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https://www.courtlistener.com/api/rest/v3/opinions/8474874/	SUMMARY ORDER Petitioner Isatu Barrie, a native and citizen of Sierra Leone, seeks review of a February 6, 2009 order of the BIA denying her motion to reopen. In re Isatu Barrie, No. A095 460 140 (B.I.A. Feb. 6, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We lack jurisdiction over Barrie’s claim that the BIA erred by refusing to reopen her removal proceedings in light of our decision in Salimatou Bah v. Mulcasey, 529 F.3d 99 (2d Cir.2008), which she argues constituted a “fundamental” change in law excusing Barrie’s untimely motion to reopen before the BIA. A “fundamental” change in the law is not a ground for excusing an untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii) (requiring an applicant, in order to excuse an untimely motion to reopen, to demonstrate through material, previously unavailable evidence, that conditions in the country where the applicant fears persecution have changed such that the applicant now has a well-founded fear of future persecution if she were to return). Rather, the BIA may revisit its prior decision in the wake of a fundamental change in law pursuant to its sua sponte authority. See 8 C.F.R. § 1003.2(a); Matter of G-D-, 22 I. & N. Dec. 1132, 1134-35 (B.I.A.1999) (holding that the BIA may, on its own motion, consider an untimely or numerically barred motion to reopen a prior decision based on “a fundamental change in the law”). Thus, Barrie’s argument that the BIA erred in denying her untimely motion to reopen is, in actuality, a challenge to the BIA’s refusal to exercise its sua sponte authority. We lack jurisdiction to consider such challenges because the BIA’s exercise of its sua sponte authority is “entirely discretionary.” See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam); see also Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009) (“[W]e are without jurisdiction to review the Agency’s failure to reopen removal proceedings sua sponte.”); 8 C.F.R. § 1003.2(a). Therefore, we are left with no alternative but to dismiss the petition for review. For the foregoing reasons, the petition for review is DISMISSED. 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 *52534(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474876/	SUMMARY ORDER Petitioner Otilio Espindola-Castena (“petitioner”) seeks review of a November 17, 2008 decision of the BIA, affirming the April 18, 2008 decision of the Immigration *526Judge (“IJ”), denying petitioner’s motion to reopen his deportation proceedings. The issue presented by this petition for review is whether the BIA abused its discretion in affirming the denial of the motion to reopen. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. Decisions affirming the denial of a motion to reopen are reviewed for abuse of discretion. See Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.2009). “The BIA abuses its discretion when its decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Id. (internal quotations omitted). Where, as here, the BIA affirms the decision of the IJ without opinion, this Court reviews the IJ’s decision in lieu of the BIA’s decision. See Elbahja v. Keisler, 505 F.3d 125, 128 (2d Cir.2007). Under the regulations, “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing....” 8 C.F.R. § 1003.2(c)(1). There are at least three independent grounds on which the Board might deny a motion to reopen. First, “the Board may deny a motion to reopen based upon the failure to establish a prima facie case for the relief sought.” Second, the Board may deny the motion because the evidence submitted is not material or was not previously unavailable. Or third, where the relief sought is discretionary, the Board can conclude that, even if it were to grant the motion to reopen, it would not exercise its discretion to grant the ultimate relief requested. Singh v. Mukasey, 536 F.3d 149, 155 (2d Cir.2008). The IJ denied petitioner’s motion to reopen on two grounds. First, the IJ found that the evidence petitioner submitted with his motion to reopen should have been submitted at the merits hearing on his application for cancellation of removal and that petitioner had failed to explain why the evidence was “previously unavailable.”2 Second, he found that, even considering the new evidence, petitioner had not established his eligibility for cancellation of removal because the evidence failed to show ten years of continuous physical presence. These conclusions were supported by the record and we find no abuse of discretion in the Board’s decision affirming the denial. We therefore DENY the petition for review. . On appeal, petitioner argues for the first time that the evidence was previously unavailable because unspecified "parties” had previously been unwilling to submit evidence on his behalf; however, he did not make this argument in front of the IJ or the BIA.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474881/	SUMMARY ORDER In this action, the Trustees of the New York State Nurses Association Pension Plan (the “Trustees”) seek to force the Cabrini Medical Center (“Cabrini”) to make contributions to the New York State Nurses Association (“NYSNA”) Pension Plan. Until March 2008, Cabrini was a Manhattan hospital that employed nurses who were members of NYSNA. Cabrini 530and NYSNA were parties to a collective bargaining agreement (the “CBA”) that expired in January 2008. Under the CBA, Cabrini was obligated to make monthly contributions to the NYSNA Pension Plan, which was administered by the Trustees pursuant to an “Agreement and Declaration of Trust Establishing The [NYSNA] Pension Plan” (the “Trust Agreement”). Notwithstanding the fact that the NYSNA nurses continued to work at Cabrini until the hospital closed its doors on March 17, 2008, Cabrini ceased making contributions to the NYSNA Pension Plan in January 2008. On June 17, 2008, an arbitrator issued an award in favor of the Trustees (the “Award”), which directed Cabrini to make certain payments to the NYSNA Pension Plan. In the proceedings below, the Trustees moved to confirm the Award, and Cabrini cross-moved to vacate it. On January 30, 2009, the United States District Court for the Southern District of New York (Berman, J.) granted the Trustees’ motion to confirm the Award and denied Cabrini’s cross-motion for vacatur. Cabrini appeals that decision. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. When examining a district court’s confirmation of an arbitral award, we review its factual findings for clear error and its legal conclusions de novo. See 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 526 (2d Cir.2005) (per curiam). In doing so, “[w]e accord a high degree of deference to an arbitrator’s decision.” Id. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). “If it were otherwise, the ostensible purpose for resort to arbitration, i.e., avoidance of litigation, would be frustrated.” Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 274 F.2d 805, 808 (2d Cir.1960). The resolution of a motion to confirm an arbitral award typically involves a two-part inquiry. First, the court must ask whether the arbitrator acted within the scope of his or her authority in issuing the award. Local 1199, Drug, Hosp. & Health Care Employees Union, RWDSU, AFL-CIO v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir.1992). Second, the court must ascertain whether the award “draws its essence” from the agreement in question. Id. In this case, the district court answered both of these questions in the affirmative. We agree with its ultimate conclusions. “The scope of an arbitrator’s authority ... ‘generally depends on the intention of the parties to an arbitration, and is determined by the agreement or submission.’” ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Co., 564 F.3d 81, 85 (2d Cir.2009) (quoting Synergy Gas Co. v. Sasso, 853 F.2d 59, 63-64 (2d Cir.1988)). Here, the Trustees’ original “submission” to the arbitrator — their March 10, 2008 “Demand for Arbitration” — included as an “Attachment” a copy of the Trust Agreement’s arbitration clause. Cabrini was presumably well aware of the substance of this clause, as it had already “agree[d] to be bound” by the Trust Agreement in a separate “Acknowledgment” form. The “agreement” defining the boundaries of the arbitrator’s authority was therefore the Trust Agreement, as amended. The Trust Agreement, in turn, authorized the Trustees to “compel and enforce [Cabrini’s] payment of contributions” to the NYSNA Pension Plan through arbitration, and it stated that an arbitrator’s decision regarding any such dispute “shall be final and binding.” 531In light of the language in the Demand and the Trust Agreement, the arbitrator did not exceed her authority by issuing the Award. Moreover, because the arbitrator’s authority was a function of the parties’ agreements, Cabrini’s reliance on Laborers Health & Welfare Trust Fund for Northern California v. Advanced Lightweight Concrete Co., 484 U.S. 539, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988), is misplaced. The Advanced Lightweight Court merely held that sections 502(g)(2) and 515 of the Employee Retirement Income Security Act, 29 U.S.C. §§ 1132(g)(2), 1145, do not provide a jurisdictional basis for a federal court to review allegedly unfair labor practices that would otherwise fall under the jurisdiction of the National Labor Relations Board. Advanced Lightweight, 484 U.S. at 547-M9, 108 S.Ct. 830. Advanced Lightweight does not divest an arbitrator of authority to resolve a dispute over the meaning of a private contract that contains an arbitration clause. Therefore, the district court did not err in concluding that the arbitrator acted within the scope of her authority. The district court also properly rejected Cabrini’s argument that the arbitrator incorrectly interpreted the terms of the Trust Agreement. Under the “essence of the agreement” doctrine, a court may “not reverse an arbitral award that draws its essence from the agreement, even if it contains factual errors or erroneous interpretations of contract provisions.” First Nat’l Supermarkets, Inc. v. Retail, Wholesale & Chain Store Food Employees Union Local 338, 118 F.3d 892, 896 (2d Cir.1997). Where, as here, “the parties agreed to submit an issue for arbitration, we will uphold a challenged award as long as the arbitrator offers ‘a barely colorable justification for the outcome reached.’ ” ReliaStar Life Ins., 564 F.3d at 86 (quoting Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 260 (2d Cir.2003)). Moreover, “[ejven where an arbitrator’s explanation for an award is deficient, we must confirm it if a justifiable ground for the decision can be inferred from the record.” Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85, 97 (2d Cir.2008). The arbitrator’s decision reflects that she was relying on the Trust Agreement, and she specifically ruled that Cabrini “had an obligation under the Trust Agreement to make contributions for the period that employees were employed at the Hospital.” (Award at 6 (emphasis added).) Reviewing this conclusion deferentially, as we must, we hold that Cabrini has failed to establish that the Award is so untethered from the Trust Agreement that it must be vacated. The “First Amendment” to the Trust Agreement referenced a “Policy for Continuation of Benefits on Expiration of a Collective Bargaining Agreement” (the “Continuation Policy”). The Continuation Policy described circumstances under which Cabrini’s obligations to contribute to the NYSNA Pension Plan would continue after the expiration of the CBA. For example, paragraph D(l) of the Continuation Policy stated that, in the event that the CBA expired and Cabrini “ha[d] not executed a new agreement,” its employees were entitled to written notice that “their covered employment will terminate on the 90th day following the expiration ” of the CBA. (Continuation Policy ¶ D(l) (emphasis added).) Cabrini argues that the terms of the Continuation Policy did not require payments after expiration of the CBA. The arbitrator’s award indicates that she interpreted the interaction of the Trust Agreement, the CBA, and the Continuation Policy differently. Cabrini’s disagreement with this conclusion does not provide a basis for relief under the “essence of the *532agreement” doctrine. See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (“[S]o far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling [her] because their interpretation of the contract is different from [hers].”). Consequently, we find no error in the district court’s conclusion that the Award was derived from the essence of the Trust Agreement. Finally, Cabrini argues that the Award is unenforceable because the arbitrator’s interpretation of the Trust Agreement would require it to violate section 302(a) of the Labor Management Relations Act (“LMRA”). In Cabrini’s view, the arbitrator could not rely on any portion of the CBA in making her decision because it had expired in January 2008. Thus, Cabrini argues, because the details of its contribution obligations are specified in the CBA rather than the Trust Agreement, the payments called for by the Award lack a sufficiently “detailed basis [upon] which such payments are to be made.” 29 U.S.C. § 186(c)(5)(B). According to Cabrini, the Award must be vacated as void because the contributions that it calls for would be illegal under section 302(a) of the LMRA. The district court held that Cabrini waived this argument. Indeed, there is no indication in the record that Cabrini raised this contention until its June 27, 2008 letter seeking “clarification” of the Award. Nevertheless, Cabrini argues that its contention is not waivable because courts may not enforce contracts that contravene public policy. Cf. Saint Mary Home, Inc. v. Serv. Employees Int’l Union, Dist. 1199, 116 F.3d 41, 45 (2d Cir.1997) (“The question of whether an arbitral award violates public policy is one for the courts.”). We need not address this issue, however, because Cabrini’s argument is incorrect on the merits. Without providing any authority for its position, Cabrini assumes that, because the CBA had expired, it could not serve as the source of the “detailed basis,” 29 U.S.C. § 186(c)(5)(B), for the contributions called for by the Award. Simply put, this is not the law. See Cibao Meat Prods., Inc. v. N.L.R.B., 547 F.3d 336, 341 (2d Cir.2008) (“[A]n expired collective-bargaining agreement satisfies the written-agreement requirement of § 302(c)(5)(B).”). Thus, we reject the substance of Cabrini’s illegality argument: the terms of the Award do not require Cabrini to violate the LMRA. We have reviewed Cabrini’s remaining arguments and find them to be without merit. Accordingly, the January 30, 2009 order of the district court is hereby AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474882/	SUMMARY ORDER This case relates to a proposed restoration of the Seventh Regiment Armory (the “Armory”) located at 643 Park Avenue in Manhattan. Appellants filed a complaint 534seeking, inter alia, declaratory judgment and injunctive relief invalidating a 2004 New York State statute authorizing a 2006 lease of the Armory to the Seventh Regiment Armory Conservancy, Inc. (“Conservancy”). Appellants argued that the statute violated several of their constitutional rights under the First Amendment, the Takings Clause of the Fifth Amendment, and the Due Process and the Equal Protection Clause of the Fourteenth Amendment. On January 5, 2009, 2009 WL 29599, Judge Barbara Jones granted defendants’ motion to dismiss on the grounds that plaintiffs lacked standing. Appellants now appeal from this judgment. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. This Court reviews a district court’s dismissal of a complaint under rules 12(b)(1) and (6) de novo. Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir.1997). Further, we must accept all factual allegations in the complaint as true and draw inferences in the light most favorable to the appellants. Id. Upon review, we conclude that the district court was correct that appellants did not have Art. Ill standing. The “irreducible constitutional minimum” of standing has three elements: (1) there must be an “ ‘injury in fact,’-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;” (2) there must be “a causal connection between the injury and the conduct complained of;” and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Port Washington Teachers’ Ass’n v. Bd. of Ed. of Port Washington, 478 F.3d 494, 498 (2d Cir.2007) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Appellants have failed to show any injuries in fact. First, appellants’ complaint failed to allege a property interest in the Armory. U.S. Olympic Comm. v. Intelicense Corp., S.A., 737 F.2d 263, 268 (2d Cir.1984) (“Only the owner of an interest in property at the time of the alleged taking has standing to assert that a taking has occurred.”). The complaint contends that, the Armory is privately owned by “the trustees of the Seventh Regiment Armory fund,” but fails to allege that appellants are the trustees or the successors of the trustees. Instead, appellants bring this action as veterans (although only Wells is a veteran of the Seventh Regiment specifically), and directors of the 107th Infantry Regiment Historical Society. They allege no official connection between the Seventh Regiment Historical Society, and the Seventh Regiment of the National Guard or its successor unit, the 107th Corps Support Group of the New York Armory National Guard. Therefore, Appellants have no standing to bring a takings claim. Second, Appellants argue they have been denied a free speech right to “tell[ ] stories of the experiences of citizen-soldiers” by installing a military history museum, a free association right to hold Armory meetings with other veterans based on “collegiality and shared experiences,” and a statutory right to free access to the Armory. They argue that Chapter 482 (and the Conservancy plans to convert interior spaces into “commercial restaurant, cocktail lounge and banquet and reception facilities”) “effectively” denies them free access. Appellants do not argue that Chapter 482 on its face violates any of appellants’ asserted rights, nor did their complaint allege that Chapter 482 has been applied to violate these rights. Chapter 482 535changes the access procedure to the Armory only in that appellants must now submit their application for access to a different person. N.Y. Mil. Law. § 180-a (3)(c)(i). Appellants did not allege that they have applied for and been denied access. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (finding plaintiff lacked standing to challenge racially discriminatory membership policy because he had never applied for membership). At present, any injury is hypothetical. Any injury from failure to install a museum is similarly hypothetical because appellants did not allege that they have applied for and been denied access to use the Armory for a museum. Even if appellants were denied, they have not asserted a right to build a museum in the Armory. While the Armory may be, as appellants assert, a natural choice for the museum, the Historical Society Charter to build a museum does not state where the museum will be located, and makes no mention at all of the Armory. Thus, appellants have not shown any right to install a museum in the Armory. The Equal Protection Claim fails for the same reasons: Chapter 482 does not deny appellants access to the Armory on its face, nor did they allege that they have been denied access in fact. Appellants have not alleged that they have been treated differently than any other group. Accordingly, the judgment of the district court hereby is AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474891/	SUMMARY ORDER Sean Johnson (“Johnson”) appeals from the final judgment of the District Court for the Southern District of New York granting summary judgement for appellee CH Energy Groups, Inc. (“CHG & E”). We assume the parties’ familiarity with the facts, proceedings below, and the specification of the issues on appeal. Johnson began his employment at CHG & E in 1990 and was hired in February, 1993 as a full-time employee. The terms of Johnson’s employment with CHG & E are defined in a collective bargaining agreement negotiated between the International Brotherhood of Electrical Workers, Local 320 and CHG & E (“CBA”). In 2001, Johnson completed the required examination and was promoted to the position of Lineman Third Class. In March, 2005, Johnson attempted the examination to proceed to become a Lineman First Class, which consists of both a written and a practical component. Johnson was required by the CBA to wait a period of eighteen months, so that he might pursue additional training opportunities, before he could attempt the examination again. During this period, Johnson was transferred to CHG & E’s Kingston branch. Johnson alleges that he was subjected to a series of incidents involving racial discrimination. When he first started as a Lineman, Johnson, who is African American, claims that he found a photograph of a black Lineman from Con Edison (a competitor firm) and on another occasion, a black woman, taped to his locker. He says that one of his colleagues called him “Boy” and “Willis.” Johnson further alleged that a photograph of all of the lineman in the Kingston branch had been taped to his locker, and that his picture had been colored black. While he was employed at the Kingston branch, Johnson argues that another employee of a similar level at CHG & E said that Johnson had “snowed” everyone at Kingston and that he could “see right through him.” On another occasion, in October 2005, Johnson gave Wayne Rice, his supervisor, a length of rope as part of a work-related task. Johnson claims Rice threw it back at him, and said “maybe [he would] make a noose.” Thomas Brocks, a Vice-President of Human Resources at CHG & E, contacted Johnson after the noose incident and encouraged Brocks to inform him if he heard any other racial comments. Johnson also alleges that Dave Warren, one of his supervisors, was dismissive of him and critical of his work in front of his coworkers. On February 16, 2006, Johnson again attempted the examination to become a First Class Lineman. Johnson achieved nearly a perfect score on the written examination. He did not, however, receive a passing score on the practical component, and was, pursuant to the CBA, denied the promotion and demoted to the position of Meter Reader. The four proctors of the practical examination, Jay Deyo, Michael Lennon, Robert Elliott and Warren, agreed that Johnson had not shown the competence or the fluidity during the examination necessary to be a First Class Lineman. Two of the proctors, Deyo and Warren, claimed that they saw Johnson remove his rubber glove during the examination, which they say contributed to the failing score that he received. On the other hand, the two other proctors, Elliot and Lennon, later said that they did not 545see Johnson remove the glove. Johnson claims that he did not remove the glove during the practical examination. The same day that Johnson attempted the examination, two other employees, John Schueren, and Scott Parker, completed the First Class Lineman examination for a second time. Schueren, who is Caucasian, and Parker, who is African American, received passing scores. On February 21, 2006, Johnson met with Brocks, Heather Still, the Labor Relations Administrator for CHG & E, and Union President Frank Maher to discuss the results of the examination. Johnson explained that he had heard he failed the examination, because he had removed his glove, and suggested Warren and Deyo had lied about his having removed the glove. After the meeting, Brocks designated Barry Bloom, the Director of Corporate Compliance, to lead an investigation into Johnson’s allegations of racial discrimination. Bloom concluded that there was no evidence that the decision was racially motivated. Johnson alleged in his complaint that he was denied a promotion and subsequently demoted on the basis of his race in violation of 42 U.S.C. § 1981 and New York State Executive Law, § 296. The district court concluded that Johnson had failed to establish a prima facie case of discrimination under section 1981. In the alternative, the court found that CHG & E had articulated a nondiscriminatory justification for the employment decision, and that Johnson failed to provide evidence of discriminatory pretext. The court declined to exercise supplemental jurisdiction over Johnson’s state law claims. This Court reviews a district court’s grant of summary judgment de novo, and it applies the same standards that guided the district court in granting summary judgment. O’Shea v. First Manhattan Co. Thrift Plan & Trust, 55 F.3d 109, 111 (2d Cir.1995). “In deciding a motion for summary judgment,” this Court has instructed, “the district court is not to resolve issues of fact but only to determine whether there is a genuine triable issue as to a material fact. In making that determination, the court is required to resolve all ambiguities, and to credit all factual inferences that could rationally be drawn, in favor of the party against whom summary judgment is sought.” Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir.2000). A genuine issue of material fact “arises if the evidence would allow a reasonable jury to return a verdict for the non-moving party.” Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988). To establish a claim under 42 U.S.C. § 1981, a plaintiff must show that “(1) that she is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) that the discrimination concerned one or more of the activities enumerated in § 1981.” Lauture v. Int’l Bus. Mach. Corp., 216 F.3d 258, 261 (2d Cir.2000). This Court has recognized that “[m]ost of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981 ...” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004). In both the Title VII context and with respect to section 1981 claims, this Court applies 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); Martin v. Citibank, N.A., 762 F.2d 212, 216-17 (2d Cir.1985). Under McDonnell Douglas, a plaintiff “must establish, by a preponderance of the 546evidence ... (1) that [he] falls within the protected group, (2) that plaintiff applied for a position for which he was qualified, (3) that [he] was subject to an adverse employment decision and (4) that the adverse employment decision was made under circumstances giving rise to an inference of unlawful discrimination.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir.2001) (citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817). When the plaintiff has established a pri-ma facie case, the employer may defeat a rebuttable presumption of discrimination by “articulating a legitimate, non-discriminatory reason for the employment decision.” Bymie, 243 F.3d at 102. Finally, if the employer offers such a reason, which would allow a reasonable trier of fact to conclude that no discrimination occurred, the burden-shifting framework “disappears and the sole remaining issue is discrimination vel non.” Id. (internal quotation marks and citations omitted). “The burden upon the plaintiff to prove a prima facie case is minimal.” Id. Applying the McDonnell Douglas standard, at step one, there is no debate that Johnson is an African American and that he suffered an adverse employment action in that he failed to receive a promotion and was subsequently, and consistent with company policy, demoted to the position of Meter Reader. Bymie, 243 F.3d at 101. The next inquiry focuses on whether or not Johnson was adequately qualified for the position. Id. The district court assumed that Johnson was qualified for the position, and we assume the same. Id. Taking the facts in the light most favorable to Johnson, the noose incident, combined with the incidents he alleges occurred involving his photograph, we find he meets his minimal burden to set out a prima facie case of discrimination. Id,.; Dawson v. Bumble and Bumble, 398 F.3d 211, 216 (2d Cir.2005). At the fifth step under McDonnell Douglas, we must consider whether the district court erred by resolving a question of fact as to whether Johnson removed his rubber glove during the examination. Johnson’s removal of the rubber glove featured prominently in the proctors’ decision to deny him a promotion. It was the first explanation provided to him regarding the employment decision, and it was also the only objective factor — in contrast to the subjective criteria of “fluidity” or “continuity” — that the proctors cited as relevant to their decision. In Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court considered the extent of the evidence necessary for the district court to reject an employer’s nondiscriminatory basis for an employment decision. The Court found that “it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation,” and that “[p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination .... ” Id. at 146^47, 120 S.Ct. 2097. Such evidence, the Court found, “may be quite persuasive.” Id. at 147, 120 S.Ct. 2097. The question of whether Johnson removed his glove is the type of factual dispute that Reeves instructs should be sent to a jury. “Whether judgment as a matter of law is appropriate will depend on a number of factors .... including] the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be consid*547ered on a motion for judgement as a matter of law.” Id. at 148-49, 120 S.Ct. 2097. See Schnabel v. Abramson, 232 F.3d 83, 89 (2d Cir.2000) (finding Reeves applies to a motion for summary judgment). A consideration of these factors support the view that the district court’s grant of summary judgment was in error. See Bymie, 243 F.3d at 101. First, Johnson’s history of discrimination at CHG & E, including the noose incident and the harassment he experienced when his photograph was colored black and photographs of African Americans were placed on his locker, add strength to his prima facie case of race discrimination. Second, the proctors’ disagreement about whether or not Johnson had removed the glove, along with his history of disagreement with one of the proctors, Dave Warren, provides reason to question the explanation the employer has proffered for the employment decision. A consideration of these factors might lead a reasonable trier of fact to conclude that Johnson’s termination decision was motivated by race. We conclude, therefore, that the district court incorrectly granted summary judgment on Johnson’s claims under section 1981 and vacate and remand the matter to the district court. It is not necessary to conduct a separate analysis of the state law claims, because the relevant standards under New York Executive Law § 296 mirror those for a section 1981 claim. Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007). In any event, the district court declined to exercise supplemental jurisdiction over these claims. See 28 U.S.C. § 1367(c) (district court may decline to exercise supplemental jurisdiction if it “has dismissed all claims over which it has original jurisdiction”). Since we conclude that the district court erred in dismissing the action, we also remand for consideration of the claims under the New York Executive Law. For the reasons stated above, the judgment of the district court is VACATED AND REMANDED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474892/	SUMMARY ORDER Appellant Elizabeth Margrabe (“Ms. Margrabe”) seeks review of an Opinion and Order of the District Court, granting Appellees’ Fed.R.Civ.P. 12(b)(6) motion to dismiss. We assume the parties’ familiarity with the facts, procedural context, and specification of appellate issues. This Court reviews de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Appellant first argues that the District Court erred in dismissing her breach of fiduciary duty claim. The District Court ruled that Appellees did not breach 549their fiduciary duty to Ms. Margrabe because they did not disclose a client confidence or secret. We agree with the lower court that Ms. Margrabe’s breach of fiduciary duty claim ought to be dismissed, but we affirm the dismissal on alternate grounds. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.1999) (“[W]e are free to affirm an appealed decision on any ground which finds support in the record, regardless of the ground upon which the trial court relied.”) (internal quotation marks omitted). Assuming arguendo that Appellees breached a disciplinary rule by disclosing Ms. Margrabe’s letter, New York courts have held that an attorney’s breach of a disciplinary rule does not per se give rise to a cause of action for breach of fiduciary duty. See, e.g., Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 753 N.Y.S.2d 482, 487 (N.Y.App.Div.2003). In order to sustain a claim of breach of fiduciary duty under New York law, Appellant must prove “the existence of a fiduciary relationship, misconduct by the [Appellees], and damages directly caused by the [Appellees’] misconduct.” Berman v. Sugo LLC, 580 F.Supp.2d 191, 204 (S.D.N.Y.2008) (citing Kurtzman v. Bergstol, 40 A.D.3d 588, 835 N.Y.S.2d 644, 646 (N.Y.App.Div.2007)). In the instant case, Appellant has not adequately alleged damages that were directly caused by the Appellees’ alleged misconduct. As damages, Ms. Margrabe seeks $361,964.71 in legal fees and other expenses associated with defending herself against the defamation suit. However, Ms. Margrabe did not incur these fees as a result of Appellants’ alleged breach of fiduciary duty, to wit, the improper disclosure of ehent secrets or confidences. Rather, Ms. Margrabe would have incurred these fees regardless of whether Appellees had attached her discharge letter to their complaint. Thus, Appellees’ disclosure of the discharge letter in connection with the defamation suit is not relevant to the calculation of damages. Accordingly, Appellant cannot make out a prima facie case of breach of fiduciary duty and her claim must be dismissed. Appellant next argues that the District Court erred in dismissing her prima facie tort claim. We affirm the District Court, however, because Appellant did not allege that the only motivation for the act was “disinterested malevolence.” To prevail on a prima facie tort claim, a plaintiff must plead that the only motivation for the act was “disinterested malevolence.” It is well established that a plaintiff cannot recover unless a defendant’s conduct was not only harmful, but done with the sole intent to harm. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 571 (2d Cir.1990) (citing Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459, 467 (1983)). “We have held that motives other than disinterested malevolence, ‘such as profit, self-interest, or business advantage’ will defeat a prima facie tort claim.” Id. (quoting Marcella v. ARP Films, Inc., 778 F.2d 112, 119 (2d Cir.1985)). In the instant case, Appellant pleaded that Appellees initiated the defamation action in order to coerce her into abandoning her claim to the disputed fees. This admission defeats her prima facie tort claim because, assuming the truth of Appellant’s allegations as we must when reviewing a motion to dismiss, it is clear that Appellees had a monetary interest in initiating the defamation action. Thus, Appellees were not motivated solely by “disinterested malevolence” and, accordingly, Ms. Mar-grabe’s prima facie tort claim must be dismissed. Finally, Ms. Margrabe argues that the District Court erred in dismissing her 550intentional infliction of emotional distress (“IIED”) claim. Under New York law, IIED requires pleading the following four elements: (1) extreme and outrageous conduct, measured by the reasonable bounds of decency tolerated by society; (2) intent to cause or disregard of a substantial probability of causing severe emotional distress; “(3) a causal connection between the conduct and the injury; and (4) severe emotional distress.” Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir.2001); Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699, 702 (1993). The conduct at issue “must transcend the bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.” Klinge v. Ithaca Coll., 235 A.D.2d 724, 652 N.Y.S.2d 377, 379-80 (N.Y.App.Div.1997). The conduct alleged “must consist of more than mere insults, indignities and annoyances.” Leibowitz v. Bank Leumi Trust Co. of New York, 152 A.D.2d 169, 548 N.Y.S.2d 513, 521 (N.Y.App.Div.1989). Moreover, “[cjourts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate and malicious campaign of harassment or intimidation.” Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332, 667 N.Y.S.2d 360, 362 (N.Y.App.Div.1998). Finally, a court may decide whether alleged conduct is sufficiently outrageous as a matter of law. Koulkina v. City of New York, 559 F.Supp.2d 300, 324 (S.D.N.Y.2008) (citing Howell, 596 N.Y.S.2d 350, 612 N.E.2d at 702). This Court agrees with the District Court that, as a matter of law, Appellant’s complaint does not and cannot allege that Appellees’ filing of the defamation suit was so outrageous as to be utterly intolerable in a civilized society. The “mere commencement of a civil action, even if alleged to be for the purposes of harassment or intimidation, is insufficient to support a claim of IIED.” O’Bradovich v. Village of Tuckahoe, 325 F.Supp.2d 413, 435 (S.D.N.Y.2004) (citation omitted). The New York Court of Appeals has held similarly. See Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 373 N.E.2d 1215, 1217 (1978) (deliberate commencement of a civil action for defamation to malign, harass, intimidate and inflict mental and emotional distress does not give rise to an IIED claim). Accordingly, the District Court did not err in dismissing Appellant’s IIED claim. For the foregoing reasons, the order of the District Court is AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474894/	SUMMARY ORDER Petitioner Kriste Desku, a native of the former Yugoslavia, seeks review of a February 17, 2009 order of the BIA affirming the April 8, 2008 decision of Immigration Judge (“IJ”) Gabriel C. Videla, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Kriste Desku, No. A098 977 522 (B.I.A. Feb. 17, 2009), aff'g No. A098 977 522 (Immig. Ct. N.Y. City Apr. 8, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Substantial evidence supports the IJ’s adverse credibility determination. The IJ drew a negative inference as to Desku’s credibility after observing his demeanor. Specifically, the IJ noted that when asked about inconsistencies in the record, Desku was not responsive. We defer to the IJ’s finding in that respect. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). Moreover, the IJ based his adverse credibility determination on inconsistencies within Desku’s testimony and between that testimony and other evidence in the record. For example, the IJ reasonably concluded that Desku provided inconsistent testimony about two identification docu*552ments. While he originally claimed that they were in the same condition as the last time he saw them in Kosovo, when questioned as to why both documents, which were issued four years apart, had the same photograph, Desku conceded that he had altered the documents because he “was told that the Government here does not accept any document without a picture.” Desku asserts that his testimony was consistent because although he first indicated that the documents appeared the same, he clarified, when asked, that the documents looked the same, but not the pictures. Because a reasonable adjudicator would not be compelled to credit Desku’s explanation, the IJ’s finding is supported by substantial evidence. See, e.g., Majidi, 430 F.3d at 80-81. Moreover, in this post-REAL ID Act case, Desku’s argument that the discrepancies were too minor to support a credibility determination is unavailing as “an IJ may rely on any inconsistency or omission in making an adverse credibility determination.”1 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008); see 8 U.S.C. § 1158(b)(l)(B)(iii). Accordingly, based on the totality of the circumstances, the IJ’s adverse credibility finding is supported by substantial evidence. See 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because the only evidence of a threat to Desku’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for asylum, withholding of removal, and CAT relief. 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); cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). . The amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 apply to Desku’s asylum application because it was filed after May II, 2005. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474896/	SUMMARY ORDER Petitioner Jingxu Dong, a native and citizen of the People’s Republic of China, seeks review of an April 13, 2009 order of the BIA affirming the April 12, 2007 decision of Immigration Judge (“IJ”) Steven R. Abrams denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jingxu Dong, No. A098 218 041 (B.I.A. Apr. 13, 2009), aff'g No. A098 218 041 (Immig. Ct. N.Y. City Apr. 12, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. When the BIA affirms the IJ’s decision in all respects but one, this Court reviews the IJ’s decision as modified by the BIA decision. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, because the BIA affirmed the IJ’s determination that Dong failed to meet his burden of proof for asylum, it did not reach his arguments regarding the IJ’s adverse credibility determination. We assume Dong’s credibility for purposes of our analysis. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (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). I. Asylum and Withholding of Removal Substantial evidence supports the agency’s finding that Dong failed to meet his burden of proof for asylum. Dong argues that the financial hardship he endured as a minor because of his father’s death in a workplace dispute constitutes persecution. However, it is well settled that an applicant cannot establish past persecution by virtue of harm to a parent. Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.2007). Further, Dong’s case is factually distinct from Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir.2006), on which Dong attempts to rely. Dong’s allegations of unfulfilled threats of arrest and detention also do not rise to the level of persecution. See Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.2006). Finally, the damage to Dong’s home had no nexus with a protected ground. See 8 U.S.C. *556§ 1101(a)(42); see also Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005). Because Dong based his claim for withholding of removal on the same factual predicate as his asylum claim, the withholding of removal claim fails as well. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). II. CAT Relief Dong bases his claim for CAT relief on the threats of detention he received from government officials and on U.S. State Department reports indicating that Chinese police sometimes torture detainees and prisoners. However, “generalized language culled from ... State Department reports” is insufficient to establish that a specific Chinese citizen “is more likely than not” to be tortured if repatriated. Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005). Rather, an applicant must produce “particularized evidence” suggesting that he is likely to be tortured. See id. at 158. Here, Dong failed to present any specific evidence that he would likely be tortured if returned to China. For the foregoing reasons, the petition for review is DENIED. 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).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474898/	SUMMARY ORDER Petitioner Tatyana Voynova, a citizen of Russia, seeks review of an April 13, 2009 order of the BIA denying her motion to reopen her removal proceedings. In re Tatyana Voynova, No. A075 559 664 (B.I.A. Apr. 13, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). An alien who has been ordered removed may file one motion to reopen, but must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a (c)(7)(C)(i). Here, the BIA properly denied Voynova’s motion to reopen as untimely where she filed it over six years after her March 2002 final order of removal. See id.; 8 C.F.R. § 1003.2(c)(2). The 90-day filing deadline may be equitably tolled when the motion to reopen is based on a claim of ineffective assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). However, the movant must show that she exercised due diligence during the period she sought to toll. See id. In denying Voynova’s motion, the BIA reasonably found that she failed to demonstrate that she exercised such diligence. Although Voynova argued that she received ineffective assistance of counsel, she did not assert when she discovered that her prior attorney’s legal advice constituted ineffective assistance or what steps she took during the six years that followed the agency’s final order of removal. Accordingly, because Voynova provided no arguments or evidence demonstrating her due diligence, the agency did not abuse its discretion in rejecting her ineffective assistance of counsel claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 (2d Cir.2007). To the extent that Voynova offers new arguments before this Court as to how she exercised due diligence, we will not review those unex-hausted arguments in the first instance, particularly because the Government raises exhaustion as an affirmative defense. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 123-24 (2d Cir.2007). Although Voynova argues that this Court’s holding in Mahmood v. Holder, 570 F.3d 466 (2d Cir.2009), warrants a remand to the BIA, Mahmood is distinguishable from this case. Our concern in Mahmood was that the BIA declined to *558exercise its sua sponte authority because it was under the mistaken impression that, as a matter of law, it could not. Mahmood, 570 F.3d at 471 (citing Dada v. Mukasey, - U.S. -, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)). Here, to the contrary, the BIA declined to exercise its discretion to reopen Voynova’s case because she “ha[d] not provided sufficient evidence,” not based on any erroneous legal assumption. Thus, we are without jurisdiction to review the agency’s “entirely discretionary” refusal to reopen Voynova’s proceedings sua sponte. Ali, 448 F.3d at 518. Finally, we lack jurisdiction to review Voynova’s challenges to the BIA’s March 2002 decision because she did not file a timely petition for review of that decision. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474902/	SUMMARY ORDER Plaintiffs-appellants Anuj and Dina Gupta (“plaintiffs”) appeal from the February 10, 2009 judgment of the District Court granting the motion to dismiss of defendant-appellee Great Northern Insurance Company (“Great Northern”). On appeal plaintiffs argue that the District Court erred in concluding that the insurance policy issued to plaintiffs by Great Northern unambiguously excluded coverage of the automobile accident at issue in this case. We assume the parties’ familiarity with the facts and procedural history of the case. We have reviewed plaintiffs’ claim and find it to be without merit. Substantially for the reasons stated in the February 6, 2009, 2009 WL 291011, ruling of the District Court, the February 10, 2009 judgment of the District Court is AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474904/	SUMMARY ORDER Petitioner Chun Hong, a native and citizen of the People’s Republic of China, seeks review of an August 31, 2007 order of the BIA denying his third motion to reopen. In re Chun Hong, No. A070 905 783 (B.I.A. Aug. 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Hong’s motion to reopen as untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Hong argues that the BIA erred in concluding that the evidence he submitted failed to demonstrate either material changed country conditions sufficient to excuse the applica*565ble time and numerical limitations or his prima facie eligibility for relief from removal. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Hong submitted and have found no error in its conclusion that such evidence is insufficient to establish material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474906/	SUMMARY ORDER Petitioner Mei Jing Zheng, a native and citizen of the People’s Republic of China, seeks review of a July 27, 2007 order of the BIA, which denied her motion to reopen. In re Mei Jing Zheng, No. A077 292 811 (B.I.A. July 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Zheng’s motion to reopen. Zheng argues that the BIA erred by finding that she failed to demonstrate her prima facie eligibility for relief from removal. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Zheng submitted and have found no error in its conclusion that such evidence is insufficient to establish a reasonable possibility 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. BIA, 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”). We decline to consider Zheng’s additional arguments because, contrary to her contention, the BIA did not rely on her failure to demonstrate changed country conditions in denying her motion to reopen. Rather, as it is permitted to do, it denied her motion to reopen based on her failure to demonstrate her prima facie eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). 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 *567of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474908/	SUMMARY ORDER Petitioner Xiu Feng Lin, a native and citizen of the People’s Republic of China, seeks review of an August 24, 2007 order *568of the BIA denying her motion to reopen. In re Xiu Feng Lin, No. A078 471 884 (B.I.A. Aug. 24, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Lin’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Lin argues that the BIA erred in finding that the evidence she submitted failed to demonstrate either material changed country conditions excusing the untimely filing of her motion to reopen or her prima facie eligibility for relief. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Lin submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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”). Finally, contrary to Lin’s argument, she was not eligible to file a successive asylum application based on her changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474910/	SUMMARY ORDER Petitioner Shi Wu Dong, a native and citizen of the People’s Republic of China, seeks review of a June 29, 2006 order of the BIA denying his second motion to reopen. In re Shi Wu Dong, No. A072 482 991 (B.I.A. Jun. 29, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mulcasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Dong’s second untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Dong argues that the BIA erred in concluding that the evidence he submitted failed to demonstrate material changed country conditions sufficient to excuse the untimely filing of his motion to reopen. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to *570that which Dong submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shoo, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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 againf,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474917/	SUMMARY ORDER Petitioner Ai Ming Shi, a native and citizen of the People’s Republic of China, seeks review of: (1) the December 30, 2004 order of the BIA denying her first motion to reopen; and (2) the September 27, 2007 order of the BIA denying her second motion to reopen. In re Ai Ming Shi, No. A077 772 369 (B.I.A. Dec. 30, 2004); In re Ai Ming Shi, No. A077 772 369 (B.I.A. Sept. 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mulcasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not abuse its discretion in denying Shi’s timely first motion to reopen for failure to demonstrate her prima facie eligibility for relief based on the birth of her U.S. citizen child. See 8 C.F.R. § 1003.2(c)(2); see also Jian Hui Shao, 546 F.3d at 169-72. Nor did it err by denying her untimely and number-barred second motion to reopen for failure to demonstrate material changed country conditions excusing the applicable time and *577numerical limitations. See 8 C.F.R. § 1003.2(c)(2); see also Jian Hui Shao, 546 F.3d at 169-72. Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which Shi presented and have found no error in its conclusion that such evidence was insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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”). Moreover, contrary to Shi’s contention, a comparison of the various U.S. Department of State reports in the record does not demonstrate either material changed country conditions related to her economic persecution claim or her pri-ma facie eligibility for relief based on that same claim. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002). For the foregoing reasons, the petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474907/	SUMMARY ORDER Petitioner Mei Jing Zheng, a native and citizen of the People’s Republic of China, seeks review of a July 27, 2007 order of the BIA, which denied her motion to reopen. In re Mei Jing Zheng, No. A077 292 811 (B.I.A. July 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Zheng’s motion to reopen. Zheng argues that the BIA erred by finding that she failed to demonstrate her prima facie eligibility for relief from removal. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Zheng submitted and have found no error in its conclusion that such evidence is insufficient to establish a reasonable possibility 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. BIA, 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”). We decline to consider Zheng’s additional arguments because, contrary to her contention, the BIA did not rely on her failure to demonstrate changed country conditions in denying her motion to reopen. Rather, as it is permitted to do, it denied her motion to reopen based on her failure to demonstrate her prima facie eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). 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 *567of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474911/	SUMMARY ORDER Petitioner Shi Wu Dong, a native and citizen of the People’s Republic of China, seeks review of a June 29, 2006 order of the BIA denying his second motion to reopen. In re Shi Wu Dong, No. A072 482 991 (B.I.A. Jun. 29, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mulcasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Dong’s second untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Dong argues that the BIA erred in concluding that the evidence he submitted failed to demonstrate material changed country conditions sufficient to excuse the untimely filing of his motion to reopen. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to *570that which Dong submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shoo, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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 againf,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474912/	*573 SUMMARY ORDER Petitioner Hui Lin, a native and citizen of the People’s Republic of China, seeks review of a November 15, 2006 order of the BIA denying her motion to reopen. In re Hui Lin, No. A076 140 640 (B.I.A. Nov. 15, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Lin’s untimely and number-barred motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Lin argues that the BIA erred in finding that she failed to demonstrate either material changed country conditions excusing the applicable time and numerical limitations or her prima facie eligibility for relief. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Lin submitted and have found no error in its conclusion that such evidence is insufficient to establish material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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 againf,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). In addition, even if we were to accept Lin’s argument that the BIA erred by failing to address her argument that she was eligible to file a successive asylum application, remand on that basis would be futile in light of our decision in Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008). See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007) (holding that even if a decision contains errors, it “will not be vacated and remanded if doing so would be futile”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474914/	SUMMARY ORDER Petitioner Zu Man Li, a native and citizen of the People’s Republic of China, seeks review of a February 27, 2006 order of the BIA denying his motion to reopen. In re Zu Man Li, No. A076 505 678 (B.I.A. Feb. 27, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Li’s untimely and number-barred motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which Li *575submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions excusing the applicable time and numerical limitations or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[wje 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. BIA, 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”). Additionally, contrary to Li’s argument, he is not eligible to file a successive asylum application based on his changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474916/	SUMMARY ORDER Petitioner Ai Ming Shi, a native and citizen of the People’s Republic of China, seeks review of: (1) the December 30, 2004 order of the BIA denying her first motion to reopen; and (2) the September 27, 2007 order of the BIA denying her second motion to reopen. In re Ai Ming Shi, No. A077 772 369 (B.I.A. Dec. 30, 2004); In re Ai Ming Shi, No. A077 772 369 (B.I.A. Sept. 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mulcasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not abuse its discretion in denying Shi’s timely first motion to reopen for failure to demonstrate her prima facie eligibility for relief based on the birth of her U.S. citizen child. See 8 C.F.R. § 1003.2(c)(2); see also Jian Hui Shao, 546 F.3d at 169-72. Nor did it err by denying her untimely and number-barred second motion to reopen for failure to demonstrate material changed country conditions excusing the applicable time and *577numerical limitations. See 8 C.F.R. § 1003.2(c)(2); see also Jian Hui Shao, 546 F.3d at 169-72. Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which Shi presented and have found no error in its conclusion that such evidence was insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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”). Moreover, contrary to Shi’s contention, a comparison of the various U.S. Department of State reports in the record does not demonstrate either material changed country conditions related to her economic persecution claim or her pri-ma facie eligibility for relief based on that same claim. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002). For the foregoing reasons, the petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474918/	SUMMARY ORDER Petitioner Li Qing Li, a native and citizen of the People’s Republic of China, seeks review of the September 26, 2007 and September 15, 2008 orders of the BIA denying her motions to reopen. In re Li Qing Li, No. A077 281 016 (B.I.A. Sept. 26, 2007); In re Li Qing Li, No. A077 281 016 (B.I.A. Sept. 15, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case. *579We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Li’s untimely motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). We have previously reviewed the BIA’s consideration of evidence similar to that which Li submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions excusing the applicable time limitation or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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”). Further, while Li argues that the BIA ignored certain evidence, we “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). There is nothing in the BIA’s decision compelling the conclusion that it failed to take into account Li’s evidence. The evidence that Li argues the BIA ignored was not material to her claim because it either did not discuss the use of forced stei’ilizations or referenced unattributed reports of forced abortions and sterilizations of individuals who live in provinces other than Li’s native Fujian Province. See Jian Hui Shao, 546 F.3d at 160-61, 169-70. Moreover, the BIA did not err in declining to credit the more particularized evidence Li submitted — which was unauthenticated — based on the agency’s underlying adverse credibility determination. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir.2007); see also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007). For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474920/	SUMMARY ORDER Petitioner Peng Cheng Lin, a native and citizen of the People’s Republic of China, seeks review of an October 3, 2007 order of the BIA denying his motion to reopen. In re Peng Cheng Lin, No. A073 556 201 (B.I.A. Oct. 3, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We re-view the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Lin’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Lin argues that the BIA erred in concluding that he failed to produce evidence demonstrating either material changed country conditions excusing the untimely filing of his motion to reopen or his prima facie eligibility for relief based on the birth of his U.S. citizen children. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Lin submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a rea*581sonable possibility of persecution. See Jian Hui Shao, 546 F.Sd 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. BIA, 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”). In addition, contrary to Lin’s argument, he was not eligible to file a successive asylum application based on his changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474922/	SUMMARY ORDER Petitioners Chang Qing Chen and Xiuy-ing Lin, natives and citizens of the People’s Republic of China, seek review of two September 28, 2007 orders of the BIA denying their motions to reopen. In re Chang Qing Chen, No. A070 892 608 (B.I.A. Sept. 28, 2007); In re Xiuying Lin, No. A075 833 397 (B.I.A. Sept. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. As an initial matter, contrary to the petitioners’ argument, the BIA did not err in construing their motion as a motion to reopen because they sought consideration of extra-record evidence. See Ke Zhen *583Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90-91 (2d Cir.2001). 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 petitioners’ motion to reopen. Petitioners argue that the BIA erred in concluding that they failed to demonstrate their prima facie eligibility for relief based on the birth of their U.S. citizen children. However, we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners submitted and have found no error in its conclusion that such evidence was insufficient to establish a reasonable possibility of persecution. See id. at 169-73 (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. BIA, 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”). Moreover, contrary to petitioners’ argument, the BIA did not violate their due process rights by taking administrative notice of a 2007 U.S. Department of State report without providing them an opportunity to challenge such report. Indeed, as the government notes, the BIA did not take administrative notice of the 2007 report simply by citing a prior precedential decision in which the report was considered. Regardless, insofar as the BIA’s decision can be construed as relying on the 2007 report, the BIA did not violate petitioners’ due process rights because such report did not form the sole basis for denying their motion to reopen. See Jian Hui Shao, 546 F.3d at 167-68. For the foregoing reasons, the petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474924/	SUMMARY ORDER Petitioner Sin Deng Liu, a native and citizen of the People’s Republic of China, seeks review of a September 27, 2007 order of the BIA denying his motion to reopen. In re Sin Deng Liu, No. A072 460 320 (B.I.A. Sept. 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the BIA did not err in denying Liu’s motion to reopen. Liu argues that the BIA erred in finding that the evidence he submitted failed to demonstrate his prima facie eligibility for asylum based on the birth of his U.S. citizen children. However, we have previously reviewed the BIA’s consideration of evidence similar to that which Liu submitted and have found no error in its conclu*585sion that such evidence is insufficient to establish a reasonable possibility of persecution. See id. at 169-73 (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. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474926/	SUMMARY ORDER Petitioner Bing Er Guo, a native and citizen of the People’s Republic of China, seeks review of a September 28, 2007 order of the BIA denying her motion to reopen. In re Bing Er Guo, No. A077 281 223 (B.I.A. Sept. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Guo’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Guo argues that the BIA erred in concluding that she failed to produce evidence demonstrating material changed country conditions sufficient to excuse the untimely filing of her motion to reopen. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Guo submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jicm Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474928/	SUMMARY ORDER Plaintiff, Joseph Agostinello, appeals from the district court’s February 2, 2009 judgment and order dismissing all of his claims, and granting summary judgment to Defendant, Great Neck Union Free School District. The court declined to exercise supplemental jurisdiction over Plaintiffs state law based failure to accommodate claim. On December 15, 2005, Plaintiff filed a complaint in which he alleged various violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296, 297. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. For substantially the reasons stated by the district court, we affirm. Applying a de novo standard of review, we find that the grant of summary judgment to Defendant was appropriate. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). As we have previously noted, in discrimination actions, “summary judgment remains available ... in cases lacking genuine issues of material fact.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir.1994). The district court properly found that Plaintiff did not demonstrate that he was disabled, or was regarded as disabled, within the meaning of the ADA. Agostinello v. Great Neck Union Free Sch. Dist., No. 05 Civ. 5838(WDW), 2009 WL 238865, at 15 (E.D.N.Y.2009); see also 42 U.S.C. §§ 12102(1)(A), 12102(1)(C); Muller v. Costello, 187 F.3d 298, 312-13 (2d Cir.1999); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 153 (2d Cir.1998). The district court properly granted summary judgment on Plaintiffs Title VII claims. Even assuming, arguendo, that Plaintiff established a prima facie case of discrimination under the framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), summary judgment in favor of Defendant was appropriate because Defendant provided legitimate, nondiscriminatory reasons for the adverse employment action and Plaintiff provided no evidence that Defendant’s proffered reasons were a pretext for discrimination. See Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir.2008). 591Plaintiffs hostile work environment claim must fail because he did not “produce evidence that the workplace [wa]s permeated with discriminatory intimidation, ridicule, [or] insult, that [wa]s sufficiently severe or pervasive to alter the conditions of [his] employment.” Patterson v. County of Oneida, 375 F.3d 206, 227 (2d Cir.2004) (internal quotation marks omitted). Plaintiffs retaliation claim must also fail. Plaintiff has not demonstrated a causal connection between his protected activity and the alleged adverse employment action. See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608-09 (2d Cir.2006). The district court properly declined to exercise supplemental jurisdiction over Plaintiffs state law failure to accommodate claim. Agostinello, 2009 WL 238865, at *16; see also 28 U.S.C. § 1367(c); Seabrook v. Jacobson, 153 F.3d 70, 71-72 (2d Cir.1998). Therefore, as the court had dismissed all claims over which it had original jurisdiction, the district judge properly declined to issue an opinion as to whether Plaintiff has a cognizable claim under state law. See Giordano v. City of New York, 274 F.3d 740, 753-54 (2d Cir.2001). The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474921/	SUMMARY ORDER Petitioner Peng Cheng Lin, a native and citizen of the People’s Republic of China, seeks review of an October 3, 2007 order of the BIA denying his motion to reopen. In re Peng Cheng Lin, No. A073 556 201 (B.I.A. Oct. 3, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We re-view the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Lin’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Lin argues that the BIA erred in concluding that he failed to produce evidence demonstrating either material changed country conditions excusing the untimely filing of his motion to reopen or his prima facie eligibility for relief based on the birth of his U.S. citizen children. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Lin submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a rea*581sonable possibility of persecution. See Jian Hui Shao, 546 F.Sd 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. BIA, 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”). In addition, contrary to Lin’s argument, he was not eligible to file a successive asylum application based on his changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474925/	SUMMARY ORDER Petitioner Sin Deng Liu, a native and citizen of the People’s Republic of China, seeks review of a September 27, 2007 order of the BIA denying his motion to reopen. In re Sin Deng Liu, No. A072 460 320 (B.I.A. Sept. 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). We find that the BIA did not err in denying Liu’s motion to reopen. Liu argues that the BIA erred in finding that the evidence he submitted failed to demonstrate his prima facie eligibility for asylum based on the birth of his U.S. citizen children. However, we have previously reviewed the BIA’s consideration of evidence similar to that which Liu submitted and have found no error in its conclu*585sion that such evidence is insufficient to establish a reasonable possibility of persecution. See id. at 169-73 (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. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474927/	SUMMARY ORDER Petitioner Bing Er Guo, a native and citizen of the People’s Republic of China, seeks review of a September 28, 2007 order of the BIA denying her motion to reopen. In re Bing Er Guo, No. A077 281 223 (B.I.A. Sept. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Guo’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Guo argues that the BIA erred in concluding that she failed to produce evidence demonstrating material changed country conditions sufficient to excuse the untimely filing of her motion to reopen. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Guo submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jicm Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474931/	SUMMARY ORDER Petitioner, Jeffrey Roy Crosby, appeals from the December 15, 2008 Decision and Order of the District Court for the Northern District of New York, denying and dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In 1995, while Petitioner was incarcerated and awaiting trial on weapons charges, a fellow inmate contacted government agents and advised them that Petitioner was attempting to solicit the murder of his former probation officer. In 1996, Petitioner was indicted on two counts of solicitation to murder a United States Probation Officer. See 18 U.S.C. §§ 873, 1114. After a jury trial, Crosby was convicted on both counts of the indictment. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We will not recount the long procedural history of this case that has ensued since Petitioner’s 1996 conviction. In 2007, Petitioner filed the § 2241 petition that is the subject of this appeal in the District Court for the Northern District of New York. Crosby v. Warden, No. 9:07-CV-1190 (LEK/VEB), 2008 WL 5234293 (N.D.N.Y. Dec.15, 2008). The district court noted that Petitioner had previously “filed at least two unsuccessful motions challenging his underlying conviction.” Id. at 3. The court also indicated that in these prior petitions, Crosby sought the “same relief under 28 U.S.C. § 2241.” Id. The district court properly noted that in order to invoke § 2241, Petitioner must “demonstrate that a motion pursuant to [28 U.S.C.] § 2255 is ‘inadequate or ineffective to test the legality of his detention.’” Id. at 4 (quoting 28 U.S.C. § 2241). And, that “[a]bsent such a showing,” it “lack[ed] jurisdiction to consider the instant [p]etition under § 2241.” Id. The district court held that Crosby’s petition for a writ of habeas corpus, brought pursuant to § 2241, must be denied and dismissed for lack of jurisdiction. After conducting a de novo review of the district court’s decision to dismiss Crosby’s habeas petition, see Cephas v. Nash, 328 F.3d 98, 103 (2d Cir.2003), we affirm for substantially the reasons articulated by the district court. This court has “the power to dismiss a habeas petition when it is patently apparent that the court lacks ju593risdiction to grant the relief demanded.” Id. Petitioner’s challenges to his conviction fall within the scope of 28 U.S.C. § 2255. See Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir.2003). Petitioner cannot show that the instant petition is anything more than an attempt to relitigate issues that have been previously decided by other courts. Therefore, Crosby’s claims do not meet the standard for invoking the savings clause of § 2255. See Jiminian v. Nash, 245 F.3d 144, 147 (2d Cir.2001). On appeal, Petitioner argues that the district court misapplied the “actual innocence” standard as articulated in House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). This contention lacks merit. The district court properly applied the “actual innocence” standard, and properly concluded that Petitioner has not satisfied this standard. Crosby, 2008 WL 5234293, at 5. The “actual innocence” standard is “demanding and permits review only in the extraordinary case.” House, 547 U.S. at 538, 126 S.Ct. 2064 (internal quotation marks omitted). This is not such an extraordinary case. The Court has reviewed Petitioner’s remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474932/	SUMMARY ORDER Petitioner Wen Fang Zou, a native and citizen of the People’s Republic of China, seeks review of the September 10, 2007 order of the BIA denying her motion to reopen and the January 29, 2008 order of the BIA denying her motion to reconsider and reopen. In re Wen Fang Zou, No. A073 033 179 (B.I.A. Sept. 10, 2007); In re Wen Fang Zou, No. A073 033 179 (B.I.A. Jan. 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Zou’s untimely motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Zou argues that the BIA erred by finding that the evidence she submitted failed to demonstrate either material changed country conditions excusing the untimely filing of her motions to reopen or her prima facie eligibility for relief. However, these arguments fail because we have previously reviewed the BIA’s consideration of similar evidence and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474934/	SUMMARY ORDER Petitioner Chun Guang Gao, a native and citizen of the People’s Republic of China, seeks review of a September 28, 2007 order of the BIA denying his second motion to reopen. In re Chun Guang Gao, No. A070 906 013 (B.I.A. Sept. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Gao’s motion to reopen as untimely. See 8 U.S.C. § 1229a (c)(7)(C); see also 8 C.F.R. *596§ 1003.2(c)(2). Gao argues that the BIA erred by finding that he failed to produce evidence demonstrating either material changed country conditions excusing the untimely filing of his motion to reopen or his prima facie eligibility for relief. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Gao submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474937/	SUMMARY ORDER Plaintiff-appellant Carlo Novella appeals from the District Court’s order denying his motion for summary judgment and granting summary judgment in favor of defendants-appellees Empire State Carpenters Pension Fund, as successor of the West-chester County, New York Carpenter’s Pension Fund, and The Board of Trustees of the Empire State Carpenters Pension Fund, (jointly, “defendants”) in Novella’s action to increase his disability pension pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq. (“ERISA”). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. Novella first alleges that his cause of action for pension credits due to his receipt of workers’ compensation benefits is timely because (1) it accrued in 2004, not in 1997, as the District Court erroneously held; or, alternatively, (2) the dismissal of the workers’ compensation claims for failure to exhaust in the first appeal tolled the statute of limitations. On the merits, Novella argues that the District Court erred in upholding defendants’ interpretation of the retirement fund Pension Plan because that interpretation violates ERISA. Defendants respond that: (1) the District Court correctly held Novella’s claim is barred by the statute of limitations; (2) Novella was not entitled to receive pension credits on account of his receipt of workers’ compensation benefits under the Pension Plan; and, (3) the District Court correctly held that Novella’s pension benefits were not miscalculated. We review de novo the District Court’s decision to grant summary judgment, and, in the course of that review, we resolve ambiguities and draw all permissible factual inferences in favor of the nonmoving party. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008); Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir.1999). We will affirm the grant of summary judgment below “if the record indicates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999) (internal quotation marks omitted). Substantially for the reasons stated in its well-reasoned order of March 26, 2009, we agree with the District Court that, regardless of whether Novella’s claim is timely, “it would fail on the merits.” Novella v. Empire State Carpenters Pension Fund, 2009 WL 812271, at *4 (S.D.N.Y.2009). In these instances, we need not address other questions raised by plaintiffs appeal, including those issues of the statute of limitations, timeliness, or exhaustion. CONCLUSION Accordingly, we AFFIRM the judgment of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474938/	SUMMARY ORDER Petitioner Hui Ping Yang, a native and citizen of the People’s Republic of China, seeks review of an August 21, 2007 order of the BIA denying her motion to reopen. In re Hui Ping Yang, No. A078 208 660 (B.I.A. Aug. 21, 2007). We assume the *599parties’ familiarity with the underlying facts and procedural history in this case. As a preliminary matter, we are without jurisdiction to consider Yang’s challenge to the agency’s underlying denial of her application for relief from removal because she failed to file a timely petition for review of that decision. See 8 U.S.C. § 1252(b)(1); see also Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir.2001) (“[Cjompliance with the time limit for filing a petitioner to review the BIA’s final order is a strict jurisdictional prerequisite.”). Thus, the only agency order before us is the BIA’s August 2007 denial of Yang’s motion to reopen. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Yang’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which Yang submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions excusing the applicable time limitation or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474940/	SUMMARY ORDER Petitioners Fen Lin and Chao Kang Lin, natives and citizens of the People’s Republic of China, seek review of a September 6, 2007 order of the BIA denying their motion to reopen. In re Fen Lin and Chao Kang Lin, Nos. A075 963 261, A070 902 134 (B.I.A. Sept. 6, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. 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). The agency did not err in denying petitioners’ untimely and number-barred motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Petitioners argue that the BIA erred in concluding that the evidence *601they submitted failed to demonstrate material changed country conditions sufficient to excuse the applicable time and numerical limitations. However, we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners submitted and have found no error in its conclusion that such evidence is insufficient to establish material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shoo, 546 F.3d at 169-73 (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. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Contrary to petitioners’ argument, we lack jurisdiction to consider any argument that the BIA abused its discretion by declining to reopen their proceedings sua sponte. See Ali, 448 F.3d at 518. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance -with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474935/	SUMMARY ORDER Petitioner Chun Guang Gao, a native and citizen of the People’s Republic of China, seeks review of a September 28, 2007 order of the BIA denying his second motion to reopen. In re Chun Guang Gao, No. A070 906 013 (B.I.A. Sept. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Gao’s motion to reopen as untimely. See 8 U.S.C. § 1229a (c)(7)(C); see also 8 C.F.R. *596§ 1003.2(c)(2). Gao argues that the BIA erred by finding that he failed to produce evidence demonstrating either material changed country conditions excusing the untimely filing of his motion to reopen or his prima facie eligibility for relief. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Gao submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474936/	SUMMARY ORDER Plaintiff-appellant Carlo Novella appeals from the District Court’s order denying his motion for summary judgment and granting summary judgment in favor of defendants-appellees Empire State Carpenters Pension Fund, as successor of the West-chester County, New York Carpenter’s Pension Fund, and The Board of Trustees of the Empire State Carpenters Pension Fund, (jointly, “defendants”) in Novella’s action to increase his disability pension pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq. (“ERISA”). We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. Novella first alleges that his cause of action for pension credits due to his receipt of workers’ compensation benefits is timely because (1) it accrued in 2004, not in 1997, as the District Court erroneously held; or, alternatively, (2) the dismissal of the workers’ compensation claims for failure to exhaust in the first appeal tolled the statute of limitations. On the merits, Novella argues that the District Court erred in upholding defendants’ interpretation of the retirement fund Pension Plan because that interpretation violates ERISA. Defendants respond that: (1) the District Court correctly held Novella’s claim is barred by the statute of limitations; (2) Novella was not entitled to receive pension credits on account of his receipt of workers’ compensation benefits under the Pension Plan; and, (3) the District Court correctly held that Novella’s pension benefits were not miscalculated. We review de novo the District Court’s decision to grant summary judgment, and, in the course of that review, we resolve ambiguities and draw all permissible factual inferences in favor of the nonmoving party. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008); Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir.1999). We will affirm the grant of summary judgment below “if the record indicates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999) (internal quotation marks omitted). Substantially for the reasons stated in its well-reasoned order of March 26, 2009, we agree with the District Court that, regardless of whether Novella’s claim is timely, “it would fail on the merits.” Novella v. Empire State Carpenters Pension Fund, 2009 WL 812271, at *4 (S.D.N.Y.2009). In these instances, we need not address other questions raised by plaintiffs appeal, including those issues of the statute of limitations, timeliness, or exhaustion. CONCLUSION Accordingly, we AFFIRM the judgment of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474939/	SUMMARY ORDER Petitioner Hui Ping Yang, a native and citizen of the People’s Republic of China, seeks review of an August 21, 2007 order of the BIA denying her motion to reopen. In re Hui Ping Yang, No. A078 208 660 (B.I.A. Aug. 21, 2007). We assume the *599parties’ familiarity with the underlying facts and procedural history in this case. As a preliminary matter, we are without jurisdiction to consider Yang’s challenge to the agency’s underlying denial of her application for relief from removal because she failed to file a timely petition for review of that decision. See 8 U.S.C. § 1252(b)(1); see also Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir.2001) (“[Cjompliance with the time limit for filing a petitioner to review the BIA’s final order is a strict jurisdictional prerequisite.”). Thus, the only agency order before us is the BIA’s August 2007 denial of Yang’s motion to reopen. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Yang’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which Yang submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions excusing the applicable time limitation or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474941/	SUMMARY ORDER Petitioners Fen Lin and Chao Kang Lin, natives and citizens of the People’s Republic of China, seek review of a September 6, 2007 order of the BIA denying their motion to reopen. In re Fen Lin and Chao Kang Lin, Nos. A075 963 261, A070 902 134 (B.I.A. Sept. 6, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. 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). The agency did not err in denying petitioners’ untimely and number-barred motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Petitioners argue that the BIA erred in concluding that the evidence *601they submitted failed to demonstrate material changed country conditions sufficient to excuse the applicable time and numerical limitations. However, we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners submitted and have found no error in its conclusion that such evidence is insufficient to establish material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shoo, 546 F.3d at 169-73 (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. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Contrary to petitioners’ argument, we lack jurisdiction to consider any argument that the BIA abused its discretion by declining to reopen their proceedings sua sponte. See Ali, 448 F.3d at 518. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance -with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474942/	SUMMARY ORDER Petitioner Jin-Hui Jiang, a native and citizen of the People’s Republic of China, seeks review of a September 7, 2007 order of the BIA denying her motion to reopen. In re Jin-Hui Jiang, No. A077 293 772 (B.I.A. Sept. 7, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Jiang’s motion to reopen as untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Jiang argues that the BIA erred in finding that she failed to produce evidence demonstrating either material changed country conditions excusing the applicable time and numerical limitations or her prima facie eligibility for relief. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Jiang submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474948/	SUMMARY ORDER Petitioner Deng Di Zheng, a native and citizen of the People’s Republic of China, seeks review of an October 16, 2007 order of the BIA denying his motion to reopen. In re Deng Di Zheng, No. A073 176 324 (B.I.A. Oct. 16, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). *608The BIA did not err in denying Zheng’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Zheng argues that the BIA erred in finding that he failed to produce evidence demonstrating material changed country conditions sufficient to excuse the untimely filing of his motion to reopen. However, we have previously reviewed the BIA’s consideration of evidence similar to that which Zheng submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-73 (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. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). The BIA’s determination that Zheng was ineligible to file a successive asylum application was not in error. See Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474950/	SUMMARY ORDER Petitioner Bai Zheng, a native and citizen of the People’s Republic of China, seeks review of an October 16, 2007 order of the BIA denying his motion to reopen. In re Bai Zheng, No. A074 234 472 (B.I.A. Oct. 16, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the agency’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The agency did not err in denying Zheng’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Zheng argues that the BIA erred in concluding that he failed to produce evidence demonstrating either material changed country conditions sufficient to excuse the untimely filing of his motion to reopen or his prima facie eligibility for relief. However, we have previously reviewed the BIA’s consideration of evidence similar to that which Zheng submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-73 (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. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). The BIA’s determination that Zheng was ineligible to file a successive asylum application was not in error. See Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008). Finally, we lack jurisdiction to consider Zheng’s argument that the BIA abused its discretion by de-*610dining to reopen his proceedings sua sponte. See Ali, 448 F.3d at 518. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474952/	SUMMARY ORDER Petitioner Kan Yun Lin, a native and citizen of the People’s Republic of China, seeks review of an October 5, 2007 order of the BIA denying her motion to reopen. In re Kan Yun Lin, No. A077 913 582 (B.I.A. Oct. 5, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Lin’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Lin argues that the BIA erred by finding that she failed to produce evidence demonstrating either material *611changed country conditions sufficient to excuse the untimely filing of her motion to reopen or her prima facie eligibility for relief from removal. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Lin submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). The BIA’s determination that Lin was not eligible to file a successive asylum application was not in error. See Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474943/	SUMMARY ORDER Petitioner Jin-Hui Jiang, a native and citizen of the People’s Republic of China, seeks review of a September 7, 2007 order of the BIA denying her motion to reopen. In re Jin-Hui Jiang, No. A077 293 772 (B.I.A. Sept. 7, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Jiang’s motion to reopen as untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Jiang argues that the BIA erred in finding that she failed to produce evidence demonstrating either material changed country conditions excusing the applicable time and numerical limitations or her prima facie eligibility for relief. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Jiang submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474945/	SUMMARY ORDER Petitioner Liwen Pan, a native and citizen of the People’s Republic of China, seeks review of a June 16, 2003 order of the BIA, reversing the October 16, 2001 decision of Immigration Judge (“IJ”) George T. Chew, which granted her application for withholding of deportation. In re Liwen Pan, No. A073 597 034 (B.I.A. June 16, 2003), rev’g No. A073 597 034 (Immig. Ct. N.Y. City Oct. 16, 2001). We assume the parties’ familiarity with the *604underlying facts and procedural history in this case. When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005); Jin Yu Lin v. U.S. Dep’t of Justice, 413 F.3d 188, 191 n. 4 (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. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Pan argues that the BIA erred in concluding that she failed to demonstrate her eligibility for withholding of deportation based on the birth of her second child in the United States. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Pan presented and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008); see also Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (recognizing that a withholding claim necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim). Further, while Pan argues that the BIA ignored some of her evidence, we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” and there is nothing in the BIA’s decision compelling the conclusion that it failed to take into account Pan’s evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). To the contrary, the BIA acknowledged that the record contained unattributed reports of isolated incidents of forced abortions and forced sterilizations in Pan’s home province of Fujian, but reasonably found that such evidence was insufficient to indicate a likelihood that Pan would be singled out for such treatment, particularly in light of evidence in the record demonstrating the lax and uneven enforcement of the family planning policy in Fujian. See Jian Hui Shao, 546 F.3d at 153, 160, 165, 171 (finding that the BIA reasonably concluded that “unattributed ‘reports’ of forced sterilization that laek[ ] any specificity as to number or circumstance” do not, by themselves, demonstrate a reasonable possibility that a petitioner will face future persecution). Moreover, contrary to Pan’s argument, Mufied v. Mukasey, 508 F.3d 88 (2d Cir.2007) does not indicate that remand is warranted in this case. Unlike the situation in Mufied, in which the petitioner raised a pattern and practice claim that the agency failed to consider, 508 F.3d at 91, in this case, despite Pan’s failure to raise such a claim, the BIA reasonably found that enforcement of the family planning policy in Fujian was sporadic and that forced abortions and sterilizations were not conducted systematically. See Jian Hui Shao, 546 F.3d at 150 n. 6, 160-61, 165. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474954/	SUMMARY ORDER Petitioner Ji-Hwa Yu, a native and citizen of the People’s Republic of China, seeks review of an October 9, 2007 order of the BIA denying her motion to reopen. In re Ji-Hwa Yu, No. A073 681 285 (B.I.A. Oct. 9, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Yu’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Yu argues that the BIA erred in finding that she failed to demonstrate material changed country conditions sufficient to excuse the untimely filing of her motion to reopen. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which Yu submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474956/	SUMMARY ORDER Petitioners Ya Zhen Huang and Jian Guo Zheng, natives and citizens of the People’s Republic of China, seek review of an October 15, 2007 order of the BIA denying their motion to reopen. In re Ya Zhen Huang, Jian Guo Zheng, Nos. A095 467 413, A095 467 414 (B.I.A. Oct. 15, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a mo*614tion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying petitioners’ untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Petitioners argue that they established their prima facie eligibility for relief from removal based on the birth of their U.S. citizen children. However, this argument fails because we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners submitted and have found no error in its conclusion that such evidence is insufficient to demonstrate a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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”). Petitioners’ arguments related to the filing of a successive asylum application, including their equal protection and United Nations Protocol arguments, are without merit. See Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.2008). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474960/	SUMMARY ORDER Petitioner Shi Ming Zeng, a native and citizen of the People’s Republic of China, seeks review of a November 8, 2007 order of the BIA denying his motion to reopen. In re Shi Ming Zeng, No. A029 793 777 (B.I.A. Nov. 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Zeng’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Zeng argues that the BIA erred in concluding that he failed to produce evidence demonstrating either material changed country conditions sufficient to excuse the untimely filing of his motion to reopen or his prima facie eligibility for relief from deportation. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Zeng submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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”). Moreover, contrary to Zeng’s argument, the BIA reasonably found that his particularized evidence was not material because it did not reference the forced sterilizations of similarly situate ed individuals. See Jian Hui Shao, 546 *618F.3d at 160-61. Even if, as Petitioner contends, the BIA was mistaken in thinking that he had failed to submit the original of the document from the Tinjiang Town Government, any such error is harmless because the BIA reasonably stated, “Even if we consider arguendo this document, he has not demonstrated that the policy expressed within constituted evidence of changed country conditions in the absence of any evidence that the prior version of the law was different, or differently enforced, in some relevant and material way.” (BIA opinion at 3) We lack jurisdiction to consider any argument that the BIA abused its discretion in declining to reopen Zeng’s proceedings sua sponte. See All, 448 F.3d at 518. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474964/	SUMMARY ORDER Petitioners Ren Le Qian and Qin Zhou Yong, natives and citizens of the People’s Republic of China, seek review of a June 29, 2007 order of the BIA, reversing the February 23, 2004 decision of Immigration Judge (“U”) Joanna Miller Bukszpan, which granted their application for asylum and withholding of removal. In re Ren Le Qian, Qin Zhou Yong, Nos. A072 565 031, A070 455 860 (B.I.A. June 29, 2007), rev’g Nos. A072 565 031, A070 455 860 (Immig. Ct. N.Y. City Feb. 23, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case. When the BIA issues an independent decision on remand, we review the BIA’s decision alone. See Belortaja v. Gonzales, *628484 F.3d 619, 622-23 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also 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. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Contrary to the petitioners’ argument, the BIA did not apply an erroneous standard of review in determining that their evidence failed to demonstrate the objective reasonableness of their claimed fear of forced sterilization. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 162-63 (2d Cir.2008) (concluding that the BIA did not apply an erroneous legal standard in making “a legal determination that, while [petitioner’s] credible testimony was sufficient to demonstrate a genuine subjective fear of future persecution, more was needed to demonstrate the objective reasonableness of that fear”) (citing Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004)). Moreover, we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise” and there is nothing in the BIA’s decision compelling the conclusion that it failed to take into account petitioners’ evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners presented and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shoo, 546 F.3d at 156-65. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474966/	SUMMARY ORDER Petitioners Sicilia Dharmi Brata and her son, Hope Kevin Lee, both natives and citizens of Indonesia, seek review of an August 25, 2008 order of the BIA affirming the October 19, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, which denied Brata’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).2 In re Sicilia Dharmi Brata and Hope Kevin Lee, Nos. A 099 564 695, A 099 564 696 (B.I.A. Aug. 25, 2008), aff'g Nos. A 099 564 695, A 099 564 696 (Immig. Ct. N.Y. City Oct. 19, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. 647When 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 IJ’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We find that the IJ did not err in denying Brata’s application for asylum, withholding of removal, and CAT relief. The IJ, after considering the cumulative effect of Brata’s past harm, reasonably concluded that Brata failed to establish past persecution due to her Chinese ethnicity or Christian faith. While Brata argues in her brief that her mother’s robbery and the incident in which she and her sister were forced out of a taxi at knife-point constituted past persecution, the IJ reasonably found that those incidents were “criminal acts” amounting to “personal discrimination” and did not rise to the level of past persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (to establish persecution, the harm must be sufficiently severe, rising above “mere harassment”). In addition, the IJ sufficiently considered Brata’s claim that she suffered past persecution on account of her Catholic faith, finding that Brata had never been attacked going to and from church and that the robberies described above were “not due to religious identification.” See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (Alito, J.) (“[Persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”). In the absence of past persecution, an applicant may establish eligibility for asylum based on a well-founded fear of future persecution by showing that he or she subjectively fears persecution and that this fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Furthermore, an applicant is not required to demonstrate that she would be individually singled out for persecution if she can demonstrate a pattern or practice of persecution of a group of persons similarly situated to her on account of a protected ground and her own inclusion in or identification with that group. See 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.2007). Brata argues that, contrary to the agency’s findings, she has established a well-founded fear of future persecution based on her past harm in light of the continuing mistreatment of ethnic Chinese and Christians in Indonesia. Here, the IJ considered all of the background evidence in the record before concluding that “the Indonesian Government has acted affirmatively and positively in protecting the rights of the Chinese Christian communities and has engaged in the prosecution of responsible parties in an attempt to rout out and eliminate terrorism and criminal acts of hate.” The IJ also found that the evidence “clearly indi-eate[d] that there are safe havens in Indonesia where Chinese Christians are free to worship and are unhindered.” We have previously upheld the agency’s finding that no pattern or practice of persecution exists in Indonesia, noting that Roman Catholicism is predominant in certain areas of that country. See Santoso v. Holder, 580 F.3d 110, 112-13 (2d Cir.2009). Moreover, the BIA and other circuit courts who have considered the issue have also found that no pattern or practice of persecution of Chinese Christians exists in Indonesia. See, e.g., Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.2007); Matter of A — M—, 23 I. & N. Dec. 737, 741-42 (B.I.A.2005). 648While Brata argues that “the fact that [her] mother, sister, and aunt were granted asylum based upon similar experiences is demonstrative of the well-foundedness of [her] fears,” the IJ observed that: (1) her relatives left Indonesia five years earlier than she did; (2) she left Indonesia on two occasions but returned there after each trip; and (3) she obtained two non-immigrant visas to travel to the U.S. but never used the first and waited one year to use the second. Finding these facts “adverse to [Brata’s] claim of a subjective fear,” the IJ reasonably determined that Brata failed to establish a well-founded fear of persecution. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006). As the agency did not err in concluding that Brata failed to establish a well-founded fear of persecution if returned to her native country, it did not err in denying her application for asylum, withholding of removal, and CAT relief where all three claims were based upon the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. . Brata's application included her son, Hope Kevin Lee, who was eleven years old at the time of her hearing, as a derivative applicant.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474968/	SUMMARY ORDER Xiu Zhen Zheng, a native and citizen of China, seeks review of the March 16, 2009 order of the BIA affirming the January 2, 2008 decision of Immigration Judge (“IJ”) Noel A. Ferris denying her motion to reopen her exclusion proceedings. Matter of Xiu Zhen Zheng, No. A073 488 657 (B.I.A. Mar. 16, 2009), aff'g No. A073 488 657 (Immig. Ct. N.Y. City Jan. 2, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA adopts the decision of the IJ and supplements 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 BIA’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). As an initial matter, motions to reopen in absentia orders are governed by different rules depending on whether the movant seeks to rescind the order or present new evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir.2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly, where, as here, an alien files a motion that seeks both rescission of an in absentia deportation order, as well as reopening of exclusion proceedings based on new evidence, the Court treats the motion as comprising 652two distinct motions to rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n. 1 (2d Cir.2006). We address each motion in turn. I. Motion to Rescind When an IJ orders an alien excluded in absentia, there is no time limit on filing a motion to reopen if the alien demonstrates “reasonable cause” for her failure to appear. See 8 C.F.R. § 1008.23(b)(4)(iii)(B) (providing that, “[a] motion to reopen exclusion hearings on the basis that the [IJ] improperly entered an order of exclusion in absentia must be supported by evidence that the alien had reasonable cause for [her] failure to appear”); Matter of N-B-22 I. & N. Dec. 590 (BIA 1999); Matter of Ruiz, 20 I. & N. Dec. 91, 92-93 (BIA 1989). The BIA did not err in finding that Zheng failed to demonstrate “reasonable cause” for her failure to appear at her April 1995 merits hearing. See 8 C.F.R. § 1003.23(b)(4)(iii)(B). As the BIA noted, Zheng’s explanation was that she was advised not to appear by her attorney because she was likely to lose her case and be detained, if not deported. The BIA found this explanation “insufficient to excuse her absence.” In her brief, Zheng argues that the advice she relied on in 1995 is “on its face ineffective assistance of counsel.” Though we recognize that aliens may not lightly disregard the advice of counsel, see Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.2008) (noting that aliens are often “unfamiliar with our language and culture” and therefore holding that “misadvice [from an attorney] may constitute ineffective assistance of counsel”), we are unable to find an abuse of discretion in the agency’s refusal to accept this explanation as “reasonable cause” for a failure to appear, particularly because Zheng was informed of the consequences. Indeed, crediting Zheng’s explanation would have the perverse effect of encouraging aliens to avoid agency proceedings at which they are likely to lose, only to return when their prospects are better. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). II. Motion to Reopen The BIA also did not abuse its discretion in denying Zheng’s motion to reopen. The regulations provide that “a party may file only one motion to reopen deportation or exclusion proceedings ... 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, or on or before September 30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2). Indisputably, Zheng’s October 2007 motion was untimely because she filed it more than twelve years after the IJ’s April 1995 in absentia order. However, the time limitation does not apply when the alien can establish materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). Despite Zheng’s arguments, we are not compelled to conclude that the agency ignored the evidence she submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir.2006) (“[W]e presume that [the agency] has taken into account all of the evidence before [it] un653less the record compellingly suggests otherwise.”). Nor do we find that the BIA erred in declining to credit that evidence, which included a “Notice” allegedly from a county family planning office and an unauthenticated letter from a family member. See Jian Hui Shao, 546 F.3d at 165 (concluding that “unattributed reports” did not, by themselves, persuasively demonstrate a reasonable possibility that petitioner would face future persecution); Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir.2007) (addressing a similar “Village Notice,” and holding that “the BIA did not abuse its discretion in declining to consider a document — questionable on its face, supported only by a spouse’s affidavit, and not authenticated pursuant to regulation — that attempts to establish the sweeping proposition that subsequent to the date of the petitioner’s entry into the country and application for asylum, country conditions had undergone a material adverse change sufficient to affect his petition for asylum”). 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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474970/	SUMMARY ORDER UPON DUE CONSIDERATION of these consolidated petitions for review of two Board of Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED. Petitioner Qin Zheng, a native and citizen of the People’s Republic of China, seeks review of: (1) the April 14, 2008 order of the BIA denying her first untimely motion to reopen, In re Qin Zheng, No. A077 297 073 (B.I.A. Apr. 14, 2008); and (2) the September 5, 2008 order of the BIA denying her second untimely motion to reopen, In re Qin Zheng, No. A077 297 073 (B.I.A. Sept. 5, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of motions to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). However, when the BIA reviews evidence of country conditions submitted with a motion to reopen, we review its findings for substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.2008). There is no dispute that Zheng’s first motion to reopen was untimely and that her second motion to reopen was both untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). However, there are no time and number limitations for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence 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)(3)(a). I. Dkt. No. 08-2270-ag (L) The BIA did not abuse its discretion in denying Zheng’s first motion to *655reopen because it reasonably found that she failed to proffer material evidence of changed country conditions in support of that motion. Contrary to Zheng’s arguments, in evaluating the evidence that she submitted, the BIA did not err in failing to specifically discuss: (1) unauthenticated letters from her mother and a friend; and (2) unattributed reports in newspaper articles; and (3) her own affidavit. Although “IJ’s and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on [her] claim,” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.2007), the Court presumes that the agency has considered the evidence unless the record eompellingly suggests otherwise, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir.2006). We are not compelled to conclude that the BIA ignored Zheng’s arguments or evidence. To the contrary, we have previously reviewed the BIA’s consideration of the same or similar evidence and have found no error in its conclusion that such evidence was insufficient to establish either materially changed country conditions or an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”). Ultimately, because the BIA did not err in finding that Zheng failed to submit material evidence demonstrating a change in country conditions, it did not abuse its discretion in denying her first untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(1). II. Dkt. No. 08-4846-ag (Con) The BIA also did not abuse its discretion in denying Zheng’s second untimely motion to reopen because, again, it reasonably found that she failed to proffer material evidence in support of that motion. Contrary to Zheng’s arguments, in evaluating the evidence that she submitted, the BIA applied the correct standard as outlined in 8 C.F.R. § 1003.2(e)(3)(ii). Moreover, the BIA reasonably found that Zheng failed to show that the family planning policy had changed with respect to forcible IUD insertions. Id. For the foregoing reasons, these consolidated petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474978/	OPINION PER CURIAM. Kai Dwayne Ingram, a Pennsylvania state prisoner proceeding pro se, appeals from the District Court’s order entering summary judgment in favor of the defendants. For the following reasons, we will affirm the District Court’s order. I. In May 2006, several witnesses saw a man known as “Kai” fire shots from a tan-colored van at two men on the street. The witnesses described Kai as a black male about five feet and ten inches tall who weighed approximately one hundred and eighty pounds, and who was wearing a white t-shirt and baggy pants. Several witnesses recognized the van as belonging to Kai’s girlfriend, Faith Lane. After interviewing the witnesses at the scene of the shooting, Luzerne County Detective Daniel Beky and Larksville Borough Assistant Chief of Police Stephen Kofchak spoke to Ms. Lane, who told them that Kai Ingram had taken her van to his mother’s house. As a result, the officers went to look for Ingram there. Upon arrival, they spoke to Ingram’s mother on her front porch, and she agreed to let them enter the house. As the officers entered, Ingram descended the stairs wearing clothes that matched the witnesses’ descriptions. Detective Beky told Ingram that his name had been mentioned in connection with a crime, and asked him to accompany them to the police station for questioning. Ingram agreed. Once at the station, however, Ingram asked for a lawyer and declined to answer any questions. The officers consulted Luzerne County Chief District Attorney David Lupas, who determined that the evidence established probable cause to support an arrest. Ingram was subsequently arrested and charged with the shooting. Before trial, Ingram filed a motion to suppress certain evidence on the ground that it had been obtained in violation of his rights under the Fourth and Fifth Amendments, but the court denied relief. A jury subsequently found him guilty of two counts of aggravated assault and one count of carrying a firearm without a license. The judgment was affirmed on appeal. Ingram is presently serving a sentence of twelve-and-a-half to twenty-five years in state prison. In December 2007, Ingram filed the present pro se civil rights complaint in the United States District Court for the Middle District of Pennsylvania against Detective Beky, Officer Kofchak, and District Attorney Lupas. In the complaint, Ingram claimed that his Fourth, Fifth, and Fourteenth Amendment rights had been violated in connection with his arrest and detention. Specifically, Ingram alleged that: (1) Detective Beky and Officer Kofc-676hak illegally entered his home; (2) he was arrested without probable cause; and (3) he was not brought before a District Justice until ten hours after his arrest. Ingram also asserted both federal and state claims of false arrest, false imprisonment, and malicious prosecution. Shortly after Ingram filed his complaint, the defendants filed motions to dismiss. By memorandum and order entered February 3, 2009, 2009 WL 249788, the District Court converted the defendants’ motions into motions for summary judgment,1 and entered judgment in their favor. This appeal followed. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s entry of summary judgment de novo. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 235 (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). After a careful review of the record, we conclude that the appeal presents “no substantial question” under Third Circuit L.A.R. 27.4 and I.O.P. 10.6 and will, therefore, summarily affirm the District Court’s order. A. Fourth Amendment Claims 1. Illegal Entry In the complaint, Ingram first claimed that Detective Beky and Officer Kofchak violated his Fourth Amendment rights when they entered his mother’s home without a warrant because his mother did not consent to their entry. As the District Court correctly concluded, however, this claim is barred by the doctrine of collateral estoppel because the state court already considered it at the suppression hearing. The doctrine of collateral estoppel generally precludes a party from re-litigating issues or claims that have already been adjudicated. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). It is well established that principles of collateral estoppel are fully applicable to civil rights actions brought under § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Furthermore, this Court has held that defendants in a § 1983 suit can raise the issue of collateral estoppel when the plaintiff attempts to re-litigate in federal court issues decided against him in state criminal proceedings. Anela v. City of Wildwood, 790 F.2d 1063, 1068 (3d Cir.1986); see also Matthews v. Macanas, 990 F.2d 467, 468 (9th Cir.1993), abrogated on other grounds as stated in Pascual v. Matsumura, 165 F.Supp.2d 1149,1151 (D.Haw.2001) (noting that collateral estoppel may be asserted to preclude a defense to a Bivens claim); Scherer v. Balkema, 840 F.2d 437, 443 (7th Cir.1988) (same). Under Pennsylvania law, the doctrine of collateral estoppel requires that: (a) the issue in question be identical to an issue actually litigated in the prior litigation; (b) the prior litigation resulted in a final judgment on the merits; and (c) the party against whom the estop-pel is asserted was a party or in privity with a party to the prior adjudication. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir.1974). Here, all of the elements of the collateral estoppel doctrine are satisfied: 677the issue that Ingram litigated at the suppression hearing is identical to the issue he raises here; the plaintiff in the instant action was the defendant in the criminal case; and the denial of a suppression motion followed by a conviction is a final judgment for collateral estoppel purposes, see Shaffer v. Smith, 543 Pa. 526, 530-31, 673 A.2d 872 (1996). Therefore, the District Court correctly concluded that Ingram was barred from re-litigating this issue. 2.Arrest Without Probable Cause The District Court also correctly concluded that Ingram failed to show that Detective Beky and Officer Kofchak lacked probable cause to arrest him. “[Pjrobable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir.2003) (citing Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir.1995)). Although, in general, “the question of probable cause in a section 1983 damage suit is one for the jury,” Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.1998), a district court may conclude “that probable cause did exist as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual finding,” and may enter summary judgment accordingly. Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.1997). Upon review of the record, we agree with the District Court that Detective Beky and Officer Kofchak had probable cause to arrest Ingram. As the District Court noted, several eyewitnesses provided the same physical description of Ingram, some even identifying him by name. The witnesses also reported that Ingram was driving a tan van. In addition, the officers were able to locate the owner of the van, who confirmed that Ingram had borrowed it to drive to his mother’s house. 3.The Preliminary Hearing Ingram next claimed that the defendants violated his Fourth Amendment rights by detaining him for ten hours before bringing him before a proper issuing authority. These allegations do not make out a constitutional violation. The Supreme Court has made clear that, after a warrantless arrest, a suspect may be detained before appearing before an issuing authority “for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Absent proof that the probable cause determination was delayed unreasonably, a probable cause determination within forty-eight hours of arrest is sufficient to comply with the Fourth Amendment. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Here, Ingram was brought before a judicial officer for a probable cause determination within ten hours of his arrest—well within the forty-eight hour period. Furthermore, Ingram does not allege any improper conduct on the part of the officers in connection with the ten-hour period, nor does he argue that he was prejudiced as a result thereof. Therefore, the District Court correctly concluded that these allegations failed to establish a constitutional violation. 4.False Arrest and Imprisonment, Malicious Prosecution Finally, the District Court correctly rejected Ingram’s claims of false arrest and false imprisonment because, as discussed above, the officers had probable cause to arrest him. See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir.1988) *678(stating that the proper inquiry in a § 1983 claim based on false arrest is whether the arresting officers had probable cause to believe the person arrested committed the offense). The District Court also correctly entered summary judgment against Ingram on his malicious prosecution claim, as success in the underlying criminal proceeding is a necessary element in such a claim.2 See Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir.2007). B. Fifth Amendment Claim The District Court also correctly held that Ingram failed to establish a Fifth Amendment claim, as he did not provide any inculpatory statements to the police and therefore was not compelled to be a witness against himself. See Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir.1994). III. Because there is no substantial question presented by this appeal, we will summarily affirm the District Court’s order. See Third Cir. LAR 27.4; I.O.P. 10.6. . Because the defendants attached portions of the criminal record to their pleadings, and because Ingram responded to their submissions, the District Court appropriately considered their motions to dismiss as motions for summary judgment. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997). . To the extent that Ingram’s complaint raised state-law claims for false arrest, false imprisonment, and malicious prosecution, the District Court acted within its discretion when it declined to exercise jurisdiction over these claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474980/	OPINION PER CURIAM. Henry Washington appeals from an order of the District Court dismissing his complaint. For the reasons that follow, we will vacate the District Court’s order and remand for further proceedings. On May 14, 2007, Washington filed a complaint pursuant to 42 U.S.C. § 1983. The District Court determined that the complaint failed to comply with Fed. R.Civ.P. 8 and 20 and dismissed it without prejudice in a July 2, 2007 Order. The Order provided Washington with an opportunity to amend his complaint within twenty days and further outlined the specific procedural flaws in his complaint. Following the District Court’s granting of two extensions, Washington filed an amended complaint on August 16, 2007. The District Court subsequently entered an order dismissing Washington’s action for failure to comply with Fed.R.Civ.P. 8, 10, and 20. Washington appeals. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We review the District Court’s decision for 680abuse of discretion. In re Westinghouse See. Litig., 90 F.3d 696, 702 (3d Cir.1996). Despite the deferential standard of review afforded Rule 8 dismissals, we conclude that the District Court erred in dismissing Washington’s amended complaint.2 Rule 8(a) requires a short and plain statement setting forth: (1) the grounds upon which the court’s jurisdiction rests; (2) the claim(s) showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief sought by the pleader. See Fed.R.Civ.P. 8; see also In re Westinghouse Sec. Litig., 90 F.3d at 702. In a § 1983 case, a plaintiff need only satisfy the liberal notice pleading requirement of Rule 8. Abbott v. Latshaw, 164 F.3d 141, 149 (3d Cir.1998). Courts are to construe complaints so “as to do substantial justice,” Fed.R.Civ.P. 8(e), keeping in mind that pro se complaints in particular should be construed liberally. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003). The District Court concluded that the amended complaint should be dismissed under Rule 8, not only because of its length, but because its statements were neither short nor plain. The Court additionally concluded that Washington failed to comply with Rule 10(b) which requires, inter alia, that a party “state claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances ...” See Fed.R.Civ.P. 10(b). Although Washington’s amended complaint is lengthy, at nearly 80 pages, and lacks clarity in some places, we do not agree that it violated the basic pleading requirements under Rule 8. At a minimum, the amended complaint provided defendants with “fair notice” of Washington’s claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). In its July 2nd Order dismissing Washington’s original complaint, the District Court noted that the complaint violated Rule 8 because it “con-tainted] no factual allegations to speak of and averted] only generally that each of the Defendants failed to uphold their duties.” In his amended complaint, Washington significantly reduced the number of defendants in the case. At the beginning of the amended complaint, he set forth a list of the constitutional violations at issue. In each numbered paragraph, he matched the constitutional violations with specific defendants. In the majority of the paragraphs, Washington described the facts supporting the claim and the dates on which the alleged violations occurred. Furthermore, the District Court’s own order suggests it was able to discern the outlines of Washington’s claims concerning alleged deprivation of religious rights, medical care and access to the courts. (July 2, 2007 Order at p. 1, n. 1, dkt. # 7) Indeed, another of the District Court’s orders suggests it thought the amended complaint might be sufficiently meritorious to be worthy of appointment of pro bono counsel. (January 15, 2008, 2008 WL 163053, Order at p. 8, n. 2, dkt. #25). For these reasons, we do not agree that the defendants were incapable of answer681ing Washington’s amended complaint. See Alston v. Parker; 368 F.3d 229, 233 (3d Cir.2004). While the amended complaint may not be clear in all respects, it is not unintelligible. We find that it met the notice pleading requirement under Rule 8. Accordingly, we will vacate the District Court’s order and remand this case for further proceedings. The motion for appointment of counsel is denied without prejudice. Washington may request appointment of counsel in the District Court. . The District Court dismissed the case without prejudice, but it appears to have done so with respect to an any future action Washington might file with the Court. Generally, where a District Court has dismissed a complaint without prejudice, the dismissal is not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the defect or where the litigant declares an intention to stand on the complaint, whereupon the District Court's order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir.1976) (per curiam). Here, the Court expressly closed the present action, barring any further amendments to Washington's complaint, and effectively dismissing the action with prejudice. In addition, we conclude that the District Court's dismissal here was final as its effect was to require Washington to either pay a new filing fee outright or to commit anew to paying a filing fee in installments pursuant to the in forma pauperis statute, 28 U.S.C. § 1915. Cf. Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991). We also understand Washington's course of conduct as an assertion that he satisfied the requirements of filing a complaint, a legal question we may review. See Borelli, 532 F.2d at 952 (noting that a without prejudice dismissal may be final if the plaintiff stands on his complaint). The District Court did not explicitly consider limitations problems that Washington would face in any newly filed complaint. If any claims would now be time-barred, the District Court's without-prejudice dismissal would *680now be final for that reason as well. Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1157 (3d Cir.1986). . Federal Rule of Civil Procedure 20 allows a plaintiff to join defendants in one action if he asserts a right to relief arising out of the same transaction or occurrence. Fed.R.Civ.P. 20. However, Rule 21 provides that misjoinder of parties is not grounds for dismissal of an action. Fed.R.Civ.P. 21; Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir.1972). Thus, the District Court erred in dismissing Washington’s complaint on this basis, in any event, we understand the District Court's dismissal to have been primarily predicated on Rule 8.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8477373/	ON MOTION ORDER Upon consideration of Mars Incorporated and MEI, Inc.’s motion to voluntarily dismiss appeal no.2009-1574, IT IS ORDERED THAT: (1) The motion is granted. The revised official caption in 2009-1555 is reflected above. (2) Each side shall bear its own costs in 2009-1574.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474961/	SUMMARY ORDER Petitioner Shi Ming Zeng, a native and citizen of the People’s Republic of China, seeks review of a November 8, 2007 order of the BIA denying his motion to reopen. In re Shi Ming Zeng, No. A029 793 777 (B.I.A. Nov. 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Zeng’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Zeng argues that the BIA erred in concluding that he failed to produce evidence demonstrating either material changed country conditions sufficient to excuse the untimely filing of his motion to reopen or his prima facie eligibility for relief from deportation. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Zeng submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 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”). Moreover, contrary to Zeng’s argument, the BIA reasonably found that his particularized evidence was not material because it did not reference the forced sterilizations of similarly situate ed individuals. See Jian Hui Shao, 546 *618F.3d at 160-61. Even if, as Petitioner contends, the BIA was mistaken in thinking that he had failed to submit the original of the document from the Tinjiang Town Government, any such error is harmless because the BIA reasonably stated, “Even if we consider arguendo this document, he has not demonstrated that the policy expressed within constituted evidence of changed country conditions in the absence of any evidence that the prior version of the law was different, or differently enforced, in some relevant and material way.” (BIA opinion at 3) We lack jurisdiction to consider any argument that the BIA abused its discretion in declining to reopen Zeng’s proceedings sua sponte. See All, 448 F.3d at 518. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474963/	SUMMARY ORDER Petitioner Yi Chang Wang, a native and citizen of the People’s Republic of China, seeks review of a December 5, 2007 order of the BIA denying his motion to reopen. In re Yi Chang Wang, No. A076 279 363 (B.I.A. Dec. 5, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). The BIA did not err in denying Wang’s untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R. § 1003.2(c)(2). Wang argues that the BIA erred by finding that he failed to produce evidence demonstrating either material changed country conditions sufficient to excuse the untimely filing of his motion to reopen or his prima facie eligibility for relief. However, these arguments fail because we have previously reviewed the BIA’s consideration of evidence similar to that which Wang submitted and have found no error in its conclusion that such evidence is insufficient to establish either material changed country conditions or a reasonable possibility of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474965/	SUMMARY ORDER Petitioners Ren Le Qian and Qin Zhou Yong, natives and citizens of the People’s Republic of China, seek review of a June 29, 2007 order of the BIA, reversing the February 23, 2004 decision of Immigration Judge (“U”) Joanna Miller Bukszpan, which granted their application for asylum and withholding of removal. In re Ren Le Qian, Qin Zhou Yong, Nos. A072 565 031, A070 455 860 (B.I.A. June 29, 2007), rev’g Nos. A072 565 031, A070 455 860 (Immig. Ct. N.Y. City Feb. 23, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case. When the BIA issues an independent decision on remand, we review the BIA’s decision alone. See Belortaja v. Gonzales, *628484 F.3d 619, 622-23 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also 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. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Contrary to the petitioners’ argument, the BIA did not apply an erroneous standard of review in determining that their evidence failed to demonstrate the objective reasonableness of their claimed fear of forced sterilization. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 162-63 (2d Cir.2008) (concluding that the BIA did not apply an erroneous legal standard in making “a legal determination that, while [petitioner’s] credible testimony was sufficient to demonstrate a genuine subjective fear of future persecution, more was needed to demonstrate the objective reasonableness of that fear”) (citing Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004)). Moreover, we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise” and there is nothing in the BIA’s decision compelling the conclusion that it failed to take into account petitioners’ evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Indeed, we have previously reviewed the BIA’s consideration of evidence similar to that which petitioners presented and have found no error in its conclusion that such evidence is insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shoo, 546 F.3d at 156-65. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474969/	SUMMARY ORDER Xiu Zhen Zheng, a native and citizen of China, seeks review of the March 16, 2009 order of the BIA affirming the January 2, 2008 decision of Immigration Judge (“IJ”) Noel A. Ferris denying her motion to reopen her exclusion proceedings. Matter of Xiu Zhen Zheng, No. A073 488 657 (B.I.A. Mar. 16, 2009), aff'g No. A073 488 657 (Immig. Ct. N.Y. City Jan. 2, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case. When the BIA adopts the decision of the IJ and supplements 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 BIA’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). As an initial matter, motions to reopen in absentia orders are governed by different rules depending on whether the movant seeks to rescind the order or present new evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir.2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly, where, as here, an alien files a motion that seeks both rescission of an in absentia deportation order, as well as reopening of exclusion proceedings based on new evidence, the Court treats the motion as comprising 652two distinct motions to rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n. 1 (2d Cir.2006). We address each motion in turn. I. Motion to Rescind When an IJ orders an alien excluded in absentia, there is no time limit on filing a motion to reopen if the alien demonstrates “reasonable cause” for her failure to appear. See 8 C.F.R. § 1008.23(b)(4)(iii)(B) (providing that, “[a] motion to reopen exclusion hearings on the basis that the [IJ] improperly entered an order of exclusion in absentia must be supported by evidence that the alien had reasonable cause for [her] failure to appear”); Matter of N-B-22 I. & N. Dec. 590 (BIA 1999); Matter of Ruiz, 20 I. & N. Dec. 91, 92-93 (BIA 1989). The BIA did not err in finding that Zheng failed to demonstrate “reasonable cause” for her failure to appear at her April 1995 merits hearing. See 8 C.F.R. § 1003.23(b)(4)(iii)(B). As the BIA noted, Zheng’s explanation was that she was advised not to appear by her attorney because she was likely to lose her case and be detained, if not deported. The BIA found this explanation “insufficient to excuse her absence.” In her brief, Zheng argues that the advice she relied on in 1995 is “on its face ineffective assistance of counsel.” Though we recognize that aliens may not lightly disregard the advice of counsel, see Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.2008) (noting that aliens are often “unfamiliar with our language and culture” and therefore holding that “misadvice [from an attorney] may constitute ineffective assistance of counsel”), we are unable to find an abuse of discretion in the agency’s refusal to accept this explanation as “reasonable cause” for a failure to appear, particularly because Zheng was informed of the consequences. Indeed, crediting Zheng’s explanation would have the perverse effect of encouraging aliens to avoid agency proceedings at which they are likely to lose, only to return when their prospects are better. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). II. Motion to Reopen The BIA also did not abuse its discretion in denying Zheng’s motion to reopen. The regulations provide that “a party may file only one motion to reopen deportation or exclusion proceedings ... 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, or on or before September 30, 1996, whichever is later.” 8 C.F.R. § 1003.2(c)(2). Indisputably, Zheng’s October 2007 motion was untimely because she filed it more than twelve years after the IJ’s April 1995 in absentia order. However, the time limitation does not apply when the alien can establish materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). Despite Zheng’s arguments, we are not compelled to conclude that the agency ignored the evidence she submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir.2006) (“[W]e presume that [the agency] has taken into account all of the evidence before [it] un653less the record compellingly suggests otherwise.”). Nor do we find that the BIA erred in declining to credit that evidence, which included a “Notice” allegedly from a county family planning office and an unauthenticated letter from a family member. See Jian Hui Shao, 546 F.3d at 165 (concluding that “unattributed reports” did not, by themselves, persuasively demonstrate a reasonable possibility that petitioner would face future persecution); Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir.2007) (addressing a similar “Village Notice,” and holding that “the BIA did not abuse its discretion in declining to consider a document — questionable on its face, supported only by a spouse’s affidavit, and not authenticated pursuant to regulation — that attempts to establish the sweeping proposition that subsequent to the date of the petitioner’s entry into the country and application for asylum, country conditions had undergone a material adverse change sufficient to affect his petition for asylum”). 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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474971/	SUMMARY ORDER UPON DUE CONSIDERATION of these consolidated petitions for review of two Board of Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED. Petitioner Qin Zheng, a native and citizen of the People’s Republic of China, seeks review of: (1) the April 14, 2008 order of the BIA denying her first untimely motion to reopen, In re Qin Zheng, No. A077 297 073 (B.I.A. Apr. 14, 2008); and (2) the September 5, 2008 order of the BIA denying her second untimely motion to reopen, In re Qin Zheng, No. A077 297 073 (B.I.A. Sept. 5, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case. We review the BIA’s denial of motions to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). However, when the BIA reviews evidence of country conditions submitted with a motion to reopen, we review its findings for substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.2008). There is no dispute that Zheng’s first motion to reopen was untimely and that her second motion to reopen was both untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). However, there are no time and number limitations for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence 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)(3)(a). I. Dkt. No. 08-2270-ag (L) The BIA did not abuse its discretion in denying Zheng’s first motion to *655reopen because it reasonably found that she failed to proffer material evidence of changed country conditions in support of that motion. Contrary to Zheng’s arguments, in evaluating the evidence that she submitted, the BIA did not err in failing to specifically discuss: (1) unauthenticated letters from her mother and a friend; and (2) unattributed reports in newspaper articles; and (3) her own affidavit. Although “IJ’s and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on [her] claim,” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.2007), the Court presumes that the agency has considered the evidence unless the record eompellingly suggests otherwise, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir.2006). We are not compelled to conclude that the BIA ignored Zheng’s arguments or evidence. To the contrary, we have previously reviewed the BIA’s consideration of the same or similar evidence and have found no error in its conclusion that such evidence was insufficient to establish either materially changed country conditions or an objectively reasonable fear of persecution. See Jian Hui Shao, 546 F.3d at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”). Ultimately, because the BIA did not err in finding that Zheng failed to submit material evidence demonstrating a change in country conditions, it did not abuse its discretion in denying her first untimely motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(1). II. Dkt. No. 08-4846-ag (Con) The BIA also did not abuse its discretion in denying Zheng’s second untimely motion to reopen because, again, it reasonably found that she failed to proffer material evidence in support of that motion. Contrary to Zheng’s arguments, in evaluating the evidence that she submitted, the BIA applied the correct standard as outlined in 8 C.F.R. § 1003.2(e)(3)(ii). Moreover, the BIA reasonably found that Zheng failed to show that the family planning policy had changed with respect to forcible IUD insertions. Id. For the foregoing reasons, these consolidated petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474973/	SUMMARY ORDER Appellant Leo Tsimmer (“Tsimmer”) appeals from a final judgment entered by the United States District Court for the Southern District of New York (McMahon, J.) on April 25, 2008, dismissing Tsimmer’s complaint for lack of subject matter jurisdiction. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. In our review of a dismissal of a complaint for lack of subject matter jurisdiction, we review the District Court’s factual findings for clear error and legal conclusions de novo. Wake v. United States, 89 F.3d 53, 57 (2d Cir.1996). *662We AFFIRM for the substantive reasons detailed in the District Court’s opinion.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474975/	668OPINION PER CURIAM. Robert Saunders (a/k/a Shamsidin Ali), a Delaware state inmate, appeals pro se from orders by the District Court granting the defendants’ motions for summary judgment. Because the appeal is lacking in arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B). I. Before reviewing the District Court’s orders, we must first address appellees’ motion to vacate this Court’s order granting Ali in forma pauperis status. Appellees move to revoke Ali’s in forma pauperis status by arguing that he has three strikes under 28 U.S.C. § 1915(g). In turn, this Court directed appellees to supplement their motion with copies of any orders and/or opinions dismissing Ali’s prior complaints as frivolous or for failure to state a claim upon which relief can be granted. Appellees filed a supplement identifying two cases in which Ali’s civil actions were dismissed: Ali v. Neal, D. Del. Civ. No. 91-cv-00697-LON and Ali v. Taylor, D. Del. Civ. No. 00-cv-00804-RRM. We agree with appellees that each case constitutes a strike against Ali for the purpose of § 1915(g). Appellees also argue that Sanders v. Taylor, C.A. 01-2175, in which this Court affirmed the District Court’s dismissal in C.A. No. 00-804-RRM, should count as a third strike against Ali. Pursuant to the language of § 1915(g), however, a prisoner is barred from bringing “an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g) (emphasis added). The plain language of the statute thus limits the application of a strike to a dismissal, not an affirmance of a dismissal. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.1999). Accordingly, Ali may not be considered a third-striker for the purposes of this appeal. However, after reviewing Ali’s litigation history and considering the lack of merit in the instant appeal, we will dismiss the appeal under § 1915(e)(2). This dismissal constitutes Ali’s third strike. Ali can no longer proceed in a civil action or appeal under § 1915 without prepayment of fees unless he demonstrates that he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). II. Turning to the merits of the appeal, Ali initiated this lawsuit in February 2005. At this time, Ali was incarcerated at the Sussex Correctional Institute (“SCI”), but he was subsequently transferred to Delaware Correctional Center (“DCC”). The District Court permitted him to file two amended complaints to clarify the claims raised in his civil rights action filed pursuant to 42 U.S.C. § 1983 for alleged violations of the First, Eighth, and Fourteenth Amendments, as well as the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and the Rehabilitation Act.1 His complaint alleges that these violations occurred during his incarceration at both prisons. Ali divided his Amended Complaint into four counts. In Counts I and III, he alleges that he was subjected to “illegal censoring of legal and personal mail” while incarcerated at SCI. According to Ali, as part of “a campaign of infringement [of his] First Amendment rights,” various named defendants have opened, read, and re-taped all of his outgoing and incoming mail outside of his presence. Ali also sur669mises that he was subjected to retaliatory actions after filing complaints regarding prison conditions at SCI, including racial disparities in inmate treatment, religious issues, and medical care.2 In Count II, Ai alleges that he is a “qualified individual with disabilities” under the ADA, 42 U.S.C. § 12132, and the Rehabilitation Act; yet, prison officials refused to provide him with reasonable accommodations. For example, Ai cites that he has been deprived of a cane for walking, served cold food three times a day, was forced to walk distances equivalent to a city block, and shackled for visits and interviews. Ai also alleges that his sick call requests and emergency grievances regarding his medical conditions were ignored. In addition to violations of the ADA, he alleges that prison officials’ conduct rises to an Eighth Amendment violation. Finally, in Count IV, Ai alleges that defendants failed to address his medical needs, also amounting to Eighth Amendment violations. Specifically, Ai alleges that defendants ignored his medical appointments, failed to address cold diets, and failed to consider his housing assignment in light of his physical disabilities. Additionally, he alleged that Correctional Medical Services, Inc. (“CMS”3) failed to address his sick-call requests and mistreated a condition which he believed was the initial stages of Methicillin-Resistant Staphylococcus Auerus (“MRSA”) infection. Ali notes that he received medical treatment, was seen by various physicians, and received medication. Defendant CMS moved for summary judgment, arguing, inter alia, that Ai failed to demonstrate deliberate indifference under the Eighth Amendment and that a § 1983 claim cannot be maintained under a theory of respondeat superior. The remaining defendants, collectively identified as “State Defendants,” also moved for summary judgment based on a number of arguments, including qualified immunity and that Ai fails to demonstrate that any of his allegations amount to violations of federal or constitutional law.4 The Magistrate Judge recommended granting summary judgment in favor of all defendants. The District Court agreed, adopted the report as the opinion of the court, and denied Ai relief, as well as all other pending motions. Ali timely appealed. We have jurisdiction under 28 U.S.C. § 1291. Because Ai is proceeding in for-ma pauperis, we must dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B) if it is lacking in arguable merit. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 6701827, 104 L.Ed.2d 338 (1989). Our review is plenary. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006). Summary judgment is proper if the record demonstrates that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). III. The Supreme Court has recognized that prisoners have protected First Amendment interests in both sending and receiving mail. See Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). However, the rights of prisoners “must be exercised with due regard for the ‘inordinately difficult undertaking’ that is modern prison administration.” Thornburgh, 490 U.S. at 407, 109 S.Ct. 1874 (quoting Turner, 482 U.S. at 85, 107 S.Ct. 2254). As the District Court found, Ali explained that his dissatisfaction with the prison mailroom stemmed from “about five or six” letters that were opened outside of his presence. At his deposition, Ali stated that the letters were from two senators and a U.S. Representative, which do not constitute legal mail and are not otherwise deserving of greater constitutional protection. See Fontroy v. Beard, 559 F.3d 173, 174 (3d Cir.2009). Furthermore, defendants set forth a reasonable justification for tracking Ali’s mail: Ali violated the mail policy by sending correspondence to another inmate. Defendants note that the prison advised him that his mail would be searched, as long as it was not clearly marked “Legal Mail.” Ali provides no evidence to support that the allegedly “five or six” opened letters were marked as legal mail,5 and therefore, he cannot establish a First Amendment violation. Summary judgment was proper. Ali’s claims involving retaliation are also without merit. To show retaliation, a prisoner must demonstrate that he was engaged in constitutionally protected conduct, that the prison officials caused him to suffer “adverse action,” and that his constitutionally protected conduct was a motivating factor in the officials’ decision to discipline him. Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir.2002) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001)). However, prison officials may still prevail by proving that they would have made the same decision even if the prisoner were not engaging in constitutionally protected conduct. Rauser, 241 F.3d at 334. Here, Ali cannot show that prison officials would not have opened his mail if he had not filed grievances or complaints regarding prison conditions. As defendants show, Ali’s mail was opened based on his violation of the prison mail policy. To the extent that he argues that his transfer from SCI to DCC constituted retaliation, defendants note that he requested this transfer, and thus, cannot be considered an “adverse action.” Carter, 292 F.3d at 157-58. In addition, at DCC he continues to exercise his First Amendment rights in substantially the same way as he did at SCI. In addition, the District Court broadly construed Ali’s allegation that prison officials were engaged in a “campaign of infringement” to find that Ali pled a conspiracy claim. These bare conclusory allegations are insufficient to sustain a conspiracy claim. See D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir.1992) (“[mjere conclusory allegations of depri671vations of constitutional rights” are insufficient to state a conspiracy claim (citation omitted)); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir.1989) (allegations supporting a conspiracy claim under civil RICO must be sufficiently specific). Moreover, defendants had legitimate reasons for opening Ali’s personal mail. IV. Although Ali asserts that he is a “qualified individual” under the ADA and the Rehabilitation Act, he has provided no evidence to support the claim that he has a “disability” as defined by either statute. See 42 U.S.C. § 12102; 29 U.S.C. § 705(20). During his deposition, Ali testified that he is able to walk without the assistance of a cane. Additionally, cold food or the occasional deprivation of coffee does not constitute discrimination based on disability, as dissatisfaction with prison conditions does not state a violation under either the ADA or Rehabilitation Act. Ali also failed to point to any specific jobs or programs that he had applied for and was excluded from or discriminated against on the basis of his disability. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999). His expectation of being free from waist chains and shackles during movement about the facility does not state a claim under the ADA or the Rehabilitation Act. V. Finally, to show a violation under the Eighth Amendment, Ali must show “(1) that the defendants were deliberately indifferent to their medical needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). This requires Ali to demonstrate that prison officials had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Specifically, deliberate indifference requires Ali to show that prison officials knew of an excessive risk to his health or safety and affirmatively disregarded that risk. Id. at 837-38, 114 S.Ct. 1970. As the District Court properly found, the record demonstrates that Ali received ongoing treatment for his medical conditions. Ali even admitted in his Amended Complaint and at deposition that he received medical attention, including treatment by a dermatologist and medications to treat his skin condition. Rather, the dispute between Ali and defendants involves the extent and course of his treatment, which does not state a constitutional violation under the Eighth Amendment. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir.2004) (“mere disagreement as to the proper medical treatment” is insufficient to state a constitutional violation). Notably, defendants provide evidence that Ali admitted at his deposition that no doctor has ever diagnosed him with MRSA. Moreover, the record shows that Ali received treatment by employees of CMS between 2005 and 2007, which included dermatological diagnosis and treatment. To the extent that Ali alleges that defendants were negligent in not responding sooner to his medical needs, he does not state a claim for relief. See Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987) (citing Estelle, 429 U.S. at 106 & n. 14, 97 S.Ct. 285). Ali also fails to provide evidence showing that defendants acted with “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970. Finally, to the extent that Ali raises additional medical conditions involving his high blood pressure, he cannot establish an Eighth Amendment claim against defendants, as the record confirms that he received treatment and *672medications. Summary judgment was proper. VI. Finally, the Magistrate Judge determined that Ali intended to sue State Defendants in both their individual and official capacities based on how he listed most of the individual defendants by name and job title, and sought punitive damages from these defendants in the Amended Complaint. Qualified immunity shields these defendants in their individual capacities from damages suits so long as their conduct does “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir.1999). We agree, based on the discussion above, that the state defendants are entitled to qualified immunity because them conduct did not rise to constitutional violations. See Pearson v. Callahan, — U.S.-, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Furthermore, as the Magistrate Judge found, the state defendants are entitled to summary judgment from liability in their official capacities based on Eleventh Amendment immunity. As the State of Delaware did not waive its Eleventh Amendment immunity, we agree that Ali’s § 1983 claims against defendants for monetary damages are barred. Will v. Mich. Deft of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). VII. Ali’s appeal is lacking in arguable legal merit, and we will dismiss it under 28 U.S.C. § 1915(e)(2)(B). Ali’s motion for appointment of counsel is denied as moot, and his motion demonstrating imminent danger is denied as unnecessary. Appel-lees’ motion to revoke Ali’s in forma pau-peris status is denied. . Ali also alleged violations of Delaware state Iaw, but failed to specify which laws. .Ali also alleges that prison officials violated his rights by ignoring his medical condition when he was re-classified and transferred to DCC. The District Court correctly dismissed this claim at an earlier point in the litigation. See e.g., Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (Due Process Clause not implicated by prison officials’ decisions concerning inmate classifications); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Ali also admitted at his deposition that this new housing assignment made one of his requested accommodations unnecessary, and therefore, his claim is moot. . Ali improperly identified CMS as Correctional Medical Systems in his Amended Complaint. . Ali named defendant Segars who was never properly served with the complaint, and therefore, the District Court did not include him as a party or as part of the “State Defendants.” In addition, although Ali originally sought damages from "Department of Corrections,” he voluntarily filed a motion to dismiss DOC as a defendant, which the court granted. Ali also attempted to add claims against two new defendants, Ihuema Chuks and Crystal Austin, but the District Court did not grant leave to add these new parties. . At his deposition, Ali stated that one letter he had written to a lawyer was opened but thal the prison stated that it was opened by mistake.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474977/	*673OPINION PER CURIAM. James Douris, proceeding pro se, appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing his civil rights action. We will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Douris filed a motion to proceed in for-ma pauperis in District Court in connection with a civil rights action against Mid-dletown Township and other defendants. The District Court denied Douris’s motion to proceed in forma pauperis, stating that Douris appeared to qualify financially for such status, but concluding that Douris’s frequent filings in federal court constituted an abuse of the system and “extreme circumstances” that justified denying in for-ma pauperis status. The District Court noted that this was Douris’s ninth lawsuit in the Eastern District of Pennsylvania since 1999, that all of his lawsuits had lacked merit, and that significant time and resources had been spent on Douris’s claims. The District Court ordered Douris to pay the filing fee within 20 days or his action would be dismissed. Douris appealed the District Court’s order, and we affirmed, holding that the District Court did not err in denying Dour-is in forma pauperis status based on his abusive filings. Douris v. Middletown Township, et al., 293 Fed.Appx. 130, 132 (3d Cir.2008) (unpublished opinion). We agreed with the District Court that Dour-is’s abusive filings constituted “extreme circumstances” warranting an exception to the rule that leave to proceed in forma pauperis is based on a showing of indigence. See id. We noted that Douris had repeatedly and unsuccessfully filed lawsuits claiming civil rights violations, and that his lawsuits had required the expenditure of significant judicial resources. Id. We remanded the case to give Douris the opportunity to pay the filing fee and pursue his complaint.1 On remand, the District Court ordered Douris to pay the filing fee within 20 days or his action would be dismissed.2 Douris did not pay the filing fee. After the 20-day time period had passed, Douris filed a motion titled “The Court will Allow Plaintiff to Proceed with Complaint,” asserting that he could pursue his complaint without payment of the court’s fees. The District Court dismissed the motion and the action because Douris had failed to pay the filing fee in accordance with the District Court’s previous order. This appeal followed. As discussed above, we have already adjudicated Douris’s appeal of the District Court’s order denying in forma pauperis status, and Douris was unsuccessful. Pursuant to our instructions, on remand the District Court issued an order giving Douris the opportunity to pay the filing fee or his complaint would be dismissed. Because Douris did not pay the filing fee, the District Court did not err in dismissing Douris’s complaint and his motion to pursue his complaint without payment of the court’s fees. Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because the appeal is frivolous. Douris’s “Motion for the Court and Parties to Proceed with Readable Documents” is denied. . We also vacated an order dismissing the complaint, which the District Court issued after Douris filed his notice of appeal. See Venen v. Sweet, 758 F.2d 117, 120-21 (3d Cir.1985). . Douris appealed this order, and we dismissed the appeal for lack of jurisdiction because the order was not final for purposes of 28 U.S.C. § 1291. See C.A. No. 08-4019.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474979/	OPINION PER CURIAM. Kai Dwayne Ingram, a Pennsylvania state prisoner proceeding pro se, appeals from the District Court’s order entering summary judgment in favor of the defendants. For the following reasons, we will affirm the District Court’s order. I. In May 2006, several witnesses saw a man known as “Kai” fire shots from a tan-colored van at two men on the street. The witnesses described Kai as a black male about five feet and ten inches tall who weighed approximately one hundred and eighty pounds, and who was wearing a white t-shirt and baggy pants. Several witnesses recognized the van as belonging to Kai’s girlfriend, Faith Lane. After interviewing the witnesses at the scene of the shooting, Luzerne County Detective Daniel Beky and Larksville Borough Assistant Chief of Police Stephen Kofchak spoke to Ms. Lane, who told them that Kai Ingram had taken her van to his mother’s house. As a result, the officers went to look for Ingram there. Upon arrival, they spoke to Ingram’s mother on her front porch, and she agreed to let them enter the house. As the officers entered, Ingram descended the stairs wearing clothes that matched the witnesses’ descriptions. Detective Beky told Ingram that his name had been mentioned in connection with a crime, and asked him to accompany them to the police station for questioning. Ingram agreed. Once at the station, however, Ingram asked for a lawyer and declined to answer any questions. The officers consulted Luzerne County Chief District Attorney David Lupas, who determined that the evidence established probable cause to support an arrest. Ingram was subsequently arrested and charged with the shooting. Before trial, Ingram filed a motion to suppress certain evidence on the ground that it had been obtained in violation of his rights under the Fourth and Fifth Amendments, but the court denied relief. A jury subsequently found him guilty of two counts of aggravated assault and one count of carrying a firearm without a license. The judgment was affirmed on appeal. Ingram is presently serving a sentence of twelve-and-a-half to twenty-five years in state prison. In December 2007, Ingram filed the present pro se civil rights complaint in the United States District Court for the Middle District of Pennsylvania against Detective Beky, Officer Kofchak, and District Attorney Lupas. In the complaint, Ingram claimed that his Fourth, Fifth, and Fourteenth Amendment rights had been violated in connection with his arrest and detention. Specifically, Ingram alleged that: (1) Detective Beky and Officer Kofc-676hak illegally entered his home; (2) he was arrested without probable cause; and (3) he was not brought before a District Justice until ten hours after his arrest. Ingram also asserted both federal and state claims of false arrest, false imprisonment, and malicious prosecution. Shortly after Ingram filed his complaint, the defendants filed motions to dismiss. By memorandum and order entered February 3, 2009, 2009 WL 249788, the District Court converted the defendants’ motions into motions for summary judgment,1 and entered judgment in their favor. This appeal followed. II. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a District Court’s entry of summary judgment de novo. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 235 (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). After a careful review of the record, we conclude that the appeal presents “no substantial question” under Third Circuit L.A.R. 27.4 and I.O.P. 10.6 and will, therefore, summarily affirm the District Court’s order. A. Fourth Amendment Claims 1. Illegal Entry In the complaint, Ingram first claimed that Detective Beky and Officer Kofchak violated his Fourth Amendment rights when they entered his mother’s home without a warrant because his mother did not consent to their entry. As the District Court correctly concluded, however, this claim is barred by the doctrine of collateral estoppel because the state court already considered it at the suppression hearing. The doctrine of collateral estoppel generally precludes a party from re-litigating issues or claims that have already been adjudicated. See Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). It is well established that principles of collateral estoppel are fully applicable to civil rights actions brought under § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 497, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Furthermore, this Court has held that defendants in a § 1983 suit can raise the issue of collateral estoppel when the plaintiff attempts to re-litigate in federal court issues decided against him in state criminal proceedings. Anela v. City of Wildwood, 790 F.2d 1063, 1068 (3d Cir.1986); see also Matthews v. Macanas, 990 F.2d 467, 468 (9th Cir.1993), abrogated on other grounds as stated in Pascual v. Matsumura, 165 F.Supp.2d 1149,1151 (D.Haw.2001) (noting that collateral estoppel may be asserted to preclude a defense to a Bivens claim); Scherer v. Balkema, 840 F.2d 437, 443 (7th Cir.1988) (same). Under Pennsylvania law, the doctrine of collateral estoppel requires that: (a) the issue in question be identical to an issue actually litigated in the prior litigation; (b) the prior litigation resulted in a final judgment on the merits; and (c) the party against whom the estop-pel is asserted was a party or in privity with a party to the prior adjudication. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir.1974). Here, all of the elements of the collateral estoppel doctrine are satisfied: 677the issue that Ingram litigated at the suppression hearing is identical to the issue he raises here; the plaintiff in the instant action was the defendant in the criminal case; and the denial of a suppression motion followed by a conviction is a final judgment for collateral estoppel purposes, see Shaffer v. Smith, 543 Pa. 526, 530-31, 673 A.2d 872 (1996). Therefore, the District Court correctly concluded that Ingram was barred from re-litigating this issue. 2.Arrest Without Probable Cause The District Court also correctly concluded that Ingram failed to show that Detective Beky and Officer Kofchak lacked probable cause to arrest him. “[Pjrobable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir.2003) (citing Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir.1995)). Although, in general, “the question of probable cause in a section 1983 damage suit is one for the jury,” Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.1998), a district court may conclude “that probable cause did exist as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual finding,” and may enter summary judgment accordingly. Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.1997). Upon review of the record, we agree with the District Court that Detective Beky and Officer Kofchak had probable cause to arrest Ingram. As the District Court noted, several eyewitnesses provided the same physical description of Ingram, some even identifying him by name. The witnesses also reported that Ingram was driving a tan van. In addition, the officers were able to locate the owner of the van, who confirmed that Ingram had borrowed it to drive to his mother’s house. 3.The Preliminary Hearing Ingram next claimed that the defendants violated his Fourth Amendment rights by detaining him for ten hours before bringing him before a proper issuing authority. These allegations do not make out a constitutional violation. The Supreme Court has made clear that, after a warrantless arrest, a suspect may be detained before appearing before an issuing authority “for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Absent proof that the probable cause determination was delayed unreasonably, a probable cause determination within forty-eight hours of arrest is sufficient to comply with the Fourth Amendment. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Here, Ingram was brought before a judicial officer for a probable cause determination within ten hours of his arrest—well within the forty-eight hour period. Furthermore, Ingram does not allege any improper conduct on the part of the officers in connection with the ten-hour period, nor does he argue that he was prejudiced as a result thereof. Therefore, the District Court correctly concluded that these allegations failed to establish a constitutional violation. 4.False Arrest and Imprisonment, Malicious Prosecution Finally, the District Court correctly rejected Ingram’s claims of false arrest and false imprisonment because, as discussed above, the officers had probable cause to arrest him. See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir.1988) *678(stating that the proper inquiry in a § 1983 claim based on false arrest is whether the arresting officers had probable cause to believe the person arrested committed the offense). The District Court also correctly entered summary judgment against Ingram on his malicious prosecution claim, as success in the underlying criminal proceeding is a necessary element in such a claim.2 See Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir.2007). B. Fifth Amendment Claim The District Court also correctly held that Ingram failed to establish a Fifth Amendment claim, as he did not provide any inculpatory statements to the police and therefore was not compelled to be a witness against himself. See Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir.1994). III. Because there is no substantial question presented by this appeal, we will summarily affirm the District Court’s order. See Third Cir. LAR 27.4; I.O.P. 10.6. . Because the defendants attached portions of the criminal record to their pleadings, and because Ingram responded to their submissions, the District Court appropriately considered their motions to dismiss as motions for summary judgment. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997). . To the extent that Ingram’s complaint raised state-law claims for false arrest, false imprisonment, and malicious prosecution, the District Court acted within its discretion when it declined to exercise jurisdiction over these claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474981/	OPINION PER CURIAM. Henry Washington appeals from an order of the District Court dismissing his complaint. For the reasons that follow, we will vacate the District Court’s order and remand for further proceedings. On May 14, 2007, Washington filed a complaint pursuant to 42 U.S.C. § 1983. The District Court determined that the complaint failed to comply with Fed. R.Civ.P. 8 and 20 and dismissed it without prejudice in a July 2, 2007 Order. The Order provided Washington with an opportunity to amend his complaint within twenty days and further outlined the specific procedural flaws in his complaint. Following the District Court’s granting of two extensions, Washington filed an amended complaint on August 16, 2007. The District Court subsequently entered an order dismissing Washington’s action for failure to comply with Fed.R.Civ.P. 8, 10, and 20. Washington appeals. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.1 We review the District Court’s decision for 680abuse of discretion. In re Westinghouse See. Litig., 90 F.3d 696, 702 (3d Cir.1996). Despite the deferential standard of review afforded Rule 8 dismissals, we conclude that the District Court erred in dismissing Washington’s amended complaint.2 Rule 8(a) requires a short and plain statement setting forth: (1) the grounds upon which the court’s jurisdiction rests; (2) the claim(s) showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief sought by the pleader. See Fed.R.Civ.P. 8; see also In re Westinghouse Sec. Litig., 90 F.3d at 702. In a § 1983 case, a plaintiff need only satisfy the liberal notice pleading requirement of Rule 8. Abbott v. Latshaw, 164 F.3d 141, 149 (3d Cir.1998). Courts are to construe complaints so “as to do substantial justice,” Fed.R.Civ.P. 8(e), keeping in mind that pro se complaints in particular should be construed liberally. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003). The District Court concluded that the amended complaint should be dismissed under Rule 8, not only because of its length, but because its statements were neither short nor plain. The Court additionally concluded that Washington failed to comply with Rule 10(b) which requires, inter alia, that a party “state claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances ...” See Fed.R.Civ.P. 10(b). Although Washington’s amended complaint is lengthy, at nearly 80 pages, and lacks clarity in some places, we do not agree that it violated the basic pleading requirements under Rule 8. At a minimum, the amended complaint provided defendants with “fair notice” of Washington’s claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). In its July 2nd Order dismissing Washington’s original complaint, the District Court noted that the complaint violated Rule 8 because it “con-tainted] no factual allegations to speak of and averted] only generally that each of the Defendants failed to uphold their duties.” In his amended complaint, Washington significantly reduced the number of defendants in the case. At the beginning of the amended complaint, he set forth a list of the constitutional violations at issue. In each numbered paragraph, he matched the constitutional violations with specific defendants. In the majority of the paragraphs, Washington described the facts supporting the claim and the dates on which the alleged violations occurred. Furthermore, the District Court’s own order suggests it was able to discern the outlines of Washington’s claims concerning alleged deprivation of religious rights, medical care and access to the courts. (July 2, 2007 Order at p. 1, n. 1, dkt. # 7) Indeed, another of the District Court’s orders suggests it thought the amended complaint might be sufficiently meritorious to be worthy of appointment of pro bono counsel. (January 15, 2008, 2008 WL 163053, Order at p. 8, n. 2, dkt. #25). For these reasons, we do not agree that the defendants were incapable of answer681ing Washington’s amended complaint. See Alston v. Parker; 368 F.3d 229, 233 (3d Cir.2004). While the amended complaint may not be clear in all respects, it is not unintelligible. We find that it met the notice pleading requirement under Rule 8. Accordingly, we will vacate the District Court’s order and remand this case for further proceedings. The motion for appointment of counsel is denied without prejudice. Washington may request appointment of counsel in the District Court. . The District Court dismissed the case without prejudice, but it appears to have done so with respect to an any future action Washington might file with the Court. Generally, where a District Court has dismissed a complaint without prejudice, the dismissal is not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the defect or where the litigant declares an intention to stand on the complaint, whereupon the District Court's order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir.1976) (per curiam). Here, the Court expressly closed the present action, barring any further amendments to Washington's complaint, and effectively dismissing the action with prejudice. In addition, we conclude that the District Court's dismissal here was final as its effect was to require Washington to either pay a new filing fee outright or to commit anew to paying a filing fee in installments pursuant to the in forma pauperis statute, 28 U.S.C. § 1915. Cf. Welch v. Folsom, 925 F.2d 666, 668 (3d Cir.1991). We also understand Washington's course of conduct as an assertion that he satisfied the requirements of filing a complaint, a legal question we may review. See Borelli, 532 F.2d at 952 (noting that a without prejudice dismissal may be final if the plaintiff stands on his complaint). The District Court did not explicitly consider limitations problems that Washington would face in any newly filed complaint. If any claims would now be time-barred, the District Court's without-prejudice dismissal would *680now be final for that reason as well. Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1157 (3d Cir.1986). . Federal Rule of Civil Procedure 20 allows a plaintiff to join defendants in one action if he asserts a right to relief arising out of the same transaction or occurrence. Fed.R.Civ.P. 20. However, Rule 21 provides that misjoinder of parties is not grounds for dismissal of an action. Fed.R.Civ.P. 21; Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir.1972). Thus, the District Court erred in dismissing Washington’s complaint on this basis, in any event, we understand the District Court's dismissal to have been primarily predicated on Rule 8.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8477374/	ON MOTION ORDER Upon consideration of Mars Incorporated and MEI, Inc.’s motion to voluntarily dismiss appeal no.2009-1574, IT IS ORDERED THAT: (1) The motion is granted. The revised official caption in 2009-1555 is reflected above. (2) Each side shall bear its own costs in 2009-1574.