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https://www.courtlistener.com/api/rest/v3/opinions/8475007/	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/8475009/	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/8475011/	OPINION PER CURIAM. Kenneth Taggart appeals pro se from a District Court order dismissing his action as untimely. For substantially the same reasons, we will affirm. On March 5, 2009, Taggart initiated this action in state court asserting violations of the Truth In Lending Act (“TILA”). Tag-gart alleged that the terms he signed in his mortgage closing on July 20, 2005, were different than the disclosures he previously received on June 5, 2005. Taggart claimed that the lender did not make the paperwork available for 24 hours prior to settlement, that the June 2005 disclosures were confusing and misleading, and that the margin of the annual percentage rate was different than what he was originally informed they would be. Taggart also sued for rescission rights. On April 9, 2009, defendants removed the action to federal court and filed a motion to dismiss. Defendants argued that Taggart’s claims were time-barred and that his rescission and damages claims were not actionable under TILA. In support, they included a copy of the mortgage note, which was signed by Taggart on July 20, 2005, along with various other docu732ments from the property closing that disclosed the terms of the mortgage. The District Court converted defendants’ motion to dismiss into a motion for summary judgment and ordered Taggart to respond, specifically to “demonstrate why the action was not filed too late (for example, if equitable tolling applies).” Taggart replied, but did not address how his action is not barred as untimely. Accordingly, the District Court found that the action was filed too late and dismissed it.1 Taggart timely appealed. Appellees filed a motion for summary affirmance. We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm if Tag-gart’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. Our review is plenary. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir.2006). Summary judgment will be affirmed if the record demonstrates that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). TILA imposes a one-year statute of limitations on actions that state a claim for damages based on a violation of disclosure provisions. See 15 U.S.C. § 1640(e). The limitations period begins when the transaction occurs. Id.; see also Ramadan v. Chase Manhattan Bank, 156 F.3d 499, 500-01 (3d Cir.1998). Equitable tolling can rescue a TILA claim otherwise barred by the statute of limitations when the mov-ant has “in some extraordinary way ... been prevented from asserting his or her rights.” See Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.1998) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1380 (3d Cir.1994)). Specifically, he must demonstrate that he “exercised reasonable diligence in investigating and bringing” his claims. Miller, 145 F.3d at 618-19 (quoting New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir.1997)). The parties do not dispute that Taggart closed on the mortgage and signed the TILA disclosure statements on July 20, 2005. Taggart filed his complaint on March 5, 2009 — clearly exceeding the one-year limitations period. Taggart’s claim that he has the right to rescind also does not render his action timely; under 15 U.S.C. § 1635(f), he must file his action within three years after the closing. Even assuming that this section applies, the three-year period expired in July 2008.2 Thus, his claims are time-barred. Taggart also fails to show that equitable tolling applies. See Santos v. United States, 559 F.3d 189, 198 (3d Cir.2009). He does not show that defendants actively misled him or engaged in conduct after the loan closed that justifies equitable relief. The mortgage documents that Taggart signed expressly state the terms of his loan, which appellees show that Taggart continued to pay for over three years up until he filed the instant action. Taggart also does not show that defendants took extraordinary steps to prevent him from asserting his rights. Id. Nor does he show 733that he exercised reasonable diligence in investigating and bringing these claims. Miller, 145 F.3d at 618-19. Accordingly, Taggart’s claims were properly dismissed. Finally, Taggart’s arguments to this Court do not justify relief. The District Court did not err in denying Taggart permission to amend because his claims were barred as a matter of law. Even assuming, arguendo, that violations had occurred, the latest Taggart could have filed a claim was one year after his mortgage closed, i.e., not later than July 20, 2006. His contention that he did not discover the alleged misleading terms until the payments had increased does not excuse his untimeliness. Section 1635(f) also completely extinguished any right of rescission Taggart could have asserted when the three-year period ended on July 20, 2008. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). Because dismissal was proper and because the appeal presents no substantial question, we will grant the Appellees’ motion and summarily affirm the District Court judgment. Appellant’s motions for summary action are denied as moot. In light of our disposition, Appellees’ motion to strike Appellant’s document titled “Additional Information/Notice to Court for Appellant’s Cross to Motion for Summary Action” is denied. . In its memorandum, the District Court incorrectly identified the date of the mortgage closing as June 20, 2005. A review of the record indicates that the mortgage closing was on July 20, 2005. This error does not change the outcome of the District Court's decision. . Moreover, a consumer’s right of rescission extends for three years only if the property is the consumer’s principal dwelling. See 15 U.S.C. § 1635. Evidence provided by defendants shows that the mortgage was to refinance an investment property.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475013/	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/8475015/	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/8475017/	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/8475019/	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/8475023/	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/8475027/	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/8475029/	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/8475035/	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/8475037/	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/8475039/	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/8475042/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David M. Kissi seeks to appeal the district court’s order denying without prejudice the plaintiffs’ motion to reopen the underlying proceedings. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Kissi seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475044/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Glenn I. Hockney appeals the district court’s order adopting the recommendation of the magistrate judge and dismissing Hockney’s civil action for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hockney v. PCS Phos*789phate Corp., No. 4:08-cv-00210-BR (E.D.N.C. May 21, 2009). We deny Hockney’s motion to provide relief and prevent serious wrong and motions to expedite. 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/8475046/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Wesley Edward Smith, III, appeals the district court’s order dismissing his civil complaint and denying leave to amend the complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. Virginia, No. 3:08-cv-00800-REP, 2009 WL 2175759 (E.D.Va. July 16, 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/8475049/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alvis Luther Evans appeals the district court’s denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Evans, No. 5:03-cr00043-H-1 (E.D.N.C. Jan. 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/8475051/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Paul Mayer appeals the district court’s order denying relief on his civil complaint. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2006). The magistrate judge recommended that relief be denied and advised Mayer that failure to file timely and specific objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Mayer failed to file specific objections to the magistrate judge’s recommendation. The timely filing of specific objections to a magistrate judge’s recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Mayer has waived appellate review by failing to timely file specific objections after receiving proper notice. Accordingly, we affirm the judgment of the district court. 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/8475053/	Petition denied by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Okang Kareem Rochelle petitions for a writ of mandamus seeking an order directing release pending sentencing or a status conference in the district court, and for the appointment of a special judge to “preside over litigation who would ensure that [his] rights governed by a fair and public hearing or trial [are] respected and protected.” Pet. for Writ of Mandamus at 2. We conclude that Rochelle is not entitled to mandamus relief. Mandamus relief is available only when the petitioner has a clear right to the relief sought. In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.1988). Further, mandamus is not a substitute for a direct appeal; it is a drastic remedy that should only be used in extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987). Rochelle fails to demonstrate extraordinary circumstances or that his rights cannot be fully protected through the established appellate process. Accordingly, although we grant leave to proceed infor-ma pauperis, we deny the petition for writ of mandamus. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475136/	263ORDER Joel Sanchez-Rodriguez, a Mexican citizen, was ordered removed after he pleaded guilty to two counts of distributing cannabis and was sentenced to probation. On appeal he argues that he is not removable because he withdrew his guilty plea and is thus no longer “convicted” for immigration purposes. The Board of Immigration Appeals ordered Sanchez-Rodriguez removed for committing a crime involving moral turpitude, see 8 U.S.C. § 1182(a)(2)(A)(i)(I), so our review is limited to the threshold jurisdictional question of whether there is a conviction that justifies removal. 8 U.S.C. § 1252(a)(2)(C)-(D); see also Ali v. Ashcroft, 395 F.3d 722, 726 (7th Cir.2005). Because Sanchez-Rodriguez remains convicted for immigration purposes, we dismiss for lack of jurisdiction. Background On September 11, 1997, after Sanchez-Rodriguez pleaded guilty to two counts of delivering cannabis, the state court made a finding of guilt but withheld judgment and instead ordered Sanchez-Rodriguez to complete two years of probation. See 720 ILCS 550/10. According to the state statute, if he complied with his terms of probation for two years, the charges would be dismissed and he would not have a conviction according to Illinois state law. Id. Shortly after sentencing, Sanchez-Rodriguez petitioned to become a lawful permanent resident. This petition brought him to the attention of immigration officials, who discovered his guilty plea and instituted removal proceedings. An immigration judge ordered Sanchez-Rodriguez removed in April 1999, concluding that his guilty plea constituted a conviction according to immigration law, and the conviction rendered him ineligible for permanent residency. Sanchez-Rodriguez appealed. On September 10, 1999, almost exactly two years after his plea, Sanchez-Rodriguez’s probation officer and the Illinois state’s attorney moved to dismiss the charges. The state court permitted Sanchez-Rodriguez to withdraw his guilty plea, explaining “the defendant’s plea of guilty is withdrawn. These proceedings are dismissed, and the defendant is discharged.” In January 2003, the BIA remanded Sanchez-Rodriguez’s appeal to determine whether, in light of his withdrawn guilty plea, he had been “convicted” for immigration purposes. The immigration judge (IJ) concluded that our decision in Gill v. Ashcroft, 335 F.3d 574 (7th Cir.2003), compelled a finding that Sanehez-Rodriguez was “convicted” for immigration purposes and ordered Sanehez-Rodriguez removed in January 2005. In Gill, we held that an alien who received probation following a guilty plea was “convicted” under federal immigration law and was thus removable even though his conviction was discharged for successfully completing probation. Id. at 576. Sanehez-Rodriguez appealed, and once again the BIA remanded the case, this time for the IJ to consider its decision in Matter of Cota-Vargas, 23 I. & N. Dec. 849 (B.I.A.2005). In Cota-Vargas, the BIA gave full faith and credit to a state court’s decision to reduce a sentence even though the reduction was to allow the alien to avoid the immigration consequences of a one-year sentence. However, instead of arguing that Cota-Vargas should change the outcome in his case, Sanchez-Rodriguez tried a different tactic: he asked the new IJ to grant him a continuance so that he could seek post-conviction relief. Specifically, he sought to have his delivery charge reduced to possession, which he believed would render him not removable. Although the IJ continued his case several 264times, Sanchez-Rodriguez never requested the post-conviction relief he claimed to have sought, and by the date of his final merits hearing the case had been pending for nearly 21 months. The IJ refused to grant another continuance, deferred to the prior IJ’s conclusions regarding the conviction, and ordered Sanchez-Rodriguez removed. Sanchez-Rodriguez appealed again, but the BIA dismissed the appeal, finding that he remained guilty of a removable offense. The BIA affirmed the original IJ’s determination that Sanchez-Rodriguez remained “convicted” for immigration purposes and affirmed the new IJ’s conclusion that no further continuances were warranted. Analysis On appeal Sanchez-Rodriguez first argues that he was not “convicted” as defined under the Immigration and Nationality Act (INA), which characterizes an alien as convicted as soon as he (i) pleads guilty and (ii) is sentenced to some form of punishment, even without a final adjudication of guilt. 8 U.S.C. § 1101(a)(48)(A); Gill, 335 F.3d at 576. Sanchez-Rodriguez believes his withdrawn plea falls outside the scope of this definition. Nonetheless, we find that the BIA’s conclusion to the contrary was correct. Taking the second and most straightforward prong first, Sanchez-Rodriguez’s term of probation counts as punishment for purposes of defining conviction. Ali v. Ashcroft, 395 F.3d at 729 (sentence of three years’ probation satisfies second prong); Gill, 335 F.3d at 576 (“[TJhe term of probation satisfies part (ii) [of § 1101(a)(48)(A) ].”). Sanchez-Rodriguez also satisfies the first prong of the definition. The BIA has determined that “the original finding or confession of guilt is sufficient to establish a ‘conviction’ for purposes of the immigration laws.” Matter of Roldan-Santoyo, 22 I. & N. Dec. 512, 518 (B.I.A.1999). Even a plea that is later vacated or withdrawn satisfies the definition if the vacatur is for rehabilitative or remedial purposes. Matter of Pickering, 23 I. & N. Dec. 621, 624 (B.I.A.2003) (finding a quashed conviction sufficient); Roldan-Santoyo, 22 I. & N. Dec. at 528 (giving no immigration effect to rehabilitative vacaturs). Sanchez-Rodriguez next argues that, even if he was initially “convicted” under the INA’s definition, he is not removable because the definition does not extend (1) to pleas withdrawn on substantive grounds, Pickering, 23 I. & N. Dec. at 624, or (2) to modified sentences, Cota-Vargas, 23 I. & N. Dec. at 852. Sanchez-Rodriguez contends that these two limitations, and not the general rule regarding rehabilitative vacaturs, govern his case. Neither limitation applies to Sanchez-Rodriguez. First, although immigration courts will not give effect to a finding of guilt that is later withdrawn because of some “procedural or substantive defect in the underfying [criminal] proceedings,” Pickering, 23 I. & N. Dec. at 624; see also Sandoval v. INS, 240 F.3d 577, 581 (7th Cir.2001) (finding defense counsel’s failure to advise petitioner on immigration consequences of his plea rendered plea involuntary and raised potential constitutional questions), Sanchez-Rodriguez has pointed to no such defect in his case. Instead, he argues that the reasons behind the withdrawn plea are “vague,” and asks us to assume the plea was withdrawn because of some unspecified defect. He proposes, for example, that the criminal proceedings must have been flawed because the probation statute does not explicitly provide for withdrawn pleas, so a defect would be the only alternate explanation. But like the alien in Pickering, Sanchez-Rodriguez provides no “basis to question the integrity 265of the underlying criminal proceeding or conviction.” Pickering, 23 I. & N. Dec. at 625; see also Ali v. U.S. Atty. Gen., 443 F.3d 804, 811 (11th Cir.2006). As the IJ concluded, the facts do not support Sanchez-Rodriguez’s contention and instead suggest that his plea was withdrawn precisely because he completed his probation. Sanchez-Rodriguez withdrew his plea exactly two years minus one day after his initial sentence, on the exact dated the state court designated as the end of his probation. The motion itself further indicates that Sanchez-Rodriguez satisfied the terms of his probation. The IJ concluded that Sanchez-Rodriguez’s plea was withdrawn in compliance with a remedial scheme, and the BIA deferívd to this conclusion. Since the IJ was likely correct and certainly was not “clearly erroneous,” we defer to his conclusion. See Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”). As for the second limit, Sanchez-Rodriguez argues that his withdrawn plea should be viewed as a modification instead of a vacatur. A modification would enable him to stave off removability, he argues, because a modified sentence would replace his original sentence, effectively erasing his state criminal record. For this argument to have any traction, we would have to conclude that modified and withdrawn sentences should be treated identically. However, the BIA rejected this approach in Cota-Vargas, where it decided to give full faith and credit to state court modifications even though withdrawn sentences do not receive analogous treatment. Cota-Vargas, 23 I. & N. Dec. at 851-53. The BIA justified the distinction by relying on the fact that the provisions are defined in different subsections of the INA. Id. Sanchez-Rodriguez does not ask us to abandon the BIA’s distinction and reject the rationale put forth in Cota-Vargas, so Cota-Vargas is of no help to him. Sanchez-Rodriguez makes four ancillary arguments, each of which also fails. First he argues that the IJ erred in denying his request for a further continuance to pursue postconviction relief. But we lack jurisdiction to review the IJ’s decision to deny the continuance because where 8 U.S.C. § 1252(a)(2)(B)(i) “removes jurisdiction to review a final immigration decision, ... review of continuance denials ... is also precluded.” Ali v. Gonzales, 502 F.3d 659, 661 (7th Cir.2007). Thus, since § 1252 prohibits review of decisions relating to adjustment of status, we cannot review the denial of the continuance. Second, Sanchez-Rodriguez suggests that he should not be required to put forth evidence regarding the reasoning for his withdrawn sentence because the government bears the burden to prove removability. See Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966); Sandoval, 240 F.3d at 581. The government met this burden-the plea agreement and the sentencing transcripts are clear and convincing evidence that Sanchez-Rodriguez was convicted under the INA and is thus removable. See Iysheh v. Gonzales, 437 F.3d 613, 615 (7th Cir.2006) (viewing “the plea agreement, the superseding indictment, and the judgment order” sufficient to establish alien’s conviction). Third, Sanchez-Rodriguez complains that the IJ did not comply with the BIA’s March 2006 instruction to address whether Cota-Vargas affected removability. It is true that the IJ did not address Cota-Vargas, but this oversight is harmless because Cota-Vargas applies to modified sentences, not withdrawn pleas. Cota-Vargas, 23 I. & N. Dec. at 852 (seeing “no discernible basis in the language of the 266[INA]” to treat modifications and vacaturs alike); see also Rumierz v. Gonzales, 456 F.3d 31, 41 n. 11 (1st Cir.2006) (distinguishing withdrawn pleas from sentence modifications); Garcia-Lopez v. Ashcroft, 334 F.3d 840, 846 (9th Cir.2003) (distinguishing modified sentences from expunged convictions). Because Sanchez-Rodriguez withdrew his plea, Cota-Vargas does not apply. Finally, Sanchez-Rodriguez argues that the BIA violated his right to due process by denying him his opportunity to seek permanent residency. But adjustment of status is a discretionary form of relief, Khan v. Mukasey, 517 F.3d 513, 517 (7th Cir.2008); thus, because Sanchez-Rodriguez “has no liberty or property interest in the relief he seeks,” we “lack jurisdiction to review his due process claim.” Ali v. Ashcroft, 395 F.3d at 731. Because Sanchez-Rodriguez’s plea is a conviction under the INA, and because he did not withdraw his plea on substantive grounds or receive a modification, the BIA correctly concluded that he has a conviction that justifies removal. Thus, we DISMISS the petition for lack of jurisdiction.