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https://www.courtlistener.com/api/rest/v3/opinions/8475576/
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ON MOTION
ORDER
Jewel Marshall-Mosby moves motion for reconsideration of the court’s order dismissing her petition for review for failure to file an appendix.
The court sua sponte grants Marshall-Mosby an extension of time to file her reply brief and the appendix.
Accordingly,
The motion is granted. The mandate is recalled, the dismissal order is vacated, and the petition is reinstated.
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ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s July 24, 2009, — Fed. Appx. -, 2009 WL 5607070, dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before August 20, 2009.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8475581/
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ON MOTION
ORDER
Defendant the United States moves to remand or dismiss as moot the appeal herein, Court of Federal Claims Case No. 08-CV-515. Plaintiff L-3 Communications Eotech agrees, and also states that it will not appeal the decision of the Court of Federal Claims in Case No. 08-911C. Defendant Aimpoint, Inc. agrees to the dismissal and states that remand is appropriate so that the Court of Federal Claims may dissolve its injunction imposed in August 2008. By notice of July 29, 2009, Aimpoint, Inc. filed a voluntary dismissal of its appeal.
Accordingly,
IT IS ORDERED THAT:
1. The motion to dismiss the appeal is granted.
2. The case is remanded to the Court of Federal Claims, for any further proceedings that may be appropriate to conclude this case.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36
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https://www.courtlistener.com/api/rest/v3/opinions/8475585/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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https://www.courtlistener.com/api/rest/v3/opinions/8475588/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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https://www.courtlistener.com/api/rest/v3/opinions/8475590/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36
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*411Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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https://www.courtlistener.com/api/rest/v3/opinions/8475593/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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https://www.courtlistener.com/api/rest/v3/opinions/8475606/
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SUMMARY ORDER
Petitioner-appellant OneBeaeon America Insurance Company (“petitioner”) appeals from an opinion and order of the District Court entered May 30, 2008, which adopted the previously vacated order of that Court (Richard M. Berman, Judge), denied petitioner’s motion to vacate arbitration awards, and confirmed those awards. On appeal petitioner argues primarily that the District Court (1) misinterpreted the mandate of another panel of this Court, see Commercial Union Ins. Co. v. Lines, 378 F.3d 204, 209 (2d Cir.2004), (2) erred in concluding that confirmation of the arbitration awards would not violate fundamental equitable principles, and (3) *433made numerous factual findings that are “clearly erroneous.” We assume the parties’ familiarity with the factual and procedural history of the case.
We agree with the District Court’s interpretation of the mandate and find no error in its conclusion that petitioner was not prejudiced in the arbitration proceedings or in its determination that confirming the arbitration awards would not violate the Court’s equitable principles. Substantially for the reasons stated by the District Court in its careful and thoughtful opinion and order of May 3, 2008, Commercial Union Ins. Co. v. Lines, Nos. 02 Civ. 0573, 03 Civ. 7376, 2008 WL 2234634, at *10, 12 (S.D.N.Y. May 30, 2008), the judgment of the District Court is AFFIRMED.
We remand the cause to the District Court to determine what, if any, of the material filed in connection with this case should remain under seal.
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*434SUMMARY ORDER
Defendants-appellants Mostafa Reyad and Wafa Reyad were held jointly and severally liable for breach of contract under California law and Mostafa Reyad was found liable for violations of the Connecticut Unfair Trade Practices Act (“CUTPA”) after a bench trial in this diversity action brought by plaintiff-appellee IndyMac Bank, F.S.B. (“IndyMac”). The Federal Deposit Insurance Corporation appears as conservator for IndyMac. In an order dated July 26, 2006, the District Court found defendants liable and awarded plaintiff compensatory damages and losses, and, in an order dated April 23, 2007, the District Court awarded attorneys’ fees and costs and punitive damages to plaintiff. Defendants’ appeal from each of these orders. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Defendants argue that (1) the District Court erred in finding that IndyMac had standing to sue under the name of its successor in interest, (2) the prejudgment remedy entered by the District Court was unconstitutional and excessive, (3) the District Court erred in admitting certain evidence of forgeries, (4) defendants were entitled to the affirmativé defense of res judicata, (5) the District Court erred in finding that damages were inflicted upon IndyMac and in the calculation of those damages, (6) the CUTPA claim against defendant Mostafa Reyad should have been dismissed, and (7) the District Court improperly imposed punitive damages and attorneys’ fees. In their supplemental brief, defendants also assert that in its August 2008 order the District Court improperly refused to declare specific assets exempt from execution of judgment.
