispensed with quickly. The plea agreement repeatedly warns that its terms do not bind the Court. In plain language, it notes that the sentencing judge “may make independent factual findings and may reject any or all of the stipulations entered into by the parties.” (Appellant’s App. at 9.) That the government chose to hold Nunez accountable for a lesser loss amount is irrelevant, particularly when the evidence does not suggest that the loss amount found by the Court was erroneous. See United States v. Schweitzer, 454 F.3d 197, 203 (3d Cir.2006) (upholding guilty plea where defendant was informed in both the plea agreement and during a court hearing that the stipulations of the parties are not binding on the court).
We also reject Nunez’s argument that the loss amount was both merely approximate and unexplained. By the time the District Court used the higher figure to sentence Nunez, it had already applied the same loss figure when sentencing her co-conspirators. Indeed, we recently determined that the Court’s reliance on the $1,482,864 loss amount as to one of Nunez’s co-conspirators was not clearly erroneous. United States v. Nunez-May, 225 Fed.Appx. 85, 90-91 (3d Cir.2007).3
Furthermore, Nunez has not called the $1,482,864 figure into question. At sentencing, her counsel stated, “I am not going to say one calculation is wrong.” (Appellant’s App. at 29.) He went on to argue that the loss amount stipulated to in the plea agreement should be adopted because, after “extensive negotiations,” the government determined that in Nunez’s case it was “accurate, fair, reasonable, and just.” (Id. at 28-30.) Absent even an allegation, much less evidence, that the loss figure in the presentence report was inaccurate, the District Court was justified in relying on it.
Nunez also attempts to cap the amount of loss by arguing that she has never admitted to, nor has there been any demonstration via bank records of, loss resulting over $800,000. As noted above, the $1,482,864 loss amount has not been seriously questioned, and we will not reprise our discussion here. With respect to Nunez’s claim that in her plea agreement and at the Rule 11 hearing she only accepted responsibility for a maximum loss of $800,000, this claim is also without merit. Nunez’s guilty plea was not conditioned on the District Court’s acceptance of the stipulations in the plea agreement. Schedule A of the plea agreement lists “losses totaling more than $500,000 but less than $800,000,” but the plea agreement itself states that the stipulations in Schedule A “cannot and do [ ] not bind the sentencing judge, who may ... reject any or all of the stipulations entered into by the parties.” (Appellant’s App. at 9, 12.) United States *749v. Uddin, a case involving a similarly situated food stamp fraud defendant, is instructive. 551 F.3d 176, 178 (2d Cir.2009). In Uddin, the defendant admitted during his plea colloquy that he exchanged food stamps for cash in excess of $5,000. When the government argued that the loss amount was in excess of $1 million, the defendant maintained that there was no evidence to support a loss calculation beyond the $5,000 amount “he had admitted at his plea.” Id. At sentencing, the District Court calculated a loss amount of $377,779. The Court of Appeals for the Second Circuit upheld the sentence despite the fact that the defendant was held liable for a loss amount greater than that to which he admitted. Id. at 180-81.
Finally, Nunez points to a myriad of other factors that, she maintains, justified a lighter sentence. She explains that she is in poor health, that she has no prior criminal history, that other co-conspirators in the fraud were given lighter sentences, and that she is likely to be deported upon being released from prison. The District Court considered these factors, and, with respect to Nunez’s diabetes, noted that it had “every confidence that the Bureau of Prisons will adequately attend to [her] needs.” (Appellant’s App. at 50.) Nunez was deemed to be a “mature,” “intelligent” businesswoman who purposefully engaged in a scheme intended to defraud a public program organized to protect those less fortunate in our society. The Court found Nunez’s willingness to flee the country and lie to probation officials as troubling signs of the “serious disrespect” that she continues to harbor for the criminal justice system. (Id. at 48.) Finally, the Court found that Nunez was deserving of a heavier sentence than her co-conspirators because her role in the scheme was far greater and her “obstruction of justice was more serious....” (Id. at 45.) Nunez may now dispute these conclusions, but she cannot dispute that many of the factors she now presents as reasons for a lighter sentence were reasonably considered. On the contrary, each one was given thoughtful consideration, as were the other factors referenced in 18 U.S.C. § 3553(a). It would be disingenuous to assert that “no reasonable sentencing court would have imposed the same sentence ... for the reasons the [District [C]ourt provided.” The sentence imposed was substantively reasonable. See United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc); see also United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008) (“As long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.”).