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475043/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David M. Kissi seeks to appeal the district court’s order denying without prejudice the plaintiffs’ motion to reopen the underlying proceedings. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Kissi seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475045/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Glenn I. Hockney appeals the district court’s order adopting the recommendation of the magistrate judge and dismissing Hockney’s civil action for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hockney v. PCS Phos*789phate Corp., No. 4:08-cv-00210-BR (E.D.N.C. May 21, 2009). We deny Hockney’s motion to provide relief and prevent serious wrong and motions to expedite. 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/8475047/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Wesley Edward Smith, III, appeals the district court’s order dismissing his civil complaint and denying leave to amend the complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. Virginia, No. 3:08-cv-00800-REP, 2009 WL 2175759 (E.D.Va. July 16, 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/8475048/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alvis Luther Evans appeals the district court’s denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Evans, No. 5:03-cr00043-H-1 (E.D.N.C. Jan. 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/8475050/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Paul Mayer appeals the district court’s order denying relief on his civil complaint. The district court referred this case to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (2006). The magistrate judge recommended that relief be denied and advised Mayer that failure to file timely and specific objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Mayer failed to file specific objections to the magistrate judge’s recommendation. The timely filing of specific objections to a magistrate judge’s recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Mayer has waived appellate review by failing to timely file specific objections after receiving proper notice. Accordingly, we affirm the judgment of the district court. 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/8475052/	Petition denied by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Okang Kareem Rochelle petitions for a writ of mandamus seeking an order directing release pending sentencing or a status conference in the district court, and for the appointment of a special judge to “preside over litigation who would ensure that [his] rights governed by a fair and public hearing or trial [are] respected and protected.” Pet. for Writ of Mandamus at 2. We conclude that Rochelle is not entitled to mandamus relief. Mandamus relief is available only when the petitioner has a clear right to the relief sought. In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.1988). Further, mandamus is not a substitute for a direct appeal; it is a drastic remedy that should only be used in extraordinary circumstances. Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987). Rochelle fails to demonstrate extraordinary circumstances or that his rights cannot be fully protected through the established appellate process. Accordingly, although we grant leave to proceed infor-ma pauperis, we deny the petition for writ of mandamus. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475223/	OPINION PER CURIAM. Petitioner, Budhi Yuniartoyo, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition. 707I. Yuniartoyo is a native and citizen of Indonesia. He arrived in the United States on March 27, 2001 as a non-immigrant B-2 visitor, and stayed longer than permitted. As a result, he was placed in removal proceedings. See INA § 287(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ]. On December 17, 2003, Yuniartoyo applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on the ground that he would be persecuted by the Indonesian Democratic Party of Struggle (the “PDIP”) if forced to return to Indonesia. At his removal hearing, Yuniartoyo testified that, before coming to the United States, he lived in Bekasi, Indonesia, where he worked as an entrepreneur. His wife and two children still live there. Yu-niartoyo stated that he was never a member of a political party, but did hold a volunteer position as a community leader. Yuniartoyo told the court that in April 1999, two members of the PDIP approached and asked him to be a campaign manager for their party. According to Yuniartoyo, the men wanted him to help the organization recruit new voters for an upcoming election. When he refused, the men threatened him, warning that he would be killed if their party were elected to power in 2000. The men returned the next day and threatened him again. Yu-niartoyo testified that the PDIP did not contact him again after the incident in April 1999. However, in January 2001, a PDIP friend told him that his name was on the party’s blacklist. As a result, Yuniar-toyo applied for a visa to leave Indonesia. Yuniartoyo testified that the PDIP ultimately won the 2000 election, but has since been removed from power. Nonetheless, he is afraid to return to Indonesia because his family has received inquires into his whereabouts, and the PDIP has branches in many locations. When asked why he did not submit an application for asylum sooner, Yuniartoyo stated that he was waiting for conditions at home to improve. After the hearing, the Immigration Judge (“IJ”) denied Yuniartoyo’s applications for relief. First, the IJ found that his application for asylum was time-barred because he had failed to file it within one year of entering the United States, and had not presented any evidence to justify an exception to the one-year limitation period. See 8 U.S.C. § 1158(a)(2)(B), (D). The IJ further found that, even if Yuniar-toyo’s application had been timely, he failed to meet his burden of proof on his asylum claim. Specifically, the IJ found that the actions taken against Yuniartoyo were not sufficiently “imminent, menacing, [or] severe to constitute past persecution” or support an inference of future persecution. (IJ Oral Decision 20, citing Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005)). For this reason, the IJ also denied Yuniartoyo’s application for withholding of removal. 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(b). Finally, the IJ denied Yu-niartoyo’s claim for relief under the CAT on the ground that he had failed to show that it is more likely than not that he would be tortured if removed to Indonesia. See 8 C.F.R. § 208.16(c)(2); Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir.2007). Upon review, the BIA affirmed the IJ’s decision. The BIA agreed with the IJ that Yuniartoyo’s asylum application was untimely and that, in the alternative, he failed to establish eligibility for relief. The BIA also agreed with the IJ that Yuniar-toyo failed to meet his burden of proof on his withholding of removal and CAT claims. Yuniartoyo now appeals from the BIA’s order. II. We have jurisdiction over this appeal pursuant to 8 U.S.C. § 1252(a). We re708view the BIA’s decision for substantial evidence. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Under this standard, we will uphold the Board’s findings unless the evidence not only supports a contrary conclusion, but compels it. See id. On appeal, Yuniartoyo argues that the BIA erred in concluding that: (1) the threats against him did not amount to past persecution; and (2) he failed to demonstrate that he had a well-founded fear of future persecution. Both of these arguments concern his asylum application. As noted above, however, the IJ and BIA determined that Yuniartoyo’s application for asylum was time-barred, and he does not challenge this determination on appeal.1 Therefore, we will consider his first argument only insofar as a finding of past persecution could, in part, support his application for withholding of removal, and we will not consider his second argument. Yuniartoyo argues that the BIA erred in concluding that the threats against him did not amount to persecution because “in a situation where the threats were death threats ... the severity and seriousness of the threats” renders them “persecutory by their very nature.” (Pet.Br.9.) We disagree. As we explained in Li, unfulfilled threats — even death threats — constitute persecution “in only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm.” 400 F.3d at 164 (internal quotation marks omitted); see, e.g., Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (holding that petitioner, a citizen of the Philippines, had not suffered past persecution where he had received repeated death threats but had lived in the Philippines for six years thereafter without meeting any harm, albeit with the aid of a personal bodyguard and some police protection); Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir.1997) (holding that petitioner, a Bulgarian national, had not suffered past persecution even though he had faced repeated threats by Communist Party authorities, was warned by his boss, a Communist official, that he would lose his job or “something even worse could happen,” and was told by the police that it would be easy for them to “get rid of him”). Given that Yuniartoyo received only two isolated threats in 1999 and was able to remain at home for nearly two more years without meeting any harm, we conclude that substantial evidence supports the BIA’s finding that the threats described by Yuniartoyo do not constitute past persecution. Accordingly, we will deny the petition for review. . In any event, we lack jurisdiction to review the propriety of this determination. See 8 U.S.C. § 1158(a)(3); Jarhough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir.2007).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475225/	OPINION PER CURIAM. Raul German Fares-Penafiel petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s decision denying his motion to reopen his immigration proceedings. For the following reasons, we wall deny the petition for review. I. Fares-Penafiel is a native and citizen of Ecuador who entered the United States without inspection in 1994. In 2005, the former Immigration and Naturalization Service (“INS”) issued a notice to appear charging Fares-Penafiel as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Fares-Penafiel conceded that he was removable as charged but applied for cancellation of removal based on the “exceptional and extremely unusual hardship” that his United States citizen wife would suffer if he was removed. See 8 U.S.C. § 1229b(b)(l). Fares-Penafiel asserted that in 2001 his wife was injured in a serious accident, and although she has sev*710en grown children, she is completely de-pendant on him for support. The Immigration Judge (“IJ”) denied Fares-Penafiel’s application for cancellation of removal. In addition to questioning the validity of Fares-PenafieFs marriage, the IJ determined that Fares-Penafiel had not established that his wife would suffer the requisite hardship upon his removal. Fares-Penafiel thereafter filed a timely motion to reopen, claiming that his wife’s condition had seriously deteriorated. The IJ denied the motion, stating that he was unconvinced that the materials Fares-Pe-nafiel submitted established that his wife’s condition had worsened or that her “depression, nervousness, or insomnia” were “beyond the ordinary hardship that would be expected when a close family member leaves this country.” The IJ also noted that Fares-PenafieFs motion did not address the concern regarding the validity of the marriage. Fares-Penafiel appealed the IJ’s decision to the BIA. The BIA, citing to 8 C.F.R. § 1003.1(d)(3), dismissed the appeal in a one-paragraph decision, stating that it was “not persuaded that the findings of fact in the Immigration Judge’s decision ... were ‘clearly erroneous’ or that the decision was otherwise in error.” Through counsel, Fares-Penafiel now seeks review of the BIA’s final order of removal. II. We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. § 1252(a)(1), and review the denial of a motion to reopen for an abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). Fares-PenafieFs sole argument is that the BIA improperly streamlined his appeal, see 8 C.F.R. § 1003.1(e)(4), thereby denying him meaningful review of his claim.1 He asserts that this Court has jurisdiction to review the decision to streamline, and that to do so properly we must review the underlying discretionary decision of the IJ, over which we would not normally have jurisdiction. See 8 U.S.C. § 1252(a)(2)(B) (stating that federal courts do not have jurisdiction to review denials of discretionary relief). However, as the government asserts, the BIA’s decision, while brief, was not an affirmance without opinion issued under the streamlining regulation. Fares-Penaf-ieFs claim is thus meritless. To the extent that Fares-PenafieFs petition can be read to argue that the BIA’s decision was so lacking in detail as to violate his right to due process, he has not demonstrated that “the BIA did not review the record when it considered the appeal.” See Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.2001) (internal citation omitted). Further, the BIA’s decision is sufficient to demonstrate that it made an individualized determination of Fares-PenafieFs claim, which is all that it is required to do. See Kamara v. Att’y Gen., 420 F.3d 202, 211-12 (3d Cir.2005). For the foregoing reasons we deny Fares-PenafieFs petition for review. . Under 8 C.F.R. § 1003.1(e)(4), one member of the BIA may summarily affirm without opinion certain decisions of the IJ. If this procedure is used, the regulations require the BIA to issue an order that reads as follows: "The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination." 8 C.F.R. § 1003.1(e)(4)(ii).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475228/	OPINION OF THE COURT SCIRICA, Chief Judge. In 2007, Krause Publications, Inc. published two toy train catalogs authored by David Doyle. Paul Ambrose brought a copyright infringement action against Krause and Doyle claiming the catalogs infringed Ambrose’s copyrights in toy train catalogs and books he authored (the “Doyle Action”). Within a few months, the parties settled all their claims, and the District Court dismissed the case with prejudice pursuant to the terms of the parties’ Confidential Settlement Agreement (“CSA”). At the time of settlement, Ambrose had a separate, but related copyright action pending against the Train Collectors Association and Eastern Division — T.C.A. (collectively, “TCA”) (the “TCA Action”). Paragraph 11 of the CSA permitted Am-brose to seek relief from TCA in the TCA Action, “provided, however, that [Am-brose] [would] not seek to collect from [TCA] any judgment on such claims if collection of such judgment or part thereof might foreseeably lead to a claim for indemnification against Krause.... ” Shortly after the CSA was executed, TCA filed a third-party complaint against Krause, asserting claims for indemnification and contribution. Krause then sought leave in the Doyle Action to disclose in the TCA Action the terms of the CSA, and Ambrose simul713taneously filed a motion to void the CSA, or, in the alternative, to find Krause in breach thereof.1 The District Court granted Krause’s motion to disclose the CSA and denied Ambrose’s motion to void it. TCA and Krause then moved for summary judgment and partial summary judgment, respectively, based on the terms of the CSA. The court granted both motions and entered judgment against Ambrose, finding the CSA barred the TCA Action as a matter of law. We will affirm.2 Ambrose filed a motion in the Doyle Action to declare the CSA void at his election and to reopen the Doyle Action because there was no “meeting of the minds” regarding whether Ambrose would be permitted to continue the TCA Action to judgment in the event of an indemnification claim. Although Ambrose did not seek relief under any particular Federal Rule of Civil Procedure, the parties agree his motion was in effect a Rule 60(b) motion for relief from a final judgment.3 Am-brose contends he set forth “mutual and/or unilateral mistake that was known to both parties,”4 and that the District Court abused its discretion by denying his motion without holding a hearing, allowing discovery, or issuing findings of fact and conclusions of law.5 The District Court’s dismissal of Ambrose’s motion was not an abuse of discretion under the circumstances of this case. Rule 52(a)(3) provides the court is not required to state findings or conclusions when ruling on a motion unless the rules provide otherwise, and Rule 60(b) does not do so. See Fed.R.Civ.P. 52(a)(3); Fed.R.Civ.P. 60(b); Delzona Corp. v. Sacks, 265 F.2d 157, 159-60 (3d Cir.1959) (“Rule 52(a) ... does not require findings of fact and conclusions of law for cases arising under Rule 60(b).”). Ambrose’s motion, moreover, failed as a matter of law, and thus did not require resolution of factual issues. Ordinary principles of contract law govern settlement agreements under Pennsylvania law.6 Consol. Rail Corp. v. Portlight Inc., 188 F.3d 93, 96 (3d Cir.1999). A mistake of one or both parties at the time of contracting may be a valid ground for rescinding a settlement agreement. See id.; Lanci v. Metro. Ins. Co., 388 Pa.Super. 