We have considered each of defendants’ arguments. Substantially for the reasons stated by the District Court in its careful, thorough, and well-reasoned opinions and orders of July 26, 2006 and April 23, 2007, we find defendants’ arguments to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
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SUMMARY ORDER
Joseph M. Darcy appeals the dismissal of his claims under Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; the Rehabilitation Act, 29 U.S.C. § 701 et seq.; and state and city law. Darcy claims the district court erred by dismissing his complaint and first amended complaint, denying as untimely his motion to file a second amended complaint, and denying his motion to reconsider the latter ruling. We assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our ruling.
1. Standards of Review
We review de novo the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). On appeal from a dismissal pursuant to Fed.R.Civ.P. 12(b)(1), “we review factual findings for clear error and legal conclusions de novo.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (internal quotation marks omitted). We review for abuse of discretion the district court’s denial of motions to file an amended complaint, see Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999), and to reconsider a ruling, see Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998).
2. ADA and ADEA Claims
Darcy’s ADA and ADEA claims seeking damages from New York State and the state’s Unified Court System (“UCS”) are barred by the Eleventh Amendment.1 Abrogation of state sovereign immunity is accomplished neither by ADA Title I, see Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), nor by the ADEA, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Nor is there any suggestion that the state has consented to be sued under either statute. See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676-77, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).
The Eleventh Amendment likewise bars Darcy from pursuing a claim for dam*437ages against the individual defendants in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Darcy may not sue these defendants in their personal capacities, because the ADA and ADEA, like Title VII, do not provide for actions against individual supervisors. Compare 42 U.S.C. § 2000e(b), with 42 U.S.C. § 12111(5), and 29 U.S.C. § 630(b); see Tomka v. Seiler Corp., 66 F.3d 1295, 1313—16 (2d Cir.1995) (holding that Title VII action may be maintained only against “employer-entity”), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Thus Darcy’s ADA and ADEA claims were properly dismissed.
3. Rehabilitation Act Claim
Darcy cannot maintain Rehabilitation Act claims for damages against the individual defendants in their personal capacities. See Garcia v. SUNY Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001). Moreover, even if we assume that no Eleventh Amendment bar precludes Darcy from pursuing such claims against New York State and UCS, or against the individual defendants in their official capacities, the district court nevertheless properly dismissed these claims because Darcy failed sufficiently to allege that he was an “individual with a disability” within the meaning of the Rehabilitation Act.
Darcy’s pro se pleadings, even when construed liberally, adequately alleged only that his heart condition was a physical impairment affecting the major life activities of breathing and working, not that it “substantially limit[ed]” these activities. See 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1)(A). As the district court observed, Darcy made no particularized allegations regarding breathing. A disability “substantially limits” a plaintiffs ability to work only where it precludes him from performing “a broad range of jobs.” Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 83 (2d Cir.2000) (internal quotation marks omitted). Darcy made no such allegation. Indeed, he conceded that he was able to perform his own job without accommodation. To the extent Darcy argues that commuting is an element of the major life activity of working, we need not decide that question, because he alleges stress and deleterious health effects, Am. Compl. ¶ 94, not that he was “[significantly restricted” in his ability to travel to and from work, much less that he was “[u]n-able” to do so, see 29 C.F.R. § 1630.2(j)(1); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 643 (2d Cir.1998).
Even if we were to conclude that Darcy’s convalescence constituted a record of impairment, rather than an acute episode, see Colwell v. Suffolk County Police Dep’t, 158 F.3d at 646, his complaint fails adequately to allege that defendants relied on that record in transferring or demoting him, as the law requires, see id. at 645. Allegations that supervisors “urged [him] to work at a pace that would not cause [his] health to deteriorate,” Am. Compl. ¶ 28, are insufficient to demonstrate a perception that Darcy was unable to perform “a broad range of jobs,” Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d at 83, especially in light of Darcy’s allegation that the speakers also assigned him to complete the “monumental” task of completing the court manual, Am. Compl. ¶ 21.
4. Other Claims
Having dismissed Darcy’s federal claims, the district court properly declined to exercise jurisdiction over his pendent claims. See 28 U.S.C. § 1367(c). We detect no abuse of discretion in the dismissal of Darcy’s second amended complaint as untimely filed, given his failure to meet the court-imposed deadline, or in the denial of his motion to reconsider, where he offered *438no explanation for his untimeliness. See Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir.1995).