The judgment of sentence will be affirmed.
. The plea agreement admonished that the prosecution "cannot and does not make any representation or promise as to what guideline range may be found by the sentencing *747judge, or as to what sentence defendant ultimately will receive.” (Id.)
. Nunez was sentenced according to the Sentencing Guidelines effective November 1, 1998. The controlling Guideline at the time, U.S.S.G. § 2F1.1, has since been deleted.
. We make reference to this non-precedenlial opinion not because it binds our conclusion here, as it cannot, but because knowing the sentencing histories of co-conspirators furthers the goal of reaching predictable results in like cases. Arthur D. Heilman, Jumboism and Jurisprudence: The Theory and Practice of Precedent in the Large Appellate Court, 56 U. Chi. L.Rev. 541, 544 (1989) (building on the principle that "a high degree of consistency and predictability in the law is necessary to the successful operation of the legal system”). We note that the defendant in Nunez-May was held responsible for only a percentage of the total loss, whereas, in this case, Nunez was held responsible for the entire loss. This distinction results from the differing roles that the two individuals played in the scheme, and Nunez does not challenge on appeal her status as the organizer or leader.
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OPINION
BARRY, Circuit Judge.
The Attorney General of the State of New Jersey filed an administrative complaint against Philip Getson, D.O., seeking the suspension or revocation of his medical license. Dr. Getson filed a complaint in federal court, asking the District Court to enjoin the state administrative proceeding and declare that it violated his due process rights. The District Court dismissed the complaint based on Younger abstention. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We will affirm.
I.
A. The Administrative Complaint Against Dr. Getson
On July 12, 2005, the Attorney General filed an administrative complaint against Dr. Getson, alleging that he had committed gross negligence, multiple acts of negligence, and professional misconduct, in violation of N.J. Stat. Ann. § 45:l-21(c), (d), and (e); violated regulations of the Board of Medical Examiners, in violation of N.J. Stat. Ann. § 45:l-21(h); and engaged in the use of dishonesty, fraud, deception, misrepresentation, false promise, or false pretense, in violation of N.J. Stat. Ann. § 45:l-21(b), by: (1) repeatedly deviating from acceptable medical standards and failing to follow applicable requirements for written prescriptions; (2) failing to properly supervise his Advanced Practice Nurse; (3) making and maintaining medical records that failed to meet regulatory standards; and (4) repeatedly miscoding services when billing. The Attorney General sought the suspension or revocation of Dr. Getson’s medical license, as well as civil penalties and costs. The administrative complaint was supported by two expert reports — a lengthy report involving a review of the medical records for nine of Dr. Getson’s patients, and a brief report which concluded that one of his patients had not been treated in accordance with the applicable standards of care. Dr. Get-son submitted a rebuttal expert report by Albert Talone, D.O. Dr. Talone noted that he had reviewed the medical records for seven of Dr. Getson’s patients and concluded that Dr. Getson “met the applicable standards of care for the treatment” of these patients. (App. at 223.)
In January 2006, Steven Lomazow, M.D., a member of the Board of Medical Examiners, contacted Dr. Talone and made “derogatory remarks” about Dr. Getson and “negative comments” about Dr. Talone’s participation in Dr. Getson’s case.1 (Id. at 52-53.) Dr. Talone refused to talk to Dr. Lomazow about Dr. Getson. Dr. Getson’s attorney notified the Board of this conversation, and Dr. Lomazow recused from any participation in Dr. Get-son’s case. The Attorney General’s Office *752later informed Dr. Getson’s counsel that the other Board members all confirmed that none of them had spoken to Dr. Lomazow about the substance of Dr. Getson’s case.