1, 564 A.2d 972, 974 (1989). “A mistake is a belief that is not in accord with the facts.” Restatement (Second) of Contracts § 151; 714see also Consol. Rail Corp., 188 F.3d at 96 (“ ‘Mutual mistake exists where both parties to a contract are mistaken as to existing facts at the time of execution.’ ” (quoting Holt v. Dep’t of Pub. Welfare, 678 A.2d 421, 423 (Pa.Commw.Ct.1996))). Ambrose’s argument misunderstands the nature of the mistake doctrine. In his motion to void the CSA, he did not contend that he executed the CSA under a belief that was not in accord with the facts. Instead, Ambrose set forth his interpretation of paragraph 11. Stated differently, Ambrose raised a dispute over the meaning of a particular provision in the CSA. “Disputes over the meaning of a given phrase are common in contract disputes; the presence of such interpretive ambiguity, however, does not go to whether the contract is enforceable, but rather who (the judge or the jury) must decide what the given clause means.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 585-86 (3d Cir.2009). “To hold otherwise would improperly transform run-of-the-mill challenges to the interpretation of contractual language into far more significant disputes over contractual enforceability.” Id. at 586. Because Ambrose did not allege a “mistake” that could void the CSA, the District Court did not abuse its discretion by denying his motion. Ambrose’s dispute over the meaning of paragraph 11 was addressed by the District Court in its grant of summary judgment in favor of TCA, which Ambrose also challenges.7 The District Court determined the CSA unambiguously barred the TCA Action as a matter of law once TCA asserted its indemnification claim against Krause8 Ambrose contends paragraph 11 contained ambiguous language because he believed the provision that he would not “seek to collect” any judgment meant “execute” a judgment. Under Ambrose’s interpretation, he would be permitted to continue the TCA Action to judgment, and only upon judgment would he be prohibited from executing the judgment “if collection ... might foreseeably lead to a claim for indemnification against Krause.” Am-brose contends the District Court erred by failing to identify this ambiguity and consider the parol evidence he offered. Ambrose’s argument is without merit. “When a written contract is clear and unequivocal, its meaning must be determined by its contents alone.” Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d 1001, 1010 (3d Cir.1980) (citation omitted); Mace v. Atl. Ref. & Mktg. Corp., 567 Pa. 71, 785 A.2d 491, 496 (2001). A contract is ambiguous if it is reasonably susceptible to different constructions and capable of being understood in more than one sense. St. Paul Fire & Marine Ins. Co. v. Lewis, 935 F.2d 1428, 1431 (3d Cir.1991). Under Pennsylvania law, ambiguous contracts are interpreted by the trier of fact, and unambiguous contracts are interpreted by the court as a matter of law. Mellon Bank, 619 F.2d at 1011 n. 10. We *715agree with the District Court’s conclusion that paragraph 11 unambiguously barred Ambrose from obtaining any judgment from TCA once the indemnification claim was asserted.9 Accordingly, we will affirm the judgment of the District Court.10 . Ambrose does not contend on appeal that the District Court erred by failing to find Krause in breach of the CSA. For ease of reference, we refer to Ambrose’s motion as a motion to void the CSA. . The District Court had jurisdiction in both actions under 28 U.S.C. §§ 1331, 1332, 1338, and 1400(a). We have jurisdiction under 28 U.S.C. § 1291. . Ambrose contends his motion was a Rule 60(b)(3) motion for relief from a final judgment for fraud, misrepresentation, or misconduct, while Krause contends the motion was brought pursuant to Rule 60(b)(1) for relief for mistake. Ambrose’s sole argument for voiding the CSA was that there was no "meeting of the minds" with respect to paragraph 11. Ambrose contended the parties had "substantial conflicting understandings of the contractual language contained in Paragraph 11.” Because Ambrose’s motion made no mention of fraud, misrepresentation, or misconduct by Krause, we will review the motion under Rule 60(b)(1). . Ambrose asserted that he believed the restrictions contained in paragraph 11 would only be applicable once a judgment was entered and that Krause, whose counsel drafted the CSA, either shared this belief or knew of Ambrose’s belief. . We review the District Court's denial of Ambrose's Rule 60(b) motion for abuse of discretion. Brown v. Philadelphia Housing Auth., 350 F.3d 338, 342 (3d Cir.2003). . The parties agree that Pennsylvania law applies to this dispute. . Our review of an order granting summary judgment is plenary, and we apply the same standard as the District Court. Am. Eagle Outfitters, 584 F.3d at 580-81. Summary judgment should be granted "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). "All inferences must be drawn in the light most favorable to the nonmoving party.” Am. Eagle Outfitters, 584 F.3d at 581 (citation omitted). . The District Court also determined paragraph 12 barred the TCA Action because TCA was one of the intended beneficiaries of paragraph 12's release provision. Because we agree with the District Court that paragraph 11 barred the TCA Action once the indemnification claim was asserted, we do not need to decide whether the District Court properly interpreted paragraph 12. . Ambrose further contends the District Court erred by dismissing his state law claims because they were not impacted by the CSA. The Amended Complaint included state law claims for unfair trade practices (Count V), civil conspiracy (Count VI), breach of contract (Count VIII), and for a declaratory judgment (Count IX). To the extent any of these claims were not dismissed as barred by the CSA, they were dismissed without prejudice as the District Court declined to exercise jurisdiction over any pendent state law claims. . Krause and TCA bring separate appeals. Krause challenges the District Court’s order denying its motion for leave to file a counterclaim against TCA in the TCA Action. A few hours before the court entered its summary judgment order, Krause filed a motion for leave to file a counterclaim against TCA for negligence and breach of the duty of good faith and fair dealing. The court denied Krause’s motion as moot, but in subsequent orders explained that Krause’s motion was denied without prejudice for the counterclaims to be filed in state court. The court expressly declined to exercise jurisdiction over any pendent state law claims. Krause’s appeal is without merit. "A district court may decline to exercise supplemental jurisdiction over a claim if ‘the district court has dismissed all claims over which it has original jurisdiction.' ” Elkadrawy v. Vanguard Group, Inc., 584 F.3d 169, 174 (3d Cir.2009) (quoting 28 U.S.C. § 1367(c)(3)). Because the District Court had dismissed Ambrose's federal claims, it did not abuse its discretion by denying Krause's motion without prejudice for the state law counterclaims to be filed in state court. TCA contends its third-party complaint against Krause contained state law claims distinct from its claims for indemnification and contribution. We have reviewed the third-party complaint. The only claims asserted are for indemnification and contribution.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475060/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Paul McDonald appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. McDonald v. Warden, No. 8:08-cv-03503-PJM (D. Md. April 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented *801in 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/8475065/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: George W. Gantt-El seeks to appeal the district court’s orders (1) denying him leave to proceed in forma pauperis in his action filed pursuant to 28 U.S.C. § 2254 (2006), and ordering him to pay the $5 filing fee, and (2) granting him an extension of time to pay the fee. Our review of the district court docket sheet and Gantt-El’s informal brief on appeal reveals that the filing fee was paid on June 16, 2009. Accordingly, because Gantt-El has paid the filing fee, we deny his motion for a certificate of appealability and dismiss the appeal as moot. We deny leave to proceed in forma pauperis on appeal and deny Gantt-El’s motion for judicial notice. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475067/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Albert D. Page seeks to appeal the district court’s order denying his motion for reconsideration of the district court’s order denying, inter alia, Page’s motions for orders granting him leave to depose correctional officers and prison inmates and compelling the production of various documents. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Page seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475069/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Clayton Landingham appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See United States v. Landingham, No. 4:02-cr-00274-CWH-3 (D.S.C. filed May 22, entered May 26, 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/8475232/	OPINION PER CURIAM. Luz Barros, a native and citizen of Colombia, and her husband, Paulo De Jesus Barros, a native and citizen of Portugal who resided in Colombia before entering the United States, entered the country in 2002 and 2001 respectively. Both overstayed their visas and the Government issued them Notices to Appear. On June 28, 2002, Luz Barros (“Barros”) filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 In her asylum application, and in her testimony before the Immigration Judge (“IJ”), Barros alleged that she feared that FARC guerillas would kidnap and torture her and her husband if they returned to Colombia.2 Barros testified that guerillas targeted her and her husband because of the wealth they acquired from them various businesses. Her first encounter with the guerillas was in 1999, when they called her home, threatened her, and demanded money. She also testified that in 2000, the guerillas killed a cow on their property. Barros testified that she and her husband first came to the U.S. in 1999 to visit family. They did not apply for asylum at that time because they believed that the situation in Colombia would improve. The couple returned to Colombia but came back to the U.S. again in 2001, but again did not apply for asylum because they did not have any documentation. Barros further testified that in 2002 she returned to Colombia to have surgery and that she lived with her parents and two sisters without incident. 718The IJ denied the Petitioners’ applications for relief. The IJ found that while Petitioners’ successful business made them targets of guerillas seeking money, their affluence did not qualify as a protected ground for asylum purposes. The IJ further questioned the validity of Barros’ fear given that she returned to Colombia after initially leaving in 1999. The IJ also denied Petitioners’ claims for withholding of removal and protection under CAT. Petitioners appealed to the Board of Immigration Appeals (“BIA”) which adopted and affirmed the IJ’s decision. Petitioners appealed to this Court and we granted the Government’s unopposed motion to remand the case to the BIA in order to address whether wealthy landowners constitute a particular social group. (A.R. at 486-88.) The BIA remanded the case to the IJ, who held a hearing on the merits of whether the FARC would persecute Petitioners based on their land ownership or based on Paulo de Jesus Barros’ Portuguese nationality. Barros testified that she feared that FARC guerillas would target her because of both her husband’s nationality and her land holdings. The IJ again denied relief, finding that there was no evidence to support Barros’ claim that she would be targeted based on her husband’s Portuguese nationality. Further, the IJ also found that land ownership does not constitute a social group and that the guerillas extorted money from Barros based' on her wealth and not her land holdings. The Petitioners appealed to the BIA which concurred with the IJ’s finding that FARC targeted Barros because of her wealth and that wealthy landowners do not qualify as a social group under the asylum statute. The BIA also agreed that Barros did not present evidence that the couple would be targeted based on her husband’s Portuguese nationality. Petitioners then filed a petition for review in this Court. We have jurisdiction under 8 U.S.C. § 1252. We uphold the BIA’s determinations if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, the BIA’s determinations “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To be granted asylum, Petitioners must show that they are “unable or unwilling to return to [Colombia] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for withholding of removal, Petitioners must demonstrate that “there is a greater-than-fifty-percent chance of persecution” in Colombia based on one of the protected grounds. Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998); see also 8 U.S.C. § 1231(b)(3). Petitioners argue that the BIA and IJ erred by ignoring evidence of their membership in a social group of wealthy landowners and industrialists.3 (Petr.’s Br. at 14.) This argument, however, does not address the BIA’s holding that respondents did not show the required “nexus” between their alleged persecution and a statutorily protected ground. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir.2009) (“a key task for any asylum applicant is to show a sufficient 719‘nexus’ between persecution and one of the listed protected grounds.”)4 That is, even if Petitioners’ status as wealthy landowners meets the definition of a “social group” under the asylum statute, they have not produced evidence that the unfortunate incidents Barros’ testified to were a result of their membership in that group. As the Government notes, Barros’s own opinion that the guerillas targeted her family “for who we are, for what we have,” is not sufficient evidence of a connection between the alleged persecution and a social group. See Babani v. Gonzales, 492 F.3d 20, 22 (1st Cir.2007) (per curiam) (petitioner’s opinion is insufficient evidence to show that mistreatment was connected to a protected ground). Petitioners rely on the Seventh Circuit’s decision in Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir.2005), to support their argument. In that case, the Seventh Circuit held that educated, wealthy, landowners in Colombia could qualify as a social group under the asylum statute. Id. at 673. The FARC guerillas in Orejuela threatened the petitioners because the father of the family was a “renowned” cattle rancher and the family was part of a “privileged group” that had gone to schools and universities. Id. at 672. Moreover, the guerillas murdered the husband, tracked the family’s movements, and repeatedly threatened the sons. Id. at 670. In the instant case, Petitioners attempt to establish that they belong to the same social group as the petitioners in Orejuela by providing evidence of their education, their landownership, and of their business activities. They also point to incidents in which thieves burglarized their home, and assailants lolled a cow on their property, kidnapped the family dog, and threatened them with kidnapping over the telephone. The missing piece, however, is any indication that the incidents were a result of their landownership or business holdings instead of wealth, which they concede does not, standing alone, satisfy the requirements for a “social group.” (Petr.’s Br. at 27.) While we agree with Petitioners that the alleged persecutors need not spell out their motives in order for the BIA to find social group motivated persecution, in the absence of any evidence linking the incidents to Petitioner’s status as wealthy landowners, the record does not compel a different result. See Abdille, 242 F.3d at 494 (“ordinary criminal activity does not rise to the level of persecution necessary to establish eligibility for asylum”); see also Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir.2007) (“After all, guerillas and common criminals are equally apt to resort to violent means to accomplish their goals, and it is the alien’s burden to give the adjudicator some basis for differentiation in a given case.”) We are also unpersuaded by Petitioners’ argument that they face a likelihood of future persecution in Colombia because of their landownership and wealth. Petitioners’ voluntary return to Colombia in 1999, 2001, and Barros’ return in 2002, (A.R. at 579-82), strongly suggests that they do not have a fear of future persecution and cannot, therefore, satisfy the subjective prong of the “well-founded fear” test. See Toloza-Jimenez v. Gonzales, 457 F.3d 155, 161 (1st Cir.2006) (holding that the fact that Toloza “traveled twice to the United States ... and yet she returned to Colombia each time, strongly indicated] that she has no fear of persecution.”). Finally, Petitioners’ failure to demonstrate eligibility for asylum necessarily means that they failed to qualify for withholding of removal. See *720Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006). For these reasons we will deny the petition for review. . Paulo De Jesus Barros’ application for asylum is derivative of his wife's application. Therefore, in this opinion "Barros” refers to Luz Marina Barros. . "FARC” stands for “Fuerzas Armadas Revo-lucionarias de Colombia.” The group was originally established "to serve as the military wing of the Colombian Communist Party.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 668 (7th Cir.2005). . Inasmuch as Petitioners do not argue that the husband’s Portuguese nationality is a basis for relief, we do not consider the merits of that claim. See Konan v. Att’y Gen., 432 F.3d 497, 500 n. 2 (3d Cir.2005). . Because Petitioners filed their asylum application before the passage of the REAL ID Act of 2005, they are required to show that the persecution was caused "at least in part” by membership in a protected group. Ndayshimiye, 557 F.3d at 129.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475234/	OPINION OF THE COURT STAPLETON, Circuit Judge: A jury found appellant Sheila Margaret Hayford guilty on five counts of making a false statement under penalty of perjury in violation of 18 U.S.C. § 152(3)1 and five counts of bankruptcy fraud under 18 U.S.C. § 157(1).2 She appeals, insisting 721that the evidence was insufficient to support each of the ten verdicts. Hayford did not challenge the sufficiency of the evidence in the District Court and we, accordingly, review for “plain error.” “A conviction based on insufficient evidence is plain error only if the verdict ‘constitutes a fundamental miscarriage of justice.’ ” United States v. Thayer, 201 F.3d 214, 219 (3d Cir.1999) (quoting from United States v. Barel, 939 F.2d 26, 37 (3d Cir.1991)). There is ample evidence supporting each of the challenged verdicts, and we will affirm. Because we write only for the parties, we will assume knowledge of the record and the proceedings. I. By February 20, 2002, Hayford was delinquent on her mortgage, and CitiCorp Trust Bank FSB (“Citi”) filed a foreclosure action. A default judgment was entered against Hayford on April 15, 2002. Between that date and September 7, 2006, seven separate sheriffs sales were scheduled on her residence. All seven were stopped by operation of the automatic stay in bankruptcy occasioned by Hayford’s filing of a series of seven bankruptcy petitions, five of which were subjects of the indictment. She admitted at trial that her purpose in filing this series of petitions was to prevent the scheduled sale. II. With respect to the Section 157(1) bankruptcy fraud charge, the government proved that Hayford devised and executed a scheme to defraud Citi of its legal right to sell her residence to satisfy its judgment by delaying and defeating scheduled sheriffs sales over a period of more than four years. The government did this by offering evidence, inter alia, of (1) the timing of the five petitions relative to the scheduled sales; (2) the fact that Hayford did not pursue any of her bankruptcy cases as would someone who sought bankruptcy protection in good faith; (3) Hay-ford’s own admission that a goal of her repeated petition filings was to delay the scheduled sheriffs sales; and (4) the fact that Hayford lived in her residence without making mortgage payments for the entire period of her filings. A rational jury could clearly draw an inference from the government’s evidence that Hayford’s intention was to trigger the automatic stay and thereby defraud Citi through abuse of the bankruptcy system. Hayford argues that the jury unreasonably found that she had an intent to defraud Citi. She points to evidence tending to show that she was attempting to sell her residence and repay Citi, insisting that her “actions were consistent with her attempt to pay the financial institution, not an attempt to defraud” it. Appellant’s Br. at 24. However, Citi had the legal right to have Hayford’s residence immediately sold to satisfy her debt to it in the Spring of 2002 and at all times over the next four plus years. A reasonable jury could, and did, determine that she devised a scheme to defraud Citi of that right whether or not it believed that she hoped to repay Citi at some point in the future. III. Hayford signed each of her bankruptcy petitions “under penalty of perjury.” App. at 154-55. Like all debtors, she was required to list prior bankruptcy petitions she had filed within the relevant time period, either the preceding six years or, since October 2005, the preceding eight 722years. Instead of providing an accurate statement of her bankruptcy filing history, Hayford falsely listed only one prior bankruptcy per petition. Hayford argues before us that there was insufficient evidence that she acted knowingly and with fraudulent intent and that her representations were material. She acknowledges, of course, that she was aware in each instance that she had previously filed more than one petition. Because Hayford’s admitted purpose in filing the petitions was to delay the imminent sheriffs sale, a rational jury could infer that her repeated falsehoods were designed to accomplish her stated objective. The government’s evidence demonstrates that new cases by debtors who have filed more than two prior petitions receive different treatment from the Bankruptcy Court, including possible review to determine whether the proceeding should be dismissed. To delay the sales by operation of the automatic stay, Hayford needed only to be certain that the petition would be filed and served on her creditors. The only place on the petitions where Hayford risked failing in her purpose — by drawing the scrutiny of the Bankruptcy Court— was with respect to her filing history. That was the only place on the petitions where she provided false information time after time. A rational jury could have inferred from the targeted nature of her false representations and from the evidence concerning the bankruptcy process that those misrepresentations were material, knowing, and made with fraudulent intent. IV. The judgment of the District Court will be affirmed. . Section 152(3) of Title 18 of the United States Code provides that whoever "knowingly and fraudulently makes a false declaration, certificate, verification or statement under penalty of perjury” within the meaning of section 1746 of Title 28 “in or in relation to any case under title 11 [the Bankruptcy Code]” shall be guilty of an offense against the laws of the United States. . Section 157(1) of Title 18 of the United States Code states that: "A person who, hav*721ing devised or intending to devise a scheme or artifice to defraud and for the purpose of executing or concealing such a scheme or artifice or attempting to do so — (1) files a petition under title 11... shall be fined under this title, imprisoned not more than 5 years, or both.”	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475236/	OPINION PER CURIAM. Pursuant to Title VII of the Civil Rights Act of 1964, Appellant Edward Rainey filed a pro se employment discrimination action in the District Court against his former employer, Diamond State Port Corporation (“Diamond State”), alleging that he was unlawfully disciplined and terminated on account of his race. Despite being served with the complaint, Diamond State failed to answer or otherwise respond to it. On March 27, 2009, the District Court entered a default judgment in Rainey’s favor, but it awarded him only nominal damages in the amount of $250 because it doubted the merit of his claim. Rainey appealed. For the reasons that follow, we will affirm the District Court’s order. I. Background In May 2007, Rainey was terminated from his job at Diamond State after the company determined that he was the aggressor in a physical altercation with a coworker. The incident was apparently Rainey’s second confrontation with a coworker within a year. The evidence provided by Rainey to the District Court indicated that he was the likely aggressor in each confrontation. Rainey requested a 724grievance hearing, and was represented by his Union at the hearing, but the grievance officer upheld the termination. Rainey filed a complaint with the Delaware Department of Labor. At the completion of its investigation on July 13, 2007, the Delaware Department of Labor issued a “No-Cause Determination” and issued Rainey a Right to Sue Notice. He filed his complaint with the District Court for the District of Delaware on February 15, 2008, and service was effectuated by the United States Marshals Service. The defendant filed no response to Rainey’s complaint and made no appearance. After the Clerk entered a default, see Fed.R.Civ.P. 55(a), which was mailed to defendant, Rai-ney filed a motion for default judgment. Default judgment was granted; however, the District Court reviewed Rainey’s submissions, concluded that it had doubts regarding the merits of his claims, and awarded him only $250 in nominal damages. Rainey appealed. II. Jurisdiction and Standard of Review We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s handling of a default judgment, including its computation of damages and decision whether to conduct a hearing on damages for abuse of discretion only. See, e.g., Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir.1984); KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 18 (1st Cir.2003). A District Court abuses its discretion when its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Morris v. Horn, 187 F.3d 333, 341 (3d Cir.1999) (quoting Reform Party v. Allegheny County Dept. of Elections, 174 F.3d 305, 311 (3d Cir.1999) (en banc)). III. Analysis When a plaintiff prevails by default, he or she is not automatically entitled to the damages they originally demanded. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.1990). Rather, defaults are treated as admissions of the facts alleged, but a plaintiff may still be required to prove that he or she is entitled to the damages sought. Id.) DIRECTV Inc. v. Pepe, 431 F.3d 162, 165 (3d Cir.2005). The damages Rainey sought could not be determined with exactness on the cause of action by a simple mathematical calculation or by application of definitive rules of law. “If it is necessary to determine the amount of damages or to establish the truth of any averment by evidence, the court may conduct a hearing.” Durant v. Husband, 28 F.3d 12, 15 (3d Cir. 1994) (quoting Fed.R.Civ.P. 55(b)(2)) (emphasis added) (internal quotation marks omitted). For the reasons that follow, we do not believe Rainey has shown an abuse of discretion in the District Court’s decision to award only nominal damages in the absence of a hearing. To win damages in an employment discrimination case, a plaintiff must prove membership in a protected class and that he or she was terminated on account of membership in that protected class rather than for legitimate nondiscriminatory reasons. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).1 To do so, a plaintiff 725can produce direct evidence of his or her employers’ illegal motives or show that similarly situated employees who were not members of the protected class were treated more favorably. Id. To determine if Rainey has met his burden we review the evidence that was before the District Court. Rainey’s evidence showed that he was involved in two fights at work during the year prior to his termination, and that he was deemed the aggressor in each incident. Although he disputes that he was in fact the aggressor, he did not offer any evidence of similarly situated white or female employees who had kept their jobs, despite being deemed the aggressors in multiple physical altercations on the job. Nor did he offer any evidence that defendant deemed him the aggressor because he was a member of a protected class or that he was fired for a discriminatory purpose. After the District Court’s clerk entered the default, the District Court provided Rainey an opportunity to demonstrate his entitlement to damages by ordering Rai-ney to file a statement outlining the damages he was seeking and to provide support for those damages. In response to that order Rainey filed an incoherent statement and attached a variety of financial statements and personal bills, which the court sealed to protect his privacy. The closest Rainey came to properly alleging discrimination is his statement in his informal brief before us, in which he stated “Timmy Miller full timer employee get wrote up 3 or 4 times and was on contract still have his job, Kelly Thomas and Brgette two part timer union sisters fith-ing same matter like assaults on union people [sic.].” Without further information regarding the demographics of the employees named above and their circumstances, it is impossible for us to determine if Rainey was treated less favorably on account of a protected ground. Regardless, Rainey did not present this information to the District Court when he was given the opportunity to do so. Under these circumstances, we find that the District Court did not abuse its discretion in awarding only nominal damages because it was clear that even when all of the factual allegations and evidence were considered in the light most favorable to Rainey, he did not make allegations sufficient to establish that he was fired on account of his membership in a protected class. It is therefore clear that Rainey could not establish any entitlement to damages beyond the $250 in nominal damages he was awarded by the District Court on account of the defendant’s default, even if the court had held a healing. IV. Conclusion For the foregoing reasons, we will affirm the District Court’s judgment awarding Rainey $250 in nominal damages. . Typically, once a plaintiff makes a prima facie case, the burden shifts to the defendant to establish a nondiscriminatory reason for taking the adverse employment action. If the defendant can do so, the burden shifts back to the plaintiff to show that the defendant's justifications were mere pretext. This burden shifting cannot occur when a plaintiff prevails by default because the defendant declines to participate in the litigation, as is the case here. Appropriately, given the circumstances, the District Court looked to whether Rainey made out a prima facie case.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475238/	OPINION OF THE COURT HARDIMAN, Circuit Judge. Gregory Hall appeals his judgment of conviction following a conditional guilty plea in which he reserved the right to appeal the District Court’s denial of his motion to suppress physical evidence. We will affirm. I. Because we write for the parties, we recount only the essential facts. On October 3, 2007, a confidential informant told Detective Nadzom of the York City Police that Hall was seen parking a red Chevy van behind the federal housing unit rented by Hall’s girlfriend, Ashley Smith. Hall’s location was of interest to police because he had outstanding warrants in York County for probation violations and for selling cocaine base (crack). Because of the outstanding warrants, Detective Nad-zom and other officers proceeded to Smith’s residence, arriving approximately thirty minutes after Hall had arrived there. When the officers arrived at Smith’s apartment, they found Hall and searched him incident to his arrest on the outstanding warrants. During the search, police found in Hall’s pockets five ecstasy pills, the keys to the Chevy van, and $401 in cash. Hall was taken into custody and Detective Nadzom drove the Chevy van to the impound lot, where he conducted a routine inventory search that did not turn up additional evidence. Before police seized the van, Smith informed them that Hall had bought the van one month earlier for between $1,500 and $2,000 in cash and registered it in Smith’s name. This was significant because Detective Nadzom — who knew Hall since at least 2006 when he made three controlled purchases of illicit drugs from Hall — was 727aware that Hall was unemployed. Later, while Hall was in custody at the police station, he told officers he was unemployed and that the ecstasy pills were for personal use. Sixteen days after Hall was taken into custody, a reliable confidential informant told police the Chevy van contained cocaine. Based on this tip, police deployed a canine to sniff the van and the dog indicated there were drugs near the driver’s side door. The officers then obtained a warrant to search the van and found 101 grams of crack cocaine and a digital scale hidden in a compartment in the driver’s side door. Hall was charged with possession with intent to distribute 50 or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. He initially entered a not guilty plea and filed a motion to suppress the evidence seized from his vehicle. The District Court held a suppression hearing and denied the motion. Hall subsequently entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. The District Court sentenced Hall to 120 months incarceration. Hall timely appealed.1 II. We review the District Court’s factual determinations for clear error and exercise plenary review over the application of the law to those factual determinations. United States v. Price, 558 F.3d 270, 276 (3d Cir.2009). Hall claims the warrantless seizure of the van was unconstitutional because the officers did not have probable cause to believe the vehicle was used, or was intended to be used, to facilitate the transportation of drugs. If so, Hall insists that the evidence derived from the subsequent search of the van would be inadmissible “fruit of the poisonous tree.” A warrantless seizure is legal if it is authorized by statute and complies with the Fourth Amendment. United States v. Salmon, 944 F.2d 1106, 1119 (3d Cir.1991). Here, the Chevy van was seized pursuant to the Pennsylvania forfeiture statute, 42 Pa.C.S. § 6801(a)(4), which authorizes police to seize vehicles “which are used or are intended for use to transport, or in any manner facilitate the transportation, sale, receipt, possession or concealment of’ various controlled substances. The statute further allows warrantless seizures when “there is probable cause to believe that the property has been used or is intended to be used in violation of the Controlled Substance, Drug, Device and Cosmetic Act.” Id. at § 6801(b)(4). Because both the forfeiture statute and the Fourth Amendment allow warrantless seizures with probable cause, the two steps of the Salmon analysis overlap; if the statute was satisfied, then the seizure was valid. See United States v. One 1977 Lincoln Mark V Coupe, 643 F.2d 154, 158 (3d Cir.1981) (finding the Fourth Amendment satisfied because there was probable cause to satisfy the similar federal forfeiture statute). To establish probable cause to seize Hall’s van, police needed only “a reasonable ground for belief of guilt[J” based on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (internal quotation marks omitted); Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (a “probability, and not a prima facie showing, of criminal activity”) (internal citation omitted). Under the Pennsylvania forfeiture statute, that 728means the officers needed a reasonable ground to believe that the use or intended use of the automobile made it less difficult for Hall to transport, sell or possess drugs. One 1977 Lincoln Mark V Coupe, 643 F.2d at 157 (under the analogous federal statute); Salmon, 944 F.2d at 1119 (applying it to the Pennsylvania statute). The Government has the burden of “establish[ing] some connection between the alleged criminal activity and the defendant property the Government seeks to forfeit.” United States v. RR # 1, Box 224, 14 F.3d 864, 869 (3d Cir.1994). Significantly, the Government does not need to link the vehicle to a specific, identifiable drug transaction. United States v. $10,700.00, 258 F.3d 215, 225 (3d Cir.2001). On the facts of this case, Detective Nad-zom had reasonable grounds based on the totality of the circumstances to believe Hall recently used, or was about to use, the Chevy van to transport or facilitate the sale or transportation of drugs. Specifically, Nadzom had a reasonable basis to believe Hall recently used or was about to use the van to transport the ecstasy found on his person. Nadzom found the ecstasy and van keys in Hall’s pocket, merely half an hour after Hall parked the van. Although Hall claimed the ecstasy was for personal use, he did so only after the van was seized, so that statement cannot be used to undermine the decision to seize the van. Detective Nadzom also had a reasonable basis to believe Hall was using the van to possess, transport, or sell drugs, either in conjunction with the ecstasy or independent of it. First, Nadzom knew Hall had a history of drug trafficking based not only on Hall’s outstanding warrant, but also from three controlled buys in 2006 during which Hall sold cocaine to Nadzom. Second, the cash found on Hall’s person at the time of his arrest gave Nadzom a reasonable basis to conclude that Hall was currently dealing drugs. Nadzom knew Hall was unemployed in 2006 and that Hall was a fugitive in 2007. Yet, he found $401 in cash on Hall’s person and learned that Hall paid between $1,500 and $2,000 cash for the van just one month earlier. Third, Nadzom had a reasonable basis to believe Hall was using the van to sell drugs because he knew Hall bought the van with cash, registered it in someone else’s name, and was driving it without a license. When Nadzom testified that, based on his training and fourteen years of experience, Hall’s machinations were consistent with those of a drug dealer, it was well within the District Court’s discretion to find this testimony credible. Hall claims the District Court committed clear error when it found that “defendant had just arrived at the apartment in the vehicle.” Hall’s focus on the word “just” is unpersuasive, however, because the District Court plainly noted that thirty minutes had elapsed, so the Court expressed the correct time frame and did not err when it used the relative word “just” to characterize it. Likewise, the fact that it was possible that Hall picked up the ecstasy at the apartment and had no plans to use the van to transport the drugs is unavailing. Probable cause does not require police to eliminate all possible doubt as to the use of the van. Rather, the police only needed information creating a fair probability that the van was involved in transporting drugs to satisfy the statute and the Fourth Amendment. Because this was a fair inference to draw on these facts, the District Court did not err in denying Hall’s motion to suppress. For the foregoing reasons, we will affirm the judgment of the District Court. . We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction under 18 U.S.C. § 3231.