We have reviewed Darcy’s remaining arguments and find them similarly lacking in merit. Accordingly, the judgment of the district court is AFFIRMED.
. All of Darcy’s claims for injunctive relief are moot, as he has retired. See Dean v. Blumenthal, 577 F.3d 60, 65-66 (2d Cir.2009). Thus we address only his damage claims.
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SUMMARY ORDER
Plaintiff Bruce VandenBroek appeals from an award of summary judgment in favor of defendant PSEG Power Connecticut LLC (“PSEG”) on his claims that PSEG terminated him for being an alcoholic and for taking medical leave in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., respectively.1 We review an award of summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of material fact. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Oilman v. Special Bd. of Adjustment No. 1068, 527 F.3d 239, 245 (2d Cir.2008). In doing so, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
*4591. ADA Claim
Relying on Teahan v. Metro-North Commuter Railroad Co., 951 F.2d 511 (2d Cir.1991), plaintiff submits that the district court erred in concluding that he was terminated because of his violation of PSEG’s “no call/no show” policy, rather than because of his alcoholism.2 In Teahan, we held that, under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., an employer fires an employee because of his disability when the decision is based conduct caused by the disability at issue. See Teahan v. Metro-North Commuter R.R. Co., 951 F.2d at 515-16. Thus, we rejected the defendant’s claim that the challenged firing was based on a reason other than disability, i.e., plaintiffs excessive absenteeism, and we remanded for trial on, inter alia, the factual issue of whether the plaintiffs alcoholism caused his absenteeism. See id. at 517. Although the facts of Teah-an are similar to those presented here, defendant contends, and the district court concluded, that the case is inapposite because, unlike the version of the Rehabilitation Act at issue in Teahan, the ADA specifically permits employers to “hold an employee ... who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the ... alcoholism of such employee.” 42 U.S.C. § 12114(c)(4).
We need not decide whether this case presents one of the “subtle distinctions” between the ADA and the Rehabilitation Act that require us to depart from our general practice of “treating] claims under the two statutes identically,” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003), because we conclude that plaintiff failed in any event to adduce sufficient evidence to make out a prima facie case under the ADA, see Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir.2008) (“In order to establish a prima facie ease of discrimination under the ADA, a plaintiff must show (a) that his employer is subject to the ADA; (b) that he is disabled within the meaning of the ADA or perceived to be so by his employer; (c) that he was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (d) that he suffered an adverse employment action because of his disability.”). Specifically, plaintiff has not adduced sufficient evidence to permit a jury to find that he was “otherwise qualified” to perform his job.
An employee is “otherwise qualified” if he “is able to perform the essential functions of that job, either with or without a reasonable accommodation.” Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d Cir.2003) (internal quotation marks and citations omitted). “Essential functions” are duties that are “fundamental” to the job in question. Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.1997) (discussing 29 C.F.R. § 1630.2(n)(l)). In determining which duties are fundamental, we accord “considerable deference to an employer’s judgment.” D’Amico v. City of New York, 132 F.3d 145, 151 (2d Cir.1998). In Teahan, we emphasized that “absenteeism resulting from alcoholism is a factor that bears on whether an employ*460ee is ‘otherwise qualified.’ ” 951 F.2d at 515; see also id. at 520-21 (analyzing “otherwise qualified” prong). And, after trial on the issue, we affirmed the district court’s decision that the plaintiff in that case was not “otherwise qualified” because his employer could have concluded that he posed a risk of recurring absenteeism. See Teahan v. Metro-North Commuter R.R. Co., 80 F.3d 50, 55 (2d Cir.1996).
Applying these principles to this case, we conclude that reliable attendance at scheduled shifts was an essential function of a boiler utility operator at the Bridgeport Harbor Station Power Plant. While “ ‘regularly attending work’ is an essential function of virtually every job,” Daddazio v. Katherine Gibbs Sch., Inc., No. 98 Civ. 6861, 1999 WL 228344, at *5 (S.D.N.Y. Apr.20, 1999) (citations and alteration omitted), aff'd, 205 F.3d 1322 (2d Cir.2000) (unpublished disposition), it was especially important to plaintiffs job, where employees had to be present at the plant to monitor the boiler and respond to any alarms. Reliable employee attendance was thus essential to ensuring against a power outage or even an explosion. Indeed, that is why PSEG’s employment rules make those who violate the “no call/no show” policy subject to discharge for the first offense.