The following month, Dr. Talone received another phone call, this time from a “lobbyist who was advised by a prominent elected official (the identity of whom was withheld by [Dr. Getson’s] attorney) that the official knew that there was a ‘problem between Dr. Lomazow and Dr. Tallone [sic].’ ” (Id. at 54-55.) Dr. Getson’s attorney informed the Attorney General’s Office of this contact and stated that Dr. Talone felt “intimidated and pressured to cease serving as an expert for Dr. Getson.” (Id. at 240.) By letter dated March 13, 2006, an Assistant Attorney General informed Dr. Getson’s attorney that these allegations had been referred to the Division Ethics Officer for review.2
A plenary hearing on the administrative complaint against Dr. Getson before Administrative Law Judge (“ALJ”) Joseph Martone has been rescheduled several times, and it appears that no hearing has yet been held. After the ALJ conducts the hearing, he will issue a decision containing his recommended findings of fact and conclusions of law. N.J. Stat. Ann. § 52:14B-10(c). The Board of Medical Examiners will then accept, reject, or modify the ALJ’s decision, but must clearly state its reasons for doing so. Id. Dr. Getson may appeal the Board’s decision to the Appellate Division. N.J. Ct. R. 2:2-3(a)(2).
B. Dr. Getson’s Federal Complaint
On July 30, 2007, Dr. Getson filed a ninety-nine page complaint in the District of New Jersey against the State of New Jersey, the Attorney General of the State of New Jersey, and a host of other defendants, including the New Jersey Board of Medical Examiners and each of its members, and ALJ Martone in his official capacity. Dr. Getson alleged that the defendants violated his due process rights under the Fourteenth Amendment to the U.S. Constitution, Ms civil rights pursuant to 42 U.S.C. § 1983, and several New Jersey statutes, including the Administrative Procedures Act, N.J. Stat. Ann. § 52:14B-1 et seq., and the Civil Rights Act, N.J. Stat. Ann. § 10:6-2. He sought a declaratory judgment and an injunction prohibiting the ALJ and the Board from holding any hearings, deliberating, or taking any other action with respect to his medical license.
The defendants moved to dismiss the complaint pursuant to Rule 12(b)(6), arguing that the Younger• abstention doctrine prevented the District Court from enjoining the pending state administrative proceeding. Fed.R.Civ.P. 12(b)(6). The District Court granted the motion. This timely appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review the District Court’s decision to abstain for abuse of discretion. We exercise plenary review, however, over the underlying legal determinations of whether the abstention requirements have been met.” Zahl v. Harper, 282 F.3d 204, 208 (3d Cir.2002) (citations omitted). Rule 12(b)(6) dismissal orders are subject to de novo review. Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008).
III.
A. The Younger Abstention Doctrine
“Younger abstention is a legal doctrine granting federal courts discretion to ab*753stain from exercising jurisdiction over a claim when resolution of that claim would interfere with an ongoing state proceeding.” Kendall v. Russell, 572 F.3d 126, 130 n. 3 (3d Cir.2009) (citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). “Abstention is appropriate when: (1) there is a pending state judicial proceeding; (2) the proceeding implicates important state interests; and (3) the state proceeding affords an adequate opportunity to raise constitutional challenges.” Zahl v. Harper, 282 F.3d 204, 209 (3d Cir.2002) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). The District Court correctly concluded that these requirements had been met, and Dr. Getson does not dispute that conclusion.
Zahl is very much on point. In Zahl, the plaintiff (a licensed anesthesiologist) sought to restrain the New Jersey Board of Medical Examiners from proceeding with a pending administrative complaint against him, arguing that two of the administrative counts — those alleging Medicare fraud — were preempted by the Medicare statutes. The District Court abstained pursuant to Younger, and we affirmed. We found, first, that the state administrative proceeding was “clearly judicial in nature,” given that it was being conducted pursuant to New Jersey statutory and regulatory authority with a right to appeal the administrative decision to the state courts. Zahl, 282 F.3d at 209 (citations omitted). Second, we noted that “New Jersey has a heavy and traditional interest in regulating the practice of medicine within its borders,” and that such regulation is an important element of the state’s police power. Id. at 209, 210-11. Third, we concluded that the plaintiff could raise his federal constitutional claim in the course of the state administrative proceeding and before the Appellate Division of the Superior Court on appeal. Id. at 209-10 (citation omitted).