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474985/	OPINION PER CURIAM. Petitioner Lei Wang, a 31-year-old male citizen of China, was admitted to the Unit683ed States in September 2005 with a visitor’s visa. He overstayed the visa and was placed in removal proceedings. Before the IJ, Wang admitted the charge and conceded removability, but sought asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. I As grounds for relief, Wang claimed that he had suffered past persecution because he and his wife had resisted China’s family planning policies, and that he reasonably feared that he would be sterilized if he returned to China and continued to resist those policies. Specifically, Wang alleged that after his first child was born in 2003, his wife was forced by family planning officials to have an IUD inserted and submit to quarterly checkups. Although Wang’s wife allegedly went to her first few checkups, Wang provided no corroborative evidence that his wife ever did so. Wang and his wife later paid a private doctor to remove the IUD, and when Wang’s wife became pregnant again, she went into hiding. Wang testified that while his wife was in hiding, local family planning officials repeatedly visited his home and demanded that his wife submit to a checkup. He stated that when she did not come out of hiding, officials contacted executives at the government-run power plant where Wang worked as an engineer to pressure him into revealing his wife’s location. Wang refused and was fired as a result. Although Wang stated in his asylum application that he was fired in April 2005, he testified before the IJ that he was fired in February 2005. When the IJ asked about the inconsistency, Wang explained that there must have been a mistake in the preparation of his asylum affidavit. In addition, Wang produced no documentation showing either that he was fired from the power plant or, indeed, that he ever began and ceased working there. Wang explained to the IJ that he was not given documentation about the firing. He also gave varying explanations about whether he could obtain records of employment, and noted that his wife tried and failed to obtain such records — a claim itself not corroborated in her letter of support. After he was fired, Wang went into hiding with his wife at her uncle’s home. He testified that in April 2005, family planning officials raided the home and abducted his wife. He testified that she was taken to a local hospital and forced to have an abortion. Although the IJ noted that it is reasonable to assume a hospital might not offer documentation that a patient endured a forced abortion, he also pointed out that Wang provided no corroborating evidence, such as hospital admission records, that the incident ever happened. Wang claimed that the forced abortion traumatized his wife and they sought the help of a private doctor to treat her resulting depression. However, Wang offered no evidence to show that his wife sought medical treatment for depression or received medication, and his wife did not mention any depression in her letter. Wang alleged that his retaliatory firing for opposing China’s family planning policies, as well as his wife’s forced abortion, constituted past persecution entitling him to relief. The IJ reasoned that both Wang’s firing for resistance to China’s family planning policies and his status as the spouse of a person allegedly forced to undergo an abortion rendered him eligible for asylum and other relief, but made an adverse credibility determination and noted Wang’s failure to present corroborative evidence. Accordingly, the IJ denied all relief. On appeal, the BIA upheld the IJ’s determinations that Wang was incredible and 684that he failed to submit sufficient corroborative evidence, and noted that intervening case law rendered Wang ineligible for relief based on his spousal status. Wang then filed a petition for review and a motion to stay removal. The Government filed a response and motion for summary affirmance. II We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations, including an adverse credibility determination, for substantial evidence, and will uphold such determinations unless any reasonable adjudicator would be compelled to reach a contrary conclusion. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 153 (3d Cir.2005). At the outset, we note our agreement with the BIA’s determination that Wang was ineligible for relief based on his spousal status. As the BIA noted, Matter of JS-, 24 I. & N. Dec. 520 (A.G.2008), was issued after Wang’s removal hearing. In J-S-, the Attorney General held that spouses of individuals forced to undergo abortions or sterilization procedures are not per se entitled to refugee status under IIRIRA § 601(a). Id. at 523-24. We have reached the same conclusion. See Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). In denying relief, the IJ found Wang to be incredible and held that his claims were also undermined by his failure to present corroborative evidence. Because Wang’s asylum application was filed in June 2006, his petition is governed by the REAL ID Act of 2005. Prior to the implementation of the REAL ID Act, minor inconsistencies that did not go to the heart of an asylum applicant’s claim were inadequate to support adverse credibility determinations. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). In contrast, the REAL ID Act permits credibility determinations based on, inter alia, inconsistencies that do not go to the heart of the alien’s claim. See 8 U.S.C. § 1158(b)(l)(B)(iii). We have not applied the REAL ID Act standard in a precedential opinion. Here, because the inconsistencies identified by the IJ relate to the heart of Wang’s claims for relief, and would thus support an adverse credibility determination even under the pre-REAL ID Act standard, we need not consider whether 8 U.S.C. § 1158(b)(l)(B)(iii) is consistent with due process. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.2009) (canvassing Circuit law on the provision). The IJ identified the following inconsistencies: discrepancies in Wang’s story about when he was fired; different explanations about whether he could obtain documentation to demonstrate that he was fired; and varying explanations about what circumstances might lead to his forced sterilization. With regard to when he was fired, Wang explained that the April 2005 date listed on his asylum application was a mistake. The IJ, however, was unpersuaded. Wang argues that he does not read or write English and that the discrepancy resulted from an error committed by the individual preparing his 1-589, and also notes that the letters from his relatives confirm that he was fired in February 2005. As the IJ noted, however, the letters from Wang’s relatives are un-sworn and come from interested parties. Even if they carry some persuasive weight, we are not compelled to disagree with the IJ, who had the opportunity to evaluate Wang’s limited explanation and *685found it lacking. We also agree that Wang’s inconsistent answers as to why he could not obtain documentation that his employment had ended support the IJ’s determination.1 In any event, we also agree that the IJ and BIA plausibly relied on Wang’s failure to present documentary corroboration. A denial of relief may be grounded on a failure to corroborate when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)). In this case, the IJ faulted Wang for failing to present corroborative evidence that (1) he was fired for hiding his wife; (2) his wife was subjected to a forced abortion; (3) his wife was treated for depression as a result of her forced abortion; and (4) that his wife was subjected to quarterly checkups following the forced abortion. We agree with the IJ and BIA that Wang could have obtained certain corroborative documents to support aspects of his claim, but failed to either obtain them or explain why he did not. Therefore, we must uphold the denial of Wang’s requests for asylum, withholding of removal, and CAT protection. For these reasons, we will grant the Government’s motion and summarily deny the petition for review. Wang’s motion for a stay of removal is also denied. . However, we disagree with the IJ’s analysis that Wang's testimony about forced sterilization was inconsistent. Although Wang’s explanation of when officials might subject people to forced sterilization lacked clarity, he appears to have made the same claim repeatedly — i.e., he was unaware of exactly how many pregnancies a couple must have before authorities will impose sterilization, but feared that, having impregnated his wife twice before, he is likely to face sterilization if she becomes pregnant again. To the extent that the IJ's analysis was flawed concerning the sterilization claim, however, we are not compelled to reject the adverse credibility determination given Wang's other inconsistencies. See Zheng v. Gonzales, 417 F.3d 379, 382 (3d Cir.2005) (”[W]e are bound to uphold the IJ’s [adverse credibility] decision if it is supported by substantial evidence, and may do so even if we reject some of its bases.”).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474986/	OPINION PER CURIAM. Petitioner Tania Padgett-Zelaya seeks review of an August 31, 2009 decision of the Board of Immigration Appeals that denied as time and number-barred her second motion to reopen immigration proceedings. The Government has moved for summary affirmance of the Board’s decision. For the reasons that follow, we grant the motion and will deny Padgett’s petition for review. I. Padgett is a native and citizen of Honduras. She entered the United States unlawfully in 2002, and was served with a Notice to Appear in October 2007. We summarized the bulk of Padgett’s procedural history in a previous opinion, see Padgett-Zelaya v. Att’y Gen., 332 Fed.Appx. 797 (3d Cir.2009), and incorporate that history here by reference. It suffices to say that after we denied Padgett’s prior petition for review, she filed her second motion to reopen proceedings with the Board. That motion was predicated on new evidence regarding the 2003 arrest warrant from Honduran authorities, and a related extradition request, that implicated Padgett in the murder of a man in her native country.1 Padgett alleged that this new evidence “shows that the government of Honduras, in late 2008 had exonerated [her] from all wrongdoing in the death of [the murder victim].” The Board determined that Padgett’s motion was barred by procedural rules governing the time and number limitations 687for motions to reopen, and that the “changed country conditions” exception to those rules did not apply. The Board also determined that Padgett “has not shown that an ‘exceptional situation’ exists that would warrant the Board’s exercise of its limited discretion to reconsider or reopen these proceedings sua sponte.” Padgett appealed. The Government has moved for summary affirmance of the Board’s decision, and Padgett has filed her opposition. II. We have jurisdiction under 8 U.S.C. § 1252. We review the Board’s denial of a motion to reopen using an abuse of discretion standard. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005); see also Cruz v. Attorney General of the United States, 452 F.3d 240, 242 (3d Cir.2006). Under this standard, we may reverse the Board’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). Summary affirmance is reserved for situations where, for example, “no substantial question” is presented by the appeal, or where “subsequent precedent ... warrants such action.” See Third Circuit LAR 27.4 and I.O.P. 10.6; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002). III. We will grant the Government’s motion for summary affirmance because this appeal presents no “substantial question.” Barring exceptions not applicable to the facts of this case, motions to reopen must be filed within 90 days from the date “the final administrative decision was rendered,” and only one such motion is allowed. 8 C.F.R. § 1003.2(c)(2).2 Though it erred in determining that Padgett’s motion to reopen was untimely, the Board did not abuse its discretion in determining that Padgett’s second motion to reopen exceeded the statutory numerical limitations. Padgett’s first motion to reopen, filed on June 10, 2008, 2008 WL 3861929, was denied by the Board on July 10, 2008. Her second, filed on July 1, 2009, sought to reopen proceedings that were terminated by the Board on June 3, 2008, 2008 WL 2401020, when it ordered Padgett removed to Honduras.3 Thus, it is clear that Padgett’s second motion to reopen was number-barred.4 Finally, and as the Government correctly points out, this Court lacks jurisdiction to review the Board’s decision 688not to reopen proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (“[b]eeause the BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this court is without jurisdiction to review a decision declining to exercise such discretion to reopen or reconsider the case”). Accordingly, the Government’s motion is granted, and we will deny the petition for review. . The Board had weighed the arrest warrant, along with other factors, in determining that Padgett was not entitled to a discretionary grant of adjustment of status pursuant to 8 U.S.C. § 1255(a). . Petitioner argues that 8 C.F.R. § 1003.2(c)(1) provides an applicable exception for claims based on "new evidence," but that provision is not an exception to the procedural rules governing motions to reopen. Instead it provides that a motion to reopen "shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." Id.; see also Filja v. Gonzales, 447 F.3d 241, 253 (3d Cir.2006). . The Government incorrectly asserts that the Board’s February 5, 2008, 2008 WL 655798, decision, which merely remanded proceedings to the Immigration Judge, is the lodestar for determining timeliness. In fact, the "final administrative decision” for § 1003.2(c)(2) purposes is the date that the Board terminates the proceedings, either by, for example, a final order of removal, see Orekhova v. Gonzales, 417 F.3d 48, 51 (1st Cir.2005), or the denial of a motion to reopen. See Nevarez v. Holder, 572 F.3d 605, 607 (9th Cir.2009). When Padgett filed her second motion to reopen on July 1, 2008, the "final administrative decision” was the Board's June 3, 2008 order of removal and, as a result, Padgett's motion was filed well within 90 days from that date. .While Padgett argues that she is entitled to have the motion to reopen procedural limitations equitably tolled, she did not raise this issue below. We thus lack jurisdiction to consider it. See Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir.2009)	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474988/	OPINION PER CURIAM. Zaim Dervisevic has filed a petition for review of a decision by the Board of Immigration Appeals (“BIA”), which denied his motion to reopen removal proceedings. We construe the Government’s Motion for Summary Affirmance as a motion to summarily deny the petition for review, and so construed, we will grant the motion and deny the petition for review. Dervisevic is a citizen of Montenegro, who entered the United States in 2002 and stayed beyond the time allowed by his visa. Dervisevic applied for asylum and *689related relief, but an Immigration Judge denied relief on August 18, 2004. The BIA affirmed without opinion on December 21, 2005. Dervisevic filed a motion to reopen on January 8, 2009, based on a pending Refugee/Asylee Relative Petition filed on his behalf by his wife, who had been granted asylum. A motion to reopen must normally be filed within 90 days of a final order, 8 C.F.R. § 1003.2(c)(2); but Dervisevic argued that his motion should be construed as a motion filed jointly with the Government, not subject to the 90-day limit, in light of his efforts to contact the Department of Homeland Security (“DHS”) to obtain their consent.1 The BIA “decline[d] to treat the motion as a joint motion in the absence of an affirmative statement from the DHS that it agrees to reopening.” BIA decision at 1. The BIA thus found the motion untimely and denied it. We agree with the BIA that the motion was not “jointly filed,” and we thus hold that the BIA did not abuse its discretion in denying the motion to reopen as untimely. Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (discretionary decisions of BIA not disturbed unless they are arbitrary, irrational, or contrary to law). In affirmations attached to his stay motion, Dervisevic and his attorney both assert that although Dervisevic’s wife and three sons all received political asylum in the United States, the BIA erred by not considering these developments as “new facts” that would permit reopening. All motions to reopen require a showing of “new facts,” 8 C.F.R. § 1003.2(c)(1); thus, simply having “new facts” does not make the motion timely. Dervisevic does not otherwise address the issue of the untimeliness of his motion to reopen in his filings in this Court, nor in the motion to reopen itself, A.R. 40-41. Dervisevic does not base his motion on a change in country conditions, which could excuse an untimely filing, 8 C.F.R. § 1003.2(c)(3)(ii); nor does he refute the BIA’s finding that his motion was not “jointly filed,” 8 C.F.R. § 1003.2(c)(3)(iii). We can discern no other applicable basis on which Dervisevic could claim that his motion was not subject to time limitations.2 Because no substantial issue is raised by the petition for review, we will summarily deny the petition.3 . A motion ‘‘[a]greed upon by all parties and jointly filed” is not subject to the time and numerical limitations for motions to reopen. 8 C.F.R. § 1003.2(c)(3)(iii). . We decline to consider Dervisevic’s filing of August 30, 2009, which appears to be a series of exhibits without an accompanying motion or response. Dervisevic did not respond to the Clerk’s noncompliance order entered November 2, 2009. .Dervisevic’s motion for a stay of removal is denied as moot.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474991/	OPINION OF THE COURT HARDIMAN, Circuit Judge. On April 23, 2008, the District Court revoked Appellant Alvin R. Simmons’s supervised release and sentenced him to twenty-one months incarceration. The District Court further directed that Simmons was not subject to supervised release following his release from custody. Counsel subsequently filed this appeal at Simmons’s request, but moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Bureau of Prisons records indicate — and Simmons’s counsel confirms — that Simmons was released from federal custody on November 6, 2009. Because a defendant’s unconditional release typically renders moot an appeal of a district court’s imposition of a term of incarceration for a supervised release violation, United States v. Kissinger, 309 F.3d 179, 182 (3d Cir.2002), we directed Simmons’s counsel to explain why Simmons’s release would not require dismissal of his appeal. In response, Simmons’s counsel concedes that the present appeal is moot under Kissinger. Accordingly, we will enter an order dismissing Simmons’s appeal as moot.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474993/	OPINION COWEN, Circuit Judge. John J. Poltonowicz, pro se, appeals the judgment of conviction and sentence following his trial conviction for one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, twelve counts of aiding, assisting, and counseling the filing of false tax returns in violation of 26 U.S.C. § 7206(2), four counts of mail fraud in violation of 18 U.S.C. § 1341, three counts of wire fraud in violation of 18 U.S.C. § 1343, five counts of making false statements on loan applications in violation of 18 U.S.C. § 1014, and two counts of making false statements to the Internal Revenue Service (“IRS”) in violation of 18 U.S.C. § 1001. We will affirm. I. BACKGROUND Poltonowicz began his career with the IRS as an analyst in its Criminal Investigation Division. In 1992, he left the IRS and began operating a tax preparation business. Over time his business expanded to include additional offices and he hired additional tax preparers. By 2003, the IRS began to suspect fraud and sent an undercover agent to his office with a recording device. During the course of the taped conversation, Pol-tonowicz informed the agent that he would include business expenses in her return, even though she repeatedly told him that she had no business expenses. Although the agent never mentioned charitable contributions, and provided him with no evidence whatsoever of any such contributions, he included $2,190 in cash contributions to charity and $495 in non-cash contributions to charity on the agent’s return. As a result, the agent’s tax return showed that she was entitled to a $12 refund, instead of reflecting that she owed $1,012 in additional taxes. Subsequently, the agent requested a meeting with Poltonowicz to discuss a letter she received from the IRS informing her that she would be audited. Again, the agent wore a recording device. He admitted to the preparation of a false tax return and 692that he included the false deductions to save her from paying additional taxes (as he operated under the assumption that she would not be audited). He reassured her that she would not get in trouble for the fraudulent return. Poltonowicz agreed to plead guilty to one count of filing false tax returns and the IRS revoked his ability to file electronic tax returns. Thereafter, he formed Matrix Tax Service, Inc. (“Matrix”) in the name of June M. McMackin, his long-time roommate and housekeeper. He filed an account with the IRS under her name to again begin filing electronic tax returns. Prior to trial, he moved, pro se, to suppress the evidence obtained during searches of his home and Matrix’s offices. Poltonowicz appeared at the suppression hearing pro se with the assistance of an attorney serving as a legal advisor. He testified that he was not the owner of Matrix, that Ms. McMackin owned Matrix, and that she had interviewed and hired him. The district court denied his motion. At trial, several former employees testified that Poltonowicz instructed them to claim nonexistent employee business expenses, to overstate charitable contributions, and to understate income. Additionally, these witnesses testified that they observed him prepare false tax returns in this manner on numerous occasions. Numerous clients testified about their fraudulent tax returns. Some of these clients were suspicious of the fictitious charitable contributions, but Poltonowicz reassured them that those deductions were standard and would not trigger an audit. Several of these clients had not realized that they had submitted fraudulent tax returns until audited by the IRS. The government also presented evidence of his affinity for overstating income when beneficial. He obtained three mortgages for his home and a lease for an automobile by providing his creditors with W-2 tax forms that overstated his income. He provided W-2s falsified in the same manner for his father and certain clients to assist them in obtaining loans. In each of these instances, the W-2s overstated income and were not the W-2s actually filed with the IRS for that particular year. The jury convicted Poltonowicz of all of the charges except for two counts of making false statements to obtain a loan in violation of 18 U.S.C. § 1014. The parties then prepared for sentencing, for which he retained counsel. The pre-sentence investigation report (“PSR”) estimated the tax loss at $408, 275.1 Poltonowicz moved for an order compelling the government to produce the documents on which it relied. In particular, he asserted that the government was required to support its estimated tax loss with tax returns, memoranda of interviews of clients, and audit reports and demanded production of these documents. The government countered that under the Sentencing Guidelines, it was permitted to support its estimate with the 200 audited tax returns presented at the trial, but that nonetheless, he had all of the requested documents one year prior to his trial. The district court conducted a sentencing hearing, at which Poltonowicz appeared with counsel. The government offered testimony as to its methodology in calculating the tax loss. It restricted the calculations to tax returns that were personally prepared by Poltonowicz as opposed to any of the returns prepared by his employees (despite evidence that he encouraged and sometimes required employees to include false deductions). Of that subset of tax returns, the government included only those that contained one of the methods of falsifying tax returns established at trial, such as fictitious cash 693and non-cash charitable contributions, employee non-reimbursed expenses, and claims of eligibility for the earned income tax credit. The government filtered that subset to include two types of returns: (1) returns for which the IRS had conducted an audit and had subsequently assessed the taxpayer with additional tax liability based on the tax payer’s inability to substantiate their return, or (2) returns for taxpayers interviewed, who confirmed that they did not provide any evidence of the deductions at issue or request that they be included. The estimate of $419,853.20, in the manner calculated, was actually under inclusive. Poltonowicz argued that the court should limit the calculation to those tax returns of former clients whom the government interviewed, which would result in a tax loss of $80,000 to $200,000. He argued that it was improper for the government to include tax returns based solely on audits as some of those fictitious deductions might have been at the direction of his clients. The District Court credited the government’s testimony and found a total tax loss in excess of $400,000. The District Court determined that enhancements for obstruction of justice and the leadership role were appropriate. It sentenced Poltonow-icz to forty-eight months of imprisonment, well below the guidelines range, and imposed a $10,000 fine, a $2,700 special assessment, and $400,000 in restitution. II. DISCUSSION2 Poltonowicz asserts that the District Court erred as it: (1) miscalculated the tax loss, (2) relied on fraudulent tax data submitted by the government in support of its sentencing recommendation, (3) improperly assessed a two-level enhancement for obstruction of justice, (4) improperly assessed a four-level enhancement for being the leader of criminal activity, and (5) improperly imposed restitution in the amount of $400,000. A. Calculation of Tax Loss3 “For tax offenses, a defendant’s base offense level is determined by the tax loss.” United States v. Gricco, 277 F.3d 339, 355 (3d Cir.2002) (citing U.S. Sentencing Guidelines Manual §§ 2Tl.l(a)(l), 2T1.9). “In determining the total tax loss attributable to the offense ... all conduct violating the tax laws should be considered as part of the same course of conduct or common scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated.” U.S. Sentencing Guidelines Manual § 2T1.1 cmt. n. 2. Further, “[a] sentencing court is permitted to make ‘a reasonable estimate based on the available facts’ where the exact amount of tax loss may be uncertain.” Gricco, 277 F.3d at 356; see also U.S. Sentencing Guidelines Manual § 2T1.1 cmt. n. 1 (noting that when “the amount of the tax loss may be uncertain; the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts”). Poltonowicz contends that the District Court erred in finding that the tax loss exceeded $400,000. At the sentencing hearing, he argued that the evidence supported a tax loss of $80,000 to $200,000. For the first time, he now asserts on appeal that the evidence supports a tax loss of $17,960. He faults the District Court 694for relying on extrapolated data and asserts that the District Court should have excluded losses for tax payers whom the government did not interview. The district court relied on evidence presented at trial and the sentencing hearing to reach its conclusion. The government established the modus operandi — preparing tax returns with fictitious data for charitable contributions, employee non-reimbursed expenses, and claims of eligibility under the earned income tax credit. It did not err in including tax returns in the tax loss calculation which had been subject to and had failed an audit by the IRS, even if the government did not interview the tax payer. Poltonowiez is on audiotape informing a potential client that he knew exactly how to claim fictitious deductions without getting caught. Indeed, the evidence suggests a much larger tax loss. He personally prepared 20,000 to 25,000 tax returns, yet the government calculated its tax loss based on just 225 of those returns. One former employee testified that at least 25% of the’returns Poltonowicz filed contained fictitious deductions. The government excluded from its calculation any returns that were prepared by employees, even though several employees testified that he directed them to add fictitious deductions to the returns they filed. On average, 50-54% of returns claim charitable contributions; whereas, 98% of Poltonowiez’s clients claimed such deductions. Notably, his clients uniformly claimed to donate in one of three precise amounts: $490, $495, and $500. Poltonowiez also challenges the government’s calculation of additional losses by comparing his average claims for certain deductions, such as the charitable deduction, with that of the national average. He asserts that it was improper to compare his clients to the national average because his clients were not average tax payers; rather, his clients consisted of blue-collar, religious, conservative tax payers who were far more likely to make charitable contributions than the average tax payer. He makes a similar argument with respect to the government’s comparative information on employee non-reimbursed expenses. These arguments lack merit. The District Court did not rely on the government’s comparative data in reaching its conclusion that the tax loss exceeded $400,000. The District Court based its conclusion on the audited returns and mentioned the additional statistical evidence in noting that the government’s calculation was extremely conservative. There is no error with a District Court’s consideration of statistical evidence in a case involving upwards of 20,000 tax returns. The government presented a conservative tax loss calculation. This estimate was reasonable given the evidence before the District Court. We reject the challenge to the tax loss calculation. B. Prosecutorial Misconduct4 Poltonowiez asserts that the government supported its calculation with several returns that it knew were inaccurate to reach the threshold tax loss amount of $400,000. This contention lacks merit. The government excluded the returns in question and still reached a tax loss of $419,858.20. Poltonowiez presented no evidence of any inaccurate tax returns, nor did he present any evidence that would negate his liability for the tax losses identified by the government. We reject Polto-nowicz’s claim of prosecutorial misconduct. 695C. Obstruction of Justice Finding Poltonowicz asserts that the District Court erred in assessing a two-level enhancement under § 3C1.1 of the U.S. Sentencing Guidelines Manual, for obstruction of justice related to his testimony at the suppression hearing regarding his interest in Matrix. He asserts that there was nothing false about his testimony. The record belies this assertion. D. Leader of Criminal Activity Under § 3B1.1 of the Sentencing Guidelines, courts may increase a defendant’s offense level by four levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S. Sentencing Guidelines Manual § 3B1.1. Poltonowicz exerted control over McMackin and others to further his criminal scheme. Two former employees testified that they prepared tax returns containing fictitious deductions at his direction. We reject the challenge to this enhancement. E. Restitution Poltonowicz contends that the district court erred in ordering him to pay restitution as convictions for tax fraud are excepted from those crimes for which restitution can be ordered. There is no legal authority for this claim. The district court had authority to impose restitution under 18 U.S.C. §§ 3583(d), 3563(b)(2). III. CONCLUSION We will affirm the judgment of conviction and sentence of June 12, 2008. . The government later amended the PSR to reflect an estimated tax loss of $419, 853.20. . The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. . We review factual findings, such as the calculation of a tax loss attributable to a defendant's criminal activity, for clear error. See United States v. Roman, 121 F.3d 136, 140 (3d Cir.1997). . We review a district court’s ruling on prose-cutorial misconduct for abuse of discretion. See United States v. Brennan, 326 F.3d 176, 182 (3d Cir.2003).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474995/	OPINION OF THE COURT HARDIMAN, Circuit Judge. David Bagdy appeals from the judgment of the District Court ordering him to pay $566,115.57 in restitution with interest, and sentencing him to 36 months imprisonment. We will affirm. I. Bagdy raises two issues on appeal. He first claims the District Court erred in declining to waive interest on the order of restitution. Bagdy also claims the District Court erred in considering his failure to make any restitution payments prior to sentencing as a factor at sentencing. Bag-dy argues that the District Court erred in both instances because the evidence showed that Bagdy’s financial situation was poor and he had no ability to pay restitution or interest. We find Bagdy’s arguments unpersuasive, primarily because these matters are committed to the sound discretion of the District Court. II. Because we write for the parties, we recount only those facts necessary to our decision. Bagdy pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343 after defrauding his employer of over $500,000 through a kickback scheme with a Russian lumber supplier. Bagdy was indicted on May 16, 2007 and soon thereafter agreed to restitution of $566,115.57. After indictment, Bagdy made numerous motions to continue his change of plea hearing “in order to allow [him] the opportunity to find a significant portion of the restitution.” (App. R. 50-51.) The change of plea was ultimately held on July 7, 2008. Despite multiple continuances, Bagdy had not made any restitution payments by the time of sentencing on October 20, 2008. The Presentence Investigation Report (PSR) calculated Bagdy’s final offense level as 20 and criminal history category as I, resulting in a Guidelines range of 33-41 months imprisonment. The PSR also contained a summary of Bagdy’s financial condition. The PSR provided that, at the time of the interview, Bagdy had $24,000 in his savings account, and a net monthly cash flow of $3258. Bagdy also had substantial outstanding debts upon which he had ceased making payments. The PSR reported that Bagdy “provided minimal information” and “little supportive documentation” at the time of the presentence interview, causing his financial situation to 697be “murky.” At the sentencing hearing, Bagdy testified that his income had dropped substantially since his indictment, forcing him to deplete his savings to pay his living expenses. At sentencing, the District Court noted that Bagdy had requested numerous continuances for the purpose of raising money to pay restitution, but had not made any payments. The District Court stated: I mean even if one were to make a good faith payment of $500, you think you’d do it. I mean that’s just stupid and it probably cost you a couple of extra months in prison. But that was a decision you made. I mean I was a magistrate in McKees Rocks with some of the poorest people in Pennsylvania, and those people used to come in with their $5.00 payments every month on payment plans. I mean if they could do it, you could have paid something. That just — I think that speaks volumes. (App. R. 70-71.) The Court sentenced Bagdy to 36 months imprisonment and ordered him to pay the agreed upon restitution amount of $566,115.57, with interest. Though Bagdy did not object to the imposition of interest at sentencing, he promptly filed a motion to correct or amend the sentence, seeking a waiver of interest under 18 U.S.C. § 3612(f)(3)(A) on the ground that he was unable to pay. The District Court summarily denied the motion. III. A. Bagdy argues that a district court’s refusal to waive interest on restitution is reviewed for an abuse of discretion. See United States v. Guardino, 972 F.2d 682, 686 (6th Cir.1992). The Government argues that, because Bagdy did not object to the award of interest at the sentencing hearing, our review is limited to the more stringent plain error standard. See Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). We need not decide this issue because Bagdy’s argument fails even under the more lenient “abuse of discretion” standard. There is a presumption that a defendant “shall pay interest on any fine or restitution of more than $2,500.” 18 U.S.C. § 3612(f)(1). But if a district court “determines that the defendant does not have the ability to pay interest under this subsection, the court may waive the requirement for interest.” 18 U.S.C. § 3612(f)(3)(A) (emphasis added). The Government argues that the burden of proving inability to pay under § 3612(f)(3) falls on the defendant, and Bagdy failed to make an adequate evidentiary showing entitling him to a waiver of interest. Bagdy contends that he made the requisite showing of inability to pay. The District Court’s summary order denying Bagdy’s motion to correct or amend his sentence does not explain why Bagdy was not entitled to a waiver of interest. Even assuming, arguendo, that Bagdy presented sufficient evidence to trigger the District Court’s discretion under 18 U.S.C. § 3612(f)(3), we find no abuse of discretion on the record in this case. We also note that the issue before the Court was not Bagdy’s ability to pay restitution and interest at the time of sentencing. The Court recognized that Bagdy could not afford to pay a fine because of his mandatory restitution obligation. Rather, the issue was Bagdy’s personal capacity to pay restitution and interest over time. The Court ordered that he pay towards those obligations 50 percent of the amounts he earned from the Bureau of Prisons’ Financial Responsibility Program and a minimum of 10 percent of his gross income during his three years of supervised release. His responsibility for those amounts, of course, did not cease at that 698point. Given Bagdy’s demonstrated earning capacity, the District Court did not abuse its discretion. In sum, while § 3612(f)(3) provides the District Court with the authority to waive interest when a defendant is unable to pay, it does not require waiver of interest. Therefore, the District Court did not err by imposing interest on the restitution order. B. We turn to Bagdy’s assignment of error to his sentence of 36 months incarceration. We review a district court’s sentencing decision for abuse of discretion. United States v. Tomko, 562 F.3d 558, 561 (3d Cir.2009) (en banc). In Tomko, we explained the basis for this standard, noting the District Court’s superior “vantage point” in sentencing matters: “the sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. at 566 (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Therefore, we review both the procedural and substantive reasonableness of a sentence for abuse of discretion. “[A]n abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion.” Id. at 567-68 (quoting United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008)). “[Ajbsent any significant procedural error, we must give due deference to the district court’s determination that the § 3553(a) factors, on a whole justify the sentence.” Id. at 568 (internal quotation and citation omitted). Bagdy argues that the District Court abused its discretion when it relied upon his failure to make a restitution payment prior to sentencing because it was clear error for the District Court to conclude that he was financially able to pay the restitution. Bagdy’s argument misconstrues the District Court’s finding. The District Court did not conclude that Bagdy should have paid the entire balance of his restitution obligation prior to sentencing; rather the Court found it troubling that Bagdy failed to make any payment prior to sentencing, particularly after Bagdy had requested continuances for the specific purpose of gathering money for restitution. There was ample evidence to support the District Court’s finding that Bagdy was capable of paying some restitution. The PSR reported that, while employed by the victim in 2003 and 2004, Bagdy had been earning between $5000 and $7000 per month, which was supplemented by approximately $3500 per month from other consulting jobs. During this time, Bagdy stole over $500,000 from his employer, and offered no explanation regarding the use of the money other than maintenance of his lifestyle. When he first met with probation, Bagdy had over $20,000 in savings and income of $6000 per month. In May 2007, Bagdy sold his house at a profit of over $100,000. Furthermore, in August 2008, after his guilty plea, but before sentencing, Bagdy took a trip to Washington, D.C. with his son, where he was cited for disorderly conduct after he had been drinking. Based on the record, the District Court’s conclusion that Bagdy was financially capable of paying a nominal sum towards restitution was well supported by the record and far from clearly erroneous. Bagdy’s failure to make any restitution despite his ability to do so gives rise to an inference that he did not appreciate the gravity of his crime or his financial obligation to his victim. The District Court’s reliance on these factors in sen*699tencing Bagdy was well within its considerable discretion. For the foregoing reasons, we will affirm the judgment of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474996/	OPINION OF THE COURT RENDELL, Circuit Judge. Plaintiffs William and Michael Faulman urge on appeal that the District Court 701made a variety of errors in ruling on a motion for partial summary judgment and in its conduct of the bench and jury trials that occurred thereafter in this ERISA case. We disagree and will affirm the order of the District Court. Background This case concerns an employer-purchased term life insurance policy called the Group Entry Age Reserve (“GEAR”), which was marketed by defendant Security Financial Life Insurance Company (“Security”). Upon termination or retirement, employees could convert the term coverage to a whole life insurance policy. After conversion, employees were charged a discounted premium, which was based on the employee’s age when he was first issued the GEAR policy, rather than his age when he converted the term policy to the whole policy. According to Security, this feature was made possible by allocating part of the pre-conversion premium to a “Rate Stabilization Reserve.” The funds in that reserve then offset the cost of premiums after conversion. The Employer’s Participating Insurance Cooperative (“EPIC”) plan was a life insurance plan, which provided life insurance through the GEAR product. Initially, a company called Tri-Core, which was an affiliate of Security, administered the EPIC plan. After various changes, Security administered the successor to the EPIC plan that is relevant here. Plaintiffs William Faulman and Michael Faulman were the only employees of U.S. Investment Advisors (“USIA”), a holding company created to manage several other corporations formed by the Faulmans. In 1992, the late Frank Speer, who was the Faulmans’ insurance agent and an agent for Security, suggested that plaintiffs purchase EPIC and GEAR. Although the brochures about these products principally described them as life insurance products, plaintiffs claim that Speer characterized them as an investment vehicle, much like a retirement plan, that would allow the Faul-mans to contribute to the Rate Stabilization Reserve and, ultimately, cash out their contributions for a profit. Plaintiffs also claim that Speer stated that contributions to the GEAR product would be tax-free. After considering the products for two years, and having their attorney and accountant review them, plaintiffs purchased the EPIC and GEAR products in 1994. USIA joined the EPIC plan, the Faulmans submitted life insurance applications, and USIA made contributions of $420,000 to the plan over the next seven years. In 2001, plaintiffs were informed that their premiums had increased. After subsequent inquiries, they were told (for the first time, according to them) that they could not cash out their contributions to the Rate Stabilization Reserve; rather, they could only use those contributions to defray the cost of converting the term life insurance policy to a whole policy, as described above. Plaintiffs ultimately converted their term policies to whole policies. William Faulman’s premium for the whole policy was reduced by over 50% as a result of the GEAR conversion benefit. Plaintiffs claim that Security misrepresented the nature of the Rate Stabilization Reserve and the tax-deductibility of their contributions in order to induce them to purchase the GEAR product. In particular, plaintiffs claim that Security was aware of an Internal Revenue Service ruling that the GEAR contributions were not tax-free, but that Security never notified plaintiffs of this fact. Plaintiffs also claim that Security improperly used plaintiffs’ contributions to the plan to pay commissions to Tri-Core and to purchase the GEAR product. Plaintiffs alleged that Security breached its fiduciary duties under ERISA, violated 702the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68, violated Florida’s Unfair Insurance Trade Practices Act, Fla. Stat. §§ 626.951-626.99, and committed common-law fraud, conversion, breach of contract, and breach of the duty of good faith and fair dealing. The District Court granted partial summary judgment to Security, finding that all of plaintiffs’ state law claims except the fraud claim were preempted by ERISA. One year later, the District Court granted a second motion filed by Security for partial summary judgment, rejecting certain of plaintiffs’ ERISA and RICO theories. The case was then brought to trial. The RICO and fraud claims were tried to a jury, which found for defendant on both claims. The ERISA claims were tried to the Court, which also found for defendant. Specifically, the Court found that Security did not owe plaintiffs any fiduciary duties with respect to the disclosure of the plan’s tax status or the payment of commissions to Tri-Core, and that Security did not breach its fiduciary duties when it purchased the GEAR product for the USIA plan. Plaintiffs moved for a new jury trial. They argued that the Court had erred when it limited the length of plaintiffs’ opening statements, interrupted their examination of a witness named David Wall-man, excluded certain evidence, and instructed the jury. The Court denied the motion. This appeal followed. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. The District Court’s Summary Judgment Decisions Plaintiffs challenge various rulings made by the District Court in granting partial summary judgment to defendant. Our review of a grant of summary judgment is plenary. Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008). “[W]e assess the record using the same summary judgment standard that guides the district courts.” Id. Thus, defendant must demonstrate that “there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). First, plaintiffs contend that a court must always consider fiduciary status in determining whether ERISA preemption applies. Plaintiffs correctly state that the District Court did not consider whether Security was a fiduciary when determining that plaintiffs’ state law claims “relate to” an ERISA claim and were therefore preempted. See 29 U.S.C. § 1144. However, none of the cases cited by plaintiffs support their position that such an analysis is required. To the contrary, in Kollman v. Hewitt Associates, LLC, 487 F.3d 139, 148 (3d Cir.2007), we rejected the plaintiffs contention that his state law claim was “not subject to preemption because [the defendant] is supposedly a nonfiduciary.” Instead, we emphasized, the preemption inquiry depends on whether a state law claim implicates the plan’s “funding, benefits, reporting or administration.” Id. at 149-50. Similarly, the court in Finderne Management Co. v. Barrett, 355 N.J.Super. 170, 809 A.2d 842, 856 (N.J.Super.Ct.App.Div.2002), referred to fiduciary status only as one of several factors used to assess whether the claims were actually related to an ERISA plan, rather than to duties arising “outside of the ERISA context.” The courts in the other cases cited by plaintiffs either did not consider fiduciary status at all or considered it only because such an analysis was required by the specific facts of those cases. 703Second, plaintiffs argue that when the District Court was evaluating the terms of the USIA Plan, it improperly confined its analysis to the terms of a single document that the court referred to as the “EPIC Plan Document.” JA0025. However, plaintiffs do not identify what other documents the Court should have considered. Nonetheless, we have examined other documents in the record that describe the USIA Plan, including a rider to the Group Life Insurance Policy contract called the “Employers’ Rate Stabilization Reserve Endorsement” and brochures regarding the EPIC and GEAR products. Even assuming that the District Court should have considered these documents to be part of the ERISA plan, they do nothing to substantiate plaintiffs’ claims. Third, plaintiffs argue that the District Court erred when it concluded that Security had not misappropriated the funds in the reserve. We disagree. The Court properly determined that plaintiffs had no right to the funds in the Rate Stabilization Reserve, except to have the funds used to reduce their insurance premiums after conversion. Section 5.2 of the Plan clearly provides that “[t]he Employer shall have no right, title, or interest in and to the contributions made by it to the Trust; and, no part of the Trust property ... ever shall revert to the Employer.” JA0984. Thus, USIA had no right to the reserve funds, and Security’s actions could not have constituted misappropriation or conversion. Fourth, plaintiffs contend that the District Court erred in finding that the EPIC plan did not involve a reserve fund. We are unable to locate such a finding in the record. To the contrary, the Court repeatedly referred to the reserve, both in its summary judgment decisions and when it announced its findings after the bench trial. Breach of Fiduciary Duties Plaintiffs argue that the District Court erred in finding, after the bench trial, that Security had not breached its fiduciary duties. “In an appeal from an ERISA bench trial, we review findings of fact for clear error but have plenary review over the District Court’s conclusions of law.” Vitale v. Latrobe Area Hosp., 420 F.3d 278, 281 (3d Cir.2005). Three sections of ERISA are relevant to this issue. 29 U.S.C. § 1106(b) provides that a fiduciary may not “deal with the assets of the plan in his own interest” or receive consideration “in connection with a transaction involving the assets of the plan.” Under § 1101(b)(2), however, only certain assets are covered by § 1106: “In the case of a plan to which a guaranteed benefit policy is issued by an insurer, the assets of such plan shall be deemed to include such policy, but shall not ... be deemed to include any assets of such insurer.” Finally, § 1108 and Department of Labor guidance known as Prohibited Transaction Exemption 84-24 (“PTE 84-24”) both provide exceptions to the prohibitions contained in § 1106(b). The District Court found that Security was a fiduciary with respect to the life insurance policy owned by the USIA Plan, but not with respect to the contributions made to the plan by plaintiffs. The distinction, according to the Court, lies in § 1101(b)(2). The District Court found that plaintiffs’ contributions were deposited in Security’s general account, rather than in the USIA Plan itself. Thus, according to the Court, these funds were an asset of the insurer (i.e., Security), and were not plan assets under § 1101(b)(2). Thus, the fiduciary duties contained in § 1106 did not apply to plaintiffs’ contributions, but instead applied only to the life insurance policy. 704On appeal, plaintiffs challenge the District Court’s legal and factual determinations. They argue that Security engaged in self-dealing by arranging for the USIA Plan to purchase GEAR, and then converted plan assets by misappropriating the funds in the Rate Stabilization Reserve. Plaintiffs also argue that Security breached its fiduciary duties by misrepresenting the tax-free status of contributions to GEAR. Plaintiffs further claim that Security violated PTE 84-24 by paying commissions to Tri-Core and Speer and violated § 1108(b)(2) by paying itself excessive compensation. Finally, they argue that the USIA Plan was not a “guaranteed benefit policy,” and therefore is not covered by § 1101(b)(2). Thus, according to plaintiffs, the distinction drawn by the District Court between the plan’s assets and Security’s assets cannot hold. We see no reason to disturb the District Court’s determination that Security did not breach its fiduciary duties. The Court properly found that it was plaintiffs, not Security, who decided that the USIA Plan should purchase the GEAR product. Indeed, the USIA Plan was created with the specific purpose of purchasing GEAR. Plaintiffs made this decision after evaluating EPIC and GEAR for two years, and after consulting their attorney and accountant. Thus, contrary to plaintiffs’ contention, it was not Security that “arranged for” the GEAR product to be purchased. Nor is there any merit to plaintiffs’ claim that Security misappropriated the funds in the Rate Stabilization Reserve. Once plaintiffs decided to stop participating in the plan, they were able to use the funds in the Rate Stabilization Reserve to reduce their premiums, as Security had advertised. Finally, we are not persuaded that we should disturb the District Court’s finding that Security did not violate its fiduciary duties with respect to its representations regarding the tax status of the GEAR contributions. We therefore agree with the District Court that Security did not violate § 1106. As a result, we need not reach plaintiffs’ arguments with respect to PTE 84-24, § 1108, or § 1101(b)(2), all of which provide exemptions to the prohibitions contained in § 1106. Rulings at Trial Plaintiffs challenge several evidentiary rulings made by the Court during trial, and the Court’s refusal to grant a new trial based on these same issues. We review a district court’s evidentiary rulings for abuse of discretion. Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir.2009). We also review the denial of a motion for a new trial for abuse of discretion, but we exercise plenary review over that denial to the extent that it is based on a question of law. Curley v. Klem, 499 F.3d 199, 205-06 (3d Cir.2007). Plaintiffs argue that the District Court improperly interfered with their questioning of David Wallman, Security’s chief actuary. Plaintiffs complain that the Court inappropriately interrupted and limited their examination when they tried to impeach Wallman with purportedly contradictory testimony given eight years earlier. We disagree. Plaintiffs’ questions appeared to be of little relevance, and the Court was properly concerned that they could unduly prejudice jurors’ interpretation of Wallman’s testimony. The Court’s attempts to limit this portion of this examination were well within its discretion to manage the trial. Plaintiffs also argue that the Court erred in refusing to admit certain documents into evidence: a magazine article, letters from former EPIC participants, notes by Security employees, and correspondence between the Internal Revenue *705Service and Security. The Court properly concluded that these documents contained information that was either hearsay, irrelevant, or unduly prejudicial, especially in light of the fact that defendant had already stipulated to the facts that plaintiffs were attempting to prove using these documents. We find no abuse of discretion in the Court’s rulings. Juiy Instructions Plaintiffs argue that the District Court’s jury instructions were flawed in several respects. Our review of jury instructions is plenary, and we reverse if the instructions, as a whole, were capable of confusing and misleading the jury. Mosley v. Wilson, 102 F.3d 85, 94 (3d Cir.1996). First, plaintiffs argue that the Court should have instructed the jury that Security was a fiduciary under ERISA, and that it therefore had certain disclosure obligations under ERISA. However, at the close of the jury trial, the Court had not yet determined whether Security was an ERISA fiduciary. Since that determination was irrelevant to the common-law fraud and RICO claims that the jury was asked to decide, and since the determination had not even been made, the Court did not error in refusing to give such an instruction. Second, plaintiffs argue that the Court should have informed the jury that the GEAR policy contained an indemnification clause that was invalid under 29 U.S.C. § 1110(a), which provides that “any provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or liability ... shall be void as against public policy.” The indemnification clause was not even being relied on by Security in this litigation, however, and was therefore irrelevant to the case. An instruction to this effect would have only served to confuse the jury. Finally, plaintiffs argue that the Court improperly failed to instruct the jury that plaintiffs could prevail on their misrepresentation claim on either of two theories: that Security misrepresented how the reserve funds would be used, or that Security misrepresented the tax-deductible nature of plaintiffs’ contributions. The Court was not required to give such a specific instruction. The Court did instruct the jury that the misrepresentation had to be of a material “statement of fact.” JA2042-43. This instruction was broad enough to encompass both of plaintiffs’ theories. We therefore conclude that the jury instructions were not erroneous in any of the respects urged by plaintiffs. Conclusion We will AFFIRM the order of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475001/	OPINION OF THE COURT CHAGARES, Circuit Judge. In 2001, Thomas Boylan (“Boylan”) purchased a $3 million life insurance policy (the “Policy”) from Jackson National Life Insurance Company, Inc. (“JNL”), and named his wife Holly Boylan (“Holly”) the beneficiary. Boylan died in 2006, and JNL thereafter denied Holly’s claim for benefits, asserting that the Policy had lapsed due to nonpayment of the annual premium. Holly promptly filed this diversity action against JNL seeking payment under the Policy. After discovery, the District Court granted JNL’s motion for summary judgment and denied Holly’s cross-motion for summary judgment. Holly appeals, and we will affirm. I. We write solely for the parties, who are well-versed in the case, and therefore set forth only the essential facts. Boylan pur709chased the Policy from JNL on February 27, 2001, under which an annual premium payment of $3,945.00 was due on or before February 27. In accordance with New Jersey law, the Policy provided a 31-day grace period, during which time coverage under the Policy would continue uninterrupted: GRACE PERIOD FOR PAYMENT OF PREMIUMS Any premium after the first which is not paid on or before the date it becomes due is in default. A grace period of 31 days will be allowed for payment of a premium in default. This certificate will continue in force during this period. If death occurs during the grace period, the unpaid premium on the premium basis then in effect will be deducted from the proceeds of the certificate. Joint Appendix (“JA”) 58. If Boylan failed to remit payment by the end of the grace period, he would be required to undergo formal reinstatement procedures to resume coverage. The Policy stated: HOW A CERTIFICATE IN DEFAULT MAY BE REINSTATED This certificate may be reinstated within five years after the date of any past due premium. Reinstatement is subject to: 1) receipt of evidence of insurability of the Insured satisfactory to the Company; and 2) payment of all past due premiums with interest from the due date of each premium. Interest at the rate of 8% per year compounded annually on past due premiums will be payable to the date of reinstatement. JA 58. JNL’s automated policy administration system generated and distributed certain notices to policyholders during the annual billing cycle. Approximately 25 days before a premium payment was due, the system distributed a “Payment Notice” to the policyholder, alerting him or her to the upcoming due date. If payment was not received by the due date, the system automatically mailed a “Grace Period Notice” to the policyholder approximately ten days after the due date, notifying him or her of the missed payment, the opportunity to make the payment during the grace period, and the consequences of failing to submit a timely grace-period payment. Finally, if payment was not received by the end of the grace period, JNL’s automated system generated and mailed a “Lapse Notice” to the policyholder, advising him or her that the policy was in default and formal reinstatement would be necessary to resume coverage. Boylan’s payment history was checkered. After paying the initial premium to obtain the Policy in 2001, he did not remit the required premium payment to JNL by the February 27 due date in 2002, 2003, and 2004, but did make the payments during the grace period. In 2005, however, Boylan did not make timely payment by February 27, and did not make a payment during the grace period.1 Consequently, JNL’s automated policy administration system mailed to Boylan a Lapse Notice, which contained a limited waiver of the formal reinstatement requirements if Boy-lan submitted payment before April 28, 2005. Boylan took advantage of JNL’s offer by submitting his premium payment on April 22, 2005. Coverage under the Policy was therefore reinstated without incident. In 2006, Boylan received a Payment Notice from JNL, but did not make payment on or before the February 27 due date. 710He subsequently received a Grace Period Notice, but did not make payment within the grace period. Like the year before, JNL mailed Boylan a Lapse Notice, dated March 9, 2006. The 2006 Lapse Notice was identical to the 2005 Lapse Notice: it contained a limited waiver of formal reinstatement requirements if Boylan remitted payment before April 28, 2006. The 2006 Lapse Notice stated in pertinent part: We recently sent you a Grace Period Notice to inform you that unless we received a minimum payment by March 30, 2006, your policy would lapse on that date. We have not received your payment. Please note that your policy has lapsed and that all coverage under this policy has ended. If the amount due is received at the address below during the insured’s lifetime and before April 28, 2006, the policy will be automatically reinstated and we will waive additional requirements. This offer to reinstate automatically is not a waiver of the terms of the policy in the event of any future default of payment of premiums. Otherwise, you will be required to pay additional unpaid premiums plus interest and complete the enclosed Reinstatement Application. Acceptance of the premium does not reinstate the policy; your policy will remain lapsed and no coverage is provided until this application has been approved by [JNL], JA 648 (emphasis in original). This time, Boylan did not submit a payment before April 28, 2006. Instead, he transferred electronically $3,945.00 to JNL on May 19, 2006, but did not submit a completed reinstatement application. Approximately one month later, JNL mailed to Boylan a letter dated June 16, 2006, notifying him that it had received the electronic payment, but that the Policy had lapsed and the payment alone was insufficient to reinstate coverage. The letter invited Boylan to complete a reinstatement application (an additional copy of which was enclosed) if he wished to resume coverage under the Policy. Under separate cover, JNL issued a check to Boylan — also dated June 16, 2006 — in the amount of $3,945.00, essentially returning the electronic payment.2 Boylan deposited this check and it was presented to JNL’s bank for payment on July 3, 2006. There were no communications between JNL and Boylan from May 19, 2006 until Boylan received JNL’s June 16, 2006 letter in the mail. Boylan died on July 5, 2006. On August 11, 2006, Holly submitted a claim to JNL for payment under the Policy, and JNL denied the claim on August 22, 2006. Holly filed this breach-of-contract action on August 29, 2006 and, as stated, the District Court granted JNL’s motion for summary judgment and denied Holly’s cross-motion for summary judgment. This timely appeal followed.3 711II. Holly does not dispute that the Policy lapsed in 2006 when her husband failed to remit payment by the end of the grace period or by the extended April 28 deadline set forth in the 2006 Lapse Notice. Nor does she claim that her husband’s transmittal of the premium on May 19, 2006 by itself sufficed to reinstate the Policy. Her sole claim here, as it was before the District Court, is that by holding Boy-lan’s May 19 electronic payment for approximately a month -with no communications to him, JNL waived its contractual right to require Boylan’s completion of formal reinstatement requirements. Accordingly, she argues, the Policy had been automatically reinstated as a matter of law before her husband’s death, and that she is therefore entitled to the Policy’s benefits. While sympathetic to the difficult and unfortunate circumstances prompting this action, we are impelled to conclude that Holly’s argument finds no refuge in law. An insurance policy generally should be construed according to its plain and ordinary language. Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 607 A.2d 1255, 1260 (1992); Longobardi v. Chubb Ins. Co. of N.J., 121 N.J. 530, 582 A.2d 1257, 1260 (1990). The parties agree that the Policy’s language is unambiguous and required by New Jersey law; therefore, the ordinary rules of construction apply, and the express terms of the Policy control. Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 644 A.2d 1098, 1103 (1994). New Jersey law requires that all life insurance policies within the state contain a grace period of 30 days, during which an insured may submit payment without interruption of coverage. N.J. Stat. Ann. § 17B:25-3. Another statutory provision governs reinstatement of lapsed life insurance policies. It states: There shall be a provision that unless: a. the policy has been surrendered for its cash surrender value, or b. its cash surrender value has been exhausted, or c. the paid-up term insurance, if any, has expired, the policy will be reinstated at any time within 3 years ... from the due date of the first premium in default upon written application therefor, the production of evidence of insurability satisfactory to the insurer, the payment of all premiums in arrears and the payment or reinstatement of any indebtedness to the insurer upon the policy, all with interest at a specified rate and which may be compounded as specified. N.J. Stat. Ann. § 17B:25-9. Given this clear text, it is beyond dispute that once a life insurance policy has lapsed for nonpayment, mere submission of an overdue premium — even if accepted by the insurer — is insufficient to reinstate coverage. See, e.g., Glezerman v. Columbian Mut. Life Ins. Co., 944 F.2d 146, 154 (3d Cir.1991); Hogan v. John Hancock Mut. Life Ins. Co., 195 F.2d 834, 837 (3d Cir.1952). Because Boylan did not submit a completed reinstatement application or demonstrate his continued insurability to JNL, his remittance of the 2006 premium on May 19, 2006 was insufficient to reinstate the Policy. Holly argues, and JNL concedes, that any of the Policy’s provisions — including the formal reinstatement requirements mandated by N.J. Stat. Ann. § 17B:25-9— may be waived. Indeed, JNL expressly waived those very reinstatement requirements in the 2005 and 2006 Lapse Notices, subject to the condition that Boylan remit payment before April 28. “ ‘Waiver’ is the intentional relinquishment of a known right. It is a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have 712demanded and insisted on.” W. Jersey Title & Guaranty Co. v. Indus. Trust Co., 27 N.J. 144, 141 A.2d 782, 786 (1958) (quoting George F. Malcolm, Inc. v. Burlington City Loan & Trust Co., 115 N.J. Eq. 227, 170 A. 32, 34 (N.J.Ch.1934)) (internal quotation marks omitted). Put differently, [i]t is requisite to waiver of a legal right that there be “a clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part[.] A waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition.” Id. at 786-87 (quoting Aron v. Rialto Realty Co., 100 N.J. Eq. 513, 136 A. 339, 341 (N.J.Ch.1927), aff'd, 102 N.J. Eq. 331, 140 A. 918 (N.J.1928)). In the insurance context, a waiver is predicated upon the acts or conduct of the insurer with knowledge of the breach tending to show a recognition of the policy, or an intent to relinquish the right to declare a forfeiture for the known breach.... [I]t is always open to the assured to show a waiver of policy provisions when the conduct of the insurer gives reasonable ground to the assured, as a layman ... to believe that such a forfeiture will not be incurred and the assured relies thereon to his prejudice. Bruni v. Prudential Ins. Co. of Am., 100 N.J.Super. 154, 241 A.2d 455, 460 (N.J.Super.Ct.App.Div.1967) (Carton, J., dissenting), adopted as the Opinion of the Court, 51 N.J. 408, 241 A.2d 449, 450 (1968). In Glezerman, the plaintiff sued an insurance company (Columbian) from which her deceased husband had purchased a life insurance policy. 944 F.2d at 148.4 The policy had lapsed for nonpayment, and Columbian required the policyholder to complete a reinstatement application. Id. at 149. The decedent completed and submitted the application along with the overdue premium, and Columbian denied reinstatement approximately sixty days later. Id. at 154. The plaintiff argued that Columbian had waived formal reinstatement requirements by retaining the overdue premium payment and the reinstatement application for an unreasonable amount of time. Id. We rejected the argument, stating as follows: An insurer has a reasonable amount of time in which to demand proof of insur-ability and then decide whether to reinstate. If the insurer affords the insured a reasonable opportunity in which to comply, the insured’s response is a condition precedent for reinstatement. If these conditions are met, mere payment of the premium is insufficient for reinstatement; the insured must submit evidence of insurability. The only exception is waiver on the part of, or es-toppel against, the insurance company. In the case of Benjamin Glezerman, the Glezermans submitted the application for reinstatement on May 23, 1986. After reviewing the medical records, the application for reinstatement was denied on July 29, 1986. Under Pennsylvania law, for example, the reinstatement provision contemplates the making of a new contract between the parties. The insurance company is not required to reinstate absent evidence of insurability. However, retaining an overdue premium for an extended period of time is evidence that a policy has been reinstated. The benchmark for determining a reasonable period may be a period specified by the insurance contract. In Hogan, the poli713cy gave the insurance company sixty days within which to act, and it did so. The reinstatement provision in the Glez-ermans’ policy did not specify the period in which Columbian had to evaluate the insurability of the applicant. Columbian did respond in just over sixty days, however. There is no evidence in the record that Columbian acted in a dilatory or even lackadaisical manner. We therefore hold that Columbian acted within a reasonable period of time in responding to the Glezermans’ application. Id. at 153-54 (emphasis added). Relying on this passage, the District Court found as a matter of law that JNL had not waived its right to require Boylan to undertake formal reinstatement procedures, and that its month-long retention of the May 19, 2006 premium payment was neither unreasonable nor indicative of a waiver. JA 11-12. We agree. The 2006 Lapse Notice set forth a limited waiver of formal reinstatement requirements, subject to the explicit condition that Boylan pay the premium before April 28, 2006. JA 648. “Otherwise,” it stated, “you will be required to pay additional unpaid premiums plus interest and complete the enclosed Reinstatement Application.” Id. (emphasis added). Finally, the Lapse Notice stated in no uncertain terms that “[ajcceptance of the premium does not reinstate the policy; your policy will remain lapsed and no coverage is provided until this application has been approved by [JNL].” JA 648 (emphasis added). Far from a “clear, unequivocal, and decisive act” evincing JNL’s intent to relinquish the right to require a reinstatement application and proof of insurability, W. Jersey Title & Guaranty Co., 141 A.2d at 787, the 2006 Lapse Notice documented JNL’s affirmative intent to retain the right to demand formal reinstatement procedures if payment was not made before April 28, 2006. Holly attacks the District Court’s application of Glezerman, contending that it erroneously imposed a bright-line rule of reasonableness and that a jury should decide whether retention of the premium was reasonable. We disagree. The District Court stated expressly that “[tjhere is no bright line rule for determining the reasonableness of the time period that a premium has been retained,” and that “the Glezerman court indicated that a more in-depth examination of the circumstances is warranted.” JA 10-11. Indeed, we explained in Glezerman that an insurer’s extended retention of an overdue premium payment was simply “evidence that a policy has been reinstated.” Glezerman, 944 F.2d at 154 (emphasis added). We did not purport categorically to find a waiver for any particular length of time during which an insurer retains an overdue payment; instead, the delay is but a factor bearing on the “intentional-relinquishment” standard set forth by well-settled New Jersey law. Here, JNL placed Boylan on notice time and again that his failure to remit payment before the end of the grace period — and later, before April 28, 2006— would result in a lapsed Policy. In such an event, unless and until a reinstatement application had been completed by Boylan and accepted by JNL, the Policy would be in default and no coverage would be available in the interim. Based on its prior communications to Boylan, therefore, we conclude that JNL did not waive its right to enforce the Policy as written.5 714In any event, we also reject Holly’s argument that JNL’s month-long retention of the overdue premium payment was, in this case, unreasonable (or at least presented a jury question). JNL submitted an affidavit to the District Court explaining that upon receipt of a payment that cannot be applied to a particular policy (including a lapsed policy), it places the funds into a “suspense account” for approximately fifteen days in order to allow the insured to submit documentation (e.g., an explanation for why the payment was submitted, a completed reinstatement application, etc.). JA 573-75.6 After fifteen days, JNL conducts research to determine why the funds were received, and takes appropriate action thereafter. JA 575. Upon review, we find this procedure reasonable and this case indistinguishable from Glezerman.7 Holly argues that JNL could have responded more quickly using its automated policy administration system. We hold, however, that Holly has produced no evidence that JNL “acted in a dilatory or even lackadaisical manner,” Glezerman, 944 F.2d at 154, that its retention of the overdue premium was reasonable as a matter of law, and accordingly that such retention did not result in a waiver of its contractual rights as set forth in the Policy.8 715hi. For the reasons expressed above, we will affirm the judgment of the District Court. . It is undisputed that from 2002 through 2005, Boylan received Payment and Grace Period Notices at the appropriate times. . The check was mailed on June 20, 2006. JA 591. . The District Court had jurisdiction under 28 U.S.C. § 1332(a), and we have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court's grant of summary judgment is plenary, and we apply the same legal standard as it should have. Vitalo v. Cabot Corp., 399 F.3d 536, 542 (3d Cir.2005). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must view the record in the light most favorable to Holly, the non-movant, and must also draw all reasonable inferences in her favor. See Vítalo, 399 F.3d at 542; Fed.R.Civ.P. 56(c). The underlying facts of the case — in which New Jersey substantive law applies, see Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d 229, 243 (3d Cir.2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)) — are not in dispute. . The plaintiff also sued her insurance broker and the policy administrator. The claims against those defendants are not germane here. . Holly argues that "[t]his appeal is not about correspondence that JNL sent before Boylan's electronic funds transfer ('EFT') of May 19, 2006.” Holly Rep. Br. at 1 (emphasis in original). We disagree. One cannot adequately assess JNL's intent (or lack thereof) to relinquish its contractual rights after receiving the overdue premium without resort to the prior communications. That these communi714cations demonstrate unequivocally what JNL's expectations would be in the event that Boylan did not timely submit payment is not a reason to disregard them. . In her reply brief, Holly avers that there is a factual irregularity with respect to JNL’s suspense account protocol. See Holly Rep. Br. at 3. Because the check returning Boylan’s electronic payment was "drawn on a general account and not a trust account,” she says, there is no record evidence that JNL maintained a separate suspense account for payments that could not be posted to a particular policy. Id. Whether or not the funds were actually held in a distinct and dedicated bank account, however, is immaterial to our analysis. The point is that the funds were "suspended” — reasonably, in our view — for fifteen days to allow the insured sufficient time to submit supplemental documentation before JNL took action on the transmitted funds. And there is undisputed record evidence for this proposition. JA 573-75. . The District Court recognized, as do we, that the policyholder in Glezerman had submitted a reinstatement application, whereas here Boylan had not. See Glezerman, 944 F.2d at 149, 154. Holly argues that JNL’s retention of the overdue premium payment sans application is distinguishable from Glez-erman because in this case there was nothing for JNL to review, making the month-long retention of funds unnecessary and therefore unreasonable. We conclude to the contrary. JNL’s stated procedures for retaining funds unaccompanied by a completed reinstatement application are reasonably designed to promote efficiency when a policyholder submits documentation soon after submitting payment. This procedure — even in the absence of any reinstatement application to review — is simply not indicative of an intentional waiver of JNL’s contractual rights, nor do we find it unreasonable. .Holly also argues that we should apply by analogy cases interpreting N.J. Stat. Ann. § 17B:26-7, the statutory provision governing reinstatement of health insurance policies. The District Court rejected this argument, and we do so as well. While the cases Holly cites generally concern the temporal reasonableness of an insurer's response to an insured’s overdue payment and/or reinstatement application, they interpret statutory language not appearing in § 17B:25-9, which is unambiguous and controlling here. The cited cases are irrelevant to the issue of whether JNL intentionally waived the statutorily required reinstatement provision appearing in Boylan’s Policy.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475002/	OPINION OF THE COURT NYGAARD, Circuit Judge. Appellant Mary Whitesell appeals the District Court’s grant of summary judgment in favor of Dobson Communications based on the court’s conclusion that a reasonable jury could not find that Dobson Communications (d/b/a Cellular One) had discriminated against her based on her age under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-34. We will affirm the ruling of the District Court. I. Because we write exclusively for the parties herein, we need not discuss the facts or procedural history of this case. The ADEA prohibits employers from discriminating against individuals in hiring, termination, compensation or conditions of employment on the basis of age. 29 U.S.C. § 623(a)(1). To establish a claim under ADEA, Whitesell must first establish that she is over forty years of age, that she is qualified for the position at issue, that she suffered an adverse employment decision and was replaced by a person whose relative youth creates an inference of job discrimination. Keller v. Orix Credit Alliance Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc). Whitesell has established a prima facie case and Cellular One does not contest this. Likewise, Whitesell does not contest the District Court’s finding that Cellular One has met its burden of producing evidence of a legitimate, nondiscriminatory reason for the adverse action. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 522 (3d Cir.1992). Cellular One presented evidence — not challenged by Whitesell — that Whitesell’s supervisors at Cellular One were dissatisfied with her performance, to the point that Whitesell was at the last stage of Cellular One’s progressive disciplinary system when she was terminated for the failure of her store to reach its sales quotas. As a result, the burden shifted to Whitesell to point to some evidence from which we could reasonably conclude that Cellular One’s articulated legitimate reasons are not believable or that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. Fuentes v. Perskie, *71782 F.3d 759, 764 (3d Cir.1994). This Whitesell has failed to do. We agree with the District Court’s conclusion that White-sell did not produce sufficient evidence of pretext for age discrimination. Therefore, she does not meet her burden and summary judgment is appropriate. II. Whitesell additionally argues that our decision in Makky v. Chertoff, 541 F.3d 205 (3d Cir.2008), which was decided after summary judgment was entered against her in the District Court, rescues her claims of age discrimination. However, we need not determine here whether our holding in Makky applies here. Even were we to apply Makky’s holding to this case, we would affirm the District Court because we cannot find any evidence of discrimination-direct or indirect — on this record. Cellular One followed its disciplinary procedures before terminating Whitesell’s employment. Importantly, Whitesell herself admitted to her poor performance record and sales quotas before the District Court. The District Court did not err in concluding that Whitesell’s age was not a factor in Cellular One’s decision to terminate her employment. III. As a final issue, Whitesell argues that the District Court erred in granting Cellular One summary judgment on her claim of hostile work environment. Assuming such claims can be presented under the ADEA, we agree with the District Court that Whitesell’s case is lacking. As evidence, Whitesell points to remarks made by her supervisor Clark wherein Clark commented that she “needs glasses” and asked whether she remembered older television shows or movies. Clark also apparently turned to Whitesell while they were walking and said “come on, old lady, keep up.” To determine whether the comments were severe or pervasive, we evaluate “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with the employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation marks omitted). Here, the comments were neither physically threatening nor humiliating, and Whitesell has not shown how the comments affected her work performance. See also Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir.2005) (isolated comments about Racicot’s age such that she “shouldn’t be working at [her] age” were not pervasive enough to create an objectively hostile work environment). The District Court did not err in dismissing her hostile work environment claim. IV. Whitesell failed to provide direct or circumstantial evidence of age discrimination sufficient to survive summary judgment. She likewise failed to put forth evidence of a hostile work environment. The judgment of the District Court will be affirmed.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475006/	OPINION OF THE COURT RENDELL, Circuit Judge. Rufus Kirkland became eligible to seek a sentence reduction under 18 U.S.C. § 3582(c)(2) after U.S.S.G. § 2D1.1 was amended to reduce the base offense level for crack cocaine offenses by two levels. Kirkland appeals from the reduced sentence imposed by the District Court after granting Kirkland’s § 3582(c)(2) motion. Kirkland’s original guideline range was 151 to 188 months and his original sentence was 168 months. The District Court granted Kirkland’s motion for a sentence reduction, reduced his sentence by 22 months, and re-sentenced him to 146 *726months imprisonment based on a new guideline range of 130 to 162 months. In Kirkland’s motion for a reduction of sentence he asked the District Court to impose a sentence of 120 months, the minimum possible statutory sentence, based on the policy reasons that resulted in the amendment to § 2D1.1, the Supreme Court’s rationale in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 568-69, 169 L.Ed.2d 481 (2007), and Kirkland’s behavior while incarcerated. The District Court granted Kirkland’s motion and imposed the new sentence without holding a hearing and without explaining its rationale for re-sentencing. On appeal, Kirkland argues that, in so doing, the District Court abused its discretion and that his sentence was procedurally and substantively unreasonable. Both parties agree that our jurisdiction in this case is governed by 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Under 18 U.S.C. § 3582(c)(2), a court may reduce a defendant’s term of imprisonment if the original sentence was based on a sentencing range that was lowered by the Sentencing Commission after considering the § 3553(a) factors and any relevant policy statements of the Sentencing Commission. Though the decision to grant a defendant’s motion for a re-sentencing under § 3582(c)(2) is discretionary, if granted, the resulting sentence is reviewed under the same standard as the initial sentence— for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)1. An unreasonable sentence is a sentence imposed in violation of the law under 18 U.S.C. § 3742(a)(1). United States v. Cooper, 437 F.3d 324, 327 (3d Cir.2006). Although it may be better practice for a District Court to explain its rationale for a new sentence under § 3582(c)(2), it is not error for a District Court to not offer this explanation when the original sentence fell at the midpoint of the guideline range and the new sentence likewise falls at the midpoint of the new guideline range2. We will assume that the District Court’s analysis of the § 3553(a) factors at Kirkland’s original sentencing was unchanged and therefore the court felt no need to reiterate its original explanation. Kirkland’s revised sentence was both procedurally and substantively reasonable. For the reasons set forth above, we will affirm the District Court’s order re-sentencing Kirkland. . We disagree with the government's position that the discretionary nature of the District Court's ruling on the motion somehow renders the sentence thereafter imposed 'discretionary' and not reviewable. . The original sentence was 17 months above the lower end of the guideline range and 20 months below the top. The reduced sentence was 16 months above the lower end and 17 months below the top.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475008/	OPINION COWEN, Circuit Judge. Keith Crawford, Jr. and Vicki Crawford appeal the order of the District Court granting summary judgment in favor of Washington County Children and Youth 728Services (“CYS”), CYS caseworkers, and CYS officers (collectively, “Appellees”). We will affirm. I. BACKGROUND Appellants are the parents of a minor child, K.C. In October 2000, CYS received a call from the North Franklin Police Department indicating that K.C., who was wandering alone near a McDonald’s Restaurant, might be the victim of child abuse. The police observed that, despite the cold weather, K.C. was barefoot and dressed in shorts and a t-shirt. The police took K.C. into their custody and CYS initiated an investigation into his circumstances. CYS learned that K.C. had no formal education, had no immunizations, and was living in unsanitary conditions. CYS removed K.C. from his home. In August 2002, K.C. informed his foster parents that he suffered sexual abuse at the hands of his parents. In particular, he stated that his parents had licked and touched his genitalia regularly. Additionally, he alleged that his father made him watch his mother and aunt engaged in sexual acts through a hole in the wall several times. CYS interviewed his foster parents and observed his behavior in their home, which was consistent with allegations of abuse. CYS had K.C. meet with several psychiatrists and counselors to determine whether he exhibited the signs of sexual abuse. Each specialist concluded that his allegations were credible. Upon completion of their investigation, CYS filed a Petition for Involuntary Termination of Parental Rights. The court granted CYS’s petition on January 14, 2004 and the Superior Court of Pennsylvania affirmed. In 2004 the Department of Public Welfare issued an order adding Appellants names to ChildLine Registry, a registry of sex offenders. On November 18, 2004, the Commonwealth Court of Pennsylvania affirmed that order. On November 15, 2007, a hearing was conducted in the Court of Common Pleas in response to a complaint filed by CYS. Vicki Crawford learned that K.C. was residing at a local shelter and contacted the shelter, pretending to be K.C.’s grandmother. K.C. testified that his grandmother was deceased, but that he answered the phone call nonetheless. When K.C. answered, he realized that it was his mother and terminated the call. The court denied CYS’s request for a protective order, but admonished Appellants to refrain from contacting K.C. On December 22, 2006, Appellants filed the instant action against Appellees, alleging claims under 42 U.S.C. § 1985, 42 U.S.C. § 1983, the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 675(5)(D), (E), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, resulting from Appellees’ investigation and the resulting termination of Appellants’ parental rights. Appellees moved to dismiss, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted Appellees’ motion with respect to each of Appellants’ claims, except for their claim arising under Section 1983. With respect to that claim, the district court permitted the parties to proceed to discovery to develop the merits and to determine whether any facts supported equitable tolling of the statute of limitations. At the conclusion of discovery, Appellees moved for summary judgment asserting that Appellants failed to establish a claim under Section 1983 and that any such claim would be time-barred under the statute of limitations. The district court granted Appellees’ motion on both grounds. Appellants’ appeal from this order is now before this court. 729II. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. §§ 1831 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. “The standard of review applicable to the District Court’s order granting summary judgment is plenary.” Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir.2005). We must apply the same test employed by the District Court under Rule 56(c) of the Federal Rules of Civil Procedure. Id. III. DISCUSSION A. Timeliness The statute of limitations for claims arising under Section 1983 is two years. See Cowell v. Palmer Township, 263 F.3d 286, 291 (3d Cir.2001) (citing Sameric Corp. of Delaware v. City of Phila., 142 F.3d 582, 599 (3d Cir.1998)). Any claims filed outside this period are untimely. “A section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based.” Sameric Corp., 142 F.3d at 599. There is, however, an equitable exception to the timeliness requirement. “[W]hen a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Cowell, 263 F.3d at 292 (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991)). This exception is known as the “continuing violations doctrine.” Id. The district court properly concluded that Appellants’ claim was barred by the statute of limitations. CYS removed K.C. from Appellants’ home in October of 2000. At that time, Appellants denied the charges of neglect alleged by CYS. In August 2002, CYS initiated its sex-abuse investigation, ultimately determining that the evidence supported K.C.’s allegations. CYS then sought to permanently terminate Appellants’ parental rights, a result accomplished by January 2004. Throughout the sex-abuse investigation, Appellants maintained their innocence. From the removal to the termination of their parental rights, Appellants had the facts necessary to assert their Section 1983 claim and failed to do so until December 22, 2006. Their claim is untimely. The district court properly rejected Appellants’ request for equitable tolling under the continuing violations doctrine. Appellants contend that CYS’s application in 2007 for a protective order following their telephone call to KC.’s shelter indicates that CYS continued to engage in a practice of unlawful harassment and that prior conduct, including CYS’s investigation and termination of parental rights, should be deemed to fall within this continuing practice as timely. There is no support for this argument. Appellants’ claims arise out of CYS’s investigation and termination of Appellants’ parental rights. CYS completed its investigation in 2002, and a court terminated Appellants’ parental rights in January 2004. The 2007 complaint had nothing to do with the investigation and whether Appellants should retain their parental rights. The 2007 complaint is an effect of the earlier obtained order terminating parental rights; however, “a continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.” Cowell, 263 F.3d at 293 (quoting Ocean Acres Ltd. v. Dare County Bd. of Health, 707 F.2d 103, 106 (4th Cir.1983)). Moreover, not only is CYS’s 2007 complaint unrelated to its earlier, allegedly unlawful conduct, the 2007 complaint is the direct result of Appellants’ actions. Had *730KC.’s mother not contacted K.C.’s shelter, pretending to be his grandmother, CYS would not have initiated the 2007 complaint. Appellants’ claims do not fall under this equitable exception. B. Merits Under Section 1983, “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...” 42 U.S.C. § 1983. To establish a claim under Section 1983, a plaintiff must demonstrate “a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). This circuit has recognized “constitutionally protected liberty interests that parents have in the custody, care and management of their children.” Croft v. Westmoreland County CYS, 103 F.3d 1123, 1125 (3d Cir.1997) (citing Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)). However, this liberty interest is not absolute. “The right to familial integrity, in other words, does not include a right to remain free from child abuse investigations.” Id. Thus, courts “must balance the fundamental liberty interests of the family unit with the compelling interests of the state in protecting children from abuse.” Id. A social worker’s decision or conduct constitutes a substantive due process violation only when it is “so clearly arbitrary” that it “can properly be said to shock the conscience.” Miller v. City of Phila., 174 F.3d 368, 376 (3d Cir.1999). The district court properly granted summary judgment for Appellees on Appellants’ substantive due process claim. The gist of the claim is that Appellees failed to properly evaluate K.C.’s recantation of sexual abuse. As the district court explained, Appellants presented no evidence in support of this assertion. On the other hand, Appellees presented evaluations of K.C. from several specialists, ail of whom concluded that his original allegations were credible, in support of their application for termination of parental rights and in listing Appellants on the ChildLine Registry. Further, Appellants presented no evidence demonstrating that CYS social workers perjured themselves during their investigation of K.C.’s case, other than their bald assertions. Appellants also claim that the state improperly concluded that K.C.’s family home was sufficiently deficient to merit termination of their parental rights. Evidence in the record establishes that Appellants failed to provide schooling, basic medical care, such as vaccines, sanitary housing, and appropriate supervision. Bald assertions to the contrary are insufficient to defeat a motion for summary judgment. Finally, the district court properly concluded that, to the extent that Appellants appear to raise claims on behalf of K.C., they lack standing to assert such claims as their parental rights were severed. IV. CONCLUSION We will affirm the grant of summary judgment.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475012/	OPINION OF THE COURT RENDELL, Circuit Judge. Plaintiff Donald Picaño brought this case under 42 U.S.C. § 1983 against the Borough of Emerson, New Jersey, where he resides, and against the Borough administrator, Joseph Scarpa (in his official and individual capacities). Picaño alleged that defendants violated his constitutional rights when the Borough enacted and enforced an ordinance requiring residents to pay their property taxes by check or money order, rather than in cash. The District Court granted defendants’ motion for summary judgment as to this claim. Plaintiff filed this timely appeal. We will affirm the order of the District Court. Background In February or March 2007, the Borough adopted a policy requiring its residents to pay property taxes by check or money order, rather than in cash. The policy was motivated, at least in part, by an incident in a nearby township in which a tax collector had embezzled cash payments of taxes. Plaintiff and other residents of the Borough were notified of the new policy in writing. Nonetheless, in May 2007, plaintiff visited the Borough’s Tax Office, tried to pay his taxes in cash, and was refused. Plaintiff subsequently refused to pay his taxes but, at least as of the time of the District Court’s decision in June 2008, the Borough had not attempted to enforce a tax lien against plaintiffs property. Plaintiff instituted this litigation and defendants moved for summary judgment. The District Court granted the motion. With respect to Picano’s claim that defendants violated his “substantive due process right to pay his taxes with United States currency,” App. 5, the District Court held that the ordinance was permissible as long as the Borough continued to accept other forms of U.S. currency, such as checks. The District Court also granted summary judgment to defendants on one of the three other causes of action asserted in the complaint, and Picaño voluntarily dismissed the remaining two. On appeal, Picaño does not challenge the dismissal of these three causes of action. Discussion The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. Our review of a grant of summary judgment is plenary. Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008). “[W]e assess the record using the same summary judgment standard *735that guides the district courts.” Id. Thus, defendants must demonstrate that “there is no genuine issue as to any material fact and that [they are] entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The complaint characterizes plaintiffs claim as a constitutional violation of his right to substantive due process. On appeal, however, plaintiff appears to have abandoned this constitutional claim in favor of a statutory claim based on 31 U.S.C. § 5103. Plaintiff argues that this claim is enforceable under 42 U.S.C. § 1983. Plaintiffs arguments have no merit. As an initial matter, plaintiff appears to have waived all of his claims. Plaintiff has offered absolutely no argument on appeal regarding his constitutional claim. With respect to his newly asserted statutory argument, plaintiff himself concedes that he did not raise this argument in the District Court. Even addressing the merits of plaintiffs claims, he has cited no authority, and we have found none, for the proposition that there is a substantive due process right to pay one’s taxes in cash. We have held that “a legislative act will withstand substantive due process challenge if the government identifies a legitimate state interest that the legislature could rationally conclude was served by the statute.” Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir.2000) (citations and internal quotation marks omitted). The ordinance here was justified by the Borough’s legitimate interest in protecting tax revenues from embezzlement. Nor can plaintiff assert a claim under § 1983 for a violation of 31 U.S.C. § 5103. “[T]o sustain a § 1983 action for the violation of a statutory right, a plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs.” A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 801 (3d Cir.2007). Plaintiff has not even attempted to show that § 5103 creates such a right or that he should benefit from it, and we do not believe that he could make such a showing. Finally, there is no basis for concluding that defendants violated 31 U.S.C. § 5103. Section 5103 provides that “United States coins and currency ... are legal tender for all debts, public charges, taxes, and dues.” None of the cases cited by plaintiff stands for the proposition that § 5103 requires a local government (or any other entity) to accept payment in cash, and no court has so held. We will therefore affirm the order of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475014/	737OPINION OF THE COURT CHAGARES, Circuit Judge. In these consolidated appeals, Robert Nunez Tejada (“Robert”) and Juan Nunez Tejada (“Juan”) challenge their within-Guidelines prison sentences for illegally reentering the United States after having been deported for committing an aggravated felony. Robert and Juan argue that the District Court erred by refusing to grant them downward departures and variances based on mitigating circumstances. We disagree and will affirm. I. We write for the parties’ benefit and set forth only those facts necessary to resolve the appeals. On May 24,1990, Robert and his brother Juan were arrested by state authorities in Middlesex County, New Jersey, for possession with intent to distribute cocaine within 1,000 feet of a school. On April 22,1991, while awaiting disposition of these charges, Robert and Juan were arrested again in Middlesex County and charged with leading a narcotics trafficking network. On August 28, 1991, Robert was sentenced in state court to three years of imprisonment on the first charge, to run concurrently with a twelve-year sentence on the second charge. The same day, Juan was sentenced to four years of imprisonment on the first charge, to run concurrently with a ten-year sentence on the second charge. The two were later released on parole — Robert on October 23, 1995, Juan on November 2, 1994 — and were thereafter removed from the United States. On October 23, 2007, Immigration and Customs Enforcement agents arrested Robert and Juan at a liquor store in Elizabeth, New Jersey. On January 24, 2008, they pleaded guilty in the District Court to one-count informations charging them with illegal reentry to the United States after having been removed for commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). The United States Probation Office prepared a Pre-Sentence Report (“PSR”) for both defendants, which calculated total offense levels of 21 and criminal history categories of III. Those calculations — which included three-level downward adjustments for acceptance of responsibility — set the applicable sentencing ranges at 46-57 months of imprisonment. On October 7, 2008, the District Court held back-to-back sentencing hearings for Robert and Juan, and adopted the PSRs without objection. It considered the factors set forth in 18 U.S.C. § 3553(a), rejected the defendants’ requests for downward departures and variances, and imposed within-Guidelines sentences of 50 months of imprisonment.1 These appeals followed, and were consolidated upon a motion by the Government.2 II. District courts in this Circuit must follow a three-step sentencing procedure. 738First, they must calculate a defendant’s Guidelines sentence precisely as they would have before United States v. Booker, 548 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). Second, they must formally rule on the motions of both parties, state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. Id. Third, they are required to exercise their discretion by considering the relevant factors set forth in 18 U.S.C. § 3553(a) when selecting an appropriate sentence, irrespective of whether the sentence varies from the applicable Guidelines range. Id. Robert and Juan do not challenge the District Court’s Guidelines calculation at step one. Instead, they argue that the District Court erred at step two by refusing to grant them a downward departure based on the “totality of things” — in essence, their attempts to cooperate with the Government and their extenuating family circumstances. Appendix (“App.”) 3. The District Court considered the motions, but chose not to grant departures. It concluded that although 18 U.S.C. § 3553(b) permitted it to depart from the Guidelines range upon aggravating or mitigating circumstances not adequately taken into consideration by the United States Sentencing Commission, no such circumstances existed in this case. App. 4-5, 14-15. We lack jurisdiction to review the District Court’s considered decision not to depart downward. United States v. Vargas, 477 F.3d 94, 103 (3d Cir.2007); United States v. Cooper, 437 F.3d 324, 333 (3d Cir.2006). Robert and Juan also argue that the District Court failed adequately to consider their individual circumstances in fashioning appropriate sentences at step three. “To be procedurally reasonable, a sentence must reflect a district court’s meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a).” United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007); see also Tomko, 562 F.3d at 568. “[Ajfter giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party ... [and] make an individualized assessment based on the facts presented.” Gall, 552 U.S. at 49-50, 128 S.Ct. 586. The court “should set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decision-making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). “There are no magic words that a district judge must invoke when sentencing, but the record should demonstrate that the court considered the § 3553(a) factors and any sentencing grounds properly raised by the parties which have recognized legal merit and factual support in the record.” Cooper, 437 F.3d at 332. Robert and Juan emphasize that upon reentering the United States, they led law-abiding lives for several years, raised and supported dependent families while doing so, attempted to cooperate with the Government upon apprehension, and have unequivocally accepted responsibility for their illegal reentry. App. 2-4, 6-8, 15. The District Court considered these arguments, but found them inadequate to warrant below-Guidelines sentences. After listing the § 3553(a) factors to be considered, the District Court stated as follows with respect to Robert: [T]his Court takes into account the fact that Mr. Tejada is not new to federal law enforcement. After all, this case began with a felony conviction for being 739involved in a drug trafficking network in 1991 That is the predicate for the deportation that occurred after the serving of a sentence issued in August of 1991. Now, we can not underestimate the effect of coming into the country illegally. There is a purpose for the deportation policies set by our legislature, and that purpose is that persons who are not citizens of the United States who commit felonies should not enjoy the benefits and privileges of living in our [e]oun-try. They should not be here. So, the fact that Mr. Robert Nunez Te-jada lived ... in anonymity and was otherwise law abiding, is of no consequence to this Court. Mr. Robert Nunez Tejada should not have been in the United States. It matters not to this Court, nor the law, that his family was here. He committed a felony offense, and ... he had two felony offenses other than the instant offense. The bottom line is, looking at his history and the characteristics and the nature and circumstances of this offense, a sentence outside of the guidelines would be untenable.... The other important factor that this Court takes into account in arriving at the appropriate sentence is an adequate deterrence to criminal conduct. There should not be a view by those who would act similarly that our government is not serious about the crime of illegal reentry. When felons are convicted and they reenter the United States, they will be charged and they’ll serve a sentence before they are deported. And it is that fact, that certainty, that will indeed provide a deterrent effect, and my sentence will reflect that certainty. There are always casualties with regard to criminal conduct, and Mr. Nunez Te-jada should have thought of his family. They, unfortunately, will suffer from his absence here, and he once again, at the end of this sentence, will be deported.... App. 9-11. The District Court then imposed upon Robert a 50-month sentence. App. 11. With respect to Juan, after again discussing the § 3553(a) factors generally, the District Court stated as follows: Like his brother, Mr. Juan Nunez Teja-da has two felony convictions, one of which in 1991 reflected that he was the leader of a narcotics trafficking network, which led to his deportation, which leads us to the instance offense, illegal entry in 1995. In my humble opinion, it matters not that he, too, apparently led an otherwise law-abiding life, because the predicate to his existence in the United States was breaking the law. The seriousness of the offense and providing just punishment for the offense must include an element of deterrence, and that element is a substantial jail sentence, because it is clear that with regard to Mr. Juan Nunez Tejada, that he came back to the United States, it looks like within a mere five months from the time of the end of his 1991 sentence. So, it is important for this defendant, and others like [him who] are similarly situated, to understand that it is an imperative of the Court that those similarly situated be put in the position of serving a substantial jail sentence. Now, with regard to [§ ] 3553(a)(6), that statutory section would require this Court to mete out a similar sentence as was meted out to Robert Nunez Tejada, particularly given the fact that each brother has two felony convictions, each ... has pled here to illegal reentry and there are other factors that would make them appear to be almost identical for 740consideration of the appropriate sentence in this matter. App. 18-19. Accordingly, the District Court imposed a sentence of 50 months upon Juan as well. App. 20. The record demonstrates that the District Court appropriately considered the relevant § 3558(a) factors in imposing sentence upon Robert and Juan. The court specifically addressed the nature and circumstances of the offense, as well as the defendants’ backgrounds, criminal histories, family circumstances, and apparent compliance with the law since returning to the United States. Rejecting their mitigation arguments, the District Court underscored the seriousness of illegally reentering the United States after having been deported for committing an aggravated felony, the need for just punishment and general deterrence, and the need to avoid unwarranted sentencing disparities among similarly situated defendants. The District Court’s discussion also squarely addressed the arguments advanced by the defendants in support of a variance. We find no cause to disturb the District Court’s reasoned analysis. Finally, we conclude that the sentences the District Court selected — falling in the middle of the applicable Guidelines range — are substantively reasonable. See Tomlco, 562 F.3d at 568 (“[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.”); Cooper, 437 F.3d at 330-31 (“While we review for reasonableness whether a sentence lies-within or outside the applicable guidelines range ... it is less likely that a within-guidelines sentence, as opposed to an outside-guidelines sentence, will be unreasonable.”). III. For the foregoing reasons, we will affirm the sentences imposed by the District Court. . Although the sentencing hearings were conducted independently, counsel for Robert and Juan made identical arguments to the District Court in support of downward departures and variances. Unless stated otherwise, our references to counsel's arguments apply to both defendants. . 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. We review the sentences imposed for reasonableness under an abuse-of-discretion standard. In so doing, we must assure ourselves that the District Court committed no significant procedural error and that the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (en banc). Robert and Juan bear the burden of demonstrating procedural or substantive unreasonableness, Tomko, 562 F.3d at 567, and our review is "highly deferential.” United States v. Bungar, 478 F.3d 540, 543 (3d Cir.2007).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475016/	OPINION AMBRO, Circuit Judge. Shawn Shimp was convicted in the Middle District of Pennsylvania of conspiracy to commit bank robbery and sentenced to 60 months’ imprisonment. He now appeals that sentence as procedurally and substantively unreasonable. We affirm.1 I. On November 18, 2005, Shawn Shimp and Kenneth Harpster entered Susquehanna Bank and Trust in Beavertown, Pennsylvania. Armed with a pistol and a sawed-off shotgun, Shimp and Harpster forced the bank’s customers and employees to the ground. The men left the bank with $5,426.21 and escaped in a truck driven by Shawn Sassaman. Shimp was charged with armed bank robbery (in violation of 18 U.S.C. § 2113(d)); conspiracy to commit bank robbery, possess a firearm with an obliterated serial number, and possess a sawed-off shotgun (in violation of 18 U.S.C. § 371); and possession of a firearm in furtherance of a crime of violence (in violation of 18 U.S.C. § 924(c)(1)(A)). He entered into a cooperation plea agreement with the Government and identified Sassa-man and Harpster as his co-conspirators. Shimp also disclosed his involvement in another unsolved attempted robbery that occurred in December 2005. In return for his cooperation, the Government agreed to (1) move to dismiss the possession of a firearm in furtherance of a crime of vio742lence and armed bank robbery counts, and (2) move for a downward departure pursuant to U.S.S.G. § 5K1.1. With an offense level of 29 and a criminal history category of I, Shimp’s Guidelines range of imprisonment would have been 87 to 108 months. Because conspiracy carries a maximum penalty of five years’ imprisonment, however, the Guidelines sentence was 60 months. U.S.S.G. § 5Gl.l(a). Prior to sentencing, the District Court granted the Government’s motion for a downward departure and departed by six levels. As a result, Shimp’s adjusted Guidelines range was 33 to 41 months’ imprisonment. At sentencing, the Government recommended a sentence within the Guidelines, range. Shimp moved for a downward variance in light of his various mental health issues2 and his substantial cooperation with the Government. The District Court denied Shimp’s motion for a downward variance and imposed the statutory maximum of 60 months’ imprisonment (i.e., an upward variance of 19 months). II. “Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). Our review proceeds in two stages. First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we consider the totality of the circumstances to determine whether the sentence is substantively reasonable. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568. A sentence within the advisory Guidelines range is more likely to be reasonable than one outside the Guidelines range. United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006). We may not, however, “presume that a sentence is unreasonable simply because it falls outside the” Guidelines range. Tomko, 562 F.3d at 567. Rather, “[wjhere ... a district court decides to vary from the Guidelines’ recommendations, we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. at 561 (quoting Gall, 552 U.S. at 51,128 S.Ct. 586). III. Shimp first argues that the District Court misapplied § 3553(a)(6), which directs sentencing courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” He asserts the District Court misapplied this factor in two ways: first, by considering the sentence of 60 months’ imprisonment that his co-defendant Harpster received; and second, by regarding Harpster and him as “similarly situated” while failing to take into account his cooperation (compared to Harpster’s lack of cooperation) as a circumstance war743ranting a disparity between their sentences. We disagree. Although the “primary goal ... [of] § 3553(a)(6) [is] to promote national uniformity in sentencing rather than uniformity among co-defendants in the same case,” district courts are not prohibited from considering sentencing disparities among co-defendants. United States v. Parker, 462 F.3d 273, 277 (3d Cir.2006). Rather, “[w]here appropriate to the circumstances of a given case, a sentencing court may reasonably consider sentencing disparity of co-defendants in its application of [the § 3553(a) ] factors.” Id. at 278 (citing Koon v. United States, 518 U.S. 81, 109, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). We believe the District Court reasonably considered the sentence imposed on Harpster in reaching Shimp’s sentence. Contrary to Shimp’s assertion — and as evidenced by the Court’s six-level downward departure — it did not fail to take into account Shimp’s substantial cooperation as a circumstance potentially warranting a sentence disparity. Although the Court noted that Shimp and Harpster had “engaged in similar conduct and had ... similar criminal record[s],” it also found that Shimp was “the prime mover of the conspiracy.” It emphasized that Shimp had organized the bank robbery — a crime that “involved substantial planning and organizing” — and had “obtained the clothing, zip strips to bind customers and employees of the bank, weapons and the vehicle.” The record confirms that Shimp’s role as the organizer and leader of the conspiracy, as distinguished from the role of Harpster, was the primary basis for the Court’s consideration of the disparity between Harpster’s sentence and Shimp’s Guidelines range. Accordingly, we do not believe the District Court committed procedural error by considering the sentence imposed on Harp-ster. Shimp next argues that the District Court inappropriately emphasized the favorable nature of the plea agreement he received, which, according to Shimp, is a “concept” that is not “encomp[assed]” by any of the § 3553(a) factors. During sentencing, the Court noted that Shimp had “received the benefit of an extremely favorable plea agreement,” without which Shimp would have faced a seven-year mandatory minimum and consecutive sentence for brandishing a firearm in furtherance of a crime of violence. See 18 U.S.C. § 924(c)(l)(A)(ii). Shimp appears to suggest that the Court imposed an upward variance to account for what it viewed as an unjustifiably favorable plea agreement. The Court’s references to the “extremely favorable” nature of Shimp’s plea agreement were made in the broader context of describing the nature and circumstances of Shimp’s offense. See 18 U.S.C. § 3553(a)(1). In noting that brandishing a firearm in furtherance of a crime of violence carries a significant mandatory minimum sentence, the Court sought to emphasize the seriousness of Shimp’s underlying conduct. Cf. United States. v. Baird, 109 F.3d 856, 869 (3d Cir.1997) (holding, pre-Boolcer, that sentencing courts may consider conduct underlying counts dismissed pursuant to a plea agreement in determining whether to depart from the Guidelines range). Accordingly, we discern no procedural error. We also do not believe the District Court committed procedural error by failing to discuss certain of the § 3553(a) factors, including § 3553(a)(2)(D) (the need for the sentence imposed “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment”) and § 3553(a)(7) (“the need to provide restitution to any victims of the offense”). See Cooper, 437 744F.3d at 329 (a district court does not have to “discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing”). Although Shimp argued in his sentencing memorandum that a sentence below the Guidelines range was warranted because a longer term of imprisonment would delay any meaningful restitution payments, the District Court stated that it had “thoroughly reviewed” that submission. Because the record as a whole confirms that the Court considered Shimp’s arguments and explained the reasons for its sentence, its failure to discuss specifically Shimp’s restitution argument does not make the sentence procedurally unreasonable. See Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (explaining that a brief statement of reasons can be sufficient where a district court is presented with “straightforward, conceptually simple arguments”). Our review of the record otherwise confirms that the District Court gave “rational and meaningful” consideration to the other relevant § 3553(a) factors. United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc). It gave a lengthy “statement of reasons for the sentence to be imposed,” in which it emphasized Shimp’s leading role in planning and organizing the bank robbery, his participation in an attempted bank robbery a mere five weeks later, and Shimp’s violations of the conditions of his pretrial release, which included testing positive for marijuana on two occasions. In light of these circumstances, the District Court concluded there was “a strong need to deter the defendant and persons similarly situated.” The District Court’s explanation was sufficient to justify the sentence it imposed.3 We conclude, therefore, that the sentence is procedurally sound. Having determined that the District Court committed no procedural errors, “we will affirm unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568. That is not the case here. * * * * For these reasons, we affirm Shimp’s sentence. . 