Thus, plaintiff could not demonstrate that he was otherwise qualified simply by quoting the plant general manager’s observation that, when plaintiff did show up for work, he “was a good operator.” Cilinsky Dep. at 11-12. Plaintiff adduced no evidence that would permit a reasonable jury to find that PSEG could rely on him to appear for his shifts at the time he was terminated. Indeed, during the fact-finding investigation that preceded his termination, plaintiff told PSEG that, even after starting treatment, “he didn’t know how to take control of his life.” Fact-Finding Meeting with Bruce Vandenbroek. On this record, a jury could not reasonably infer that plaintiff was otherwise qualified for the boiler utility operator position at the time of his termination. See D’Amico v. City of New York, 132 F.3d at 151-52 (holding cocaine addict not otherwise qualified for firefighter position because of likelihood of relapse and risk that “any lapse in judgment or alertness easily could result in injury or death”). Accordingly, we affirm the entry of summary judgment because plaintiff has not established a pri-ma facie ADA claim.3 See ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir.2003) (permitting affirmance on any ground appearing in the record).
2. FMLA Claim
Plaintiff also contends that his termination violated the FMLA because it followed his return from leave taken for alcoholism treatment and because the notice of his two-day disciplinary suspension referenced prior FMLA-protected leave. We apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to FMLA retaliation claims, see Potenza v. City of New York, 365 F.3d 165, *461167 (2d Cir.2004). Even assuming that plaintiff has established each element of his prima facie case, we must therefore consider whether he has adduced sufficient evidence to permit a jury to conclude that PSEG’s proffered reason for his termination was pretextual. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Leibowitz v. Cornell Univ., 584 F.3d 487, 503-05 (2d Cir.2009).
Here, PSEG adduced significant evidence that plaintiff was terminated for repeated violations of the “no call/no show” policy, and that plaintiffs prior absences for back and nasal surgery were unrelated to his termination. Plaintiff argues that PSEG’s rehiring of another employee who suffered from alcoholism would permit a jury to conclude that PSEG fired plaintiff to retaliate against him for taking FMLA-protected leave. The other employee’s situation is not sufficiently similar to plaintiffs to support such an inference. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003) (“A plaintiff relying on disparate treatment evidence must show []he was similarly situated in all material respects to the individuals with whom []he seeks to compare [himjself.” (internal quotation marks omitted)). The other employee was terminated for reasons unrelated to the “no call/no show” policy and rehired with union support, which plaintiff lacked. Under these circumstances, a jury would have to engage in impermissible speculation to conclude that PSEG terminated plaintiff in retaliation for taking FMLA-protected leave. We therefore conclude that the district court properly entered summary judgment in favor of PSEG on plaintiffs FMLA claim.
We have considered plaintiffs other arguments on appeal and conclude that they lack merit. Accordingly, we AFFIRM the judgment of the district court.
. The district court also granted PSEG summary judgment on plaintiff's claim under the Connecticut Fair Employment Practices Act, Conn. Gen.Stat. § 46a-51 et seq. Because plaintiff does not specifically address this claim on appeal, we deem any such challenge waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).
. Under the ADA, an individual is considered disabled if he suffers from "a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(1)(A). While alcoholism is an "impairment” within this definition, the plaintiff must still show that the impairment limited one or more of his "major life activities.” See Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-47 (2d Cir.2002). Here, if alcoholism impaired any of plaintiff's major life activities, it limited his ability to work. See 42 U.S.C. § 12102(2)(A).
. We would reach the same conclusion even if we were to apply the burden-shifting framework of Doe v. New York University, 666 F.2d 761 (2d Cir.1981), as plaintiff urges. Doe requires the employer who makes an adverse employment decision based on the employee’s disability to "rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to the qualifications for the position.” Id. at 776. As we have stated above, PSEG has proffered ample evidence that reliable attendance is an important qualification for the boiler utility operator position, and plaintiff has not adduced sufficient evidence to permit a jury to make a contrary finding.
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SUMMARY ORDER
Plaintiff-Appellants appeal from the district court’s April 2, 2009 order dismissing their claims of defamation; deprivation of inspection rights under the Agricultural Marketing Act of 1946, 7 U.S.C. § 1621 et seq., in violation of 42 U.S.C. § 1983; and retaliation based on Anthony Spinale’s exercise of his First Amendment Rights. The district court dismissed the complaint for a lack of subject matter jurisdiction based on sovereign immunity and a failure to state a claim. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
After reviewing the issues on appeal and the record of proceedings below, we affirm for substantially the same reasons articulated by the district court in its thoughtful and well-reasoned order and opinion.
Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Petitioner Li Ying Chen, a native and citizen of the People’s Republic of China, seeks review of a February 20, 2009 order of the BIA denying her motion to reopen. In re Li Ying Chen, No. A078 412 192 (B.I.A. Feb. 20, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). There is no dispute that Chen’s second motion to reopen filed in October 2008 was untimely and number-barred when the BIA issued a final order of removal in February 2003. See 8 C.F.R. § 1003.2(c)(2). However, there are no time and numerical limitations for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). The BIA reasonably found that Chen did not qualify for such an exception.
A. Family Planning Claim
Chen argues that the BIA erred in failing to adequately consider as evidence of changed country conditions the Notice from family planning officials in the record, entitled “Documentation of Tantou Town Birth Control Office of Changle City” (“Notice”). The BIA did not err in summarily concluding that the unauthenticated and unsigned Notice that Chen submitted did not demonstrate material changed circumstances in China. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006).
Because the BIA did not abuse its discretion in summarily considering and rejecting the Notice that Chen submitted as evidence of changed circumstances in China, see id., it reasonably denied her motion to reopen as untimely and number-barred, see 8 C.F.R. § 1003.2(c). Accordingly, we need not consider Chen’s argument that she demonstrated her prima facie eligibility for relief based on the family planning policy. See 8 C.F.R. § 1003.2(c).
B. Christianity Claim
The BIA also did not err in declining to reopen Chen’s proceedings based on her new practice of Christianity because she failed to submit an application for asylum regarding such a claim for relief. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief.”). In addition, the BIA did not err in finding that Chen’s new practice of Christianity constituted a change in her personal circumstances and not a change in country conditions excusing the time and numerical limitations for filing her motion to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). The BIA also reasonably found that Chen failed to demonstrate material changed country conditions related to her Christianity claim because she did not submit in support of her motion any country conditions evidence discussing the treatment of Christians in China. See 8 U.S.C. § 1229a (c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Accordingly, the BIA did not abuse its discretion in denying her untimely and number-barred motion to reopen to apply for relief based on her religion. See 8 C.F.R. § 1003.2(c)(3)(h); see also Wei Guang Wang, 437 F.3d at 273-74.
For the foregoing reasons, the petition for review is DENIED. As we have com*495pleted our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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*502
SUMMARY ORDER
Michael Golden appeals from an order dismissing his complaint pursuant to the doctrine of res judicata. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
In 2007, the district court granted summary judgment to defendant New York City Department of Environmental Protection on Golden’s complaint alleging a violation of, inter alia, the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654. Golden thereafter filed a new complaint in which he raised effectively the same FMLA claim that the court dismissed in 2007.
We affirm for substantially the reasons stated in the district court’s opinion. See Golden v. N.Y. City Dep’t of Envtl. Prot., No. 08-civ-1513, 2008 WL 4344524 (S.D.N.Y. Sept. 16, 2008).
Finding no merit in Golden’s remaining arguments, we hereby AFFIRM the judgment of the district court.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order, filed June 8, 2009, dismissing the case without prejudice, be affirmed. The district court correctly held that appellant alleged no conduct by a state actor within the purview of 42 U.S.C. § 1983, as appellant concedes on appeal. Furthermore, appellant alleged no jurisdictional or statutory basis for his claims of violation of his “civil rights.” To the extent appellant may have been attempting to state tort claims grounded in diversity jurisdiction, he failed to allege complete diversity of citizenship of the parties, or otherwise establish the court’s jurisdiction under 28 U.S.C. § 1332(a). See Fed.R.Civ.P. 8(a) (complaint must set forth “a short and plain statement of the grounds for the court’s jurisdiction”); Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 (D.C.Cir.1983) (“the party seeking the exercise of diversity jurisdiction bears the burden of pleading the citizenship of each and every party to the action”).
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.
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SUMMARY ORDER
Petitioner-appellant OneBeaeon America Insurance Company (“petitioner”) appeals from an opinion and order of the District Court entered May 30, 2008, which adopted the previously vacated order of that Court (Richard M. Berman, Judge), denied petitioner’s motion to vacate arbitration awards, and confirmed those awards. On appeal petitioner argues primarily that the District Court (1) misinterpreted the mandate of another panel of this Court, see Commercial Union Ins. Co. v. Lines, 378 F.3d 204, 209 (2d Cir.2004), (2) erred in concluding that confirmation of the arbitration awards would not violate fundamental equitable principles, and (3) *433made numerous factual findings that are “clearly erroneous.” We assume the parties’ familiarity with the factual and procedural history of the case.