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475240/	OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Franky Nadal appeals from the District Court’s ruling denying his motion to suppress evidence seized during an investigatory search conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For the following reasons, we affirm the District Court’s judgment. I. The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We review a district court’s factual findings for clear error and exercise plenary review over its determination that a Terry stop did not violate the Fourth Amendment. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir.1996). II. Because we write primarily for the parties, we discuss the facts only to the extent necessary for resolution of the issue on appeal. Nadal was charged in a three count indictment arising from the 2008 armed robbery of Embers Guest House (“Embers House”) in St. Thomas, Virgin Islands. Off-duty Officer Kelvin Venzen was in the vicinity of Embers House and heard a report over the radio regarding the armed 730robbery. The report also indicated that shots were fired. He informed central dispatch of his location and pulled his car into the Clear View Apartment’s parking lot, which was located near Embers House, to observe vehicles and persons leaving the area from which the shots were fired. There, Officer Venzen, who was in plainclothes, observed an individual drive down the road from the direction of Embers House with the car’s headlights off, pull into the parking lot and push his seat into a reclining position. Officer Venzen then called for back-up. After back-up arrived, Officer Venzen and two uniformed officers approached the vehicle and ordered its occupants out. Nadal initially hesitated and did not get our of the car; in turn, one of the officers drew his weapon. Nadal then got out of his car and the officers patted him down, locating a firearm. Nadal was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 14 V.I.C. § 2253(a). After holding a hearing, the District Court denied Nadal’s motion to suppress the gun. Nadal then entered a conditional plea of guilty, reserving his right to appeal the District Court’s denial of his motion to suppress. He was sentenced to 14 months imprisonment. III. Nadal challenges the District Court’s ruling denying his motion to suppress the gun on the grounds that the warrantless search and seizure violated the Fourth Amendment. See Appellant’s Br. at 4. While warrantless searches and seizures are generally, per se unreasonable under the Fourth Amendment, see United States v. Williams, 413 F.3d 347, 351 (3d Cir.2005), there are several exceptions to this rule. Investigatory searches and seizures can be justified if officers have “a reasonable, articulable suspicion that criminal activity may be afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). Reasonable suspicion requires “ ‘some minimal level of objective justification’ for making the stop.” Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). “This is a lower hurdle than the probable cause necessary to obtain a search warrant, given the lesser infringement on an individual’s liberty. [Pjrobable cause means a fair probability that contraband or evidence of a crime will be found, and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause. While the standards are different, both reasonable suspicion and probable cause require the Court to consider the totality of the circumstances.” United States v. Silveus, 542 F.3d 993, 999-1000 (3d Cir.2008) (internal citation and quotation omitted). Nadal contends that the District Court should have suppressed the firearm because, under the totality of the circumstances, the officers did not have a reasonable suspicion that criminal activity was afoot, rendering the investigatory stop and frisk unconstitutional. This argument is unpersuasive. The District Court based its ruling on the furtive behavior Nadal engaged in just prior to the Terry stop and frisk. After hearing testimony, the District Court found that Nadal was observed by Officer Venzen driving from the area where the crime was committed with his headlights off. (App.80). Nadal then parked his car and reclined his chair so that he would not be readily visible to anyone looking inside the car. (App.80). This occurred at 10:30 pm, shortly after the armed robbery occurred. (App.80). Considering the totality of these circumstances, the District Court concluded that Nadal exhibited surreptitious behavior aimed at avoiding police detection. 731(App.81). Next, the court also found it reasonable that one of the officers drew his weapon when he demanded that Nadal get out of the car because Nadal had already ignored the first command to exit the car and because the officers were responding to an armed robbery during which shots were fired. (App.81). Thus, under the totality of the circumstances, the District Court ruled the investigatory stop and frisk constitutional. Nadal does not challenge the District Court’s factual findings per se. Rather, he contends that the factual findings do not do not raise the specter of criminal activity since parking a car at 10:30 pm and reclining in the car’s seat is not out of the ordinary. See Appellant’s Br. at 15. We cannot agree. The District Court credited Officer Venzen’s testimony that he observed Nadal driving from the crime scene with his headlights off and then enter a parking lot and recline in his chair, rendering himself hidden. These findings of fact were not clearly erroneous. Thus, under the totality of these circumstances, we cannot conclude that the District Court erred when it denied Nadal’s motion to suppress the firearm. Finally, because he did not raise it before the District Court during the suppression hearing, Nadal waived his argument that the tip which led to the stop and frisk should be discounted because it lacked the hallmarks of reliability. See United States v. Rose, 538 F.3d 175, 176 (3d Cir.2008) (pursuant to Fed.R.Crim.P. 12 and absent good cause, a criminal defendant who fails to raise a reason to suppress evidence before the District Court waives the issue on appeal). Nadal does not offer any reason for his failure to raise this issue before the District Court. Therefore, the tip cannot serve as the basis for reversing the District Court’s ruling that the investigatory stop and frisk did not violate the Fourth Amendment. IV. For the foregoing reasons, we affirm the judgment of the District Court.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475057/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David M. Kissi appeals the district court’s order dismissing as frivolous his complaint against United States District Court Judge Peter J. Messitte. We have reviewed the record and find no reversible error. Accordingly, we deny Kissi’s motion for appointment of counsel and motion for stay and affirm for the reasons stated by the district court. Kissi v. Messitte, No. 08:08-cv-03360-RWT (D.Md. Jan. 30, 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/8475062/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Alfred Prescod, Jr., appeals the district court’s order denying his 18 U.S.C. § 3582 (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Prescod, No. 5:99-cr-00029-RLV-1 (W.D.N.C. June 1, 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/8475064/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: George W. Gantt-El seeks to appeal the district court’s orders (1) denying him leave to proceed in forma pauperis in his action filed pursuant to 28 U.S.C. § 2254 (2006), and ordering him to pay the $5 filing fee, and (2) granting him an extension of time to pay the fee. Our review of the district court docket sheet and Gantt-El’s informal brief on appeal reveals that the filing fee was paid on June 16, 2009. Accordingly, because Gantt-El has paid the filing fee, we deny his motion for a certificate of appealability and dismiss the appeal as moot. We deny leave to proceed in forma pauperis on appeal and deny Gantt-El’s motion for judicial notice. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475068/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Clayton Landingham appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See United States v. Landingham, No. 4:02-cr-00274-CWH-3 (D.S.C. filed May 22, entered May 26, 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/8475241/	OPINION OF THE COURT HARDIMAN, Circuit Judge. Xiao Xia Chen seeks review of the order of the Board of Immigration Appeals (BIA) denying her motion to reopen her deportation proceeding. We will deny Chen’s petition for review. I. A. Because we write for the parties, we recount only the facts and procedural history necessary to our decision. Chen arrived in the United States on December 7, 2000. She subsequently applied for asylum, withholding of removal, and relief under the Convention Against Torture, claiming that she would be persecuted in China because she refused to marry the son of the village chief. On December 12, 2002, the Immigration Judge denied Chen’s application and entered an order of removal and the Board of Immigration Appeals affirmed. Nevertheless, Chen remained in the United States, married, and gave birth to a son on April 4, 2006, and a daughter on June 20, 2007. On May 16, 2007, Chen filed a motion to reopen the removal proceedings, arguing that conditions had changed in China. Specifically, Chen asserted that Fujian province has increased its enforcement of China’s Population and Family Planning Laws such that the birth of her two children placed her at risk of being subjected to forced sterilization or abortion upon her return to China. In support of her motion to reopen, Chen submitted several documents we list in the margin.1 733The BIA denied the motion to reopen on August 31, 2007. In reviewing the materials Chen submitted, the BIA observed that many of the documents provided only general background regarding China’s human rights record and its enforcement of population control policies. The BIA also noted that a number of the documents in the record pre-dated 2005, the year in which Chen claimed that Fujian began escalating its enforcement of the Family Planning Law. Furthermore, the BIA held that the affidavits submitted by Chen and her father were insufficient to create a reasonable likelihood that Chen could objectively prove the basis of her fear of persecution upon returning to China. Although the affidavits recount two incidents of forced sterilization and abortion against women in Fujian province who had at least one child, there was no indication that the two women were similarly situated to Chen, ie., repatriated Chinese nationals who bore multiple children in the United States. The BIA also disregarded some of Chen’s supporting materials. First, the BIA noted that although Chen referenced the 2005 and 2006 State Department Reports on China by citing them internet domain, she never made them part of the record, so the BIA did not rely upon them. Second, the BIA questioned the authenticity of two of the documents Chen proffered in support of her claim that U.S.-born children are counted against returning Chinese nationals for purposes of the Family Planning Laws. The BIA observed that the Chinese version of the Response of the Administrative Office— purportedly dated 2006 — contained multiple date stamps on the bottom of the document which pre-dated 2006. Also, some of the answers in the Changle City Family Q & A Handbook had inconsistent font and typeface, calling the validity of that document into question. Therefore, the BIA refused to rely on these two documents.2 Based on its review of the record, the BIA concluded that Chen failed to overcome the heavy burden of proof required to grant an untimely motion to reopen, and denied the motion as time-barred. The BIA also concluded that the evidence was insufficient to establish a prima facie case of eligibility for asylum because it did not establish a reasonable likelihood that Chen would be able to provide proof in a reopened proceeding of the objective basis for her fear of persecution upon returning to China. Chen filed a timely petition for review of the BIA’s decision.3 II. Motions to reopen are disfavored as a matter of law and an alien who seeks to reopen bears a “heavy burden.” INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); see also INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We review the BIA’s denial of a motion to reopen for abuse of discretion and “will not disturb the BIA’s decisions unless they are found to be arbitrary, irrational, or contrary to law.” Zheng v. Attorney General, 549 F.3d 260, 264-65 (3d Cir.2008) (internal citation omitted). Applying this “deferential standard of review, we uphold the BIA’s factual determinations if they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). 734A. An alien may file only one motion to reopen removal 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.” 8 C.F.R. § 1003.2(c)(2). The 90-day limitation does not apply to a motion to reopen which seeks asylum or withholding of deportation “based on changed circumstances arising in the country of nationality ... 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)(h). The Supreme Court has set forth three bases on which the BIA can deny a motion to reopen: (1) the alien failed to establish a prima facie case for the relief sought; (2) the alien failed to introduce previously unavailable, material evidence that justifies reopening under the regulation; or (3) in cases where relief is discretionary, the alien would not be entitled to the discretionary relief even if a prima facie case were shown. Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d Cir.2002) (citing Abudu, 485 U.S. at 105, 108 S.Ct. 904). In addition to satisfying the 90-day filing requirement, or the “changed circumstances” exception, a motion to reopen must establish prima facie eligibility for asylum. Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.2004) (citation omitted). To qualify for asylum, an applicant must establish that she has a well-founded fear of persecution if removed to her home country. 8 U.S.C. §§ 1101(a)(42), 1158(b). To establish a well-founded fear, the applicant must show: (1) a subjective fear of persecution, (2) that is objectively reasonable. Guo, 386 F.3d at 564. “An applicant bears the burden of proving eligibility for asylum based on specific facts and credible testimony.” Zheng, 549 F.3d at 266 (citations omitted). B. As a preliminary matter, we address the adequacy of the BIA’s consideration of the documents submitted by Chen under our recent decisions in Zheng and Liu.4 In Zheng, we explained that, when considering a motion to reopen, the BIA has an obligation to “actually consider the evidence and argument that a party presents,” and “to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim,” 549 F.3d at 266, 268 (citations omitted). Although the BIA may consider evidence in a summary fashion, and need not “parse or refute on the record each individual ... piece of evidence offered by the petitioner,” the BIA should demonstrate that it has considered the petitioner’s evidence and “should provide us with more than cursory, summary or conclusory statements, so that we are able to discern its reasons for declining to afford relief to a petitioner.” Id. at 268 (quoting Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006)). We then vacated and remanded the BIA’s order denying Zheng’s motion to reopen because the BIA had “fail[ed] to discuss most of the evidentiary record in Zheng’s case, as well as the conclusions that the Court of Appeals for the Eleventh Circuit reached in Li [v. Attorney General, 488 F.3d 1371 (11th Cir.2007) ] concerning at least some of the documents” presented by Zheng. Id. at 269. 