B. Exceptions to Younger Abstention
Even when these requirements are met, it is inappropriate to abstain under Younger if the plaintiff establishes that “(1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist, such as proceedings pursuant to a flagrantly unconstitutional statute, such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.” Schall v. Joyce, 885 F.2d 101, 106 (3d Cir.1989) (citing Middlesex County Ethics Comm., 457 U.S. at 435, 102 S.Ct. 2515). Dr. Getson argues that both exceptions to Younger abstention are applicable here.
1. Bad Faith
A prosecution or proceeding is conducted in “bad faith” for abstention purposes when it is brought “without hope” of success. Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971); see also Dombrowski v. Pfister, 380 U.S. 479, 482, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (plaintiffs alleged that threats to enforce anti-communism statutes were “not made with any expectation of securing valid convictions” but rather to harass and discourage the assertion of civil rights). Whether or not Dr. Getson ultimately prevails in the state administrative proceeding, there can be little question that that proceeding was not instituted by the Attorney General without any expectation of success. Dr. Schapiro opined that Dr. Getson deviated from the applicable standards of medical care at least forty-five times in a variety of ways. Dr. Get-son, of course, challenges the merits of *754these conclusions, and argues that the statutes cited in the expert reports and administrative complaint do not support the allegations against him. These contentions do not, however, establish that the administrative proceeding was brought in bad faith.3 Notably, Dr. Getson has not suggested that the administrative complaint was brought to retaliate against him or to discourage him from exercising his constitutional rights. See Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 199 (2d Cir.2002) (bad faith exception applicable only when plaintiff shows “that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive”).
Because it cannot be said that the administrative complaint was brought “without hope” of success and because there is no other indication of bad faith, the District Court correctly concluded that Dr. Getson did not allege facts sufficient to support his claim that this exception to the Younger abstention doctrine was applicable.4
2. Extraordinary Circumstances
Dr. Getson also argues that the Board of Medical Examiners is biased against him, constituting an “extraordinary circumstance” warranting a federal court’s intervention. The Supreme Court has stated that “such circumstances must be ‘extraordinary in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.” Kugler v. Helfant, 421 U.S. 117, 125, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975).5 The state agency or court must be “incapable of fairly and fully adjudicating the federal issues before it” for this exception to apply. Id. at 124, 95 S.Ct. 1524.
In Kugler, the plaintiff (a municipal court judge) alleged that he had been coerced by members of the Supreme Court of New Jersey to testify before a grand jury in violation of his Fifth Amendment rights. The plaintiff sought to enjoin the resulting criminal proceedings against him, arguing that the justices’ involvement constituted “extraordinary circumstances” that compromised the fairness of the state court proceedings. The Supreme Court disagreed, concluding that “the objectivity of the entire New Jersey court system has [not] been irretrievably impaired.” 421 U.S. at 127, 95 S.Ct. 1524. Instead, the Supreme Court stressed as a remedy the possible disqualification of biased judges, provided for by court rule. Id. at 127-28, 95 S.Ct. 1524 (citing N.J. Ct. R. 1:12-1 to 1:12-3); see also Aetna Life Ins. Co. v. *755Lavoie, 475 U.S. 813, 822, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (due process violation may occur when judge has a “direct, personal, substantial, pecuniary interest” in the proceedings) (internal quotations and citation omitted).
Dr. Getson has alleged only that Dr. Lomazow is biased against him, and that this animus has tainted the entire Board of Medical Examiners. Dr. Lomazow recused from participating in Dr. Getson’s case, however, just days after his conversation with Dr. Talone. The other members of the Board have represented that they did not talk to Dr. Lomazow about Dr. Getson’s case, and Dr. Getson has not suggested to the contrary. Although Dr. Getson argues that the phone call from the “lobbyist” to Dr. Talone regarding the “prominent elected official” is further evidence of the Board’s bias, this call related solely to Dr. Lomazow and not to the other Board members.