We agree with the District Court’s interpretation of the mandate and find no error in its conclusion that petitioner was not prejudiced in the arbitration proceedings or in its determination that confirming the arbitration awards would not violate the Court’s equitable principles. Substantially for the reasons stated by the District Court in its careful and thoughtful opinion and order of May 3, 2008, Commercial Union Ins. Co. v. Lines, Nos. 02 Civ. 0573, 03 Civ. 7376, 2008 WL 2234634, at *10, 12 (S.D.N.Y. May 30, 2008), the judgment of the District Court is AFFIRMED.
We remand the cause to the District Court to determine what, if any, of the material filed in connection with this case should remain under seal.
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*434SUMMARY ORDER
Defendants-appellants Mostafa Reyad and Wafa Reyad were held jointly and severally liable for breach of contract under California law and Mostafa Reyad was found liable for violations of the Connecticut Unfair Trade Practices Act (“CUTPA”) after a bench trial in this diversity action brought by plaintiff-appellee IndyMac Bank, F.S.B. (“IndyMac”). The Federal Deposit Insurance Corporation appears as conservator for IndyMac. In an order dated July 26, 2006, the District Court found defendants liable and awarded plaintiff compensatory damages and losses, and, in an order dated April 23, 2007, the District Court awarded attorneys’ fees and costs and punitive damages to plaintiff. Defendants’ appeal from each of these orders. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Defendants argue that (1) the District Court erred in finding that IndyMac had standing to sue under the name of its successor in interest, (2) the prejudgment remedy entered by the District Court was unconstitutional and excessive, (3) the District Court erred in admitting certain evidence of forgeries, (4) defendants were entitled to the affirmativé defense of res judicata, (5) the District Court erred in finding that damages were inflicted upon IndyMac and in the calculation of those damages, (6) the CUTPA claim against defendant Mostafa Reyad should have been dismissed, and (7) the District Court improperly imposed punitive damages and attorneys’ fees. In their supplemental brief, defendants also assert that in its August 2008 order the District Court improperly refused to declare specific assets exempt from execution of judgment.
We have considered each of defendants’ arguments. Substantially for the reasons stated by the District Court in its careful, thorough, and well-reasoned opinions and orders of July 26, 2006 and April 23, 2007, we find defendants’ arguments to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
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SUMMARY ORDER
Joseph M. Darcy appeals the dismissal of his claims under Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; the Rehabilitation Act, 29 U.S.C. § 701 et seq.; and state and city law. Darcy claims the district court erred by dismissing his complaint and first amended complaint, denying as untimely his motion to file a second amended complaint, and denying his motion to reconsider the latter ruling. We assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our ruling.
1. Standards of Review
We review de novo the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). On appeal from a dismissal pursuant to Fed.R.Civ.P. 12(b)(1), “we review factual findings for clear error and legal conclusions de novo.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (internal quotation marks omitted). We review for abuse of discretion the district court’s denial of motions to file an amended complaint, see Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999), and to reconsider a ruling, see Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998).
2. ADA and ADEA Claims
Darcy’s ADA and ADEA claims seeking damages from New York State and the state’s Unified Court System (“UCS”) are barred by the Eleventh Amendment.1 Abrogation of state sovereign immunity is accomplished neither by ADA Title I, see Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), nor by the ADEA, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Nor is there any suggestion that the state has consented to be sued under either statute. See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676-77, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).
The Eleventh Amendment likewise bars Darcy from pursuing a claim for dam*437ages against the individual defendants in their official capacities. See Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Darcy may not sue these defendants in their personal capacities, because the ADA and ADEA, like Title VII, do not provide for actions against individual supervisors. Compare 42 U.S.C. § 2000e(b), with 42 U.S.C. § 12111(5), and 29 U.S.C. § 630(b); see Tomka v. Seiler Corp., 66 F.3d 1295, 1313—16 (2d Cir.1995) (holding that Title VII action may be maintained only against “employer-entity”), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Thus Darcy’s ADA and ADEA claims were properly dismissed.
3. Rehabilitation Act Claim
Darcy cannot maintain Rehabilitation Act claims for damages against the individual defendants in their personal capacities. See Garcia v. SUNY Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001). Moreover, even if we assume that no Eleventh Amendment bar precludes Darcy from pursuing such claims against New York State and UCS, or against the individual defendants in their official capacities, the district court nevertheless properly dismissed these claims because Darcy failed sufficiently to allege that he was an “individual with a disability” within the meaning of the Rehabilitation Act.