735In contrast to Zheng, in Liu we affirmed the BIA’s denial of a motion to reopen, finding that the BIA adequately addressed Liu’s evidence and arguments for us to review the substance of the BIA’s decision, and that the BIA’s denial was not an abuse of discretion. Liu, 555 F.3d at 149-50. The BIA’s decision in the instant case falls somewhere between the lack of consideration of the evidence in Zheng, and the thorough review conducted in Liu. Not surprisingly, Chen argues that the BIA’s decision is closer to Zheng, while the Government contends that the case is analogous to Liu. Here, unlike in Zheng, the BIA took note of all the documents submitted by Chen in support of her motion to reopen and provided its assessment of those documents. Though neither the BIA’s consideration of Chen’s evidence nor its analysis of the applicable law was as thorough as the opinion in Liu, it provides sufficient analysis to enable us to discern its basis for rejecting Chen’s evidence, and gives us confidence that the BIA reviewed and considered all of Chen’s evidence. For the reasons that follow, the petition for review must be denied. C. Chen’s motion to reopen was filed almost three years after the BIA entered its final decision in her removal proceeding, well after the 90-day deadline. Consequently, Chen was required to show changed country conditions based on material and previously unavailable evidence to overcome the untimeliness of her motion. Chen argued that since the time of her prior hearing, the Fujian province government has increased the use of forced abortions and sterilizations. However, a review of the record reveals that the evidence submitted by Chen does not support a finding of changed conditions. The documents Chen submitted include reports of coerced sterilization and abortion in various parts of China, but they do not show that these incidents represented a change from prior practices. For example, the 2005 Annual Report of the Congressional-Executive Commission on China states: “[t]he Chinese government continues its population control policy.... Coercive fines are the main enforcement mechanism, although reports of local authorities using physical coercion to ensure compliance continue, even though this practice violates Chinese law.” (emphasis added). Likewise, the 2006 Annual Report of the Congressional-Executive Commission on China states: Some local officials charged with implementing the national population planning policy violate Chinese law by physically coercing abortions and sterilizations. Although physical coercion violates [the planning law] local officials continue to use physical coercion or the threat of physical coercion, to enforce compliance with population planning laws and regulations.... In 2006, officials in ... Fujian province forcibly sterilized women. Chen has not submitted country reports— or any other evidence — to show that the practices reported in 2005 and 2006 represented a change from prior years.5 Although Chen’s affidavit states that she “was told that since 2005, the government has increased the use of forced abortions and sterilizations,” it was not an abuse of 736discretion for the BIA to conclude that this isolated hearsay statement was insufficient to meet her burden. Given the lack of evidence of changed conditions in China, the BIA did not abuse its discretion in concluding that Chen’s motion to reopen was time-barred. D. Our review of the record also supports the BIA’s conclusion that Chen failed to establish a basis for her fear of persecution as a returning national with U.S.-born children. In its opinion, the BIA took note of its prior decision in Matter of C-C- 23 I. & N. Dec. 899 (BIA 2006), in which it discussed the variable application of the Family Planning Law to Chinese nationals with children born overseas in contrast to those born in China; namely, that there were no reports of forced sterilization or abortion against “returnees from the United States.” Id. at 903. The BIA did not err when it concluded that Chen’s documents failed to overcome this finding. For the foregoing reasons, we will deny Chen’s petition for review. . Chen submitted: her own affidavit; an amended Form 1-589 in support of the asylum application; the birth certificates of Chen, her husband, and her son; a marriage certificate; a letter from her doctor verifying her second pregnancy; an affidavit from her father in China; a document entitled "Response of the Administrative Office of the National Population and Family Planning Committee to the Fujian Province Population And Family Planning Committee’s inquiry on the legal applicability and use of [Family Planning] Laws toward the reproductive behavior of Chinese Citizens residing in other countries,” dated 2006; the Changle City Family Q & A Handbook, dated July 1999; the Testimony of John Ail'd on China's New Family Planning Law, dated September 23, 2002; a Consular Information Sheet, dated May 29, 2003; a Letter in Response to the Issue of Identification of Nationality from the Department of Public Security of the People's Republic of China, dated October 22, 1997; the 2005 and 2006 Annual Reports of the Congressional-Executive Commission on China; the Testimony of Harry Wu before Congress on December 14, 2004; an article entitled “One Child Over Birth, the Whole Family Detained” from World Journal, dated March 11, 2007; an article entitled "China Shamed by Forced Abortions” from Times Online, dated 2005; and an article entitled "Who Controls the Family” from Washingtonpost.com, dated 2005. . On appeal, Chen has not assigned error to the BIA's disregard for the 2005 and 2006 State Department Reports or the two documents discounted as lacking authenticity. . The BIA had jurisdiction over Chen's motion to reopen under 8 C.F.R. § 1003.2, and we have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252. . During the pendency of Chen’s petition for review, we decided Zheng v. Attorney General, 549 F.3d 260 (3d Cir.2008), and Liu v. Attorney General, 555 F.3d 145 (3d Cir.2009), concerning the level of consideration the BIA must afford to materials submitted by applicants in support of a motion to reopen. The parties submitted helpful supplemental briefing on the applicability of these decisions to Chen's case. . In fact, the documents Chen submitted tended to show that some forced sterilizations and abortions occurred in prior years. For example, the 2002 Aird Testimony reports that there were “spectacular instances of coercion” since the late 1990s, that an investigative team from the U.S. State Department confirmed the persistence of coercive measures in China in 2002, and that there was a long-running practice of requiring late-term abortions in cases of unauthorized, but previously undetected, pregnancies.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475070/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Edward Roseboro appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Roseboro, No. 3:02-cr00137-MR-1, 2009 WL 1427363 (W.D.N.C. May 21, 2009). We dispense with oral argument because the facts and *805legal 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/8475073/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carlton Barber, Jr., appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) action. We have reviewed the record and find no reversible error. Accordingly, we deny Barber’s motion for appointment of counsel and affirm for the reasons stated by the district court. Barber v. Harris, No. 5:08-ct-03153-FL (E.D.N.C. Mar. 10, 2009). We dispense with oral argument because the facts and *815legal 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/8475075/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stanley Earl Winston appeals from the district court’s order denying relief on his Fed.R.Civ.P. 60(b)(3) motion to reconsider the court’s previous denial of his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find that Winston has failed to establish the narrow grounds needed for relief under Rule 60(b)(3). Great Coastal Express, Inc. v. International Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982). Accordingly, we deny Winston’s emergency motion for motion for appointment of counsel and affirm. 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/8475079/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Lyn Lynch appeals the district court’s order denying his motion for a sentence reduction filed under 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find the court did not abuse its discretion and there is no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Lynch, No. 1:99-cr-00322-JAB-1 (M.D.N.C. filed July 10, 2009; entered July 13, 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/8475081/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jerry Allen Bailey appeals the district court’s order denying his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bailey, No. 3:94-cr00111-GCM-28 (W.D.N.C. July 27, 2009). We deny Bailey’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475083/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Trinity Jaquey Clyburn appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Clyburn, No. 4:05-cr-01299-TLW-1 (D.S.C. filed Aug. 24, 2009 & entered Aug. 25, 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/8475084/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edward Simmons appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Simmons, No. 3:07-cr-00041-JPB-DJJ-2, 2009 WL 2877236 (N.D.W.Va. Sept. 1, 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/8475071/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Edward Roseboro appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Roseboro, No. 3:02-cr00137-MR-1, 2009 WL 1427363 (W.D.N.C. May 21, 2009). We dispense with oral argument because the facts and *805legal 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/8475076/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Carlton Parker appeals the district court’s denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Parker, No. 5:06-cr-00186-H-1 (E.D.N.C. Aug. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475080/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jerry Allen Bailey appeals the district court’s order denying his motion for sentence reduction under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bailey, No. 3:94-cr00111-GCM-28 (W.D.N.C. July 27, 2009). We deny Bailey’s motion to appoint counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475082/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Trinity Jaquey Clyburn appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Clyburn, No. 4:05-cr-01299-TLW-1 (D.S.C. filed Aug. 24, 2009 & entered Aug. 25, 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/8475085/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edward Simmons appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Simmons, No. 3:07-cr-00041-JPB-DJJ-2, 2009 WL 2877236 (N.D.W.Va. Sept. 1, 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/8475086/	*827Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Timothy Gerrell McDonald appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. McDonald, No. 7:03-cr-00029-H-1 (E.D.N.C. Aug. 31, 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/8475088/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Darwin Lewis Turner filed a notice of appeal from a pleading filed by his counsel informing the district court that Turner was not eligible for a sentence reduction pursuant to Amendment 706 to the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2) (2006). This court may exercise jurisdiction only over final orders of the district court, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders of the district court, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because counsel’s pleading is not an appealable order, we dismiss the appeal. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475090/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joshua Mitch Johnson appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A (b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Johnson v. Johnson, No. 7:09-cv-00207-gec-mfu, 2009 WL 2337994 (W.D.Va. July 27, 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/8475092/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael McNeill appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. McNeill v. Ruffin, No. 1:09-cv-00372-JAB-PTS (M.D.N.C. July 31, 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475094/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Zantwan Devorris Worthy appeals the district court’s order denying his motion filed under Fed.R.Crim.P. 36. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Worthy, No. 1:07-cr-00127-NCT-1 (M.D.N.C. July 20, 2009). Further, we deny Worthy’s motion to consolidate. 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/8475096/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Nathan Messick appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Messick, No. 3:06-cr-00058-JBP-1 (N.D.W.Va. July 21, 2009). We also deny Messick’s motion for transcripts at government expense and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475101/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ralph D. Davis appeals the district court’s order denying his motions seeking to obtain copies of Title III orders * relevant to his criminal conviction, and for appointment of counsel. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Davis, No. 1:07-cr-00254-TSE-1 (E.D. Va. June 29, 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. See 18 U.S.C. § 2510-2522 (2006).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475089/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Darwin Lewis Turner filed a notice of appeal from a pleading filed by his counsel informing the district court that Turner was not eligible for a sentence reduction pursuant to Amendment 706 to the Sentencing Guidelines and 18 U.S.C. § 3582(c)(2) (2006). This court may exercise jurisdiction only over final orders of the district court, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders of the district court, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because counsel’s pleading is not an appealable order, we dismiss the appeal. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475091/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joshua Mitch Johnson appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A (b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Johnson v. Johnson, No. 7:09-cv-00207-gec-mfu, 2009 WL 2337994 (W.D.Va. July 27, 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/8475097/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Nathan Messick appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Messick, No. 3:06-cr-00058-JBP-1 (N.D.W.Va. July 21, 2009). We also deny Messick’s motion for transcripts at government expense and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475100/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ralph D. Davis appeals the district court’s order denying his motions seeking to obtain copies of Title III orders * relevant to his criminal conviction, and for appointment of counsel. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Davis, No. 1:07-cr-00254-TSE-1 (E.D. Va. June 29, 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. See 18 U.S.C. § 2510-2522 (2006).	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475105/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lee O. Wilson, Jr., seeks to appeal the district court’s order denying his motion for appointment of counsel. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Wilson seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475108/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Randolf Moore appeals the district court’s order denying his motion to reconsider the district court’s previous order denying his motion to supplement. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Moore, No. 4:95-cr-00041-H-7 (E.D.N.C. Aug. 6, 2009). We deny Moore’s motion for transcript at gov*858ernment expense, and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475110/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jeffrey Lynn Morgan appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2000). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Morgan, No. 2:01-cr-00001-BO-1 (E.D.N.C. filed Aug. 26, 2009 & entered Aug. 27, 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/8475112/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Japlin Cureton appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Cureton, No. 3:03-cr-00134-GCM-1 (W.D.N.C. Sept. 4, 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/8475114/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tommy Carver appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Carver v. Bennett, No. 1:09-cv-00283-GCM (W-D.N.C. Aug. 14, 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/8475116/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Steven E. Warman, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Warman v. Philips, No. 1:08-cv-00217-IMK-JES, 2009 WL 2705833 (N.D.W.Va. Aug. 25, 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/8475103/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Carswell seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2241 (2006) petition for a writ of habeas corpus without prejudice for failure to comply with the filing fee order. On appeal, we confine our review to issues raised in the Appellant’s brief. See 4th Cir. Rule 34(b). Carswell’s brief fails to challenge the district court’s dispositive conclusion that he failed to pay the filing fee for his § 2241 petition. Accordingly, we affirm the order of the district court. 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 in the deci-sional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475104/	Dismissed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lee O. Wilson, Jr., seeks to appeal the district court’s order denying his motion for appointment of counsel. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Wilson seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. 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. DISMISSED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475106/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Patrick L. Booker appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint, as well as the district court’s denial of his Fed.R.Civ.P. 59(e) Motion to Alter or Amend a Judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Booker v. Jenkins, No. 2:09-cv-01891-HMH, 2009 WL 2461254 (D.S.C. Aug. 11, 2009; Aug. 28, 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/8475109/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Randolf Moore appeals the district court’s order denying his motion to reconsider the district court’s previous order denying his motion to supplement. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Moore, No. 4:95-cr-00041-H-7 (E.D.N.C. Aug. 6, 2009). We deny Moore’s motion for transcript at gov*858ernment expense, and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475115/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tommy Carver appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Carver v. Bennett, No. 1:09-cv-00283-GCM (W-D.N.C. Aug. 14, 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/8475117/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Steven E. Warman, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Warman v. Philips, No. 1:08-cv-00217-IMK-JES, 2009 WL 2705833 (N.D.W.Va. Aug. 25, 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/8475118/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Keith Lavon Burgess appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Burgess, No. 4:03-cr-00107-TLW-1 (D.S.C. Aug. 11, 2009). See United States v. Hood, 556 F.3d 226 (4th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 321, 175 L.Ed.2d 212 (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/8475120/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clinton Bernard Frazier-El appeals the district court’s order denying his motion for a downward departure. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Frazier-El, No. 1:96-cr-00469-WMN-1 (D.Md. Aug. 13, 2009). We dispense with oral argument because the *864facts 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/8475122/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert H. Davis appeals the district court’s order dismissing his action seeking correction of his presentence investigation report, pursuant to the Privacy Act, 5 U.S.C. § 552a(d)(2) (2006), as well as its order denying his motion for reconsideration of that dismissal. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders. See Davis v. United States, No. 8:09-cv-01720-PJM (D. Md. July 10, 2009; filed July 29, 2009 & entered July 30, 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/8475124/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne Altwan Langford appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Langford, No. 8:07-cr-00013-HMH-1 (D.S.C. July 27, 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/8475131/	PER CURIAM: * The attorney appointed to represent Jose Guadelupe Jaramillo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Jaramillo has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475133/	PER CURIAM: * The Federal Public Defender appointed to represent Francisco Javier Ramirez-Trevino has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ramirez-Trevino has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5tii Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under die limited circumstances set fordi in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475121/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clinton Bernard Frazier-El appeals the district court’s order denying his motion for a downward departure. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Frazier-El, No. 1:96-cr-00469-WMN-1 (D.Md. Aug. 13, 2009). We dispense with oral argument because the *864facts 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/8475123/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert H. Davis appeals the district court’s order dismissing his action seeking correction of his presentence investigation report, pursuant to the Privacy Act, 5 U.S.C. § 552a(d)(2) (2006), as well as its order denying his motion for reconsideration of that dismissal. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s orders. See Davis v. United States, No. 8:09-cv-01720-PJM (D. Md. July 10, 2009; filed July 29, 2009 & entered July 30, 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/8475125/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwayne Altwan Langford appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Langford, No. 8:07-cr-00013-HMH-1 (D.S.C. July 27, 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/8475127/	Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Warren Cutha Hester, II, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint and related claims. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hester v. Beckley Register Herald, No. 5:07-cv-00891, 2009 WL 2032033 (S.D.W.Va. July 8, 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/8475128/	PER CURIAM: * Yvette Peschard Torres appeals her below-guidelines sentence of 51 months following her conviction for importing 50 kilograms or more of marijuana; possessing with intent to distribute 50 kilograms or more of marijuana; and use of a minor in *901drug operations. She argues that the district court erred in (1) applying the obstruction-of-justiee adjustment, (2) denying the acceptance-of-responsibility adjustment, and (3) denying a minor-role adjustment. The district court did not plainly err in enhancing Torres’s sentence for obstruction of justice because she impeded the administration of justice by failing to comply with the conditions of her release and failing to appear at a judicial hearing. See U.S.S.G. § 3C1.1, comment. (n.4(e)); United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 2458, 171 L.Ed.2d 253 (2008). In addition, the district court’s ruling denying a downward adjustment for acceptance of responsibility was not without foundation because Torres failed to comply with the conditions of her release and failed to appear at a judicial hearing. See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.), cert. denied, — U.S.-, 128 S.Ct. 2452, 171 L.Ed.2d 248 (2008); United States v. Washington, 340 F.3d 222, 227 (5th Cir.2003). Finally, the district court did not clearly err in denying the minor-role adjustment because courier status does not automatically entitle Torres to minor participant status. See United States v. Edwards, 65 F.3d 430, 434 (5th Cir.1995); United States v. Villanueva, 408 F.3d 193, 203 & n. 9 (5th Cir.2005). Thus, the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475130/	PER CURIAM: * The Federal Public Defender appointed to represent Jackie Lemar Lawrence has moved for leave to withdraw and has filed *954a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Lawrence has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5m Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8477469/	ORDER The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is ORDERED that the petition for review be, and the same hereby is, DISMISSED, *223for failure to prosecute in accordance with the rules.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475132/	PER CURIAM: * The attorney appointed to represent Jose Guadelupe Jaramillo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Jaramillo has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475134/	PER CURIAM: * The Federal Public Defender appointed to represent Francisco Javier Ramirez-Trevino has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ramirez-Trevino has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5tii Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under die limited circumstances set fordi in 5th Cir. R. 47.5.4.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475138/	MEMORANDUM ** Jackie S. Bartakian appeals pro se from the district court’s judgment dismissing her action against Clark County and various managerial employees of Clark County (“Clark County defendants”) after she failed to amend her complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissal for failure to state a claim, Vestar Development II, LLC v. General Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), can affirm on any basis fairly supported by the record, id., and affirm. Removal of this action to federal court was not improper because Bartakian raised constitutional claims. See 28 U.S.C. § 1441(a) (allowing removal of “any civil action brought in a State court of which the federal courts of the United States have original jurisdiction”); 28 U.S.C. § 1331 (conferring original jurisdiction on district court in “all civil actions arising under the Constitution, laws, or treaties of the United States”); Sparta Surgical Corp. v. National Ass’n of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir.1998) (“ [Jurisdiction must be analyzed on the basis of the pleadings filed at the time of removal without reference to subsequent amendments!!]”). The district court did not err by dismissing Bartakian’s federal claims, and remanding the state law claim, because the complaint failed to allege facts sufficient to state a federal claim. See Foster v. Wilson, 504 F.3d 1046, 1050-52 (9th Cir.2007) (affirming dismissal of federal claims with prejudice where plaintiffs declined to amend complaint even though district court had dismissed with leave to amend because allegations were insufficient to state a claim); Williams v. Costco Wholesale Corp., 471 F.3d 975, 977 (9th Cir.2006) (“Dismissal of the federal claim ... ordinarily ... authorize^] the district court to remand the pendent state law claims.”). Bartakian’s remaining contentions lack merit. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475141/	MEMORANDUM ** Jisuo Han, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s denial on the basis of an adverse credibility finding and will uphold the agency’s decision unless the evidence compels a contrary conclusion. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir.2004). We deny in part and grant in part the petition for review. The agency denied Han’s asylum application claim as time barred. Han does not challenge this finding in his opening brief. Accordingly, we deny the petition as to Han’s asylum claim. Substantial evidence does not support the agency’s denial of Han’s withholding of removal and CAT claims on the basis of an adverse credibility determination. See Kaur v. Ashcroft, 379 F.3d 876, 884-90 (9th Cir.2004). The IJ impermissibly engaged in speculation and conjecture regarding: (1) Han’s ability to exit China using a passport; (2) the hospital’s assistance of Han’s wife; (3) the Chinese government’s delay in fining the couple; and (4) the quality of Han’s treatment in a military hospital following his assault by a van. See id. at 886-87. Furthermore, Han’s testimony that he was hit by a van is not inconsistent with the statement in his hospital discharge certificate that he was injured in a traffic accident. See Paramasamy v. Ashcroft, 295 F.3d 1047, 1052-54 (9th Cir.2002). The agency also erroneously relied on the asylum officer’s interview notes, which were not sufficiently reliable to impeach Han’s testimony. See Singh v. Gonzales, 403 F.3d 1081, 1087-90 (9th Cir.2005). Inconsistencies cited by the agency with his asylum application regarding how many months he stayed in the hospital following his coma, whether his wife still owes family planning officials part or all of the fine for violation of their policies, and when Han was told the amount of the fine, are minor and do not go to the heart of his claim. See id. at 1090-92. Finally, because none of the agency’s adverse credibility findings are supported, Han was not required to provide corroboration. See Kaur, 379 F.3d at 890. We deny as moot Han’s motions to hold this petition for review in abeyance, to refer this petition for review to mediation, and to consolidate with petition for review No. 09-71157. Han’s motion to refer petition for review No. 09-71157 to mediation will be addressed by separate order. We grant the petition for review with respect to the withholding of removal and CAT claims, and remand to the BIA on an open record. See Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009); see also INS v. Ventura, 537 U.S. 12, 16, 123 *291S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). The government shall bear the costs for this petition for review. PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. ORDER Respondent’s petition for panel rehearing is granted in part. The memorandum disposition issued on June 30, 2009, is hereby withdrawn. A replacement disposition shall issue concurrently with this order. No further petitions for rehearing will be entertained in this closed case. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475144/	ORDER AND JUDGMENT* DEANELL REECE TACHA, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. RApp. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. 337Petitioners-appellants Arturo Nunez-Rodarte and his wife, Maria Guadalupe Nunez (“petitioners”) petition for judicial review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen their application for cancellation of removal under Immigration and Naturalization Act (“INA”) § 240A(b)(l), 8 U.S.C. § 1229b(b)(l). Respondent-appel-lee the United States (“respondent”) contends that under 8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to consider the BIA’s denial of petitioners’ motion to reopen. We agree with respondent and therefore DISMISS the petition for want of jurisdiction. I. BACKGROUND Petitioners are citizens of Mexico and have two children, aged sixteen and thirteen, who are both citizens of the United States. Mr. Nunez-Rodarte has lived in the United States unlawfully since 1986; his wife began living here sometime after July 1991. On July 2, 2001, the United States placed petitioners in removal proceedings. Thereafter, petitioners applied for cancellation of removal under § 1229b, which provides for discretionary cancellation of removal when an alien demonstrates that: (1) he has been physically and continuously present in the United States in the ten years preceding their application; (2) he has been a person of good moral character during such period; (3) he has not been convicted of certain criminal offenses; and (4) “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States.” INA § 240A(b)(l), 8 U.S.C. § 1229b(b)(l). On October 15, 2007, the Immigration Law Judge (“ILJ”) found that petitioners had failed to establish the fourth requirement under the statute.1 Specifically, the ILJ found that the children would suffer by returning with petitioners to an unfamiliar culture in Mexico, but that this hardship would not be exceptional or extremely unusual. The ILJ noted that the children did not have any other family or support system in the United States and that the only hardship they would experience is a lack of educational and economic opportunities. Petitioners appealed to the BIA. On July 25, 2008, the BIA dismissed the appeal, agreeing with the ILJ that petitioners had failed to meet their burden of proof to establish extreme and unusual hardship to their United States citizen children. On October 15, 2008, petitioners filed a motion to reopen the BIA’s July 25 decision in order to present new evidence supporting their claim of hardship. On January 5, 2009, the BIA denied the motion to reopen, stating that “[t]he new facts alleged regarding the ... children’s educational difficulties, together with the facts already of record, do not indicate a reasonable likelihood of success on the merits regarding the issue of exceptional and extremely unusual hardship so as to make it worthwhile to develop the issues at a hearing.” Petitioners now seek judicial review to contest the BIA’s January 5 denial of their motion to reopen. They argue that the BIA: (1) ignored relevant precedent in determining whether they had satisfied the hardship requirement; and (2) failed to articulate the basis for its decision in anything other than “conelusory statements.” II. DISCUSSION As respondent makes clear, the threshold issue is whether we have juris338diction to consider the BIA’s denial of petitioners’ motion to reopen. Section 1252(a)(2)(B) provides that “[njotwith-standing any other provision of law, ... no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1229b ... of this title.” 8 U.S.C. § 1252(a)(2)(B). This provision precludes jurisdiction to review the BIA’s denial of an application for cancellation of removal under § 240A of the INA, 8 U.S.C. § 1229b. See Alvarez-Delmuro v. Ashcroft, 360 F.3d 1254, 1256 (10th Cir.2004); Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.2003). This provision also applies to a denial of a motion to reopen that is based on a finding that petitioners’ new evidence did not support a finding of exceptional and extremely unusual hardship. See Alzainati v. Holder, 568 F.3d 844, 849 (10th Cir.2009) (“Because § 1252(a) (2) (B) (i) precludes our review of an ‘exceptional and extremely unusual hardship’ determination under § 1229b(b)(l)(D), it also precludes our jurisdiction to review the BIA’s denial of a motion to reopen because the alien still has failed to show the requisite hardship.”). Thus, to the extent petitioners challenge the BIA’s denial of their motion to reopen based on its determination that they had not shown that their removal would cause their United States children to suffer exceptional and extremely unusual hardship, we must dismiss the petition for lack of jurisdiction. We do, however, have jurisdiction to consider constitutional claims or questions of law, INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D), but only insofar as such issues are “colorable.” Alvarez-Delmuro, 360 F.3d at 1256-57; Morales Ventura, 348 F.3d at 1262. Petitioners suggest that the BIA ignored applicable case law and failed to consider relevant facts, but we conclude these issues are not subject to review. To the extent these issues are couched in terms of due process, we have recognized the rule that “ ‘an alien has no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.’ ” United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir.2004) (quoting Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir.2002)). To the extent these issues are framed in terms of other legal questions, petitioners do not explain how the BIA ignored relevant legal authority or what facts it ignored. We thus conclude petitioners have not raised colorable constitutional or legal questions and must dismiss the petition for lack of jurisdiction on those grounds as well. III. CONCLUSION The petition is DISMISSED for lack of jurisdiction. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . The ILJ also found that Mr. Nunez-Ro-darte's wife had failed to demonstrate the first requirement, but this issue is not relevant to this appeal.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475145/	ORDER AND JUDGMENT* TIMOTHY M. TYMKOVICH, Circuit Judge. Francisco Alberto Terreros-Guarin and his wife, Maria Beatriz Aguirre-Salazar, are natives and citizens of Colombia. They petition for review of a final order of removal entered by the Board of Immigration Appeals (BIA) denying their applications for asylum, restriction on removal, and protection under the Convention Against Torture (CAT).1 We lack jurisdiction to review the BIA’s determination that their asylum application was untimely filed and that no changed or extraordinary circumstances excused its untimeliness. We exercise jurisdiction over the remainder of their claims under 8 U.S.C. § 1252(a)(1), and deny the petition. Background Petitioners entered the United States on January 29, 2000, as holders of B-l/B-2 tourist or business visas. They overstayed the six-month visa period. On February 20, 2002, over two years after their arrival, Mr. Terreros applied for asylum and restriction of removal, identifying his wife as a derivative beneficiary of his application.2 He was subsequently served with a notice to appear in removal proceedings, charging him with overstaying his visa. He conceded removability on the grounds alleged in the notice to appear. 