While we must accept Dr. Getson’s factual allegations as true, he must provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Dr. Getson’s “naked assertion” of bias was clearly insufficient to withstand the motion to dismiss. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). He did not and does not allege facts supporting his claim that he will not receive fair treatment before the Board, particularly given the recusal of Dr. Lomazow. Cf. Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) (district court properly did not abstain where board members “were incompetent by reason of bias to adjudicate the issues before it” because of personal financial interests in the proceeding). There are simply no “extraordinary circumstances” warranting federal court intervention into this pending state proceeding.
IV.
We will affirm the order of the District Court.
. Because we are reviewing the District Court’s Rule 12(b)(6) dismissal of Dr. Get-son's complaint, we must accept his factual allegations as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
. Dr. Getson states that the Attorney General’s Office “has simply ignored [his] bias complaints and conducted no such inquiry.” (Appellant's Br. at 29; App. at 57.)
.The cases on which Dr. Getson relies are inapposite. See Herz v. Degnan, 648 F.2d 201, 209-10 (3d Cir.1981) (the bad faith exception may apply where a psychologist’s license was revoked by the Attorney General in blatant non-compliance with applicable statutes); Chiropractic Alliance of New Jersey v. Parisi, 854 F.Supp. 299, 306-07 (D.N.J.1994) (the bad faith exception may apply where plaintiff alleged that state-actor defendants were attempting extortion); Wichert v. Walter, 606 F.Supp. 1516, 1521-22 (D.N.J.1985) (declining to abstain where teacher disciplinary proceeding was brought to harass and retaliate against plaintiff for making political comments).
. The District Court did not, as Dr. Getson suggests, improperly resolve any factual disputes to reach this conclusion, and instead found that Dr. Getson had not pled sufficient facts to state a claim of bad faith so as to preclude application of Younger.
. As an example, the Supreme Court has indicated that a "flagrantly and patently” unconstitutional statute would qualify as an "extraordinary circumstance.” Kugler, 421 U.S. at 125 n. 4, 95 S.Ct. 1524 (quoting Younger v. Harris, 401 U.S. 37, 53-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)). No such allegation is made here.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Mai’tin Zamarripa-Carrillo pleaded guilty to illegal reentry after deportation. He appeals only his sentence of 57 months of imprisonment, three years of supervised release, and a special assessment of $100.00. We will affirm.
I.
Zamarripa-Carrillo, a citizen of Mexico, pleaded guilty to a single count of reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). There was no plea agreement. Based on Zamarripa-Carrillo’s offense level and criminal history category, the Presentence Investigation Report (“PSR”) calculated an advisory Sentencing Guidelines range of 63-78 months. At the sentencing hearing held on June 18, 2008, the District Court granted the Government’s motion for an additional one-level reduction for Zamarripa-Carrillo’s timely acceptance of responsibility, which reduced the advisory Guidelines range to 57-71 months. In his sentencing memorandum and at the sentencing hearing, Zamarripa-Carrillo requested a downward variance from the *761recommended Guidelines range based on both his personal circumstances and on the fact that he was arrested in a district that lacked a fast-track program for handling reentry cases. Had such a fast-track program been available, ZamarripaCarrillo asserted, he would have participated in it and received a lower sentence. Having heard from Zamarripa-Carrillo and the Government, and having considered the PSR and the sentencing recommendations of the Probation Department and the Government, the District Court found that “the appropriate sentence for [Zamarripa-Carrillo] is within the guideline range.” (App.37.) Accordingly, the court imposed a sentence of 57 months of imprisonment, three years of supervised release, and a special assessment of $100.00. This timely appeal followed.1
II.
Zamarripa-Carrillo’s single contention on appeal is that the District Court committed a procedural error by treating the Sentencing Guidelines as mandatory when it denied his request for a downward variance based on the lack of a fast-track program in the Eastern District of Pennsylvania. Zamarripa-Carrillo bases his contention on one comment made by the District Court during the sentencing hearing — that Zamarripa-Carrillo could “make [his argument that the disparity in sentences caused by fast-track programs is unfair] to the United States Congress.” (App.33.) This statement, Zamarripa-Carrillo contends, rendered his sentence procedurally unreasonable.