Darcy’s pro se pleadings, even when construed liberally, adequately alleged only that his heart condition was a physical impairment affecting the major life activities of breathing and working, not that it “substantially limit[ed]” these activities. See 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1)(A). As the district court observed, Darcy made no particularized allegations regarding breathing. A disability “substantially limits” a plaintiffs ability to work only where it precludes him from performing “a broad range of jobs.” Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 83 (2d Cir.2000) (internal quotation marks omitted). Darcy made no such allegation. Indeed, he conceded that he was able to perform his own job without accommodation. To the extent Darcy argues that commuting is an element of the major life activity of working, we need not decide that question, because he alleges stress and deleterious health effects, Am. Compl. ¶ 94, not that he was “[significantly restricted” in his ability to travel to and from work, much less that he was “[u]n-able” to do so, see 29 C.F.R. § 1630.2(j)(1); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 643 (2d Cir.1998).
Even if we were to conclude that Darcy’s convalescence constituted a record of impairment, rather than an acute episode, see Colwell v. Suffolk County Police Dep’t, 158 F.3d at 646, his complaint fails adequately to allege that defendants relied on that record in transferring or demoting him, as the law requires, see id. at 645. Allegations that supervisors “urged [him] to work at a pace that would not cause [his] health to deteriorate,” Am. Compl. ¶ 28, are insufficient to demonstrate a perception that Darcy was unable to perform “a broad range of jobs,” Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d at 83, especially in light of Darcy’s allegation that the speakers also assigned him to complete the “monumental” task of completing the court manual, Am. Compl. ¶ 21.
4. Other Claims
Having dismissed Darcy’s federal claims, the district court properly declined to exercise jurisdiction over his pendent claims. See 28 U.S.C. § 1367(c). We detect no abuse of discretion in the dismissal of Darcy’s second amended complaint as untimely filed, given his failure to meet the court-imposed deadline, or in the denial of his motion to reconsider, where he offered *438no explanation for his untimeliness. See Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir.1995).
We have reviewed Darcy’s remaining arguments and find them similarly lacking in merit. Accordingly, the judgment of the district court is AFFIRMED.
. All of Darcy’s claims for injunctive relief are moot, as he has retired. See Dean v. Blumenthal, 577 F.3d 60, 65-66 (2d Cir.2009). Thus we address only his damage claims.
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SUMMARY ORDER
Xi Li, a citizen of the People’s Republic of China, seeks review of a January 6, 2009 order of the BIA affirming the August 28, 2007 decision of Immigration Judge (“IJ”) Alan A. Vomacka denying Li’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xi Li, No. A079 138 320 (BIA Jan. 6, 2009), aff'g No. A079 138 320 (Immig. Ct. N.Y. City Aug. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Because the BIA issued an independent decision on appeal, rather than relying on the IJ’s reasoning, we review the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s findings of fact under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. DHS, 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The BIA properly determined that Li was ineligible for relief based solely on his wife’s forced abortion. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d Cir.2007) (en banc) (holding that the definition of “refugee” under 8 U.S.C. § 1101(a)(42) does not extend automatically to the partners of individuals who have been forcibly sterilized or forced to have an abortion). Further, the BIA reasonably concluded that Li failed to demonstrate his eligibility for relief on account of his own “other resistance” to China’s family planning policy. See 8 U.S.C. § 1101(a)(42).
Li testified that when he was threatened with sterilization, he cursed at family planning officials, and went into hiding. However, even if these actions constituted resistance, see Matter of S-L-L-, 24 I. & N. Dec. 1, 10-11 (BIA 2006), Li was never arrested, mistreated, or physically harmed on account of that resistance. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41 (2d Cir.2006) (finding that harm must be sufficiently severe and rise above “mere harassment” in order to constitute persecution). The BIA thus reasonably concluded that Li had not suffered past persecution.
Further, Li failed to establish that he has a fear of future persecution on account of those events because, after he went into hiding, he returned to his home on multiple occasions for more than a year, his wife became pregnant again during this time, and he was never approached by family planning officials. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (per curiam) (holding that, absent solid support in the record for the petitioner’s assertion that he would be subjected to persecution, his fear was “speculative at best”). The BIA also properly noted that Li’s wife, who has had three illegal pregnancies, remains unharmed in China, further undermining his claim, see Melgar de Torres v. Reno, 191 F.3d 307, 313-14 (2d Cir.1999) (finding that the alien’s claim of a *457well-founded fear was diminished where her mother and daughters continued to live in her native country unharmed).