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(a)(1). “The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). . Prior to sentencing, Shimp moved for a downward departure based on his alleged diminished capacity. U.S.S.G. § 5K2.13. The District Court denied that motion. . For these reasons, we cannot agree with Shimp's characterization of the District Court’s sentencing explanation as a mere "rote statement” of the § 3553(a) factors. Compare United States v. Sevilla, 541 F.3d 226, 229 (3d Cir.2008) (district court simply stated, ”[s]o having considered all of the [§ ] 3553(a) factors and the treatment of the co-defendants in the case, I’m going to accept the Government's recommendation and sentence the defendant ... to 72 months") (second alteration in original).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475018/	OPINION PER CURIAM. Petitioner Fredy seeks review of a final order of removal. For the reasons that follow, we will deny the petition for review. I. Fredy is a native and citizen of Indonesia and an ethnic Chinese Christian. He entered the United States in June 2005 on an F-l student visa to study at a school in Washington, D.C. He filed his 1-589 asylum application within the one-year time period. At a hearing before an Immigration Judge (“U”) in New Jersey, Fredy conceded removability and, in addition to asylum, sought withholding of removal and relief under the Convention Against Torture (“CAT”). Fredy testified that he had been persecuted in Indonesia because of his ethnicity and religion. Specifically, he testified that he experienced harassment and abuse from classmates throughout his childhood. (A.R.187) (“Sometimes they threw rocks at me. When I was in fourth grade, I was beaten up ... When I was [in] sixth grade, I was beaten up right in front of school”). He testified that he had to pay higher tuition for junior high school because he was Chinese, and that classmates would extort money from him. (A.R.189.) Fredy testified that he was beaten by a mob during the 1998 anti-Chinese riots. As they were beating him, the rioters “were screaming Chinese, Chinese, Chinese.” (A.R.191.) Fredy testified that in September 2004, he was riding home from college on a bus when he was pulled off the bus, beaten and robbed. (A.R.183-84.) One of the assailants directed an ethnic slur at him. Fredy went to the police station and filed a report. He testified that he also went to see a doctor after going to the police, and that 746“the doctor said there was no serious injury.” (A.R.186.) Finally, Fredy testified that the Christian church he attended received arson threats, and that before departing for the United States he heard “that it was not safe to go to church service anymore.” (A.R.194,197.) The IJ generally found Fredy to be credible, though he had concerns about Fredy’s testimony concerning the 2004 robbery. Nonetheless, the IJ determined that Fredy’s history of abuse did not rise to the level of persecution, and that he did not have a well-founded fear of future persecution. The IJ thus held that Fredy was ineligible for asylum and withholding of removal. The IJ also held that Fredy had failed to establish eligibility for CAT relief. Fredy was, however, granted voluntary departure. On appeal, Fredy challenged only the IJ’s holding that he was not entitled to asylum. The Board of Immigration Appeals (“BIA”) dismissed the appeal. It agreed with the IJ that Fredy had not shown past persecution, as “[h]e was not severely harmed and the incidents he relates appear to be related to criminal behavior or harassment and discrimination.” (A.R.3.) On the issue of future persecution, the BIA concluded that although “there are still problems related to differences in religion or ethnicity, there is not sufficient evidence of a pattern of practice by the Government or a group the Government is unable or unwilling to control.” (A.R.3.) The BIA also concluded that Fredy had failed to meet “his burden for CAT protection, as the record does not establish that it is more likely than not that he will be subject to torture upon return to Indonesia by or with the acquiescence of the government.” (A.R.3.) Fredy then filed this petition for review. II. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001).1 “[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 decisions of both the IJ and BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). III. The central claim advanced in Fredy’s brief is that “[t]he incidents and attacks 747suffered by petitioner!, by themselves or] considered in the aggregate!,] do rise to the level of persecution” for purposes of meeting the asylum standard. (Pet. Br. at 5.)2 To obtain asylum as a refugee, Fredy must show that he “is unable or unwilling to return to [his country of nationality] ... because of persecution or a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42). “In order to establish persecution, an applicant must ‘show past or potential harm rising to the level of persecution on account of a statutorily enumerated ground that is committed by the government or by forces the government is unable or unwilling to control.’ ” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.2007) (quotation omitted). Race, religion and nationality are all privileged grounds. See 8 U.S.C. § 1101(a)(42)(A). We agree with both the IJ and BIA that Fredy does not meet the asylum standard. Even presuming the veracity of Fredy’s entire testimony, the incidents of physical and verbal abuse as he describes them, whether standing alone or in the aggregate, do not rise to the level of persecution. See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (“persecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom’ ”) (quotation omitted); see also Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.2008); Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (holding that ethnic Chinese Indonesian’s “account of two isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft of some personal property and a minor injury, is not sufficiently severe to be considered persecution”). But even if they did rise to the level of persecution, there is insufficient evidence to demonstrate that the incidents described by Fredy were perpetrated by “forces the government is unable or unwilling to control.” Valdiviezo-Galdamez, 502 F.3d at 288; see Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir.2001) (“[m]ere generalized lawlessness and violence between diverse populations ... generally is not sufficient o permit the Attorney General to grant asylum ... ”). Contrary to Fredy’s assertions, the post-Lie background materials incorporated into the record (A.R.231-71, 275-304), which vary greatly in terms of relevance, do not affect this conclusion. Accordingly, we will deny the petition for review. Fredy’s motion to expand the record is denied. . The Government argues that we lack jurisdiction over any claims by Fredy regarding withholding of removal and CAT relief because he failed to raise them before the BIA. While an alien must "raise or exhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or she is to preserve the right of judicial review of that claim,” Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir.2009), it is also true that our exercise of jurisdiction over a particular claim is unhindered when the BIA considers that claim sua sponte. See Lin v. Att'y Gen., 543 F.3d 114, 123-25 (3d Cir.2008). The BIA expressly considered Fredy's eligibility for asylum, withholding of removal and deferral of removal under the CAT. (A.R.2-3.) Therefore, we would ordinarily retain jurisdiction over claims alleging general entitlement to those forms of relief. Nevertheless, the Government is correct that Fredy's failure to raise issues concerning withholding of removal and CAT relief in his opening brief in this Court constitutes a waiver of those issues. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004). . Fredy advances two subsidiary claims as well: the first accuses the IJ of applying the wrong standard for assessing his asylum claim (Pet. Br. at 4-7), and the second suggests that we should only review the IJ's opinion because the BIA’s decision "merely reflects the judgment of the Immigration Judge and does not provide any analysis of his opinion.” (Pet. Br. at 8.) Both claims are wholly without merit; the IJ did not use the wrong asylum standard (A.R. 109-111) and, for the reason set forth above, we review both the IJ and BIA decisions.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475020/	OPINION PER CURIAM. Petitioner Ramon Virgilio Lopez Perez, a native and citizen of the Dominican Republic, petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny the petition for review. I. Lopez Perez entered the United States without inspection in the 1980s and at some point obtained lawful temporary permanent resident status. In 1990, he was convicted under New York law of second degree criminal sale of cocaine, for which he was sentenced to six-years-to-life in prison. In 2006, he was convicted of third degree attempted criminal sale of cocaine and was sentenced to two years in prison. He pleaded guilty to the 2006 charge and asserts that in exchange for a lenient sentence recommendation and for “protection,” he provided the prosecutor with information about the drug dealing organization with which he was involved. Lopez Perez believes that because of the information he provided to the government, the leader of the drug organization 749returned to the Dominican Republic to avoid arrest. Upon completion of his criminal sentence, Lopez Perez was taken into custody by immigration officials. An Immigration Judge (“IJ”) found Lopez Perez to be removable as a drug trafficker and for violating a state law relating to a controlled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) and (C). The IJ then determined that he was ineligible for cancellation of removal, adjustment of status, asylum, withholding of removal, and that he did not qualify for relief under the United Nations Convention Against Torture (“CAT”). On November 26, 2007, the BIA sustained in part Lopez Perez’s appeal, finding that the IJ erred in denying the CAT claim because Lopez Perez did not have an opportunity to formally apply for such relief. On remand, the IJ conducted a hearing regarding Lopez Perez’s CAT claim, which was based on his fear that he would be harmed in the Dominican Republic because he had cooperated with New York authorities by providing information about the drug dealers for whom he worked.1 He testified that in 2007 his mother (who lived in New York) received a telephone call from a man who stated that if Lopez Perez returned to the Dominican Republic, his body would be sent back in pieces. Lopez Perez also asserted that he would be imprisoned upon his return to the Dominican Republic, and that the wealthy and powerful head of the drug organization would bribe the police to torture and kill him — or that the police would allow him to be tortured and killed. Lopez Perez was, however, unaware of any connection between the drug dealer and the Dominican Republic authorities. The United States State Department Country Reports for the Dominican Republic submitted by Lopez Perez and the government supported Lopez Perez’s allegations of corruption but did not note any particular connection between the government and the drug trade. The IJ presumed Lopez Perez to be credible but denied his claim because he did not establish that it was more likely than not that he would be tortured in the Dominican Republic. 8 C.F.R. § 208.16(c)(2). The IJ explained that while “bribery and corruption are rampant in the Dominican Republic,” the “record is void of any credible evidence suggesting” that the Dominican Republic government would bear responsibility for any harm suffered by Lopez Perez for cooperating with New York authorities. On appeal to the BIA, Lopez Perez asserted for the first time that harsh prison conditions in the Dominican Republic constituted torture under the CAT. The BIA rejected this claim, noting that the record did not establish that Lopez Perez would be imprisoned in the Dominican Republic and that, in any case, poor prison conditions do not amount to torture as defined by the CAT. See Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir.2008). The BIA further agreed that Lopez Perez did not establish that it was “more likely than not that he would be tortured at the instigation or with the acquiescence of a public official.” Lopez Perez now petitions for review of the BIA’s final order of removal. II. We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. 750§ 1252(a)(1). Where, as here, the BIA agrees with the decision and analysis of the IJ while adding its own reasoning, we review both decisions. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009). The government correctly asserts that because Lopez Perez was found removable under 8 U.S.C. § 1182(a)(2), our jurisdiction extends only to the review of “constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Although this limitation strips us of authority to review the BIA’s factual or discretionary determinations, our jurisdiction to consider “questions of law” encompasses the “application of law to undisputed fact.” Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.2006). For relief under the CAT, Lopez Perez had to demonstrate that it is more likely than not that he would be tortured if removed to the Dominican Republic. 8 C.F.R. § 208.16(c)(2). The torturous acts must be inflicted “by or at the instigation of or with the consent of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). In his petition for review, Lopez Perez presents overlapping claims in which he asserts that the IJ abused his discretion by concluding that he did not meet the standard for CAT relief.2 In particular, he argues that the IJ erred by determining that the Dominican Republic government did not have the specific intent to kill or torture him due to his cooperation with the New York authorities. This argument is based on his assertion that the leader of the drug organization for whom he worked, and on whom he informed, was aligned with the government. While the IJ acknowledged the corruption in the Dominican Republic, along with the possibility that the drug organization may seek to harm Lopez Perez for his cooperation with the government, it found that the record contained no evidence tying the organization to the government, or that it would act with the government’s acquiescence. See Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir.2007) (“For purposes of CAT claims, acquiescence to torture requires only that government officials remain willfully blind to torturous conduct and breach their legal responsibility to prevent it.”). As noted above, we lack jurisdiction over any challenge to the factual findings of the IJ. 8 U.S.C. § 1252(a)(2)(C) & (D). Thus, based on the finding that the drug organization and the government were not aligned or that the record contained no evidence that the government would acquiesce in any torture, the BIA and IJ properly determined that any harm that the group inflicted upon Lopez Perez would not constitute torture as defined by the CAT.3 For the above reasons, we will deny the petition for review. . While the case was on remand, Lopez Perez sought a continuance and change of venue. The IJ denied his request and his subsequent motion for reconsideration. On May 19, 2008, the BIA declined to review the decision because Lopez Perez did not meet the criteria for interlocutory review. . To the extent that Lopez Perez seeks review of the denial of his applications for asylum and withholding of removal, the IJ and BIA correctly determined that he is statutorily ineligible for such relief due to his drug trafficking conviction. See 8 U.S.C. § 1101(a)(43)(B); 8 U.S.C. § 1231(b)(3). . We have reviewed Lopez Perez's remaining claims and find them to be meritless.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475022/	OPINION PER CURIAM: Petitioner Li Fang Zhu, a native and citizen of the Fujian Province, People’s Republic of China, entered the United States without possessing a valid visa, identity, or entry document in 2005, and was placed in removal proceedings for that reason. Subsequently, she applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Zhu claims that her village’s family planning committee forced her to have an abortion in early 2004 because she was pregnant and unmarried. She also claims that she started practicing Falun Gong shortly after her abortion. She asserts that if she is returned, she will be persecuted as a member of the Falun Gong and she will be subjected to forced sterilization under China’s coercive family planning policy because she is now married with an American-born son. After a hearing at which Zhu testified, the IJ denied relief, concluding that Zhu’s testimony was incredible and that, in any event, it lacked corroboration. (A.R.53). The IJ characterized as “unequivocal” Zhu’s testimony that she had no intention of leaving China until authorities sought to arrest her for practicing Falun Gong. (Id. at 48). According to the IJ, this “unequivocal” testimony contradicted Zhu’s assertion that her abortion was “forced” and rebutted any presumption of a well-founded fear of future persecution based on an alleged forced abortion.1 (Id.). The IJ also found that, although Zhu’s written statement and oral testimony were essentially the same, both lacked sufficient detail to make her allegation of a “forced” abortion plausible. (Id. at 49). The IJ did not believe Zhu’s “simple” testimony that her mother agreed to let her have the child out of wedlock. (Id. at 49-50). The IJ found that Zhu failed to explain why she wanted to be a single, unwed mother in a conservative culture like China’s and why her mother simply agreed to let her have the child. (Id.). The IJ found fault with her failure to provide corroborating evidence, such as a letter or affidavit from her mother, with whom Zhu had been in touch by phone just before the hearing, or authenticated medical records indicating that she had had an abortion in China in 2004. Id. at 50. The IJ concluded that Zhu’s testimony about her involvement in the Falun Gong was incredible. The IJ noted that Zhu 753displayed generally unremarkable knowledge about the practice of Falun Gong. (Id. at 51). Because Zhu’s testimony was too general, the IJ looked to the presence of any corroborating evidence and found none. (Id. at 51-52). Although Zhu testified that, in April 2007, she had learned from her mother that Chinese authorities were still looldng for her, Zhu failed to submit an affidavit or letter from her mother confirming Zhu’s testimony. (Id. at 51). The IJ rejected Zhu’s excuse that her mother was illiterate. (Id. at 51-52). The IJ also faulted Zhu for failing to provide affidavits or testimony from her husband or Philadelphia relatives with whom she lived before she got married who could confirm her practice of Falun Gong. (Id. at 52). The IJ determined that Zhu failed to establish a well-founded fear of future harm under China’s restrictive family planning policies based on the birth of her son, absent evidence showing that married people with one foreign-born child would be subjected to forced sterilization under China’s family planning laws. (Id. at 52). The IJ found that current Chinese law, codified in 2002, outlawed coercive measures such as sterilization and abortion, replacing them with social compensation fees, or fines (calculated according to disposable income), as the primary means for enforcing the one-child policy. (Id.). Based on her findings, the IJ concluded that Zhu failed to show that submitting to a system of social compensation would be so burdensome to Zhu as to amount to “persecution” under the law. (Id. at 52-53). The IJ also found that Zhu’s fear of sterilization after having a seeond child was speculative as she only had one child. (Id. at 53). Zhu appealed, submitting new evidence, an affidavit from her mother and medical records from Temple Hospital (where she received prenatal care). In June 2008, the Board of Immigration Appeals (“BIA”) dismissed the appeal. As to the merits of her asylum claim, the BIA did not rely on the IJ’s adverse credibility finding as the Board did not accept her conclusion that it was implausible that an unmarried woman would decide to keep her child in China. (A.R.3). The BIA agreed, however, that Zhu failed to show by reasonably available evidence (such as affidavits and medical records) that she had a forced abortion in China in 2004, and that she was a practicing member of the Falun Gong. (Id.). The BIA also rejected Zhu’s claim of a well-founded fear of future persecution because she failed to show that she would be subject to more than social compensation, such as fines or loss of government benefits, if she violated the family planning policy. (Id.). The BIA construed Zhu’s submission of corroborating evidence as a motion to remand and denied it, rejecting the affidavit from Zhu’s mother and the medical records because they were reasonably available to Zhu prior to her hearing. (Id.). The BIA also ruled that the evidence would not change the result in Zhu’s case, in any event, because it would be entitled to little, if any, weight. (Id.). The BIA noted that Zhu’s mother was not available for cross-examination on her affidavit and that the medical record detailing the number of pregnancies and abortions had been altered. (Id.). We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. See Briseno-Flores v. Attorney General, 492 F.3d 226, 228 (3d Cir.2007). Where, as here, the BIA issues a decision on the merits, we review the BIA’s, not the IJ’s decision. Li v. Attorney General, 400 F.3d 157, 162 (3d Cir.2005). The BIA is bound by the IJ’s factual determinations “including findings as to the credibility of testimony” and reviews these findings only to 754determine whether they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i). “The BIA’s conclusions regarding evidence of past persecution and the well-founded fear of persecution are findings of fact,” which we review under the deferential substantial evidence standard. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Under the deferential substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). For the reasons that follow, the petition will be denied. In her petition for review, Zhu asserts that the IJ and BIA erred in finding that she failed to show by reasonably available evidence that she suffered a forced abortion and that she was a Falun Gong practitioner.2 As the Government correctly stated in its response brief, this case concerns the sufficiency of the evidence, not credibility, as the BIA did not affirm the IJ’s adverse credibility finding. See Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003). As we have previously acknowledged, the IJ may require corroborating documentation even where an applicant is credible, and such corroboration is required “where it is reasonable to expect such proof from a witness and there is no satisfactory explanation for its absence.” Obale v. Atty. Gen., 453 F.3d 151, 163 (3d Cir.2006). The BIA’s holding that Zhu failed to establish past persecution for asylum purposes is supported by substantial evidence. Zhu failed to present reasonably available evidence of her forced abortion in the form of authenticated medical records from China or affidavits. See Chen v. Gonzales, 434 F.3d 212, 221-22 (3d Cir.2005) (holding that petitioner failed to provide reasonably available evidence, including medical records, to support her forced abortion claim). Nor did Zhu provide any reasonably available affidavit(s) showing that she practiced Falun Gong. Substantial record evidence also supports the Board’s determination that Zhu failed to demonstrate a well-founded fear of future harm due to the birth of her son in the United States because she has not shown that she would be subjected to more than fines and loss of benefits if she violates the one-child rule upon her return to China. Based on the record, the BIA’s denial of Zhu’s asylum application is supported by substantial evidence. We cannot say that any reasonable adjudicator would be compelled to conclude to the contrary. Because Zhu failed to satisfy the lower burden of proof required for asylum, she is necessarily ineligible for withholding of removal. See Immigration & Naturalization Services v. Cardoza-Fonseca, 480 U.S. 421, 430-32, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Moreover, the BIA determined that Zhu did not meet her burden of establishing that it is more likely than not that she will be tortured upon her return to China, 8 C.F.R. §§ 208.16, 208.18, and we conclude that the record does not compel a different conclusion. Finally, the BIA did not abuse its discretion in denying Zhu’s request to remand the matter to the IJ for consideration of Zhu’s belated proffer of Temple University Hospital medical records and an affidavit from her mother. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002) (standard of review). The documents were not “new” as both were reasonably available to Zhu prior to her removal hear*755ing. We note that the medical records merely detailed the number of pregnancies and abortions Zhu had but did not indicate where she had an abortion (in China or in the United States) or whether she had reported that the abortion(s) were coerced. Accordingly, we will deny the petition for review. . The IJ misstated how the presumption for future persecution works in the case of an alien who demonstrated past persecution in the form of coerced abortion. The BIA, however, noted the correct law and resolved the case on other grounds. . Arguably, the Government is correct in asserting that Zhu waived her appeal of the Board's finding that she failed to corroborate her claim because she failed to include sufficient argument in her brief. We will exercise our discretion, however, and address the merits of the claim. See e.g., Bullock v. Dressel, 435 F.3d 294, 300 (3d Cir.2006).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475024/	OPINION PER CURIAM. Petitioner Ren Deng Dong is a native and citizen of the People’s Republic of China who petitions for review of the Board of Immigration Appeals’s (“BIA”) decision affirming a decision of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). For the following reasons, we will deny Dong’s petition for review. I. Dong entered the United States without inspection on November 1, 2001 and was immediately detained. He was issued a Notice to Appear on November 8, 2001 that charged him as being removable under 8 U.S.C. § 1182(a)(7)(A)(i)(l). Dong was released from detention on bond on December 13, 2001. Dong thereafter conceded that he was removable but, on December 10, 2002, filed an application for 756asylum, withholding of removal, and CAT relief asserting that he had been persecuted for opposing China’s family planning policy. At his merits hearing, Dong testified that on October 1, 2001, he and his four-month-pregnant girlfriend, Chuijin Lin, were refused a marriage certificate at their village’s committee office because at 18 years old they were too young to marry under Chinese law. Dong argued with the officials, who forced him out of the office and telephoned the police, accusing Dong of assaulting them. When the police arrived and attempted to arrest Dong, he escaped with the help of villagers. He immediately went into hiding while Lin lived with his parents. Dong testified that while he was in hiding, family planning officials sought to arrest him and left a fine notice at his parents’ house charging him with failing to obtain permission to become pregnant. He testified that his parents paid the fine. Two weeks after the incident with the village officials, Dong was smuggled into the United States. Upon his release from detention, Dong called Lin, who told him that she had been forced to have an abortion. He also spoke with his parents, who told him that the family planning officials still wanted to arrest him. He stated that he was frightened to return to China because he “thinks [he] will have big trouble, because they accused [him] of beating up government officials.” Substantial problems with Dong’s testimony, affidavit, and documentation arose on cross-examination. He testified that he and Lin were married in a traditional Chinese ceremony, but that he did not mention this in his affidavit because he had no proof of the marriage and because the marriage was not recognized by the Chinese government. Additionally, he submitted an abortion certificate that listed Lin’s age as 22 although the abortion ostensibly occurred two weeks after they had applied for a marriage license, when they were both 18 years old. Dong suggested that this was a clerical mistake. Further, Dong had testified on direct examination that he and Lin applied for a marriage certificate because she was pregnant, yet his affidavit states that they wanted to get married simply because they were in love, and that he did not learn of Lin’s pregnancy and abortion until after he arrived in the United States. As to the incident with the government officials, he testified on cross-examination that the officials pushed and dragged him out of the office after he refused to leave. When they reached the street, the officials began beating him and he struck back. As a result, the official charges lodged against him were for “beating family planning officials.” The IJ denied Dong’s application for asylum on the merits and because it was untimely. She made an adverse credibility determination, and concluded that Dong did not meet the standard for withholding of removal or CAT relief. The IJ explained that Dong “absolutely failed to establish that he was persecuted on account of violating the family planning policy” because “he did not establish that he has a wife, that she underwent an abortion, or that she was pregnant.” The IJ further stated that based on Dong’s own testimony, his behavior at the family planning office would make him the subject of legitimate prosecution rather than persecution. She then held that his claim was fraudulent, warranting a finding that his asylum application was frivolous. The BIA affirmed the IJ’s denial of relief, determining that the IJ offered “specific, cogent reasons for her adverse credibility determination.” On appeal, Dong argued for the first time that Lin’s “sterilization” was sufficient to demonstrate that he had suffered past persecution. The 757BIA rejected this claim for lack of evidence and because it was the first time that he had raised this issue. The BIA vacated the IJ’s determination that Dong’s asylum application was frivolous. Through counsel, Dong now petitions for review of the BIA’s final order of removal. II The government correctly argues that we lack jurisdiction to review the decision that Dong’s asylum application was untimely. 8 U.S.C. § 1158(a)(3); see also Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir.2006). We do, however, retain jurisdiction to review the denial of withholding of removal and CAT relief. See Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.2003). We review these decisions under the substantial evidence standard and will uphold the BIA’s determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted). Substantial evidence supports the adverse credibility determination.1 See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008) (explaining the pre-REAL ID Act standard of review). Dong’s hearing was marred by contradictory information regarding his marital status, the circumstances of his altercation with family planning officials, whether Lin was forced to have an abortion, and the reason he was being sought by the authorities. The BIA appropriately found that these discrepancies “support the Immigration Judge’s adverse credibility finding.” 2 Dong may rightfully fear prosecution for allegedly beating village officials, and fear of prosecution may constitute grounds for withholding of removal if it is motivated by one of the enumerated factors, such as political opinion, “and if the punishment under the law is sufficiently serious to constitute persecution.” Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004). However, as in Shardar, substantial evidence supports the conclusion that Dong is not being prosecuted due to his political opinion; rather, the police are attempting to prosecute him for fighting with town officials because he argued with them after they would not give him a marriage certificate and he refused to leave the office. See id. at 324. Moreover, being dragged and/or pushed out of the family planning office and subsequently beaten up by officials, although troubling, does not rise to the level of persecution. See id. Finally, there is no evidence that Dong would more likely than not be tortured if he is removed to China so as to entitle him to CAT relief. See 8 C.F.R. § 208.16(c)(2). For the foregoing reasons, we deny Dong’s petition for review. . Because Dong applied for relief before May 11, 2005, the REAL ID Act's standard governing review of adverse credibility determinations is not applicable to this case. See Kaita, 522 F.3d at 296. . Further, we note that to the extent Dong’s claims of past persecution are predicated on his relationship to Lin, his credibility and his marital status are irrelevant, as we recently held that the Immigration and Nationality Act does not extend automatic refugee status to unmarried partners or spouses of individuals who have been forcibly subjected to family planning measures. See Lin-Zheng v. Att’y Gen., 557 F.3d 147, 156 (3d Cir.2009).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475026/	OPINION PER CURIAM. Petitioner Manuel Tinizaray-Narvaez, a native and citizen of Ecuador, entered the United States in November 1994. He was served with a Notice To Appear for removal proceedings on May 31, 2005, alleging that he entered without being admitted or paroled and thus is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)®, 8 U.S.C. § 1182(a)(6)(A)®. The allegations were conceded, and Tinizaray applied for cancellation of removal, INA § 240A(b)(l), 8 U.S.C. § 1229b(b)(l), and voluntary departure, contending that his removal would cause an exceptional and extremely unusual hardship to his United States citizen daughter, Leslie.1 Leslie was born on 759January 17, 2000, in Newark, New Jersey to Tinizaray and Beatrice Gonzalez. She was five years old at the time of removal proceedings. The couple live together but are not married, and Ms. Gonzalez has two other children who also live with the couple. Like Tinizaray, Ms. Gonzalez does not have lawful status. On November 29, 2005, the Immigration Judge scheduled a merits hearing for June 26, 2006. The IJ set a deadline of May 12, 2006 to submit information specific to the cancellation of removal application, and also issued a written “control order,” which, with respect to expert testimony, stated the following: “Agreement to telephonic testimony of expert witnesses is encouraged and typically results where opposing counsel is provided with a statement of the expert and a CV.” A.R. 230. On the record, the IJ stated: All right. So, then May 12, 2006 is your deadline. I, I just don’t want any evidence of any length or any voluminous evidence handed up at the merits hearing because I’d like to have read over this case in advance. And also, this will also make sure that, that you take care of talking to the trial attorney about expert testimony that you might need to present. It, I don’t know if you’re going to do that, but if it’s going to, to be a situation where you want the expert to testify telephonically, then I would expect you to coordinate that with opposing counsel. A.R. 67-68. On May 12, 2006, counsel for Tinizaray submitted a written request to enlarge the time to file supporting evidence, stating that his expert neuropsychologist would be able to evaluate Leslie on May 30, 2006, and would be able to deliver a comprehensive report by June 6, 2006. The IJ denied the motion on the ground that Tiniza-ray had yet to submit any documentary evidence with his cancellation of removal application, good cause was not shown to await more evidence, and the delay was caused by Tinizaray. Notwithstanding that his motion for an extension was denied, on June 19, 2006, counsel submitted 60 pages of documents in support of the cancellation of removal application, including most importantly, a four-page, detailed, expert report by a licensed clinical psychologist, Stacey R. Tuchin, Psy.D. The submission also included Dr. Tuchin’s curriculum vitae. Dr. Tuchin had evaluated Leslie on May 30, 2006, as promised. In addition, as part of her evaluation, Dr. Tuchin had interviewed Leslie’s kindergarten teacher over the telephone prior to writing her report. Dr. Tuchin described Leslie as “an at-risk youngster emotionally and academically,” A.R. 158, explaining that: Her symptoms of anxiety meet full diagnostic criteria for Separation Anxiety Disorder (Diagnostic Code: 309.21), in accordance with the Diagnostic and Statistical Manual of Mental Disorders. If her affective reactions are prolonged and untreated, Leslie is at risk for the development of more chronic psychological disturbances and interpersonal difficulties relating to trust, separation, and rejection. Mr. Tinizaray experiences great concern about the possibility of removal from the United States ... because his daughter has formed a powerful attachment to him as a prophylaxis against familial adversity. Mr. Tiniza-ray described significant emotional abuse on the part of Leslie’s mother (e.g. episodes of affective dysregulation and considerable anger management difficulties). It has only been through his intervention that the abuse has not become physical. He fears for his daugh760ter’s safety should she be forced to remain in the United States with her mother, a parental figure prone to behavioral difficulties. Id. Dr. Tuchin went on to summarize Leslie’s academic difficulties by noting that she had expressive language difficulties, problems learning basic math concepts, socialization difficulties, attention problems and shyness. Her kindergarten teacher had suggested that Leslie would benefit from a formal program called Basic Skill Instruction, and other evaluative and remedial interventions available in the school district to improve Leslie’s level of scholastic and neurocognitive functioning. Id. Last, Dr. Tuchin stated her conclusion: It is clear to this examiner that the removal of Mr. Manuel Tinizaray would pose an extreme and unusual hardship to Leslie Tinizaray. Compared to other United States Citizen children similarly situated, the result of deportation on the life of this youngster appears appreciably worse given her diffuse vulnerabilities and the affective distress deportation would inevitably cause. This is an especially compelling situation given that several spheres of functioning would be irrevocably impacted, including psychological, academic, developmental, familial, and interpersonal realms. Id. At the merits hearing on June 26, 2006, counsel for the Department of Homeland Security objected to all of the documents submitted because they were untimely, and objected specifically to Dr. Tuchin’s evaluation because she was not available for cross-examination. In response to the government’s objections, Tinizaray’s counsel explained that it had been impossible to get an appointment with Dr. Tuchin before the deadline, and that he had in his possession all of the other evidence but had not submitted it because the expert report was the most important part of his case; he thought the better approach would be to ask for an extension of time to file everything at once. The IJ overruled the government’s untimeliness objection to all of the documents except Dr. Tuchin’s report. With respect to that report, the IJ inquired as to whether Dr. Tuchin was immediately available for cross-examination. Counsel responded that she was currently attending a conference and so he had not asked here if she was available. Based on that response, the IJ excluded the expert report. At the request of the IJ, the government stated for the record questions it would have propounded on cross-examination, including, but not limited to, questions concerning Leslie’s diagnosis, what treatment was appropriate for her condition, and whether that treatment was available in Ecuador. At the government’s suggestion, Tinizaray’s counsel requested a continuance. A.R. 105-110. The IJ stated that she would not grant the continuance because she did not have “any reason to think that, that you or your client will utilize any extra time to really make progress on the case.” A.R. 110. The IJ instructed Tinizaray to make his case for a continuance on the record and commented that “the one thing that you could have done and did not do is to bring to court the mother of your child. So, I’m not sure about why I should postpone the case.” Id. In an effort to make his case and with respect to the untimely submission of Dr. Tuchin’s evaluation, Tinizaray testified that his counsel had provided him with Dr. Tuchin’s name and telephone number one week after the November 29, 2005 hearing. Continuing, he stated: I did try to make an appointment this February, but I was told that, that the schedule was full, that I should call one 761month later because it was very full. And once I called later on, I was told to call once again the next month to see if somebody would drop out because I was told that it was full from 8:00 in the morning until 8:00 at night. So, when I called the second time ... I was given [an] appointment for [May] 30th. A.R. 114. As to Ms. Gonzalez, Tinizaray explained that she had declined to appear at the hearing because she had to pick up her sons at school, and because she feared she would be detained by immigration authorities if she appeared in immigration court. The IJ issued an oral decision in which she denied Tinizaray’s request for a continuance and his application for cancellation of removal. He was granted voluntary departure. The IJ faulted Tinizaray for failing to contact Dr. Tuchin from November 2005 until February 2006, and for failing to make any effort to have Dr. Tuchin available for cross-examination. The IJ was not convinced that Tinizaray would make an effort to secure Dr. Tu-chin’s testimony in the future if a continuance was granted. Without Dr. Tuchin’s report, which the IJ excluded, Tinizaray’s evidence on the hardship issue was insufficient.2 His testimony revealed that Leslie is physically healthy, and not currently under any treatment, psychological or medical. Furthermore, because Ms. Gonzalez had not appeared to testify, the IJ could not question her about what her plans might be with respect to Leslie should Tinizaray be removed from the United States. Tinizaray appealed to the Board of Immigration Appeals. He contended that the IJ erred in not granting him additional time to arrange for Dr. Tuchin to testify, and the error constituted a due process violation. He noted that he had not previously asked for a continuance, had been present at all hearings, and had not taken any actions which were dilatory. Moreover, his cancellation of removal application had merit. In a decision dated July 7, 2008, the Board agreed with the IJ and dismissed the appeal. The Board agreed that the evidence did not establish exceptional and extremely unusual hardship, and found no error in the IJ’s decision to deny the request for a continuance, 8 C.F.R. § 1003.29. The Board concluded that Tini-zaray failed to establish that the result of the proceeding would have been different with a continuance, and noted that Tiniza-ray had not availed himself of the opportunity to submit pertinent evidence during the pendency of his appeal in support of a motion to remand. This observation was made by the Board notwithstanding that the excluded evidence — Dr. Tuchin’s report — appears in the Administrative Record as Exhibit “D” to the cancellation of removal application. Tinizaray filed a timely petition for review in this Court and sought a stay of removal. The government filed a motion to dismiss the petition for review, contending that section 1252(a) (2) (B) (i) of the jurisdictional statute, 8 U.S.C. § 1252, removes our jurisdiction over the Board’s discretionary decisions regarding the cancellation of removal/hardship determination under 8 U.S.C. § 1229b. A motions panel of this Court granted the request for a stay of removal and referred the government’s motion to dismiss to a merits panel, it appearing that jurisdiction was not lacking. The parties have submitted briefs and the petition is ripe for disposition. 762We will grant the petition for review, vacate the Board’s decision, reverse the IJ’s order denying a continuance, vacate the IJ’s order granting cancellation of removal, and remand the matter for further proceedings. As a threshold matter, we have jurisdiction to review the denial of an alien’s request for a continuance. Khan v. Att’y Gen. of U.S., 448 F.Sd 226, 283 (3d Cir.2006) (because IJ’s authority to rule on continuance motion is not specified under 8 U.S.C. §§ 1151-1378 to be in the discretion of the Attorney General, section 1252(a)(2) (B) (ii) does not deprive court of appeals of jurisdiction). Tinizaray does not contend that he meets the hardship definition without Dr. Tuchin’s report. The only issue presented by the petition for review is whether the IJ erred in denying the request for additional time to arrange for Dr. Tuchin to be cross-examined.3 If a document is not filed within the time set by the IJ, it may be excluded, 8 C.F.R. § 1003.31(c), but an IJ may “grant a motion for continuance for good cause shown,” 8 C.F.R. § 1003.29. We review an IJ’s decision to deny a continuance for abuse of discretion, see Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.2003), meaning that we will reverse it only if it is arbitrary, irrational or contrary to law, see Hashmi v. Att’y Gen. of U.S., 531 F.3d 256, 259 (3d Cir.2008). In Ponce-Leiva, we held that there are no bright-line rules for resolving whether the denial of a continuance constitutes an abuse of discretion; the issue “must be resolved on a case by case basis according to the facts and circumstances of each case.” 331 F.3d at 377 (quoting Baires v. Immigration & Naturalization Serv., 856 F.2d 89, 91 (9th Cir.1988)). In addition, we have noted that the lack of facial merit in the underlying application for relief may be taken into consideration in denying a continuance, see Ponce-Leiva, 331 F.3d at 377, and so it necessarily follows that arguable merit to the underlying application is a circumstance weighing in favor of granting a continuance. We conclude that the IJ abused her discretion by denying Tinizaray’s request for a continuance to permit the clinical psychologist the opportunity to testify in person, or telephonically, regarding the issue of hardship to Tinizaray’s United States citizen daughter. The Board abused its discretion by affirming the IJ’s decision and failing to remand the matter for additional proceedings and a decision on the merits of the cancellation of removal application. In removal proceedings, an alien who applies for relief has the burden of proof to establish that he satisfies the applicable eligibility requirements, and, with respect to any form of relief that is granted in the exercise of discretion, that he merits a favorable exercise of discretion. 8 U.S.C. § 1229a(c)(4)(A). Section 240(c)(4)(B) further provides that the alien must comply with the applicable requirements to submit information or documentation in support of his application for relief as provided by law or by regulation, or in the instructions for the application. 8 U.S.C. § 1229a(c)(4)(B). An IJ may set time limits for the filing of documents. 8 C.F.R. § 1003.31(c). Here, the May 12, 2006 deadline for submission of supporting documents was generous. Moreover, the IJ explained on the record her reasons for the deadline— 763she wanted time to review the submissions prior to the hearing, and wanted counsel to work out the details of telephonic examination of any experts. The IJ faulted Tiniza-ray for dilatory conduct because she received the four-page expert report only a week in advance of the hearing. Under the circumstances, this was arbitrary. Although Tinizaray may have been at fault for waiting three months before calling Dr. Tuchin to schedule an appointment, he was not at fault for the delay between February and May 30, the date when Dr. Tuchin finally was able to evaluate Leslie. This delay of several months occasioned by the specialist’s busy schedule is no one’s fault. The IJ did not want any late-submitted evidence of any length or any voluminous evidence, which was a reasonable demand, but Dr. Tuchin’s report was neither of these things. The IJ also faulted Tiniza-ray for failing to confer with Dr. Tuchin about the doctor’s availability on June 26, but, since she was scheduled to be at a conference anyway, the failure to consult was not the cause of the doctor’s unavailability, and Dr. Tuchin’s conference schedule also is not Tinizaray’s fault. Tinizaray had not previously asked for a continuance and the case was by no means old. The Id’s assumption that he would not make good use of a continuance had no basis in the facts and circumstances of the case. See Ponce-Leiva, 331 F.3d at 377 (issue of continuance “must be resolved on a case by case basis according to the facts and circumstances of each case”). Moreover, the prejudice to Tinizaray from exclusion of the report cannot be overstated. Congress created the relief of cancellation of removal under INA § 240A(b)(l) as part of the Illegal Immigration Reform and Immigrant Responsibility Act. IRRIRA’s standard of “exceptional and extremely unusual hardship” is meant to be stringent. See Matter of Andamia, 23 I. & N. Dec. 319, 322 (BIA 2002) (en banc); Matter of Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002) (en banc). In Matter of Monreal, 23 I. & N. Dec. 56 (BIA 2001), the Board found that, to establish “exceptional and extremely unusual hardship,” an alien must show that the qualifying relative would suffer hardship substantially beyond that which would normally result from deportation. Id. at 60. See also Andazola, 23 I. & N. Dec. at 322. Nevertheless, the Board will consider “the ages, health, and circumstances of qualifying ... relatives.” Monreal, 23 I. & N. Dec. at 63. An applicant with financially dependent elderly parents would have a strong case and so would an applicant who had a qualifying child “with very serious health issues, or compelling special needs in school.” Id. As part of her evaluation of Leslie, Dr. Tuchin, a well-qualified clinical psychologist, administered a battery of tests, spoke to Leslie’s kindergarten teacher, and interviewed Tinizaray.4 She then emphatically concluded that Leslie was “at risk” emotionally and academically, possibly as a result of her mother’s improper behavior toward her. Dr. Tuchin described Leslie’s case as “appreciably worse” than other similarly situated United States citizen children of parents who are subject to removal. She concluded that the case was “especially compelling,” and that most aspects of Leslie’s functioning would be negatively impacted by Tinizaray’s removal because he appeared to be her only positive nurturing influence. It is hard to 764imagine a more powerful statement of exceptional and extremely unusual hardship. We also do not fault Tinizaray for failing to produce Ms. Gonzalez. Under the circumstances of Dr. Tuchin’s report, Tiniza-ray’s explanation for her unwillingness to attend the hearing is satisfactory. The IJ remarked on the lack of evidence, but never once commented on the content of Dr. Tuchin’s report, and summarily dismissed this evaluation which describes a real possibility that a qualifying relative — a child— would face an exceptional and extremely unusual hardship upon the removal of her nonresident alien parent. See Monreal, 28 I. & N. Dec. at 63 (applicant who has qualifying child with “very serious health issues, or compelling special needs in school” has strong case). This was not a case where no evidence was submitted. Dr. Tuchin’s report is richly detailed, and any uncertainty the IJ may have had about the impact on Leslie of her father’s removal from the United States could have been cured by granting a short continuance whereby the clinical psychologist could have been produced to offer testimony in support of the written report submitted. Such persuasive evidence establishing merit is a circumstance that should have been taken into consideration and should have weighed in favor of granting a continuance, see Ponce-Leiva, 331 F.3d at 377. The IJ would not have been inconvenienced by a short continuance, and the need to consider Dr. Tuchin’s evaluation clearly outweighed any considerations relating to the IJ’s calendar. See Baires, 856 F.2d at 92. In Hashmi, we held that a denial of a continuance based on case-completion goals set by the Department of Justice, rather than on the facts and circumstances of the alien’s case, was imper-missibly arbitrary. 531 F.3d at 261. The reasoning of Hashmi applies here. A judge’s calendar is a means to a prompt and fair disposition; it is not an end in itself. Id. Furthermore, the granting of a continuance would not have prejudiced the government, and, in fact, the government gave every indication that it preferred the granting of a continuance. Cf. United States v. McCoy, 313 F.3d 561, 565-66 (D.C.Cir.2002) (en banc) (“good cause” inquiry typically considers adverse effect on opposing parties). Recognizing that denial of a continuance would severely and negatively affect the case, the government wanted only the opportunity to cross-examine Dr. Tuchin, and to question her about her findings and conclusions. It did not seek to exclude consideration of the report altogether. Tinizaray has asked that we remand the matter to a different judge. We decline that request. Although we have found impermissible arbitrariness in the IJ’s rigid adherence to the control order, nothing on the record suggests that the IJ cannot render an impartial decision on the merits of Tinizaray’s cancellation of removal application. We express no view on the overall merits of the application, and leave that to the IJ in the first instance. For the foregoing reasons, we will grant the petition for review, vacate the Board’s decision, reverse the IJ’s order denying a continuance, vacate the IJ’s order denying the cancellation of removal application, and remand for further proceedings consistent with this opinion. . Cancellation of removal is available to an alien who has been physically present in the United States for at least 10 years, has been a person of good moral character, has not been convicted of a specified criminal offense, and has established that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is *759a United States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(l)(A)-(D). . The IJ proceeded directly to the hardship issue, and bypassed the physical presence and good moral character issues. . Tinizaray also contends that he was prejudiced by prior counsel’s ineffective assistance in that documentary evidence was not timely presented in support of his cancellation of removal application. Tinizaray also raises a due process argument concerning the fairness of the proceedings. Because we have determined that the IJ's decision to deny the continuance constituted an abuse of discretion, we need not reach these arguments. . Dr. Tuchin's curriculum vitae established her substantial qualifications. She received a Bachelor of Arts degree from Wellesley College, a secondary school teacher certification from Harvard University, a doctoral degree from Yeshiva University, and she did a one-year post-doctoral fellowship in neuropsy-chology at Yale University in the School of Medicine.