The record makes clear that the District Court did not treat the Sentencing Guidelines as mandatory. The District Court listened to and considered Zamarripa-Carrillo’s argument regarding the sentencing disparity caused by the lack of a fast-track program and the Government’s argument that a variance on that basis was not appropriate, and decided not to accept Zamarripa-Carrillo’s argument:
This Court has considered the defense’s argument in reference to the fast-track programs that exist in other jurisdictions that do not exist here in the Eastern District of Pennsylvania.
We find that this argument is not accepted by this Court. We find that the appropriate sentence for this defendant is within the guideline range.
(App.37.) Further, in response to the Government’s query concerning the basis for the court’s denial of the requested variance, the court acknowledged its discretion to vary from the Guidelines: “this Court is obviously aware that we have the ability and the discretion to depart and vary from the sentencing guidelines, but it is this Court’s decision not to under these circumstances that are presented in this case.” (App.43.)
We see no procedural error in the District Court’s determination. In United States v. Arrelucea-Zamudio, 581 F.3d 142 (3d Cir.2009), which was decided after Zamarripa-Carrillo’s sentencing hearing and after the parties submitted them briefs in this appeal, we clarified our previous decision in United States v. Vargas, 477 F.3d 94, 101 (3d Cir.2007), in light of the Supreme Court’s decision in Kimbrough. In Arrelucea-Zamudio, we held “a sentencing judge has the discretion to consider a variance under the totality of the [18 U.S.C.] § 3553(a) factors ... on the basis *762of a defendant’s fast-track argument, and that such a variance would be reasonable in an appropriate case.” 581 F.3d at 149. We specified that Vargas’s holding that it is not an abuse of a sentencing judge’s discretion to decline to vary on the basis of fast-track disparity remains viable post-Kimbrough. Id. at 148-49.
Although the District Court did not have the benefit of our decision in Arrelucea-Zamudio at Zamarripa-Carrillo’s sentencing, it did not conclude — as the district court did in Arrelucea-Zamudio — that it was prohibited from considering Zamarripa-Carrillo’s fast-track disparity argument. To the contrary, the District Court explicitly acknowledged the advisory nature of the Sentencing Guidelines with respect to the fast-track argument. It found no unwarranted disparity, and then considered the remaining 18 U.S.C. § 3553(a) factors in light of all of the relevant evidence and arguments before it. It recognized its authority to impose a sentence below the advised range, but it determined a sentence within the Guidelines was reasonable and a downward variance was inappropriate.
Zamarripa-Carrillo contends the District Court’s statement regarding making his argument to Congress demonstrates that it misunderstood its authority to consider his fast-track argument. We disagree. We have recognized that “because district court judges render sentencing decisions orally and spontaneously from the bench after the presentation of numerous arguments, we do not expect them to deliver ‘a perfect or complete statement of all of the surrounding law.’ ” Vargas, 477 F.3d at 101 (quoting United States v. Cooper, 437 F.3d 324, 330 n. 8 (3d Cir.2006)); see also Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.”) (citation omitted). Here, the District Court made sufficiently clear that it had considered Zamarripa-Carrillo’s fast-track argument with respect to the § 3553(a) factors, but had found the argument unpersuasive in light of the evidence before it. This was a proper exercise of discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Arrelucecu-Zamudio, and resulted in a procedurally reasonable determination of Zamarripa-Carrillo’s sentence. Furthermore, the sentence was substantively reasonable.
III.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 3742(a). We review the District Court’s sentencing decision under the deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Fein appeals the magistrate judge’s * order entering judgment in JTH Tax, Incorporated’s favor on its claim for breach of a franchise agreement, as well as its request for a permanent injunction against Fein. We have reviewed the record and find no reversible error. Accordingly, we affirm the magistrate judge’s judgment. See JTH Tax, Inc. v. Fein, No. 2:08-cv-00021-FBS (E.D. Va. entered Jan. 27, 2009; amended by order entered Feb. 23, 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.