367Mr. Terreros subsequently received a hearing on his asylum application before an immigration judge (IJ). He was the sole witness at the hearing. He claimed to have been persecuted in Colombia on the basis of religion, political opinion, and membership in a particular social group. Mr. Terreros testified that he was an early Colombian convert to the Mormon church, having been baptized into that church in 1969. In Colombia, he explained, the Mormon religion is associated with the United States, where it originated. In 2000, several Mormon chapels in Colombia were bombed. Mr. Terreros was aware of these bombings when he lived in Colombia. He also testified that he had received threats connected with his membership in the Mormon church. In a letter he prepared to supplement his asylum application, Mr. Terreros further detailed his involvement with the Mormon church and the reasons Mormons are persecuted in Colombia. He stated he had been ordained as an elder in the church and had been called to a mission in Peru. He served in high-profile roles in the church as a Branch President and Stake Counselor. Mr. Terreros also stated that the church and its members have been persecuted by Communist-oriented terrorist groups, who consider the church an American organization that meddles in Colombian affairs. As further evidence of the danger posed to religious groups in Colombia, he testified that some of his family and friends were victimized by a terrorist attack on a Catholic church in Cali in 1999. Mr. Terreros also testified concerning the second ground for his asylum claims, his political activities. He stated that he belongs to the Colombian Liberal Party. This is a political party that promotes respect for human rights, freedom, order, and justice. As with his religion-based claim, Mr. Terreros supplemented his asylum application with a letter describing his political activities and the dangers posed to persons of his political views in Colombia. He noted that he had held political views affiliated with the Liberal Party since his days at college. At the time he left Colombia, the opposing Conservative Party was in power. His party opposed the incumbent government for its alleged weakness in the struggle against terrorism and political assassination. Before leaving Colombia, he was threatened by extreme leftist squadrons. He feared that if returned to Colombia, he would be tortured and killed by leftists with guerilla connections. As a third ground for his asylum claims, Mr. Terreros cited his membership in a social group comprised of pro-American Colombians. He explained that he had previously worked for the United States consulate in Medellin as an assistant to the vice-consul. He left his employment there in the 1970s, when the State Department decided to close down the consulate for safety reasons. He subsequently obtained work with two American companies, Bechtel and Morrison-Knudson. He last worked for an American company in 1986, when his contract with Morrison-Knudson ended. Mr. Terreros explained that his former association with American companies put him in danger in Colombia because terrorists target American companies and their employees. Mr. Terreros testified to three attacks on him and his family that he believed were based on his political and pro-American affiliations. All three incidents occurred in 1999, the year before he came to the United States. During this year, he stated, he and his family “received [many] threats [and] were psychologically tortured.” Admin. R. at 363. On April 9, 1999, as they were traveling en route from 368Medellin at about three o’clock in the afternoon, cars stopped in front of his car and forced him to stop. Ten armed men got out of the cars and began to mistreat him. They accused him of being a CIA agent, of working for U.S. companies, and of “helping exploit some of the wealth of Colombia.” Id. They threatened to kill him. His wife began crying, and begged the men not to kill them. At the same time, other ears began approaching. The terrorists decided to leave, got in their cars and drove away. Before departing, however, they told him the next time he would not be so safe. The second attack occurred in September 1999. Mr. Terreros testified that he and his wife left a political meeting at 11:00 p.m. and got in their car to go home. Another car began following them. The passenger in the car behind them pulled out a gun and began shooting at them. Fortunately, they were able to evade the pursuers and return to their home. Mr. Terreros believed that his pursuers were left-wing terrorists who had targeted him because of his political activities. He testified that he reported this attack to the police but they did nothing about it. The third attack took place on November 20, 1999. Mr. Terreros was in his car with his wife and children, stopped at a traffic light. A motorcycle drove up next to them, and the men on the motorcycle got out their guns. Mr. Terreros’ wife, who was driving, took off at a high rate of speed and drove to a police station. They entered the police station and told the police chief what had happened to them. He told them to go home and that they would do the investigation. But Mr. Ter-reros testified that there was no investigation. Within a few months after the third attack, petitioners sold their jewelry business and their home and left Colombia for the United States. Analysis A. BIA Decisions The IJ announced his decision at the close of the hearing. While he found Mr. Terreros’s testimony generally credible, he denied asylum relief because he found that Mr. Terreros had not filed his application for asylum within one year of his entry into the United States. The IJ further found that there were no extraordinary circumstances or changes in conditions that would allow him to consider the untimely application. With respect to restriction on removal, the IJ found that Mr. Terreros failed to show that it was more likely than not that his life or liberty would be threatened in Colombia by the government or at the hands of a group that the government was unable or unwilling to control. He noted that many people in Colombia espouse the same political views as Mr. Terreros and that his views are well represented within the government of Colombia. There are also many Mormons in Colombia and no evidence that he would be targeted there for his religious beliefs. His former employment by the American consulate and American companies did not make him a member of a particular social group for purposes of asylum eligibility. Finally, lawlessness and general criminal conditions do not constitute persecution on any of the statutory grounds. In a single-member Board decision, the BIA dismissed petitioners’ appeal. The BIA agreed with the IJ that the asylum application was time-barred and failed to establish changed or extraordinary circumstances that would excuse the late filing. It further determined that the IJ had properly considered the three 1999 incidents, and that they did not rise to the 369level of persecution. Petitioners had failed to demonstrate that they would be harmed on account of their Mormon beliefs and church activities, or that Colombians “who have a reputation as pro-American sympathizers or who are affiliated with pro-American interests” constitute a cognizable “social group” under the asylum statutes. Admin. R. at 3. Petitioners were ineligible for restriction on removal because they failed to demonstrate that the Colombian government would be unable or unwilling to protect them from harm, and because there is no evidence that, ten years after the three alleged incidents, the unknown assailants are still active and interested in pursuing respondents. B. Lack of Jurisdiction To be considered for asylum, an alien is required to demonstrate by clear and convincing evidence that his application has been filed within one year after his arrival in United States. See 8 U.S.C. § 1158(a)(2)(B). This court lacks jurisdiction to review the BIA’s determination denying an asylum claim as untimely unless petitioners present a constitutional claim or a question of law. See Ferry v. Gonzales, 457 F.3d 1117, 1129-30 (10th Cir.2006). Petitioners contend that an exception to the one-year deadline applied in their case. They argue that the BIA erred in determining that changed country conditions in Colombia did not constitute “changed circumstances which materially affect the applicant’s eligibility for asylum,” such that their failure to file within the one-year deadline should be excused. 8 U.S.C. § 1158(a)(2)(D). But we also lack jurisdiction to review this challenge, which attacks the agency’s factual determination underlying its discretionary, non-reviewable decision concerning changed country conditions. Ferry, 457 F.3d at 1130 (stating alien’s “argument that his pending adjustment of status application qualified as either a changed or extraordinary circumstance to excuse his untimely asylum application is a challenge to an exercise of discretion that remains outside our scope of review.”). Petitioners’ arguments concerning the merits of them asylum claims, and purported errors in considering those claims, also cannot succeed.3 All of these arguments have been mooted by the BIA’s unreviewable determination that their asylum application was untimely and therefore could not be considered on the merits. C. Restriction on Removal Claims4 We turn now to Mr. Terreros’ claim for restriction on removal.5 In addressing 370this claim, “we review the BIA’s findings of fact under the substantial evidence standard, and its legal determinations de novo.” Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir.2008). “Agency findings of fact are conclusive unless ... any reasonable adjudicator would be compelled to conclude to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir.2007) (quotation marks omitted). Where, as here, the BIA issues a decision by a single board member, the BIA’s decision constitutes the final order of removal, although “we may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Id. at 790. Restriction on removal blocks an alien’s removal “to a particular country if he or she can establish a clear probability of persecution in that country on the basis of race, religion, nationality, membership in a particular social group, or political opinion.” Elzour v. Ashcroft, 378 F.3d 1143, 1149 (10th Cir.2004). The alien can satisfy this standard by showing that he experienced “past persecution” on enumerated grounds or that “it is more likely than not” that he would be persecuted in the future. 8 C.F.R. § 1208.16(b)(1), (2). “Persecution is the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive, and requires more than just restrictions or threats to life and liberty.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.2005) (quotation omitted). The persecution “may be inflicted by the government itself, or by a non-governmental group that the government is unwilling or unable to control.” Hayrapetyan, 534 F.3d at 1337 (quotation omitted). Mr. Terreros first argues that the BIA erred by failing to address his argument that the IJ failed to analyze his claim of political persecution. While we may remand to the BIA to address an overlooked argument, we will do so only where the ground appears to have substance. See id. at 1335. That is not the case here, for several reasons. The IJ made the following findings concerning petitioners’ allegations of political persecution: The Court further believes that [petitioner] was a member of the Liberal Party. However, the Government has established through testimony of [petitioner] and the world reports of the State Department that there are many in the government of Colombia who espouse the same political view as the [petitioner] and the [petitioner] is well-represented in his political views within the government of Colombia. Admin. R. at 127-28. Notwithstanding the IJ’s findings on this issue, Mr. Terreros argued to the BIA that “the IJ failed to even consider Mr. Terreros’ political opinion as a discrete basis for his asylum claim.” Admin. R. at 44-45 (BIA brief at 21-22) (emphasis added). But as the quoted language shows, the IJ did consider the claim. Moreover, it is not clear that Mr. Terre-ros even presented this argument to the BIA as a restriction-on-removal argument rather than an asylum argument. 371Finally, and most importantly, we believe the BIA did give the argument adequate consideration. While the BIA did not explicitly refer to political persecution, it rejected Mr. Terreros’ claim that he had been persecuted in the past or would be persecuted in the future on any statutory ground. It found that the violent incidents Mr. Terreros described did not rise to the level of persecution; that the Colombian government had taken steps to control the individuals who confronted him; that he had failed to show that the government was unable or unwilling to protect him from harm; and that there was no objective evidence to suggest that the unknown assailants were still active and interested in pursuing him. This reasoning adequately addressed his assertions of political persecution. Mr. Terreros next argues that the BIA erred in rejecting his assertions that he was persecuted in Colombia on account of his religious beliefs and his membership in a particular social group. The BIA stated that it agreed with the IJ’s conclusion that petitioner “failed to demonstrate that the harm [from alleged persecution] was or would be on account of their Mormon beliefs and church activities.” Id. at 3. Mr. Terreros contends that the evidence does not support this conclusion. In order to grant him relief on this claim, however, we would have to find that the evidence compelled a conclusion contrary to that of the BIA. See Tulengkey, 425 F.3d at 1280. Upon consideration, Mr. Terreros has failed to meet this demanding standard. While the evidence does tend to demonstrate that he occupied a significant position within the Mormon Church, and was active in church activities, the BIA’s conclusion that he failed to demonstrate prior persecution or the likelihood of future persecution based on his religious activities is supported by substantial evidence and must be upheld. Mr. Terreros also attacks the BIA’s findings that “the particular social group of Colombians who have a reputation as pro-American sympathizers or who are affiliated with pro-American interests” is “too loosely defined to meet the requirement” of a “social group” for purposes of the restriction on removal statute, and that it “lacks social visibility.” Admin. R. at 3. We need not determine whether the social group he describes constitutes a legitimate “social group” for purposes of restriction on removal. The BIA’s finding, that Mr. Terreros was not persecuted in the past on any statutory ground, and had failed to show that he was likely to be persecuted in the future on any such ground, represents an adequate ground for its denial of restriction on removal. The petition for review is DENIED. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Mr. Terreros’s application for asylum appears to have included a CAT claim. But he did not raise any CAT issues before the BIA or this court. We therefore do not consider any issues relative to the IJ's denial of CAT relief. See Tulengkey v. Gonzales, 425 F.3d 1277, 1279 n. 1 (10th Cir.2005). . The record actually contains three separate asylum applications. But the IJ found that the later two appeared to be copies of the original application, which he had Mr. Terreros update and sign under oath at the hearing. .Confusingly, petitioners have not only provided a separate section of their brief specifically concerning restriction of removal, see Aplt. Opening Br. at 27-29, but they also appear to have included arguments targeting both asylum and restriction of removal within the "asylum” section of their brief, see id. at 12-25. Out of an abundance of caution, we will address the arguments contained in the "asylum" section as restriction-on-removal arguments, to the extent we find indication that particular arguments were intended as an attack on both the BIA’s asylum and re-slriction-on-removal determinations. . The parties refer to this claim as one for "withholding of removal.” Amendments to the Immigration & Naturalization Act made by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), however, changed the terminology to “restriction on removal.” See 8 U.S.C. § 1231(b)(3); Yong Ting Yan v. Gonzales, 438 F.3d 1249, 1251 n. 1 (10th Cir.2006). Since this case arose after the effective date of the IIRIRA, we refer to this claim as one for "restriction on removal.” . The circuits that have considered the issue hold that unlike asylum, restriction on removal does not allow for derivative beneficiaries 370such as Mr. Terreros's wife. See Arif v. Mukasey, 509 F.3d 677, 681 (5th Cir.2007) (collecting cases). And compare 8 U.S.C. § 1158(b)(3)(A) (asylum statute expressly permitting derivative beneficiaries) with id. § 1231(b)(3) (restriction on removal statute, silent as to derivative beneficiaries). Since Mr. Terreros' challenges to denial of restriction on removal fail on the merits, we need not resolve whether his wife could derivatively benefit from the application. But for clarity’s sake, we do refer to the claim as being that of Mr. Terreros, rather than that of both petitioners.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475149/	PER CURIAM: Thomas H. Dale, appointed counsel for Kirk Whittaker in this appeal from the district court’s denial of Whittaker’s motion to vacate his sentence for lack of jurisdiction, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the district court’s denial of Whittaker’s motion is AFFIRMED.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475152/	Judgment PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36.	01-04-2023	11-05-2022
https://www.courtlistener.com/api/rest/v3/opinions/8475153/	JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments by the parties. It is Ordered and Adjudged that the judgment of the District Court be affirmed. Appellants in them suit for legal malpractice had the burden of proving their underlying claim would have succeeded but for the conduct of Appellees. See Niosi v. Aiello, 69 A.2d 57, 60 (D.C.1949). To that end, Appellants offered expert witness testimony to demonstrate causation between conditions at their former apartment and various health problems. See Young v. Burton, 567 F.Supp.2d 121, 122 (D.D.C.2008). The District Court thoroughly considered the reliability of that testimony under the framework established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The expert admitted he could not identify, five years later, the specific toxins to which Young and Ghee were exposed and he could not say which of their symptoms were caused by exposure to the damp environment of the apartment. See Young v. Burton, 567 F.Supp.2d 121, 138-39 (D.D.C.2008) (mem. op. granting motion to exclude testimony). As the District Court observed, even taking a “broad view of ‘substance’ to include ‘water-damaged building’ and [accepting] ‘mold-illness’ as a real disease” there is no generally accepted consensus in the scientific community that “exposure to a water-damaged building causes ‘mold-illness.’ ” Id. at 138. Clearly, the court did not abuse its discre*433tion by excluding testimony that, based on the expert’s own admissions, “would be nothing other than speculation.” Id. at 141. The exclusion of Appellants’ expert’s testimony could not be cured by substituting selective portions of statements from Appellees’ medical expert. Those statements, in context, could not be “stretched to satisfy [Appellants’] burden of proof as to causation.” Young v. Burton, No. 07-0988, slip op. at 1, 2008 WL 4144478 (September 8, 2008) (mem. op. granting summary judgment). Nor could Appellants’ claims survive in the absence of expert testimony on causation, based only on a temporal link between a possible short-term irritant response and a breach of the implied warranty of habitability. Under District of Columbia law, the link between a potentially toxic building environment and symptoms experienced by tenants is “beyond the ken of laypersons.” Brin v. S.E. W. Investors, 902 A.2d 784, 793 (D.C.2006). Jurors would have no “rational basis for evaluating” whether the mold caused any medical conditions. See Lasley v. Georgetown Univ., 688 A.2d 1381, 1384 (D.C.1997). The District Court properly granted summary judgment for Appellees. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.	01-04-2023	11-05-2022

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