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475028/	OPINION GARTH, Circuit Judge: Aaron St. Jean appeals the District Court’s imposition of the seven-year mandatory consecutive sentence provided by 18 U.S.C. § 924(c)(1)(A)(ii). We will affirm. I. Aaron St. Jean is one of three men who robbed a Rite Aid store in Philadelphia on January 25, 2006. Wearing ski masks and heavy jackets, St. Jean and his partners 766entered the store and headed toward the back. One of the three confronted the store’s assistant manager there, pointed a gun, and asked the manager if he knew the combination to the store safe. When the manager replied that he did, the robber forced the manager at gunpoint back to the front of the store, where the manager opened two safes. The robber took the money from one safe and instructed the manager to place the money from the other in a Rite Aid bag. The robber then ordered the manager to lie face down on the floor and left with all the cash from both safes, which amounted to approximately $2,000 in bills and $500 in rolls of quarters. While these events unfolded, the other two masked men noticed the presence of a cashier. As they started to walk toward the cashier, the cashier fled from the store and saw a police vehicle across the street. The cashier ran up to the two police officers inside and told them that the Rite Aid was being robbed. The officers looked toward the Rite Aid and saw two men, later identified as St. Jean and Walter Carolina, pacing in the store’s vestibule. The officers drove toward the Rite Aid, at which point the men exited the store. When the officers’ vehicle turned into the store parking lot, the men abruptly shifted directions and began to quickly walk the other way. The two officers ordered the men to get down. St. Jean complied, but Walter Carolina fled, pursued by one of the officers. The other officer placed St. Jean under arrest. An unloaded firearm and black ski mask were recovered from St. Jean’s person. Carolina was apprehended a short time later, as he attempted to throw a loaded firearm into the sewer. App. 192-208. The officers returned to the Rite Aid with St. Jean and Carolina. The store manager told police that he had seen St. Jean in the store with another man named Daniel about one hour before the robbery, although he could not remember Daniel’s last name. The manager recognized St. Jean and Daniel as former store employees. A review of the store’s employment files confirmed that in fact all three of the robbers were former employees, and revealed Daniel’s last name as Charles. Charles was apprehended later that night outside his home, after the manager identified him as the man he had seen in the store with St. Jean before the robbery. App. 149-52, 287-89. In Charles’ residence, police discovered a ski mask, a box of quarters, and a gun box containing a loaded pistol and several magazines. App. 292-300. St. Jean was indicted and charged with making false statements to a federally licensed firearms dealer, interfering with interstate commerce by robbery, and conspiring to do each. 18 U.S.C. §§ 924(a)(1)(A), 1951, 371. St. Jean was further charged with using and carrying a firearm during and in relation to a crime of violence. 18 U.S.C. § 924(c)(1). Trial was held in August 2008. The government’s evidence consisted primarily of the testimony of the manager, cashier, and several law enforcement officers. The government also produced a woman who testified that she had acted as a straw purchaser to assist St. Jean and Charles in purchasing firearms. St. Jean elected to testify. He admitted being in the store with Charles before the robbery, but denied participating in the robbery. The jury convicted St. Jean on all five counts. At sentencing, the government contended that St. Jean was subject to the mandatory additional seven-year term of imprisonment provided by 18 U.S.C. § 924(c) (1) (A) (ii) in cases where the firearm is “brandished.” St. Jean argued that the evidence demonstrated that Charles, not he, had brandished the gun at the 767store manager, and that the seven-year minimum sentence was inapplicable. The Government conceded the lack of evidence that St. Jean himself had brandished a gun, but argued that the seven-year minimum nevertheless applied because St. Jean had aided and abetted Charles’ brandishing of the gun. The District Court agreed with the Government and held the seven-year mandatory minimum applicable to St. Jean.App. 594-95. The District Court sentenced St. Jean to two years’ imprisonment on the robbery, false statement, and related conspiracy charges, all to be served concurrently. After including the seven years added by § 924(c) (1) (A) (ii), the total sentence amounted to nine years in prison. App. 648. St. Jean then filed a timely notice of appeal. II. On appeal, St. Jean contests only the applicability of the seven-year minimum sentence for brandishing a firearm. St. Jean argues that, at most, he is subject to the unenhanced five-year sentence for using or carrying a firearm in furtherance of a crime of violence. 18 U.S.C. § 924(c)(l)(A)(i). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The District Court’s interpretation of 18 U.S.C. § 924(c) is a legal question subject to our plenary review. United States v. Walker; 473 F.3d 71, 75 (3d Cir.2007). We review the District Court’s findings of fact at sentencing for clear error. United States v. Navarro, 476 F.3d 188, 191 (3d Cir.2007). III. 18 U.S.C. § 924(c) prescribes a five-year mandatory minimum sentence for any person who uses or carries a firearm during and in relation to a crime of violence or a drug trafficking crime. The minimum is increased to seven years if the firearm is brandished, and to ten years if the firearm is discharged. 18 U.S.C. § 924(c)(1)(A)(ii)(iii). The sentence must be imposed consecutively to any other term of imprisonment imposed, including one for the underlying crime. 18 U.S.C. § 924(c) (1) (D) (ii). The evidence at trial tended to establish that Carolina, not St. Jean, was the one who brandished a firearm during the robbery. The manager testified that he had been threatened with a gray gun. App. 172. Although police discovered a gun in St. Jean’s waistband when he was apprehended outside the store, St. Jean’s gun was black, while the one in Carolina’s possession was gray. St. Jean’s firearm was also unloaded. App. 192. The Government concedes that St. Jean did not himself brandish a weapon, but argues that St. Jean is equally liable for aiding and abetting Carolina in brandishing the firearm. In Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), the Supreme Court held that the brandishing described in § 924(c)(1)(A)(ii) is a sentencing factor to be found by the judge, rather than an offense element to be found by the jury. Id. at 556, 122 S.Ct. 2406. The Court further held that, as a sentencing factor, brandishing need not be proved beyond a reasonable doubt, but rather by a preponderance of the evidence. Id. at 565, 122 S.Ct. 2406. As the District Court recognized at sentencing, we apparently have not squarely answered the question whether, after Harris, a defendant who is charged with aiding and abetting may be held liable as an accomplice to a § 924(c)(1)(A) sentencing factor. Before Harris, however, we had little trouble sustaining convictions for aiding and abetting violations of § 924(c). In United States v. Price, 76 F.3d 526 (3d Cir.1996), we noted the plain language of 76818 U.S.C. § 2(a)1 and the numerous decisions of other Courts of Appeals, each of which had concluded that an accomplice to a § 924(c) violation was liable as a principal. Id. at 539. We therefore approved the trial court’s jury instruction allowing a defendant to be convicted of a § 924(c) offense as an accomplice. Id. We again affirmed a conviction for aiding and abetting the commission of a § 924(c) offense in United States v. Gordon, 290 F.3d 539 (3d Cir.2002). Citing Price, we noted that “a defendant can be convicted of aiding and abetting a violation of § 924(c)(1).... ” Id. at 547. Although these pre-Harris decisions did not treat brandishing and discharging as sentencing factors, cases from the other Courts of Appeals since Harris have, and have uniformly recognized the existence of aiding and abetting liability for § 924(c)(1)(A) enhancements. In United States v. Williams, 334 F.3d 1228 (11th Cir.2003), the defendant participated in robbing a credit union, and during the robbery one of his co-conspirators accidentally discharged an assault rifle. Affirming the lower court’s imposition of a mandatory ten-year consecutive sentence for discharge of a firearm pursuant to § 924(c)(1)(A)(iii), the Eleventh Circuit said: “[Bjecause Williams would be liable for the conduct he aided and abetted, even if he did not carry a gun, he is accountable for the entirety of the conduct.” Id. at 1233. The court explained that it was applying “ordinary principles of aiding and abetting liability for purposes of sentencing under [§ 924(c)(1) ].” Id. (emphasis added). See also United States v. Dean, 517 F.3d 1224, 1230 (11th Cir.2008) (holding enhancement for discharge of firearm appropriate for both defendants, only one of whom discharged a firearm).2 The Seventh Circuit has gone even farther and upheld the application of a sentencing enhancement for brandishing based on a theory of co-conspirator liability. See United States v. Roberson, 474 F.3d 432, 433 (7th Cir.2007) (noting that it was “unclear, but also irrelevant” whether the defendant himself carried a gun because his fellow bank robber brandished one foreseeably and in the course of the conspiracy, citing Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946)). In light of these decisions and our own cases recognizing accomplice liability in § 924(c)(1)(A) generally, there is no reason why a defendant should not be held responsible for a brandishing enhancement on an aiding and abetting theory, particularly since St. Jean does not address the issue.3 769IV. Having determined that a defendant may be held liable as an accomplice to brandishing a firearm, we must decide whether the District Court clearly erred in finding by a preponderance of the evidence that St. Jean in fact aided and abetted his coconspirator in brandishing the firearm during the Rite-Aid robbery. We conclude that it did not. The Government was required to demonstrate that St. Jean “knew of the crime and attempted to facilitate it.” Gordon, 290 F.3d at 547 (quoting United States v. Garth, 188 F.3d 99, 113 (3d Cir.1999)). “[A] defendant can be convicted of aiding and abetting a violation of § 924(c)(1) without ever possessing or controlling a weapon if the defendant’s actions were sufficiently intertwined with, and his criminal objectives furthered by[,] the actions of the participant who did carry and use the firearm.” Gordon, 290 F.3d at 547 (internal quotation omitted). In Gordon, we affirmed a defendant’s convictions for aiding and abetting the use of a firearm during and in relation to a series of bank robberies. Although the defendant was not present in the bank for some of the robberies charged, we nonetheless affirmed his convictions on all counts because the general pattern of the robberies, and the defendant’s own use of firearms in some of the charges robberies, established that he knew that a gun would be used in each. Id. We further observed that there was evidence that the co-conspirators had discussed the use of firearms in advance, and that the defendant was in a position to observe their use in several of the robberies. Reviewing for plain error, we found this sufficient to support the defendant’s conviction for aiding and abetting the use of the firearm in connection with the robbery. Id. at 547-58. Although this case did not involve a pattern of robberies similar to that in Gordon, the District Court reasonably could have inferred from the nature of the crime and the manner of its execution that St. Jean knew one of his co-conspirators would brandish a gun at the store’s manager, and facilitated that act by participating in the robbery, even as a relatively passive participant. That St. Jean knew the gun would be brandished, and facilitated it through his own conduct, is more likely in light of the fact that St. Jean himself carried a firearm during the robbery, even though the evidence suggests that it was not the one that was brandished. Because St. Jean fully participated in the robbery in which the brandishing of a firearm was apparently contemplated from the outset, St. Jean’s actions were “sufficiently intertwined with, and his criminal objectives furthered by[,] the actions of the participant who did carry and use the firearm.” Gordon, 290 F.3d at 547. The District Court did not clearly err in finding that St. Jean aided and abetted brandishing of the firearm. V. For the reasons stated above, we will affirm the sentence imposed by the District Court. . The section reads: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." . Cases from other Courts of Appeals have similarly permitted aiding and abetting liability for § 924(c)(1)(A) enhancements, including brandishing, albeit in unpublished decisions. See United States v. Carter, 267 Fed.Appx. 402, 403 (5th Cir.2008); United States v. Xayaso, 45 Fed.Appx. 843, 846 (10th Cir.2002). . St. Jean's initial brief argues only that he did not personally brandish a firearm, and he did not file a reply brief. The sentencing memorandum filed by St. Jean in the District Court likewise emphasized that St. Jean did not brandish a firearm himself, but failed to address the government's theory of accomplice liability. App. 575-77. St. Jean has therefore waived any argument against recognition of accomplice liability in this context. See Gonzalez v. AMR, 549 F.3d 219, 225 (3d Cir.2008) (arguments not raised on appeal are waived); Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir.2007) (arguments not raised before District Court are waived).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475030/	OPINION OF THE COURT STAPLETON, Circuit Judge: Appellant Daniel Cook filed this civil rights action in the Court of Common Pleas of Lawrence County, Pennsylvania, against the school district which employs him and several school officers. The defendants removed it to federal court and moved for summary judgment. Cook appeals from the order entering summary judgment in their favor.1 We will affirm. The following facts are presented in the light most favorable to Cook. I. Twenty-three years ago, Cook began working for the New Castle Area School District (“School District”). In 2006, he was employed by the School District as a janitor. The School District is a municipal entity that is governed by nine elected officials. Defendant Fred Mozzocio (“Moz-zocio”) serves as one of those elected offi-ciáis and was president of the school board during the time period relevant to this litigation. He was reelected to the board in a 2007 election. Defendant George Gabriel (“Gabriel”) is employed as the Superintendent of the School District, and defendant Paul Fulena (“Fulena”) works as the District’s Director of Building and Grounds. In his off hours, Cook regularly participated in local elections by putting up yard signs, organizing campaign events, distributing literature, and working at the polls. In the spring of 2007, Cook volunteered for defendant Mozzocio’s primary campaign for the school board position. The primary election was held in early May 2007, and Mozzocio received enough votes to proceed to the general election in November. On May 31, 2007, the School District posted a notice for a new maintenance position and requested bids. Cook claims that Fulena called him before the job was posted and asked if he was likely to bid for it. Apparently Cook believed that if he expressed interest in the job, it would not be created, so he replied that he was not interested in the position. When the School District posted the job, however, Cook bid on it. According to Cook, Gabriel then called him to ask why he told Fulena he would not bid on the job. Cook responded that he believed that Fulena would not have created the job if he thought Cook would bid on it. In fact, Cook believed the maintenance position was actually created for David Colella, a custodian with less seniority than Cook. Cook claims that Mozzocio confirmed this belief in a telephone call. Gabriel hired Colella for the new position. 772In a June 7, 2007, letter, Gabriel informed Cook that he had denied Cook’s bid for the maintenance position because neither his bid nor his personnel files showed that he was competent in carpentry or electricity, which the position required. Cook filed a grievance with his union pursuant to the Collective Bargaining Agreement (“CBA”). The grievance proceeded to the tripartite hearing required under the CBA. There, Cook presented evidence of his competency for the position for the first time. The School District objected to the use of this evidence because it was not presented during the bidding process, but the arbitrator allowed Cook to present it. In a decision rendered in Cook’s favor on November 1, 2007, the arbitrator found that he had tendered sufficient evidence of his competency to perform the maintenance job. Cook decided to support Mozzocio’s opponents in the general election for the school board. As part of these efforts, Cook placed a large sign for one of Mozzo-cio’s opponents in his sister’s yard — which faced the School District’s administrative office building. On the day of the general election, November 6, 2007, Cook engaged in a casual conversation about the school board election in the school cafeteria with Jackie Trott, a School District cafeteria worker and childhood friend of Cook’s. Cook states that he was on break at the time of the conversation, but the record does not establish whether Trott was also on break. Cook claims that Trott initiated the conversation by asking who his neighborhood was supporting in the school board election. Cook responded that he and the people in his neighborhood were supporting Mozzocio’s opponents, the “girls.” Trott informed Cook that she was planning on working the polls for Mozzocio that afternoon. Trott apparently reported this conversation to Mozzocio or to someone who relayed its contents to Mozzocio. Shortly after the conversation, the principal of the school Cook worked in approached Cook and told him that Mozzocio had just called him. He informed Cook that Mozzocio had asked him to tell Cook that if Cook did not stop talking about Mozzocio and the election at work, Mozzocio would come to the school and that things might “get ugly.” App. at 69-71, 81-82. Cook reported the principal’s warning to his supervisors, Fulena and Gabriel. Cook was never disciplined for his conversation with Trott. Cook began his new maintenance job the following Monday, November 12, 2007. His first thirty days were served on probation. While Cook was on probation, Cook claims that Mozzocio and Gabriel pressured his supervisor, Fulena, to find Cook incompetent or risk losing his own job. Cook maintains that Fulena responded to this pressure by assigning Cook tasks that were normally performed by two persons, and, thereby, setting him up to fail. However, Cook completed the tasks successfully, and Fulena determined at the end of the probationary period that Cook had proven himself competent to perform the job. Cook continues to hold his maintenance job with the School District. II. Cook contends that his speech during his conversation with Trott constituted protected activity and that Mozzocio’s reaction to that speech constituted retaliation which violated his First Amendment rights. The District Court concluded, however, that Cook’s speech to Trott was not protected activity under the teachings of Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). While the Court agreed that the topic of this conversation — the election of a public 773official—was a matter of public concern, it held that the “defendants’ interest in maintaining a functional workplace outweighs [Cook’s] interest in having a casual discussion about a local School Board election with, another school employee during working hours.” App. at 22 (internal quotation marks and citation omitted). We find it unnecessary to address the issue of whether this conversation constituted protected activity. We may assume, arguendo, that it was protected. “The elements of First Amendment retaliation include conduct by the defendant ‘sufficient to deter a person of ordinary firmness from exercising his constitutional rights,’ and ‘a causal link’ between plaintiffs constitutionally protected activities and the defendant’s retaliatory conduct.” Marten v. Godwin, 499 F.3d 290, 299 (3d Cir.2007) (quoting from Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.2006)). “[C]ourts have declined to find that an employer’s actions have adversely affected an employee’s exercise of his First Amendment rights where the employer’s alleged retaliation acts were criticism, false accusations or verbal reprimands.” Brennan v. Norton, 350 F.3d 399, 419 (3d Cir.2003) (quoting from Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir.2000)). Mozzocio’s response to the cafeteria conversation was at most a verbal reprimand. III. Cook further argues that in retaliation for his supporting opposition candidates, the defendants (1) imposed the 30-day probation period, (2) threatened his supervisor with possible loss of his own job unless he found Cook incompetent during probation, and (3) sent him out alone on jobs usually assigned to two individuals. The District Court correctly determined that Cook had shown no causal connection between his political activity and the 30-day probationary period. That probationary period was dictated by the CBA which pre-dated the events in suit. Although Cook suggests that this CBA requirement was rendered inapplicable by the arbitrator’s determination that he had tendered sufficient evidence of competence to secure the position, this is not a tenable position. The CBA requires both that a bidding employee “show evidence of competency” when making his bid and that he “demonstrate competency” during his first thirty days of employment in the new position. App. at 123. The District Court also correctly pointed out that, even if it be assumed that Mozzocio and Gabriel exerted pressure on Fulena to find Cook incompetent, Fulena found Cook competent and that Cook continues to hold a better position now than he held before the events in suit. In short, no causal connection has been shown between the alleged pressure and harm to Cook. Finally, the evidence Cook has tendered regarding his work assignments while on probation is simply insufficient to permit a trier of fact to find that those assignments had the required adverse impact upon him. Cook’s evidence consisted of the affidavits of a school principal and three maintenance workers. The maintenance workers each averred in one or two sentences that they had not been asked to do jobs alone that they had observed Cook being asked to do alone. Absent from those affidavits is any description of the work assigned to Cook and any indication as to whether the affiants had skills and experience similar to that of Cook. The school principal averred only: “Maintenance men came to my building to change lights—Dan Cook was the first one that I saw do the work by himself.” App. at 102. The record contains no suggestion that the work assigned to Cook was in any way demeaning, that it was anything other than work a maintenance man would expect to *774perform, or that Cook suffered any ill effects from his labors. Nor is there any indication that Cook was not given a reasonable time to complete his assignments alone. On the other hand, we do know that the assignments in issue were limited to the probationary period and that Cook successfully completed all of them. Cook had the burden of proof on the issue of whether his work assignments while on probation were such that they could be expected to cause a person of reasonable firmness to cease supporting the candidates of his or her choice. Having been confronted with a motion for summary judgment and having failed to tender evidence sufficient to support a favorable finding on that issue, Cook cannot successfully complain about the entry of summary judgment against him. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). IV. The judgment of the District Court will be affirmed. . The complaint alleged a claim under 42 U.S.C. § 1983 and a claim under state law. The District Court's action with respect to the latter was without prejudice to its being refiled in state court. It is not currently before us.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475032/	OPINION PER CURIAM. David Kissi, a pro se federal prisoner currently incarcerated in Ohio, filed a complaint in the United States District Court *775for the District of Delaware in November 2008. His suit is “derivative of’ bankruptcy proceedings that took place in the District Court for the District of Maryland.1 One of the defendants, DLA Piper, filed a motion to dismiss or in the alternative transfer the case to the District of Maryland. The District Court granted the motion and transferred the case to the District of Maryland. Kissi filed a motion for reconsideration, which the District Court denied. Kissi then appealed and we dismissed his appeal for lack of jurisdiction. See Kissi v. Pramco II LLC et al., C.A. No. 09-1685. Kissi has now filed a petition for a writ of mandamus alleging that the District Court abused its discretion in transferring the case. We have held that “mandamus is ... the appropriate mechanism for reviewing an allegedly improper transfer order.” In re Federal-Mogul Global, Inc., 300 F.3d 368, 378 (3d Cir.2002) (quotation marks and citations omitted). Nevertheless, mandamus is a drastic remedy available only in the most extraordinary of situations in response to an act amounting to a judicial usurpation of power. In re Nwanze, 242 F.3d 521, 524 (3d Cir.2001). “Generally, a writ will only issue if the district court did not have the power to enter the order, and then only if the party seeking the writ meets its burden to demonstrate that its right to the writ is clear and indisputable.” Sunbelt Corp. v. Noble, Denton & Assocs., 5 F.3d 28, 30 (3d Cir.1993) (internal quotation marks and citation omitted). The District Court’s decision to transfer the complaint to the District of Maryland did not amount to a judicial usurpation of power. The District Court transferred Kissi’s complaint because it found that the events giving rise to the complaint occurred Maryland and that none of the Defendants resided in the judicial district of Delaware.2 See' 28 U.S.C. § 1391(b) (listing requirements for venue when jurisdiction is not based solely on diversity of citizenship). Inasmuch as venue appears to be proper in the United States District Court for the District of Maryland, Kissi cannot show a clear and indisputable right to the writ. Accordingly, we will deny the petition for a writ of mandamus. . The Delaware District Court 1 took judicial notice that the United States District Court for the District of Maryland has permanently enjoined Kissi from continuing or instituting in any actions in any federal court that constitute a collateral attack on any order of judgment of the District Court for the District of Maryland. Kissi is required to seek approval prior to the filing of any lawsuit, which he has failed to do. . While Kissi argues that some of the Defendants named in his complaint are incorporated in Delaware, the District Court found that all of Kissi’s claims related to a bankruptcy filing in Maryland and a federal judge who sits in Maryland. We agree.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475034/	OPINION PER CURIAM. Robert Lemanski petitions for review of a decision rendered by the Board of Immigration Appeals on September 29, 2008. For the reasons that follow, we will deny the petition for review. I. Background Lemanski is a native and citizen of Poland. He became a lawful permanent resident of the United States in November 1996. In June 2002, pursuant to a guilty plea, Lemanski was convicted of one count of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)1 and was sen777tenced to five years of probation. After he completed his sentence, in Spring 2008, the Department of Homeland Security (“DHS”) took Lemanski into custody and began removal proceedings based upon the conclusion that Lemanski had been convicted of an aggravated felony under INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N) ]. In proceedings before the Immigration Judge (“IJ”), Lemanski argued that his conviction does not qualify as an aggravated felony under the INA. In a detailed opinion issued in June 2008, the IJ concluded that Lemanski presented a persuasive legal argument that the IJ might have been inclined to accept. However, in light of clear precedent by this Court and the BIA, as well as the “great weight of authority” running counter to Lemanski’s position, the IJ held that he was “constrained to find that respondent’s federal conviction for transporting aliens ... constitutes an aggravated felony as defined in INA § 101(a)(43)(N).” Accordingly, the IJ ordered Lemanski’s removal. Lemanski appealed. On September 29, 2008, the BIA affirmed the IJ’s decision and dismissed the appeal. This timely petition for review followed.2 II. Analysis Lemanski was convicted of transporting illegal aliens, which the BIA concluded qualifies as an aggravated felony covered by § 237(a)(2)(A)(iii). See INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N) ]. Pursuant to INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C) ], “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in ... section 237(a)(2)(A)(iii)....” However, judicial review is not precluded if the petition for review raises “constitutional claims or questions of law.” INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D) ]. Lemanski claims that his conviction is not an aggravated felony for purposes of the INA. Whether a particular offense qualifies as an aggravated felony is a legal question over which this Court has jurisdiction. See Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007). We exercise plenary review over this issue of statutory construction. See Biskupski v. Att’y Gen., 503 F.3d 274, 279 (3d Cir.2007). A. INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N) ] specifies that the term “aggravated felony” includes: “an offense described in paragraph (1)(A) or (2) of section 274(a) [8 U.S.C. § 1324(a)(1)(A) or (2) ] (relating to alien smuggling).... ” Lemanski focuses on the statute’s parenthetical phrase “relating to alien smuggling.” He argues that the phrase is meant to limit the reach of the definition only to those subsections of 8 U.S.C. § 1324(a)(1)(A) or (2) that, in his view, concern alien smuggling in the sense of bringing aliens into this country illegally. He cites §§ 1324(a)(1)(A)® and (iv), which prohibit bringing and attempting to bring aliens into the United States and inducing aliens to enter the United States illegally. In contrast, the crime to which Lemanski pleaded guilty, § 1324(a)(l)(A)(ii), prohibits transporting aliens within the United States. Accordingly, Lemanski contends it is not a crime “relating to alien smuggling.” The BIA rejected Lemanski’s restrictive reading of the statute. Relying upon 778Biskupski v. Att’y Gen., 503 F.3d 274 (3d Cir.2007), and Patel v. Ashcroft, 294 F.3d 465 (3d Cir.2002), as controlling authority, the BIA concluded that “all violations of 8 U.S.C. § 1324(a)(1) and (2) are offenses ‘relating to alien smuggling’ and fall within the definition of an aggravated felony contained in section 101(a)(43)(N) of the Act.” See A.R. 2 (BIA Decision at 1). We agree with the BIA’s conclusion, which correctly applied our precedent. In Patel, we concluded that the INA’s parenthetical phrase “relating to alien smuggling” “is descriptive and not restrictive,” and merely provides “a shorthand description of all of the offenses listed in INA § 274(a)(1)(A) [8 U.S.C. § 1324(a)(1)(A) ].”3 Patel, 294 F.3d at 470 (emphasis added). Our decision in Patel forecloses Lemanski’s claim.'4 B. Lemanski attempts to avoid Patel by arguing that recent Supreme Court precedent requires a different result. Specifically, Lemanski argues that Lopez v. Gonzales, 549 U.S. 47, 53-54, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), and Leocal v. Ashcroft, 543 U.S. 1, 9-10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), direct courts to interpret the INA’s “aggravated felony” provisions “in light of the plan or ordinary meaning of the language involved.” According to Lemanski, the plain meaning of the term “smuggling” implies transit over some border or boundary, while “transporting” does not. We do not disagree that Lopez and Leo-cal direct us to employ a plain meaning approach. We have, however, already determined that the plain meaning of INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N) ] is that all of the offenses set forth in § 1324(a)(1)(A) and (2) meet the definition of “aggravated felony.” Specifically, in Patel, we considered the analogous argument that “harboring an alien cannot be an aggravated felony because the alien ... was already in this country and he (Patel) had no part in the alien’s illegal admission or entry.” Patel, 294 F.3d at 469 (emphasis in original). Because Patel did not bring an alien into 779this country, he argued, the crime of harboring an alien who was already in this country was not sufficiently “related to alien smuggling” for INA purposes. Id. We rejected the argument. Id. at 470. We concluded that the crime did relate to alien smuggling, because “harboring an alien” required knowledge or reckless disregard of the fact that the alien “has come to, entered, or remains in the United States in violation of law.” Id. at 473, n. 8. Likewise, Lemanski’s conviction of “transporting an alien” incorporates that same element: knowledge or reckless disregard of the fact that the alien “has come to, entered, or remains in the United States in violation of law.” See 8 U.S.C. § 1324(a) (1) (A) (ii). Accordingly, under Patel, Lemanski’s conviction “relatfes] to alien smuggling.”5 In addition, in Patel, we specifically concluded that the plain meaning of the statute — as revealed by conventional rules of grammatical structure — -was that “the parenthetical, ‘relating to alien smuggling’ refers to ‘paragraph (1)(A) or (2) of section 1324(a) of this title,’ not ‘offense,’ ” and that a contrary conclusion “would result in ... a judicial amendment of the statute.” 294 F.3d at 472 (citing Monjaras-Castane-da, 190 F.3d at 329). Indeed, we noted that the descriptive approach “is the only way to read” the provision. Patel, 294 F.3d at 473, n. 9. Although Lemanski argues otherwise, we reiterated this view of the statute’s plain meaning after, and in light of, the Supreme Court’s decision in Lopez. In Biskupski, we held that the plain meaning of INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N) ] is clear: “Congress plainly and unambiguously included the offenses described in 8 U.S.C. § 1324(a)(1)(A) and (2) as part of the definition of ‘aggravated felony’ in § 1101(a)(43)(N).” Biskupski, 503 F.3d at 280. Other Courts of Appeals have reached the same conclusion. See United States v. Salas-Mendoza,, 237 F.3d 1246, 1247 (10th Cir.2001); Ruiz-Romero v. Reno, 205 F.3d 837, 840 (5th Cir.2000). Thus, we reject Lemanski’s argument that the Supreme Court’s decisions in Lopez and Leocal require us to overrule Patel, or that they compel us to accept the restrictive interpretation of the INA that Lemanski proposes. The plain meaning of the statute compels the conclusion that Lemanski was convicted of a crime “relating to alien smuggling” under INA § 101(a)(43)(N) [8 U.S.C. § 1101(a)(43)(N) ]. C. Finally, Lemanski argues that the “rule of lenity” should apply to his case. As we noted in Patel, this rule only applies where a criminal statute gives rise to grievous ambiguity or uncertainty. See Patel, 294 F.3d at 473, n. 9. This is simply not such a statute. “INA § 101(a)(43)(N) is not ambiguous or uncertain, let alone grievously so.” Id. Accordingly, we will not apply the rule of lenity in this case. III. Conclusion For the foregoing reasons, we will deny the petition for review. . That section provides: “Any person who knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law ... shall be 777punished as provided in subparagraph (B).” Subparagraph (B) provides for a fine, a term of imprisonment of not more than five years, or both. See 8 U.S.C. § 1324(a)(1)(B). . Lemanski has been removed to Poland. His wife and three children remain in the United States. . This interpretation, is consistent with authority from other Courts of Appeals. See, e.g., United States v. Guzman-Mata, 579 F.3d 1065, 1069 (9th Cir.2009) (a conviction under § 1324(a)( 1 )(A)(ii) is an “alien smuggling offense” under the INA, and therefore qualifies for treatment as such under the Sentencing Guidelines); United Slates v. Solis-Campoza-no, 312 F.3d 164, 166 (5th Cir.2002) (a conviction under § 1324(a)(l)(A)(ii) for transporting aliens is “related to” alien smuggling); Gavilan-Cuate v. Yetter, 276 F.3d 418, 419 (8th Cir.2002) (a conviction under §§ 1324(a)(l)(A)(ii) and (iii) is an aggravated felony under the INA). . We are unaware of any court that has concluded that the phrase “relating to alien smuggling” is restrictive and therefore excludes a conviction for transporting aliens under 8 U.S.C. § 1324(a)(l)(A)(ii). In his decision, the IJ noted that the Court of Appeals for the Second Circuit might find Lemanski’s position persuasive, as reflected by Evangelis-ta v. Ashcroft, 359 F.3d 145, 151-52 (2d Cir.2004). The Evangelista court concluded that a conviction for “defeating a tax” was a crime "relating to tax evasion” for INA purposes, see INA § 101 (a)(43)(M)(ii) [8 U.S.C. § 1101(a)(43)(M)(ii)], without deciding whether the statute's parenthetical phrase "relating to tax evasion” was descriptive or restrictive. However, the Evangelista court rejected the argument that the grammatical structure of the statute compelled a particular conclusion. See id. (declining to follow the analysis set forth in United States v. Monjaras-Castaneda, 190 F.3d 326, 329-30 (5th Cir.1999)). In contrast, in Patel, we concluded that the structure of the INA compels a conclusion that the parenthetical “relating to” phrases "are intended only as a general illustration of the referenced criminal statute ... [to] assist the reader who is attempting to determine whether a particular offense constitutes an aggravated felony.” Patel, 294 F.3d at 471. . We need not decide whether to accept Le-manski’s proposed definition of "smuggling,” which, he argues, requires transport over a border and does not include "acts preceding or subsequent to an at of smuggling.” Even if we were to accept this view, it would not bring his conviction outside the reach of the "aggravated felony” definition. Lemanski simply ignores the language of the statute, which goes beyond the act of "smuggling” to include crimes "relating to alien smuggling.”	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475036/	OPINION BARRY, Circuit Judge. Juan Holguin de la Cruz pled guilty to illegally reentering the United States, and was sentenced. He now appeals. We will affirm. I. Holguin de la Cruz (“appellant”) entered the United States in 1986 after a failed attempt to enter in 1985. In 1987, he was arrested for attempted criminal possession of a weapon and sentenced to five years probation. He was again arrested in 1988, this time for drug possession, but failed to appear in court and a pre-arraignment warrant apparently remains outstanding. In 1989, he was arrested on a federal drug offense (possession with intent to distribute cocaine) and subsequently sentenced to 60 months imprisonment. He was deported in 1998, and re-entered in December 2000. In February 2001, he was arrested on state drug charges in New Jersey. While on bail, he fled and was a fugitive until 2004, when he was arrested in Massachusetts for recklessly operating a motor vehicle. He was sentenced to five years imprisonment on the state drug charges. In September 2007, he was released on a federal detainer and arrested by the Bureau of Immigration and Customs Enforcement. Appellant was charged by information with violating 8 U.S.C. § 1326(a) and (b)(2). On May 6, 2008, he waived indictment and pled guilty. With an adjusted offense level of 21 (including a 16 level increase for his prior federal drug conviction) and a criminal history category of III, the applicable Sentencing Guidelines range was 46-57 months imprisonment. On December 10, 2008, the District Court sentenced appellant to 52 months imprisonment and three years of supervised release. Appellant timely appealed, and argues: (1) the District Court erred by finding as a matter of law that it could not vary downward to compensate for the “fast-track disparity”; (2) his sentence is substantively unreasonable because of the offense level increase pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(i); and (3) the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326 are facially unconstitutional. II. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We first review a sentence for procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we “consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. III. A. Fast-Track Disparity At sentencing, appellant urged the District Court to vary downward on the basis of the “fast-track disparity.” Some 782federal districts have fast-track programs which enable defendants charged with violating 8 U.S.C. § 1326 to receive lower sentences in exchange for waiving certain rights. Guideline § 5K3.1 permits a district court to depart downward by up to four levels pursuant to a fast-track program. Because appellant was not prosecuted in a fast-track district and was, therefore, not eligible for this downward departure, he asked the Court for a downward variance on the basis of “fast-track disparity.” In United States v. Vargas, 477 F.3d 94 (3d Cir.2007), we held that because Congress had sanctioned the fast-track programs, any resulting sentencing disparity was not “unwarranted” under § 3553(a)(6).1 At sentencing, the District Court predicted that “the Third Circuit ... will continue to take the position that a Congressionally imposed disparity is one that doesn’t contravene section 3553,” and so denied appellant’s request for a variance. (App. at 114.) We recently held, however, that “to the extent that [Vargas ] has been read ... as prohibiting a sentencing court’s discretion to consider a fast-track disparity argument because such a disparity is warranted by Congress under § 3553(a)(6) ... [that] interpretation is no longer the view of our Court in light of Kimbrough’s2 analytic reasoning.” United States v. Arrelucea-Zamudio, 581 F.3d 142, 149 (3d Cir.2009). Vargas’s holding that it is not an abuse of discretion to decline to vary on this basis “remains viable after Kimbrough.” Id. at 148. Appellant is thus correct that, after our decision in Arrelucear-Zamudio, a district court has the discretion to vary downward because of fast-track disparity. It is not entirely clear that the District Court recognized that it had this discretion. After hearing argument on several legal issues, including fast-track disparity, the District Court stated: “I recognize that all of these arguments were made to me in the context of variance, and recognize my discretion ... to accept them, and to craft them into my sentence.”3 (App. at 113-14.) Appellant contends, however, that the Court was referring only generally to its power to vary, and notes that it had stated earlier that “I can disagree on 783the facts of a particular case with regard to [Guideline policy. I don’t have the same power to disregard Congressional policy.” (App. at 95.) What is clear is the District Court’s statement that it would impose a sentence of 52 months imprisonment even if its legal conclusions were incorrect. See United States v. Smalley, 517 F.3d 208, 212 (3d Cir.2008) (noting, in the context of an incorrectly calculated Guidelines range, that “once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district coui't’s selection of the sentence imposed”) (quoting United States v. Thayer, 201 F.3d 214, 229 (3d Cir.1999)). Appellant argues that the District Court was “attempting] to insulate its legal ruling from appellate review” and did not provide adequate support for the sentence imposed. (Appellant’s Br. at 20.) “To be procedurally reasonable, a sentence must reflect a district court’s meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a),” United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007), and provide sufficient explanation “to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We are satisfied that the Court adequately explained the sentence it imposed. The District Court stated that a sentence of 52 months imprisonment “properly reflects the statutory considerations and seriousness of the offense, promotes respect for the law, just punishment, and deter[s] both this defendant and similarly situated defendants from reentering the United States.” (App. at 119.) It also explained that it selected the sentence it did “in part because of the defendant’s activity while here illegally,” including his criminal history and flight from prosecution: So the history here is someone who has entered illegally at least twice, who each time he does so, he’s — or the second time he does so he is convicted of a serious offense[ ] and runs from the law and responsibilities, and the Court, and when given opportunities to do something else, he cho[o]ses to run. I can only be left with the conclusion that this defendant needs a substantial sentence in order to prevent continuing conduct, and to send a message to him and other[s] similarly situated that reentry into the United States or to engage in criminal behavior after having been deported previously of a serious offense is a serious offense, and there will be a substantial period of incarceration imposed if he is apprehended in that state. (App. at 117, 118-19.) The Court also acknowledged appellant’s “family history, his desire to be in the United States, to be with family members” but noted that “there is a right way and wrong way to do that.” (Id. at 117-18.) It is thus clear that the Court properly considered the § 3553(a) factors and sufficiently explained the sentence it selected. B. U.S.S.G. § 2L1.2 Special Offense Characteristic Guideline § 2L1.2 sets the base offense level for unlawfully entering the United States at 8. U.S.S.G. § 2L1.2(a). It also provides that the offense level should be increased by 16 levels if the defendant was previously deported after a conviction for a drug trafficking felony for which the sentence imposed exceeded 13 months. Id. § 2L1.2(b)(l)(A)(i). Appellant does not challenge the calculation of the Guidelines range. Rather, he argues that 784§ 2L1.2 is itself unreasonable and that its application resulted in an unreasonable sentence. He asserts several policy arguments to support his position, including: (1) his adjusted offense level of 24 is comparable to the offense levels for more serious, violent crimes; (2) his prior conviction is double-counted, as it is factored both into his criminal history category and the offense level increase; and (3) the offense level increase lacks empirical support and overstates his risk of recidivism. The District Court considered and rejected these arguments, and concluded that § 2L1.2 reflected a rational sentencing regime. The Court noted appellant’s comparison of his adjusted offense level to violent offenses, and concluded that the offense level increase was not irrational, given “the nexus between drug trafficking and weapons, and the nexus between unlawful reentry and drug trafficking crimes” as demonstrated by appellant’s own criminal history. (App. at 116.) The Court also concluded that the prior offense was not impermissibly double-counted because the criminal history points factor in the conviction itself and the offense level increase is based on the combination of both the “prior offense and being here illegally.” Id. at 117; see also U.S.S.G. § 2L1.2 cmt. n. 6 (“A conviction taken into account under subsection (b)(1) is not excluded from consideration of whether that conviction receives criminal history points.... ”); United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir.2009) (rejecting claim that “use of a prior conviction as a basis for a sentencing enhancement and for calculating a defendant’s criminal history score constitutes impermissible double counting”); United States v. Ruiz-Terrazas, 477 F.3d 1196, 1204 (10th Cir.2007) (“[W]e have routinely upheld as reasonable the use of prior convictions to calculate both the criminal history category and a sentence enhancement where, as here, the Guidelines authorize it.”). The District Court also compared the empirical data for the cocaine Guidelines at issue in Kimbrough with the formulation of § 2L1.2, and found that § 2L1.2 “is not a[G]uideline that is inconsistent with what a rational sentence regime would entail, and not inconsistent with general empirical data ... that reflect that a more serious punishment is warranted for more serious crimes.” (App. at 115-16.) The Court noted, as well, that “an objective view of [§ ] 2L1.2, as [the prosecutor] laid out, reflects the [Sentencing] Commission’s repeated efforts to reformulate and modify [§ ] 2L1.2 in a rational way. I don’t think you need much empirical data to support a Sentencing Guideline[ ] that increases the offense levels based on the nature of a conviction, the severity of it.... ” (Id. at 115.) Thus, the Court concluded, it did not “find anything unreasonable or inconsistent with empirical data in the calculation of [§ ] 2L1.2. Indeed, it’s consistent with common sense and ... importantly, tvith the conduct of this defendant.” (Id. at 117) (emphasis added). Even after Kimbrough, a district court is not required to disagree with a Guidelines provision and vary downward if in fact the court does not have a policy disagreement with the Guidelines. See Arre-lucea-Zamudio, 581 F.3d at 148 (“[A] district court ‘is under no obligation to impose a sentence below the applicable Guidelines range solely on the basis of the crack/powder cocaine differential.’ ”) (quoting United States v. Gunter, 462 F.3d 237, 249 (3d Cir.2006)). It is clear from the record that the District Court found that the application of § 2L1.2(b)(l)(A)(i) in this case yielded a reasonable Guidelines range for this defendant. The Court stated: I recognize that all of these arguments were made to me in the context of vari-785anee, and recognize my discretion ... to accept them, and to craft them into my sentence. But ultimately I’m persuaded here that the 16 level enhancement to [§ ] 2L1.2 is not legally deficient, and accurately reflects or postulates a sentence which furthers the statutory goals. (App. at 113-14.) Appellant points to several cases where district courts varied downward after finding that the application of § 2L1.2 resulted in an unreasonable sentence for the defendant in that case. For example, the district court in United States v. Galvez-Barrios was troubled by the 16 level increase in § 2L1.2 and the fast-track disparity, and imposed a below-Guidelines sentence. 355 F.Supp.2d 958 (E.D.Wis. 2005). Critical to the court’s analysis, however, were facts specific to that particular defendant, who had worked consistently and paid his taxes, and who had not committed any crimes after he re-entered the United States. Although appellant also sets forth various factors which he contends would support a variance, including his motivation for returning to the United States and an alleged delay in federal prosecution on the illegal reentry charge, the District Court’s decision “not to give such mitigating factors the weight that [appellant] contends they deserve does not render [the] sentence unreasonable.” United States v. Lessner, 498 F.3d 185, 204 (3d Cir.2007). Given our deferential standard of review — we must affirm “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided,” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (en banc) — it is clear that the sentence is substantively reasonable. See 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.”). C. “Felony” and “Aggravated Felony” Provisions of 8 U.S.C. § 1326(b)(1), (2) Appellant argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are facially unconstitutional. He recognizes, however, that his claim is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he raises the issue only to preserve it for possible Supreme Court review. IV. For the foregoing reasons, we will affirm the judgment of sentence. . Title 18 U.S.C. § 3553(a)(6) provides that a sentencing court must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” . Kimbrough v. United States, 552 U.S. 85, 110, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (holding that "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder [cocaine] disparity yields a sentence 'greater than necessary' to achieve § 3553(a)'s purposes, even in a mine-run case”); see Spears v. United States, - U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (noting that Kimbrough recognized "district courts' authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case”). .The District Court continued: But ultimately I'm persuaded here that the 16 level enhancement to [§ ] 2L1.2 is not legally deficient, and accurately reflects or postulates a sentence which furthers the statutory goals. Let me discuss that in somewhat more detail. I accept the notion that the Third Circuit would continue to impose Kimbrough, will continue to take the position that a Congressionally imposed disparity is one that doesn't contravene section 3553. Congress in enacting the Protect Act[,] clearly aware of [§ ] 2L1.2, appears to have intended to limit those programs to certain Districts. This is not one of those Districts. It's clear to me that Congress could have chosen differently, could have amended the [Guidelines in various ways and chose not to. (App. at 114.)	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475038/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In these consolidated appeals, James E. Reid appeals from the district court’s orders affirming the bankruptcy court’s orders: (1) denying his motion for reconsideration and (2) denying his motion to add additional parties as Appellees. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Reid v. Knarf Invs., Nos. 1:08-cv-00792-BEL; 1:08-cv02917-BEL; 1:01-bk-50422; 1:05-bk-11977 (D.Md. March 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.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475054/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles Pyne appeals the district court’s order summarily denying his motion for continued recusal and disqualification. We have reviewed the record and find no reversible error. Accordingly, we affirm the order of the district court. See United States v. Pyne, No. 8:04-cr-00018-AW-3 (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. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474983/	OPINION PER CURIAM. Bernard Levi appeals the District Court’s order denying his petition filed pursuant to 28 U.S.C. § 2241. For the reasons below, we will affirm. The procedural history of this case and the details of Levi’s claims are set forth in the District Court’s thorough opinion and need not be discussed at length. Briefly, Levi alleged in his § 2241 petition that his custody classification score was wrongly calculated. He requested that he be transferred to a prison camp or low-security prison. The District Court determined that Levi’s claims were not cognizable and dismissed the petition. Levi filed a timely notice of appeal. *682We have jurisdiction under 28 U.S.C. § 1291. We agree with the District Court that Levi’s claims concerning the determination of his custody level do not lie at the “core of habeas” and, therefore, are not cognizable in a § 2241 petition. See Learner v. Fauver, 288 F.3d 532, 542-44 (3d Cir.2002). None of his claims challenge the fact or length of his sentence or confinement. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Moreover, prisoners have no constitutional right to a particular classification. Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by the District Court, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474984/	OPINION PER CURIAM. Petitioner Lei Wang, a 31-year-old male citizen of China, was admitted to the Unit683ed States in September 2005 with a visitor’s visa. He overstayed the visa and was placed in removal proceedings. Before the IJ, Wang admitted the charge and conceded removability, but sought asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. I As grounds for relief, Wang claimed that he had suffered past persecution because he and his wife had resisted China’s family planning policies, and that he reasonably feared that he would be sterilized if he returned to China and continued to resist those policies. Specifically, Wang alleged that after his first child was born in 2003, his wife was forced by family planning officials to have an IUD inserted and submit to quarterly checkups. Although Wang’s wife allegedly went to her first few checkups, Wang provided no corroborative evidence that his wife ever did so. Wang and his wife later paid a private doctor to remove the IUD, and when Wang’s wife became pregnant again, she went into hiding. Wang testified that while his wife was in hiding, local family planning officials repeatedly visited his home and demanded that his wife submit to a checkup. He stated that when she did not come out of hiding, officials contacted executives at the government-run power plant where Wang worked as an engineer to pressure him into revealing his wife’s location. Wang refused and was fired as a result. Although Wang stated in his asylum application that he was fired in April 2005, he testified before the IJ that he was fired in February 2005. When the IJ asked about the inconsistency, Wang explained that there must have been a mistake in the preparation of his asylum affidavit. In addition, Wang produced no documentation showing either that he was fired from the power plant or, indeed, that he ever began and ceased working there. Wang explained to the IJ that he was not given documentation about the firing. He also gave varying explanations about whether he could obtain records of employment, and noted that his wife tried and failed to obtain such records — a claim itself not corroborated in her letter of support. After he was fired, Wang went into hiding with his wife at her uncle’s home. He testified that in April 2005, family planning officials raided the home and abducted his wife. He testified that she was taken to a local hospital and forced to have an abortion. Although the IJ noted that it is reasonable to assume a hospital might not offer documentation that a patient endured a forced abortion, he also pointed out that Wang provided no corroborating evidence, such as hospital admission records, that the incident ever happened. Wang claimed that the forced abortion traumatized his wife and they sought the help of a private doctor to treat her resulting depression. However, Wang offered no evidence to show that his wife sought medical treatment for depression or received medication, and his wife did not mention any depression in her letter. Wang alleged that his retaliatory firing for opposing China’s family planning policies, as well as his wife’s forced abortion, constituted past persecution entitling him to relief. The IJ reasoned that both Wang’s firing for resistance to China’s family planning policies and his status as the spouse of a person allegedly forced to undergo an abortion rendered him eligible for asylum and other relief, but made an adverse credibility determination and noted Wang’s failure to present corroborative evidence. Accordingly, the IJ denied all relief. On appeal, the BIA upheld the IJ’s determinations that Wang was incredible and 684that he failed to submit sufficient corroborative evidence, and noted that intervening case law rendered Wang ineligible for relief based on his spousal status. Wang then filed a petition for review and a motion to stay removal. The Government filed a response and motion for summary affirmance. II We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations, including an adverse credibility determination, for substantial evidence, and will uphold such determinations unless any reasonable adjudicator would be compelled to reach a contrary conclusion. See Fiadjoe v. Att’y Gen., 411 F.3d 135, 153 (3d Cir.2005). At the outset, we note our agreement with the BIA’s determination that Wang was ineligible for relief based on his spousal status. As the BIA noted, Matter of JS-, 24 I. & N. Dec. 520 (A.G.2008), was issued after Wang’s removal hearing. In J-S-, the Attorney General held that spouses of individuals forced to undergo abortions or sterilization procedures are not per se entitled to refugee status under IIRIRA § 601(a). Id. at 523-24. We have reached the same conclusion. See Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). In denying relief, the IJ found Wang to be incredible and held that his claims were also undermined by his failure to present corroborative evidence. Because Wang’s asylum application was filed in June 2006, his petition is governed by the REAL ID Act of 2005. Prior to the implementation of the REAL ID Act, minor inconsistencies that did not go to the heart of an asylum applicant’s claim were inadequate to support adverse credibility determinations. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). In contrast, the REAL ID Act permits credibility determinations based on, inter alia, inconsistencies that do not go to the heart of the alien’s claim. See 8 U.S.C. § 1158(b)(l)(B)(iii). We have not applied the REAL ID Act standard in a precedential opinion. Here, because the inconsistencies identified by the IJ relate to the heart of Wang’s claims for relief, and would thus support an adverse credibility determination even under the pre-REAL ID Act standard, we need not consider whether 8 U.S.C. § 1158(b)(l)(B)(iii) is consistent with due process. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.2009) (canvassing Circuit law on the provision). The IJ identified the following inconsistencies: discrepancies in Wang’s story about when he was fired; different explanations about whether he could obtain documentation to demonstrate that he was fired; and varying explanations about what circumstances might lead to his forced sterilization. With regard to when he was fired, Wang explained that the April 2005 date listed on his asylum application was a mistake. The IJ, however, was unpersuaded. Wang argues that he does not read or write English and that the discrepancy resulted from an error committed by the individual preparing his 1-589, and also notes that the letters from his relatives confirm that he was fired in February 2005. As the IJ noted, however, the letters from Wang’s relatives are un-sworn and come from interested parties. Even if they carry some persuasive weight, we are not compelled to disagree with the IJ, who had the opportunity to evaluate Wang’s limited explanation and *685found it lacking. We also agree that Wang’s inconsistent answers as to why he could not obtain documentation that his employment had ended support the IJ’s determination.1 In any event, we also agree that the IJ and BIA plausibly relied on Wang’s failure to present documentary corroboration. A denial of relief may be grounded on a failure to corroborate when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)). In this case, the IJ faulted Wang for failing to present corroborative evidence that (1) he was fired for hiding his wife; (2) his wife was subjected to a forced abortion; (3) his wife was treated for depression as a result of her forced abortion; and (4) that his wife was subjected to quarterly checkups following the forced abortion. We agree with the IJ and BIA that Wang could have obtained certain corroborative documents to support aspects of his claim, but failed to either obtain them or explain why he did not. Therefore, we must uphold the denial of Wang’s requests for asylum, withholding of removal, and CAT protection. For these reasons, we will grant the Government’s motion and summarily deny the petition for review. Wang’s motion for a stay of removal is also denied. . However, we disagree with the IJ’s analysis that Wang's testimony about forced sterilization was inconsistent. Although Wang’s explanation of when officials might subject people to forced sterilization lacked clarity, he appears to have made the same claim repeatedly — i.e., he was unaware of exactly how many pregnancies a couple must have before authorities will impose sterilization, but feared that, having impregnated his wife twice before, he is likely to face sterilization if she becomes pregnant again. To the extent that the IJ's analysis was flawed concerning the sterilization claim, however, we are not compelled to reject the adverse credibility determination given Wang's other inconsistencies. See Zheng v. Gonzales, 417 F.3d 379, 382 (3d Cir.2005) (”[W]e are bound to uphold the IJ’s [adverse credibility] decision if it is supported by substantial evidence, and may do so even if we reject some of its bases.”).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474990/	OPINION OF THE COURT HARDIMAN, Circuit Judge. On April 23, 2008, the District Court revoked Appellant Alvin R. Simmons’s supervised release and sentenced him to twenty-one months incarceration. The District Court further directed that Simmons was not subject to supervised release following his release from custody. Counsel subsequently filed this appeal at Simmons’s request, but moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Bureau of Prisons records indicate — and Simmons’s counsel confirms — that Simmons was released from federal custody on November 6, 2009. Because a defendant’s unconditional release typically renders moot an appeal of a district court’s imposition of a term of incarceration for a supervised release violation, United States v. Kissinger, 309 F.3d 179, 182 (3d Cir.2002), we directed Simmons’s counsel to explain why Simmons’s release would not require dismissal of his appeal. In response, Simmons’s counsel concedes that the present appeal is moot under Kissinger. Accordingly, we will enter an order dismissing Simmons’s appeal as moot.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474992/	OPINION COWEN, Circuit Judge. John J. Poltonowicz, pro se, appeals the judgment of conviction and sentence following his trial conviction for one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, twelve counts of aiding, assisting, and counseling the filing of false tax returns in violation of 26 U.S.C. § 7206(2), four counts of mail fraud in violation of 18 U.S.C. § 1341, three counts of wire fraud in violation of 18 U.S.C. § 1343, five counts of making false statements on loan applications in violation of 18 U.S.C. § 1014, and two counts of making false statements to the Internal Revenue Service (“IRS”) in violation of 18 U.S.C. § 1001. We will affirm. I. BACKGROUND Poltonowicz began his career with the IRS as an analyst in its Criminal Investigation Division. In 1992, he left the IRS and began operating a tax preparation business. Over time his business expanded to include additional offices and he hired additional tax preparers. By 2003, the IRS began to suspect fraud and sent an undercover agent to his office with a recording device. During the course of the taped conversation, Pol-tonowicz informed the agent that he would include business expenses in her return, even though she repeatedly told him that she had no business expenses. Although the agent never mentioned charitable contributions, and provided him with no evidence whatsoever of any such contributions, he included $2,190 in cash contributions to charity and $495 in non-cash contributions to charity on the agent’s return. As a result, the agent’s tax return showed that she was entitled to a $12 refund, instead of reflecting that she owed $1,012 in additional taxes. Subsequently, the agent requested a meeting with Poltonowicz to discuss a letter she received from the IRS informing her that she would be audited. Again, the agent wore a recording device. He admitted to the preparation of a false tax return and 692that he included the false deductions to save her from paying additional taxes (as he operated under the assumption that she would not be audited). He reassured her that she would not get in trouble for the fraudulent return. Poltonowicz agreed to plead guilty to one count of filing false tax returns and the IRS revoked his ability to file electronic tax returns. Thereafter, he formed Matrix Tax Service, Inc. (“Matrix”) in the name of June M. McMackin, his long-time roommate and housekeeper. He filed an account with the IRS under her name to again begin filing electronic tax returns. Prior to trial, he moved, pro se, to suppress the evidence obtained during searches of his home and Matrix’s offices. Poltonowicz appeared at the suppression hearing pro se with the assistance of an attorney serving as a legal advisor. He testified that he was not the owner of Matrix, that Ms. McMackin owned Matrix, and that she had interviewed and hired him. The district court denied his motion. At trial, several former employees testified that Poltonowicz instructed them to claim nonexistent employee business expenses, to overstate charitable contributions, and to understate income. Additionally, these witnesses testified that they observed him prepare false tax returns in this manner on numerous occasions. Numerous clients testified about their fraudulent tax returns. Some of these clients were suspicious of the fictitious charitable contributions, but Poltonowicz reassured them that those deductions were standard and would not trigger an audit. Several of these clients had not realized that they had submitted fraudulent tax returns until audited by the IRS. The government also presented evidence of his affinity for overstating income when beneficial. He obtained three mortgages for his home and a lease for an automobile by providing his creditors with W-2 tax forms that overstated his income. He provided W-2s falsified in the same manner for his father and certain clients to assist them in obtaining loans. In each of these instances, the W-2s overstated income and were not the W-2s actually filed with the IRS for that particular year. The jury convicted Poltonowicz of all of the charges except for two counts of making false statements to obtain a loan in violation of 18 U.S.C. § 1014. The parties then prepared for sentencing, for which he retained counsel. The pre-sentence investigation report (“PSR”) estimated the tax loss at $408, 275.1 Poltonowicz moved for an order compelling the government to produce the documents on which it relied. In particular, he asserted that the government was required to support its estimated tax loss with tax returns, memoranda of interviews of clients, and audit reports and demanded production of these documents. The government countered that under the Sentencing Guidelines, it was permitted to support its estimate with the 200 audited tax returns presented at the trial, but that nonetheless, he had all of the requested documents one year prior to his trial. The district court conducted a sentencing hearing, at which Poltonowicz appeared with counsel. The government offered testimony as to its methodology in calculating the tax loss. It restricted the calculations to tax returns that were personally prepared by Poltonowicz as opposed to any of the returns prepared by his employees (despite evidence that he encouraged and sometimes required employees to include false deductions). Of that subset of tax returns, the government included only those that contained one of the methods of falsifying tax returns established at trial, such as fictitious cash 693and non-cash charitable contributions, employee non-reimbursed expenses, and claims of eligibility for the earned income tax credit. The government filtered that subset to include two types of returns: (1) returns for which the IRS had conducted an audit and had subsequently assessed the taxpayer with additional tax liability based on the tax payer’s inability to substantiate their return, or (2) returns for taxpayers interviewed, who confirmed that they did not provide any evidence of the deductions at issue or request that they be included. The estimate of $419,853.20, in the manner calculated, was actually under inclusive. Poltonowicz argued that the court should limit the calculation to those tax returns of former clients whom the government interviewed, which would result in a tax loss of $80,000 to $200,000. He argued that it was improper for the government to include tax returns based solely on audits as some of those fictitious deductions might have been at the direction of his clients. The District Court credited the government’s testimony and found a total tax loss in excess of $400,000. The District Court determined that enhancements for obstruction of justice and the leadership role were appropriate. It sentenced Poltonow-icz to forty-eight months of imprisonment, well below the guidelines range, and imposed a $10,000 fine, a $2,700 special assessment, and $400,000 in restitution. II. DISCUSSION2 Poltonowicz asserts that the District Court erred as it: (1) miscalculated the tax loss, (2) relied on fraudulent tax data submitted by the government in support of its sentencing recommendation, (3) improperly assessed a two-level enhancement for obstruction of justice, (4) improperly assessed a four-level enhancement for being the leader of criminal activity, and (5) improperly imposed restitution in the amount of $400,000. A. Calculation of Tax Loss3 “For tax offenses, a defendant’s base offense level is determined by the tax loss.” United States v. Gricco, 277 F.3d 339, 355 (3d Cir.2002) (citing U.S. Sentencing Guidelines Manual §§ 2Tl.l(a)(l), 2T1.9). “In determining the total tax loss attributable to the offense ... all conduct violating the tax laws should be considered as part of the same course of conduct or common scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated.” U.S. Sentencing Guidelines Manual § 2T1.1 cmt. n. 2. Further, “[a] sentencing court is permitted to make ‘a reasonable estimate based on the available facts’ where the exact amount of tax loss may be uncertain.” Gricco, 277 F.3d at 356; see also U.S. Sentencing Guidelines Manual § 2T1.1 cmt. n. 1 (noting that when “the amount of the tax loss may be uncertain; the guidelines contemplate that the court will simply make a reasonable estimate based on the available facts”). Poltonowicz contends that the District Court erred in finding that the tax loss exceeded $400,000. At the sentencing hearing, he argued that the evidence supported a tax loss of $80,000 to $200,000. For the first time, he now asserts on appeal that the evidence supports a tax loss of $17,960. He faults the District Court 694for relying on extrapolated data and asserts that the District Court should have excluded losses for tax payers whom the government did not interview. The district court relied on evidence presented at trial and the sentencing hearing to reach its conclusion. The government established the modus operandi — preparing tax returns with fictitious data for charitable contributions, employee non-reimbursed expenses, and claims of eligibility under the earned income tax credit. It did not err in including tax returns in the tax loss calculation which had been subject to and had failed an audit by the IRS, even if the government did not interview the tax payer. Poltonowiez is on audiotape informing a potential client that he knew exactly how to claim fictitious deductions without getting caught. Indeed, the evidence suggests a much larger tax loss. He personally prepared 20,000 to 25,000 tax returns, yet the government calculated its tax loss based on just 225 of those returns. One former employee testified that at least 25% of the’returns Poltonowicz filed contained fictitious deductions. The government excluded from its calculation any returns that were prepared by employees, even though several employees testified that he directed them to add fictitious deductions to the returns they filed. On average, 50-54% of returns claim charitable contributions; whereas, 98% of Poltonowiez’s clients claimed such deductions. Notably, his clients uniformly claimed to donate in one of three precise amounts: $490, $495, and $500. Poltonowiez also challenges the government’s calculation of additional losses by comparing his average claims for certain deductions, such as the charitable deduction, with that of the national average. He asserts that it was improper to compare his clients to the national average because his clients were not average tax payers; rather, his clients consisted of blue-collar, religious, conservative tax payers who were far more likely to make charitable contributions than the average tax payer. He makes a similar argument with respect to the government’s comparative information on employee non-reimbursed expenses. These arguments lack merit. The District Court did not rely on the government’s comparative data in reaching its conclusion that the tax loss exceeded $400,000. The District Court based its conclusion on the audited returns and mentioned the additional statistical evidence in noting that the government’s calculation was extremely conservative. There is no error with a District Court’s consideration of statistical evidence in a case involving upwards of 20,000 tax returns. The government presented a conservative tax loss calculation. This estimate was reasonable given the evidence before the District Court. We reject the challenge to the tax loss calculation. B. Prosecutorial Misconduct4 Poltonowiez asserts that the government supported its calculation with several returns that it knew were inaccurate to reach the threshold tax loss amount of $400,000. This contention lacks merit. The government excluded the returns in question and still reached a tax loss of $419,858.20. Poltonowiez presented no evidence of any inaccurate tax returns, nor did he present any evidence that would negate his liability for the tax losses identified by the government. We reject Polto-nowicz’s claim of prosecutorial misconduct. 695C. Obstruction of Justice Finding Poltonowicz asserts that the District Court erred in assessing a two-level enhancement under § 3C1.1 of the U.S. Sentencing Guidelines Manual, for obstruction of justice related to his testimony at the suppression hearing regarding his interest in Matrix. He asserts that there was nothing false about his testimony. The record belies this assertion. D. Leader of Criminal Activity Under § 3B1.1 of the Sentencing Guidelines, courts may increase a defendant’s offense level by four levels “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S. Sentencing Guidelines Manual § 3B1.1. Poltonowicz exerted control over McMackin and others to further his criminal scheme. Two former employees testified that they prepared tax returns containing fictitious deductions at his direction. We reject the challenge to this enhancement. E. Restitution Poltonowicz contends that the district court erred in ordering him to pay restitution as convictions for tax fraud are excepted from those crimes for which restitution can be ordered. There is no legal authority for this claim. The district court had authority to impose restitution under 18 U.S.C. §§ 3583(d), 3563(b)(2). III. CONCLUSION We will affirm the judgment of conviction and sentence of June 12, 2008. . The government later amended the PSR to reflect an estimated tax loss of $419, 853.20. . The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. . We review factual findings, such as the calculation of a tax loss attributable to a defendant's criminal activity, for clear error. See United States v. Roman, 121 F.3d 136, 140 (3d Cir.1997). . We review a district court’s ruling on prose-cutorial misconduct for abuse of discretion. See United States v. Brennan, 326 F.3d 176, 182 (3d Cir.2003).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474994/	OPINION OF THE COURT HARDIMAN, Circuit Judge. David Bagdy appeals from the judgment of the District Court ordering him to pay $566,115.57 in restitution with interest, and sentencing him to 36 months imprisonment. We will affirm. I. Bagdy raises two issues on appeal. He first claims the District Court erred in declining to waive interest on the order of restitution. Bagdy also claims the District Court erred in considering his failure to make any restitution payments prior to sentencing as a factor at sentencing. Bag-dy argues that the District Court erred in both instances because the evidence showed that Bagdy’s financial situation was poor and he had no ability to pay restitution or interest. We find Bagdy’s arguments unpersuasive, primarily because these matters are committed to the sound discretion of the District Court. II. Because we write for the parties, we recount only those facts necessary to our decision. Bagdy pleaded guilty to one count of wire fraud in violation of 18 U.S.C. § 1343 after defrauding his employer of over $500,000 through a kickback scheme with a Russian lumber supplier. Bagdy was indicted on May 16, 2007 and soon thereafter agreed to restitution of $566,115.57. After indictment, Bagdy made numerous motions to continue his change of plea hearing “in order to allow [him] the opportunity to find a significant portion of the restitution.” (App. R. 50-51.) The change of plea was ultimately held on July 7, 2008. Despite multiple continuances, Bagdy had not made any restitution payments by the time of sentencing on October 20, 2008. The Presentence Investigation Report (PSR) calculated Bagdy’s final offense level as 20 and criminal history category as I, resulting in a Guidelines range of 33-41 months imprisonment. The PSR also contained a summary of Bagdy’s financial condition. The PSR provided that, at the time of the interview, Bagdy had $24,000 in his savings account, and a net monthly cash flow of $3258. Bagdy also had substantial outstanding debts upon which he had ceased making payments. The PSR reported that Bagdy “provided minimal information” and “little supportive documentation” at the time of the presentence interview, causing his financial situation to 697be “murky.” At the sentencing hearing, Bagdy testified that his income had dropped substantially since his indictment, forcing him to deplete his savings to pay his living expenses. At sentencing, the District Court noted that Bagdy had requested numerous continuances for the purpose of raising money to pay restitution, but had not made any payments. The District Court stated: I mean even if one were to make a good faith payment of $500, you think you’d do it. I mean that’s just stupid and it probably cost you a couple of extra months in prison. But that was a decision you made. I mean I was a magistrate in McKees Rocks with some of the poorest people in Pennsylvania, and those people used to come in with their $5.00 payments every month on payment plans. I mean if they could do it, you could have paid something. That just — I think that speaks volumes. (App. R. 70-71.) The Court sentenced Bagdy to 36 months imprisonment and ordered him to pay the agreed upon restitution amount of $566,115.57, with interest. Though Bagdy did not object to the imposition of interest at sentencing, he promptly filed a motion to correct or amend the sentence, seeking a waiver of interest under 18 U.S.C. § 3612(f)(3)(A) on the ground that he was unable to pay. The District Court summarily denied the motion. III. A. Bagdy argues that a district court’s refusal to waive interest on restitution is reviewed for an abuse of discretion. See United States v. Guardino, 972 F.2d 682, 686 (6th Cir.1992). The Government argues that, because Bagdy did not object to the award of interest at the sentencing hearing, our review is limited to the more stringent plain error standard. See Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). We need not decide this issue because Bagdy’s argument fails even under the more lenient “abuse of discretion” standard. There is a presumption that a defendant “shall pay interest on any fine or restitution of more than $2,500.” 18 U.S.C. § 3612(f)(1). But if a district court “determines that the defendant does not have the ability to pay interest under this subsection, the court may waive the requirement for interest.” 18 U.S.C. § 3612(f)(3)(A) (emphasis added). The Government argues that the burden of proving inability to pay under § 3612(f)(3) falls on the defendant, and Bagdy failed to make an adequate evidentiary showing entitling him to a waiver of interest. Bagdy contends that he made the requisite showing of inability to pay. The District Court’s summary order denying Bagdy’s motion to correct or amend his sentence does not explain why Bagdy was not entitled to a waiver of interest. Even assuming, arguendo, that Bagdy presented sufficient evidence to trigger the District Court’s discretion under 18 U.S.C. § 3612(f)(3), we find no abuse of discretion on the record in this case. We also note that the issue before the Court was not Bagdy’s ability to pay restitution and interest at the time of sentencing. The Court recognized that Bagdy could not afford to pay a fine because of his mandatory restitution obligation. Rather, the issue was Bagdy’s personal capacity to pay restitution and interest over time. The Court ordered that he pay towards those obligations 50 percent of the amounts he earned from the Bureau of Prisons’ Financial Responsibility Program and a minimum of 10 percent of his gross income during his three years of supervised release. His responsibility for those amounts, of course, did not cease at that 698point. Given Bagdy’s demonstrated earning capacity, the District Court did not abuse its discretion. In sum, while § 3612(f)(3) provides the District Court with the authority to waive interest when a defendant is unable to pay, it does not require waiver of interest. Therefore, the District Court did not err by imposing interest on the restitution order. B. We turn to Bagdy’s assignment of error to his sentence of 36 months incarceration. We review a district court’s sentencing decision for abuse of discretion. United States v. Tomko, 562 F.3d 558, 561 (3d Cir.2009) (en banc). In Tomko, we explained the basis for this standard, noting the District Court’s superior “vantage point” in sentencing matters: “the sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. at 566 (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Therefore, we review both the procedural and substantive reasonableness of a sentence for abuse of discretion. “[A]n abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion.” Id. at 567-68 (quoting United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008)). “[Ajbsent any significant procedural error, we must give due deference to the district court’s determination that the § 3553(a) factors, on a whole justify the sentence.” Id. at 568 (internal quotation and citation omitted). Bagdy argues that the District Court abused its discretion when it relied upon his failure to make a restitution payment prior to sentencing because it was clear error for the District Court to conclude that he was financially able to pay the restitution. Bagdy’s argument misconstrues the District Court’s finding. The District Court did not conclude that Bagdy should have paid the entire balance of his restitution obligation prior to sentencing; rather the Court found it troubling that Bagdy failed to make any payment prior to sentencing, particularly after Bagdy had requested continuances for the specific purpose of gathering money for restitution. There was ample evidence to support the District Court’s finding that Bagdy was capable of paying some restitution. The PSR reported that, while employed by the victim in 2003 and 2004, Bagdy had been earning between $5000 and $7000 per month, which was supplemented by approximately $3500 per month from other consulting jobs. During this time, Bagdy stole over $500,000 from his employer, and offered no explanation regarding the use of the money other than maintenance of his lifestyle. When he first met with probation, Bagdy had over $20,000 in savings and income of $6000 per month. In May 2007, Bagdy sold his house at a profit of over $100,000. Furthermore, in August 2008, after his guilty plea, but before sentencing, Bagdy took a trip to Washington, D.C. with his son, where he was cited for disorderly conduct after he had been drinking. Based on the record, the District Court’s conclusion that Bagdy was financially capable of paying a nominal sum towards restitution was well supported by the record and far from clearly erroneous. Bagdy’s failure to make any restitution despite his ability to do so gives rise to an inference that he did not appreciate the gravity of his crime or his financial obligation to his victim. The District Court’s reliance on these factors in sen*699tencing Bagdy was well within its considerable discretion. For the foregoing reasons, we will affirm the judgment of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8474999/	OPINION OF THE COURT PER CURIAM. Everald Owen’s removal proceedings have been wending through the agency since 1997. In August 2008, the Board of Immigration Appeals (“BIA”) remanded the case of Owen, a citizen of Jamaica, to the Immigration Judge (“IJ”) for analysis as to whether Owen was removable. On remand, the Government lodged an additional charge of removability under Section 241(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(A), namely that Owen was excludable at entry under Section 212(a)(6)(c)(i), 8 U.S.C. § 1182(a)(6)(c)(i), for fraud or misrepresentation of a material fact and under Section 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), for having no valid immigrant visa or entry document. Owen denied the charge, but the IJ sustained it based on Owen’s earlier testimony in the record. The IJ sustained other charges, too, and held that there was no relief from removal available. The IJ stated that Owen could not pursue his application for adjustment of status because Owen was inadmissible and divorced and there was a question about drug trafficking in his past. The IJ also made an adverse credibility determination. Owen appealed to the BIA. Holding that Owen was removable based on the most recently lodged charge, the BIA dismissed the appeal. The BIA noted that Owen’s testimony before the IJ at more than one time supported that he entered the United States by willful misrepresentation of a material fact and that he did not have a valid entry document. Going over the history of the case, the BIA concluded that no other charges were sustainable (as they had been dismissed, withdrawn, or shown to be unsupportable in earlier proceedings). The BIA rejected Owen’s arguments that the Government should not 707have been permitted to lodge the newest charge and that his testimony in support of his adjustment application should not have been used against him. The BIA held that Owen was ineligible for adjustment of status because he and his wife had divorced. The BIA denied Owen’s application for suspension of deportation because Owen, who entered the United States in 1994 and who was served with an order to show cause in 1997, could not show the continuous presence necessary to win such relief. The BIA also rejected Owen’s claim of prejudice — that he would have been awarded relief earlier — if the Government had not lodged (the later withdrawn) drug abuser charge. The BIA noted that most of the delay was caused not by the continuance to brief the drug abuser issue but by Owen’s frequent changes of counsel, failures to submit necessary information, and incarcerations, among other things. Lastly, the BIA rejected Owen’s allegation that the IJ had limited his testimony, finding no impropriety in the IJ’s warnings to him about committing perjury. Owen, representing himself, submits a petition for review. We have jurisdiction over the petition pursuant to 8 U.S.C. § 1252(a). We review the decisions of the IJ and the BIA. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, including adverse credibility determinations, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Owen argues that the BIA erred in ruling that he does not have any relief available to him. He claims that he is eligible for adjustment of status under the Legal Immigration Family Equity Act Amendments (“LIFE Act”), an argument that the Government contends that we cannot consider for Owen’s failure to exhaust. Owen also claims that he was prejudiced by the IJ’s denial of an oral motion for a change of venue. Upon review of the administrative record, we conclude that the Government is correct; Owen did not exhaust his claim for relief under the LIFE Act before the BIA. We cannot consider an issue that was not exhausted in agency proceedings. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005). Accordingly, we cannot consider the issue to which Owen devotes the majority of his brief on appeal as well as his supplemental filing. Owen did, however, raise the issue of the denial of his request for a change of venue in his brief before the BIA. R. 108. Although he contends that the denial was such that it infringed his right to due process, his claim does not succeed because he cannot show any prejudice from any purported due process violation. See Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003) (holding that there is no due process violation in the absence of prejudice). Owen argues that his hearing would have had a different outcome because he would have been better able to prove that he “is actually divorced he and his wife would have remarried while at liberty.” [sic] However, a review of the record shows that Owen had the full and fan-hearing to which he was entitled (including a full and fair opportunity to present information about his marital status). See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001) (summarizing the protections to which an alien is entitled). Moreover, the issue of when he divorced or whether he divorced relates to the LIFE Act claim, which we cannot consider anyway because of his failure to exhaust it in administrative proceedings. In short, because Owen raises an unex-hausted claim that we cannot consider, and 708a due process claim that is without merit, we will deny his petition for review.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475000/	OPINION OF THE COURT CHAGARES, Circuit Judge. In 2001, Thomas Boylan (“Boylan”) purchased a $3 million life insurance policy (the “Policy”) from Jackson National Life Insurance Company, Inc. (“JNL”), and named his wife Holly Boylan (“Holly”) the beneficiary. Boylan died in 2006, and JNL thereafter denied Holly’s claim for benefits, asserting that the Policy had lapsed due to nonpayment of the annual premium. Holly promptly filed this diversity action against JNL seeking payment under the Policy. After discovery, the District Court granted JNL’s motion for summary judgment and denied Holly’s cross-motion for summary judgment. Holly appeals, and we will affirm. I. We write solely for the parties, who are well-versed in the case, and therefore set forth only the essential facts. Boylan pur709chased the Policy from JNL on February 27, 2001, under which an annual premium payment of $3,945.00 was due on or before February 27. In accordance with New Jersey law, the Policy provided a 31-day grace period, during which time coverage under the Policy would continue uninterrupted: GRACE PERIOD FOR PAYMENT OF PREMIUMS Any premium after the first which is not paid on or before the date it becomes due is in default. A grace period of 31 days will be allowed for payment of a premium in default. This certificate will continue in force during this period. If death occurs during the grace period, the unpaid premium on the premium basis then in effect will be deducted from the proceeds of the certificate. Joint Appendix (“JA”) 58. If Boylan failed to remit payment by the end of the grace period, he would be required to undergo formal reinstatement procedures to resume coverage. The Policy stated: HOW A CERTIFICATE IN DEFAULT MAY BE REINSTATED This certificate may be reinstated within five years after the date of any past due premium. Reinstatement is subject to: 1) receipt of evidence of insurability of the Insured satisfactory to the Company; and 2) payment of all past due premiums with interest from the due date of each premium. Interest at the rate of 8% per year compounded annually on past due premiums will be payable to the date of reinstatement. JA 58. JNL’s automated policy administration system generated and distributed certain notices to policyholders during the annual billing cycle. Approximately 25 days before a premium payment was due, the system distributed a “Payment Notice” to the policyholder, alerting him or her to the upcoming due date. If payment was not received by the due date, the system automatically mailed a “Grace Period Notice” to the policyholder approximately ten days after the due date, notifying him or her of the missed payment, the opportunity to make the payment during the grace period, and the consequences of failing to submit a timely grace-period payment. Finally, if payment was not received by the end of the grace period, JNL’s automated system generated and mailed a “Lapse Notice” to the policyholder, advising him or her that the policy was in default and formal reinstatement would be necessary to resume coverage. Boylan’s payment history was checkered. After paying the initial premium to obtain the Policy in 2001, he did not remit the required premium payment to JNL by the February 27 due date in 2002, 2003, and 2004, but did make the payments during the grace period. In 2005, however, Boylan did not make timely payment by February 27, and did not make a payment during the grace period.1 Consequently, JNL’s automated policy administration system mailed to Boylan a Lapse Notice, which contained a limited waiver of the formal reinstatement requirements if Boy-lan submitted payment before April 28, 2005. Boylan took advantage of JNL’s offer by submitting his premium payment on April 22, 2005. Coverage under the Policy was therefore reinstated without incident. In 2006, Boylan received a Payment Notice from JNL, but did not make payment on or before the February 27 due date. 710He subsequently received a Grace Period Notice, but did not make payment within the grace period. Like the year before, JNL mailed Boylan a Lapse Notice, dated March 9, 2006. The 2006 Lapse Notice was identical to the 2005 Lapse Notice: it contained a limited waiver of formal reinstatement requirements if Boylan remitted payment before April 28, 2006. The 2006 Lapse Notice stated in pertinent part: We recently sent you a Grace Period Notice to inform you that unless we received a minimum payment by March 30, 2006, your policy would lapse on that date. We have not received your payment. Please note that your policy has lapsed and that all coverage under this policy has ended. If the amount due is received at the address below during the insured’s lifetime and before April 28, 2006, the policy will be automatically reinstated and we will waive additional requirements. This offer to reinstate automatically is not a waiver of the terms of the policy in the event of any future default of payment of premiums. Otherwise, you will be required to pay additional unpaid premiums plus interest and complete the enclosed Reinstatement Application. Acceptance of the premium does not reinstate the policy; your policy will remain lapsed and no coverage is provided until this application has been approved by [JNL], JA 648 (emphasis in original). This time, Boylan did not submit a payment before April 28, 2006. Instead, he transferred electronically $3,945.00 to JNL on May 19, 2006, but did not submit a completed reinstatement application. Approximately one month later, JNL mailed to Boylan a letter dated June 16, 2006, notifying him that it had received the electronic payment, but that the Policy had lapsed and the payment alone was insufficient to reinstate coverage. The letter invited Boylan to complete a reinstatement application (an additional copy of which was enclosed) if he wished to resume coverage under the Policy. Under separate cover, JNL issued a check to Boylan — also dated June 16, 2006 — in the amount of $3,945.00, essentially returning the electronic payment.2 Boylan deposited this check and it was presented to JNL’s bank for payment on July 3, 2006. There were no communications between JNL and Boylan from May 19, 2006 until Boylan received JNL’s June 16, 2006 letter in the mail. Boylan died on July 5, 2006. On August 11, 2006, Holly submitted a claim to JNL for payment under the Policy, and JNL denied the claim on August 22, 2006. Holly filed this breach-of-contract action on August 29, 2006 and, as stated, the District Court granted JNL’s motion for summary judgment and denied Holly’s cross-motion for summary judgment. This timely appeal followed.3 711II. Holly does not dispute that the Policy lapsed in 2006 when her husband failed to remit payment by the end of the grace period or by the extended April 28 deadline set forth in the 2006 Lapse Notice. Nor does she claim that her husband’s transmittal of the premium on May 19, 2006 by itself sufficed to reinstate the Policy. Her sole claim here, as it was before the District Court, is that by holding Boy-lan’s May 19 electronic payment for approximately a month -with no communications to him, JNL waived its contractual right to require Boylan’s completion of formal reinstatement requirements. Accordingly, she argues, the Policy had been automatically reinstated as a matter of law before her husband’s death, and that she is therefore entitled to the Policy’s benefits. While sympathetic to the difficult and unfortunate circumstances prompting this action, we are impelled to conclude that Holly’s argument finds no refuge in law. An insurance policy generally should be construed according to its plain and ordinary language. Voorhees v. Preferred Mut. Ins. Co., 128 N.J. 165, 607 A.2d 1255, 1260 (1992); Longobardi v. Chubb Ins. Co. of N.J., 121 N.J. 530, 582 A.2d 1257, 1260 (1990). The parties agree that the Policy’s language is unambiguous and required by New Jersey law; therefore, the ordinary rules of construction apply, and the express terms of the Policy control. Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 644 A.2d 1098, 1103 (1994). New Jersey law requires that all life insurance policies within the state contain a grace period of 30 days, during which an insured may submit payment without interruption of coverage. N.J. Stat. Ann. § 17B:25-3. Another statutory provision governs reinstatement of lapsed life insurance policies. It states: There shall be a provision that unless: a. the policy has been surrendered for its cash surrender value, or b. its cash surrender value has been exhausted, or c. the paid-up term insurance, if any, has expired, the policy will be reinstated at any time within 3 years ... from the due date of the first premium in default upon written application therefor, the production of evidence of insurability satisfactory to the insurer, the payment of all premiums in arrears and the payment or reinstatement of any indebtedness to the insurer upon the policy, all with interest at a specified rate and which may be compounded as specified. N.J. Stat. Ann. § 17B:25-9. Given this clear text, it is beyond dispute that once a life insurance policy has lapsed for nonpayment, mere submission of an overdue premium — even if accepted by the insurer — is insufficient to reinstate coverage. See, e.g., Glezerman v. Columbian Mut. Life Ins. Co., 944 F.2d 146, 154 (3d Cir.1991); Hogan v. John Hancock Mut. Life Ins. Co., 195 F.2d 834, 837 (3d Cir.1952). Because Boylan did not submit a completed reinstatement application or demonstrate his continued insurability to JNL, his remittance of the 2006 premium on May 19, 2006 was insufficient to reinstate the Policy. Holly argues, and JNL concedes, that any of the Policy’s provisions — including the formal reinstatement requirements mandated by N.J. Stat. Ann. § 17B:25-9— may be waived. Indeed, JNL expressly waived those very reinstatement requirements in the 2005 and 2006 Lapse Notices, subject to the condition that Boylan remit payment before April 28. “ ‘Waiver’ is the intentional relinquishment of a known right. It is a voluntary act, and implies an election by the party to dispense with something of value, or to forego some advantage which he might at his option have 712demanded and insisted on.” W. Jersey Title & Guaranty Co. v. Indus. Trust Co., 27 N.J. 144, 141 A.2d 782, 786 (1958) (quoting George F. Malcolm, Inc. v. Burlington City Loan & Trust Co., 115 N.J. Eq. 227, 170 A. 32, 34 (N.J.Ch.1934)) (internal quotation marks omitted). Put differently, [i]t is requisite to waiver of a legal right that there be “a clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part[.] A waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition.” Id. at 786-87 (quoting Aron v. Rialto Realty Co., 100 N.J. Eq. 513, 136 A. 339, 341 (N.J.Ch.1927), aff'd, 102 N.J. Eq. 331, 140 A. 918 (N.J.1928)). In the insurance context, a waiver is predicated upon the acts or conduct of the insurer with knowledge of the breach tending to show a recognition of the policy, or an intent to relinquish the right to declare a forfeiture for the known breach.... [I]t is always open to the assured to show a waiver of policy provisions when the conduct of the insurer gives reasonable ground to the assured, as a layman ... to believe that such a forfeiture will not be incurred and the assured relies thereon to his prejudice. Bruni v. Prudential Ins. Co. of Am., 100 N.J.Super. 154, 241 A.2d 455, 460 (N.J.Super.Ct.App.Div.1967) (Carton, J., dissenting), adopted as the Opinion of the Court, 51 N.J. 408, 241 A.2d 449, 450 (1968). In Glezerman, the plaintiff sued an insurance company (Columbian) from which her deceased husband had purchased a life insurance policy. 944 F.2d at 148.4 The policy had lapsed for nonpayment, and Columbian required the policyholder to complete a reinstatement application. Id. at 149. The decedent completed and submitted the application along with the overdue premium, and Columbian denied reinstatement approximately sixty days later. Id. at 154. The plaintiff argued that Columbian had waived formal reinstatement requirements by retaining the overdue premium payment and the reinstatement application for an unreasonable amount of time. Id. We rejected the argument, stating as follows: An insurer has a reasonable amount of time in which to demand proof of insur-ability and then decide whether to reinstate. If the insurer affords the insured a reasonable opportunity in which to comply, the insured’s response is a condition precedent for reinstatement. If these conditions are met, mere payment of the premium is insufficient for reinstatement; the insured must submit evidence of insurability. The only exception is waiver on the part of, or es-toppel against, the insurance company. In the case of Benjamin Glezerman, the Glezermans submitted the application for reinstatement on May 23, 1986. After reviewing the medical records, the application for reinstatement was denied on July 29, 1986. Under Pennsylvania law, for example, the reinstatement provision contemplates the making of a new contract between the parties. The insurance company is not required to reinstate absent evidence of insurability. However, retaining an overdue premium for an extended period of time is evidence that a policy has been reinstated. The benchmark for determining a reasonable period may be a period specified by the insurance contract. In Hogan, the poli713cy gave the insurance company sixty days within which to act, and it did so. The reinstatement provision in the Glez-ermans’ policy did not specify the period in which Columbian had to evaluate the insurability of the applicant. Columbian did respond in just over sixty days, however. There is no evidence in the record that Columbian acted in a dilatory or even lackadaisical manner. We therefore hold that Columbian acted within a reasonable period of time in responding to the Glezermans’ application. Id. at 153-54 (emphasis added). Relying on this passage, the District Court found as a matter of law that JNL had not waived its right to require Boylan to undertake formal reinstatement procedures, and that its month-long retention of the May 19, 2006 premium payment was neither unreasonable nor indicative of a waiver. JA 11-12. We agree. The 2006 Lapse Notice set forth a limited waiver of formal reinstatement requirements, subject to the explicit condition that Boylan pay the premium before April 28, 2006. JA 648. “Otherwise,” it stated, “you will be required to pay additional unpaid premiums plus interest and complete the enclosed Reinstatement Application.” Id. (emphasis added). Finally, the Lapse Notice stated in no uncertain terms that “[ajcceptance of the premium does not reinstate the policy; your policy will remain lapsed and no coverage is provided until this application has been approved by [JNL].” JA 648 (emphasis added). Far from a “clear, unequivocal, and decisive act” evincing JNL’s intent to relinquish the right to require a reinstatement application and proof of insurability, W. Jersey Title & Guaranty Co., 141 A.2d at 787, the 2006 Lapse Notice documented JNL’s affirmative intent to retain the right to demand formal reinstatement procedures if payment was not made before April 28, 2006. Holly attacks the District Court’s application of Glezerman, contending that it erroneously imposed a bright-line rule of reasonableness and that a jury should decide whether retention of the premium was reasonable. We disagree. The District Court stated expressly that “[tjhere is no bright line rule for determining the reasonableness of the time period that a premium has been retained,” and that “the Glezerman court indicated that a more in-depth examination of the circumstances is warranted.” JA 10-11. Indeed, we explained in Glezerman that an insurer’s extended retention of an overdue premium payment was simply “evidence that a policy has been reinstated.” Glezerman, 944 F.2d at 154 (emphasis added). We did not purport categorically to find a waiver for any particular length of time during which an insurer retains an overdue payment; instead, the delay is but a factor bearing on the “intentional-relinquishment” standard set forth by well-settled New Jersey law. Here, JNL placed Boylan on notice time and again that his failure to remit payment before the end of the grace period — and later, before April 28, 2006— would result in a lapsed Policy. In such an event, unless and until a reinstatement application had been completed by Boylan and accepted by JNL, the Policy would be in default and no coverage would be available in the interim. Based on its prior communications to Boylan, therefore, we conclude that JNL did not waive its right to enforce the Policy as written.5 714In any event, we also reject Holly’s argument that JNL’s month-long retention of the overdue premium payment was, in this case, unreasonable (or at least presented a jury question). JNL submitted an affidavit to the District Court explaining that upon receipt of a payment that cannot be applied to a particular policy (including a lapsed policy), it places the funds into a “suspense account” for approximately fifteen days in order to allow the insured to submit documentation (e.g., an explanation for why the payment was submitted, a completed reinstatement application, etc.). JA 573-75.6 After fifteen days, JNL conducts research to determine why the funds were received, and takes appropriate action thereafter. JA 575. Upon review, we find this procedure reasonable and this case indistinguishable from Glezerman.7 Holly argues that JNL could have responded more quickly using its automated policy administration system. We hold, however, that Holly has produced no evidence that JNL “acted in a dilatory or even lackadaisical manner,” Glezerman, 944 F.2d at 154, that its retention of the overdue premium was reasonable as a matter of law, and accordingly that such retention did not result in a waiver of its contractual rights as set forth in the Policy.8 715hi. For the reasons expressed above, we will affirm the judgment of the District Court. . It is undisputed that from 2002 through 2005, Boylan received Payment and Grace Period Notices at the appropriate times. . The check was mailed on June 20, 2006. JA 591. . The District Court had jurisdiction under 28 U.S.C. § 1332(a), and we have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court's grant of summary judgment is plenary, and we apply the same legal standard as it should have. Vitalo v. Cabot Corp., 399 F.3d 536, 542 (3d Cir.2005). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must view the record in the light most favorable to Holly, the non-movant, and must also draw all reasonable inferences in her favor. See Vítalo, 399 F.3d at 542; Fed.R.Civ.P. 56(c). The underlying facts of the case — in which New Jersey substantive law applies, see Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d 229, 243 (3d Cir.2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)) — are not in dispute. . The plaintiff also sued her insurance broker and the policy administrator. The claims against those defendants are not germane here. . Holly argues that "[t]his appeal is not about correspondence that JNL sent before Boylan's electronic funds transfer ('EFT') of May 19, 2006.” Holly Rep. Br. at 1 (emphasis in original). We disagree. One cannot adequately assess JNL's intent (or lack thereof) to relinquish its contractual rights after receiving the overdue premium without resort to the prior communications. That these communi714cations demonstrate unequivocally what JNL's expectations would be in the event that Boylan did not timely submit payment is not a reason to disregard them. . In her reply brief, Holly avers that there is a factual irregularity with respect to JNL’s suspense account protocol. See Holly Rep. Br. at 3. Because the check returning Boylan’s electronic payment was "drawn on a general account and not a trust account,” she says, there is no record evidence that JNL maintained a separate suspense account for payments that could not be posted to a particular policy. Id. Whether or not the funds were actually held in a distinct and dedicated bank account, however, is immaterial to our analysis. The point is that the funds were "suspended” — reasonably, in our view — for fifteen days to allow the insured sufficient time to submit supplemental documentation before JNL took action on the transmitted funds. And there is undisputed record evidence for this proposition. JA 573-75. . The District Court recognized, as do we, that the policyholder in Glezerman had submitted a reinstatement application, whereas here Boylan had not. See Glezerman, 944 F.2d at 149, 154. Holly argues that JNL’s retention of the overdue premium payment sans application is distinguishable from Glez-erman because in this case there was nothing for JNL to review, making the month-long retention of funds unnecessary and therefore unreasonable. We conclude to the contrary. JNL’s stated procedures for retaining funds unaccompanied by a completed reinstatement application are reasonably designed to promote efficiency when a policyholder submits documentation soon after submitting payment. This procedure — even in the absence of any reinstatement application to review — is simply not indicative of an intentional waiver of JNL’s contractual rights, nor do we find it unreasonable. .Holly also argues that we should apply by analogy cases interpreting N.J. Stat. Ann. § 17B:26-7, the statutory provision governing reinstatement of health insurance policies. The District Court rejected this argument, and we do so as well. While the cases Holly cites generally concern the temporal reasonableness of an insurer's response to an insured’s overdue payment and/or reinstatement application, they interpret statutory language not appearing in § 17B:25-9, which is unambiguous and controlling here. The cited cases are irrelevant to the issue of whether JNL intentionally waived the statutorily required reinstatement provision appearing in Boylan’s Policy.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475003/	OPINION OF THE COURT NYGAARD, Circuit Judge. Appellant Mary Whitesell appeals the District Court’s grant of summary judgment in favor of Dobson Communications based on the court’s conclusion that a reasonable jury could not find that Dobson Communications (d/b/a Cellular One) had discriminated against her based on her age under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621-34. We will affirm the ruling of the District Court. I. Because we write exclusively for the parties herein, we need not discuss the facts or procedural history of this case. The ADEA prohibits employers from discriminating against individuals in hiring, termination, compensation or conditions of employment on the basis of age. 29 U.S.C. § 623(a)(1). To establish a claim under ADEA, Whitesell must first establish that she is over forty years of age, that she is qualified for the position at issue, that she suffered an adverse employment decision and was replaced by a person whose relative youth creates an inference of job discrimination. Keller v. Orix Credit Alliance Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc). Whitesell has established a prima facie case and Cellular One does not contest this. Likewise, Whitesell does not contest the District Court’s finding that Cellular One has met its burden of producing evidence of a legitimate, nondiscriminatory reason for the adverse action. See Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 522 (3d Cir.1992). Cellular One presented evidence — not challenged by Whitesell — that Whitesell’s supervisors at Cellular One were dissatisfied with her performance, to the point that Whitesell was at the last stage of Cellular One’s progressive disciplinary system when she was terminated for the failure of her store to reach its sales quotas. As a result, the burden shifted to Whitesell to point to some evidence from which we could reasonably conclude that Cellular One’s articulated legitimate reasons are not believable or that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. Fuentes v. Perskie, *71782 F.3d 759, 764 (3d Cir.1994). This Whitesell has failed to do. We agree with the District Court’s conclusion that White-sell did not produce sufficient evidence of pretext for age discrimination. Therefore, she does not meet her burden and summary judgment is appropriate. II. Whitesell additionally argues that our decision in Makky v. Chertoff, 541 F.3d 205 (3d Cir.2008), which was decided after summary judgment was entered against her in the District Court, rescues her claims of age discrimination. However, we need not determine here whether our holding in Makky applies here. Even were we to apply Makky’s holding to this case, we would affirm the District Court because we cannot find any evidence of discrimination-direct or indirect — on this record. Cellular One followed its disciplinary procedures before terminating Whitesell’s employment. Importantly, Whitesell herself admitted to her poor performance record and sales quotas before the District Court. The District Court did not err in concluding that Whitesell’s age was not a factor in Cellular One’s decision to terminate her employment. III. As a final issue, Whitesell argues that the District Court erred in granting Cellular One summary judgment on her claim of hostile work environment. Assuming such claims can be presented under the ADEA, we agree with the District Court that Whitesell’s case is lacking. As evidence, Whitesell points to remarks made by her supervisor Clark wherein Clark commented that she “needs glasses” and asked whether she remembered older television shows or movies. Clark also apparently turned to Whitesell while they were walking and said “come on, old lady, keep up.” To determine whether the comments were severe or pervasive, we evaluate “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with the employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation marks omitted). Here, the comments were neither physically threatening nor humiliating, and Whitesell has not shown how the comments affected her work performance. See also Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir.2005) (isolated comments about Racicot’s age such that she “shouldn’t be working at [her] age” were not pervasive enough to create an objectively hostile work environment). The District Court did not err in dismissing her hostile work environment claim. IV. Whitesell failed to provide direct or circumstantial evidence of age discrimination sufficient to survive summary judgment. She likewise failed to put forth evidence of a hostile work environment. The judgment of the District Court will be affirmed.	01-04-2023	11-05-2022

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