The parties consented to the jurisdiction of the magistrate judge under 28 U.S.C. § 636(c) (2006).
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Atsede Michael Oqubaegzi, a native and citizen of Ethiopia, petitions for review of an order of the Board of Immigration Appeals (“Board”) denying her motion to reopen or reconsider. We have reviewed the record and the Board’s order and find no abuse of discretion. See 8 C.F.R. § 1003.2(a) (2009). Accordingly, we deny the petition for review for the reasons stated by the Board. In re: Oqubaegzi (B.I.A. May 12, 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.
PETITION DENIED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Oyoyo Adanna Ebuzoeme, a native and citizen of the United Kingdom, petitions for review of an order of the Board of Immigration Appeals (“Board”) denying her motion to reopen immigration proceedings. We have reviewed the record and the Board’s order and find that the Board did not abuse its discretion in denying the motion. See 8 C.F.R. § 1003.2(a) (2009). Accordingly, we deny the petition for re*774view for the reasons stated by the Board. See In re: Ebuzoeme (B.I.A. Dec. 24, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477370/
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PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477372/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474705/
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Atsede Michael Oqubaegzi, a native and citizen of Ethiopia, petitions for review of an order of the Board of Immigration Appeals (“Board”) denying her motion to reopen or reconsider. We have reviewed the record and the Board’s order and find no abuse of discretion. See 8 C.F.R. § 1003.2(a) (2009). Accordingly, we deny the petition for review for the reasons stated by the Board. In re: Oqubaegzi (B.I.A. May 12, 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.
PETITION DENIED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474706/
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Oyoyo Adanna Ebuzoeme, a native and citizen of the United Kingdom, petitions for review of an order of the Board of Immigration Appeals (“Board”) denying her motion to reopen immigration proceedings. We have reviewed the record and the Board’s order and find that the Board did not abuse its discretion in denying the motion. See 8 C.F.R. § 1003.2(a) (2009). Accordingly, we deny the petition for re*774view for the reasons stated by the Board. See In re: Ebuzoeme (B.I.A. Dec. 24, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474711/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justine Bellamy appeals from the orders entered by the district court and the magistrate judge in favor of Defendants in her action alleging employment discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and by the magistrate judge. Bellamy v. Horry Co. Sch. Dist., No. 4:07-cv-02727-TER, 2009 WL 2151199 (D.S.C. July 13, 2009 & July 28, 2009). We deny Bellamy’s motion for transcripts at government expense and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474713/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew J. Hilgeford, who proceeds in forma pauperis, appeals the district court’s order dismissing his action against Defendants under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we affirm the district court’s order. See Hilgeford v. Am. Int’l Group, Inc., No. 3:09-cv-00440-JRS (E.D.Va. July 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.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474715/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shaheen Cabbagestalk appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) action for failure to prosecute under Fed. R.Civ.P. 41(b). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Cabbagestalk v. Blowe, No. 3:08-cv-01639-SB, 2009 WL 506869 (D.S.C. Feb. 27, 2009). We deny Cabbagestalk’s motion for summary judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477371/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474708/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John D. Black appeals the district court’s order dismissing his civil action for improper venue. We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Black v. New Jersey, No. 5:08-cv-00193-F, 2009 WL 559796 (E.D.N.C. Mar. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*775fore the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474710/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justine Bellamy appeals from the orders entered by the district court and the magistrate judge in favor of Defendants in her action alleging employment discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and by the magistrate judge. Bellamy v. Horry Co. Sch. Dist., No. 4:07-cv-02727-TER, 2009 WL 2151199 (D.S.C. July 13, 2009 & July 28, 2009). We deny Bellamy’s motion for transcripts at government expense and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474712/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew J. Hilgeford, who proceeds in forma pauperis, appeals the district court’s order dismissing his action against Defendants under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we affirm the district court’s order. See Hilgeford v. Am. Int’l Group, Inc., No. 3:09-cv-00440-JRS (E.D.Va. July 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.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474714/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shaheen Cabbagestalk appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) action for failure to prosecute under Fed. R.Civ.P. 41(b). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Cabbagestalk v. Blowe, No. 3:08-cv-01639-SB, 2009 WL 506869 (D.S.C. Feb. 27, 2009). We deny Cabbagestalk’s motion for summary judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474716/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Michael Smith appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing Smith’s Federal Tort Claims Act suit. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. United States, No. 3:08-cv-00427-MR-DCK, 2009 WL 1564145 (W.D.N.C. June 2, 2009). We grant Smith’s motion to supplement the record and deny the remainder of Smith’s pending motions. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474720/
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*781Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Glennie Fulmore appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his civil complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Fulmore v. England, No. 2:09-cv-00075-PMD, 2009 WL 1617079 (D.S.C. June 10, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474787/
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PER CURIAM.
Inmate Rickey Brooks appeals the district court’s1 pre-service dismissal of his 42 U.S.C. § 1983 complaint. After careful review, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (standard of review), we affirm. See 8th Cir. R. 47B.
. The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting the report and recommendation of The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District of Arkansas.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474717/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Michael Smith appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing Smith’s Federal Tort Claims Act suit. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. United States, No. 3:08-cv-00427-MR-DCK, 2009 WL 1564145 (W.D.N.C. June 2, 2009). We grant Smith’s motion to supplement the record and deny the remainder of Smith’s pending motions. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474719/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian L. Davis appeals the district court’s order granting Defendants’ motion to dismiss his claims under the Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400-87 (West 2000 & Supp. 2009); 42 U.S.C. § 1983 (2006); and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 to 797 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. Davis v. Hampton Pub. Sch. Dist., 4:09-cv-00004-RBS-TEM (E.D. Va. filed June 22, 2009; entered June 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474723/
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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.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474725/
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*783Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel A. Aghimien appeals the district court’s order granting the Defendants’ motion to dismiss his civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Aghimien v. North Carolina Dep’t of Transp., No. 5:08-cv-00213-D (E.D.N.C. Filed March 18, 2009; entered March 19, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474729/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit'.
PER CURIAM:
Calvin Angelo Coward appeals the district court’s order denying his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny Coward’s motion for appointment of counsel and affirm for the reasons stated by the district court. See United States v. Coward, No. 4:90-cr00052-H-2 (E.D.N.C. Aug. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474800/
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PER CURIAM:
After a thorough review of the briefs and the record, and after hearing oral argument, we AFFIRM based on the well-reasoned opinion of the district court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474724/
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*783Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel A. Aghimien appeals the district court’s order granting the Defendants’ motion to dismiss his civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Aghimien v. North Carolina Dep’t of Transp., No. 5:08-cv-00213-D (E.D.N.C. Filed March 18, 2009; entered March 19, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474726/
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No. 08-1766 dismissed; No. 09-1763 affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In No. 08-1766, Kess Tani noted an appeal from the district court’s order dismissing his complaint for lack of subject matter jurisdiction. Because the district court subsequently granted Tani’s motion for reconsideration and vacated that order, the appeal from that order is moot. We therefore dismiss this portion of the appeal.
In No. 09-1763, Tani appeals from the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Tani v. The Washington Post, No. 8:08-cv-01130-PJM (D. Md. June 18, 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.
No. 08-1766 DISMISSED.
No. 09-1763 AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474730/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lester Johnson appeals the district court’s orders denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(e) (2006) and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Johnson, No. 3:95-cr-00488-JFA (D.S.C. Jan. 5, 2009 & June 22, 2009). We dispense -with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474732/
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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.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8474735/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jevon Edward Brown appeals the district court’s order denying what it construed to be a Fed.R.Civ.P. 60(b) motion for reconsideration of the district court’s February 24, 2009 order dismissing Brown’s 42 U.S.C. § 1983 (2006) action against Defendants. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Brown v. Patrick, 1:08-cv-01345-TSE-TRJ (E.D.Va. Apr. 20, 2009). We dispense with oral argument *819because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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