Accordingly, because Li established neither past persecution nor a well-founded fear of future persecution, there was no error in the agency’s denial of his application for asylum. Further, because Li was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Even construing broadly his pro se brief, see Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir.1999) (per curiam), Li has waived any challenge to the agency’s denial of his request for CAT relief.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff-Appellants appeal from the district court’s April 2, 2009 order dismissing their claims of defamation; deprivation of inspection rights under the Agricultural Marketing Act of 1946, 7 U.S.C. § 1621 et seq., in violation of 42 U.S.C. § 1983; and retaliation based on Anthony Spinale’s exercise of his First Amendment Rights. The district court dismissed the complaint for a lack of subject matter jurisdiction based on sovereign immunity and a failure to state a claim. We assume the parties’ familiarity with the facts, procedural history, and specification of issues on appeal.
After reviewing the issues on appeal and the record of proceedings below, we affirm for substantially the same reasons articulated by the district court in its thoughtful and well-reasoned order and opinion.
Accordingly, the judgment of the district court is AFFIRMED.
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SUMMARY ORDER
Petitioner Aaron James Sarker, a native and citizen of Bangladesh, seeks review of the September 25, 2008 order of the BIA denying his motion to reopen. In re Aaron James Sarker, No. A075 407 802 (B.I.A. Sept. 25, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). When the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
An alien seeking to reopen proceedings must file his motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). In this case, there is no dispute that Sarker’s April 2008 motion was untimely, because the BIA issued a final order of removal in March 2003. See id. However, there is no time limit for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous *479hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA reasonably found that Sarker’s motion to reopen did not qualify for such an exception.
Contrary to Sarker’s argument, the BIA considered the country conditions evidence in the record and adequately indicated the basis for its determination that conditions for religious minorities had not significantly worsened in Bangladesh. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that where the agency has “given reasoned consideration to the petition and made adequate findings,” it need not “expressly parse or refute on the record each individual ... piece of evidence offered by the petitioner” (internal quotation marks omitted)). As the BIA found, the country conditions evidence in the record indicated that conditions in Bangladesh remained “turbulent,” but did not demonstrate that conditions had materially worsened since the time of Sarker’s hearing before the Immigration Judge. See 8 C.F.R. § 1003.2(c)(3)(ii).
We are also unpersuaded by Sarker’s argument that the agency erred by relying on the State Department’s 2007 International Religious Freedom Report. Nothing in our decision in Chhetry v. U.S. Department of Justice, 490 F.3d 196 (2d Cir.2007) (per curiam), suggests error in the BIA’s reliance on the report because, rather than taking administrative notice of the report, the BIA considered it after Sarker had submitted it into the record. Id. at 200. Moreover, the BIA was entitled to rely on that report to a greater degree than the report by the Immigration and Refugee Board of Canada. See Poradisova v. Gonzales, 420 F.3d 70, 81 n. 8 (2d Cir.2005) (noting that “not all organizational reports will merit equal weight, and IJs and the BIA have discretion to weigh them differently”). As the BIA reasonably found that Sarker failed to demonstrate a material change in country conditions, it did not abuse its discretion in denying his motion to reopen as untimely. See 8 C.F.R. § 1003.2(c)(3)(ii).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Li Ying Chen, a native and citizen of the People’s Republic of China, seeks review of a February 20, 2009 order of the BIA denying her motion to reopen. In re Li Ying Chen, No. A078 412 192 (B.I.A. Feb. 20, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). There is no dispute that Chen’s second motion to reopen filed in October 2008 was untimely and number-barred when the BIA issued a final order of removal in February 2003. See 8 C.F.R. § 1003.2(c)(2). However, there are no time and numerical limitations for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). The BIA reasonably found that Chen did not qualify for such an exception.
A. Family Planning Claim
Chen argues that the BIA erred in failing to adequately consider as evidence of changed country conditions the Notice from family planning officials in the record, entitled “Documentation of Tantou Town Birth Control Office of Changle City” (“Notice”). The BIA did not err in summarily concluding that the unauthenticated and unsigned Notice that Chen submitted did not demonstrate material changed circumstances in China. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006).
Because the BIA did not abuse its discretion in summarily considering and rejecting the Notice that Chen submitted as evidence of changed circumstances in China, see id., it reasonably denied her motion to reopen as untimely and number-barred, see 8 C.F.R. § 1003.2(c). Accordingly, we need not consider Chen’s argument that she demonstrated her prima facie eligibility for relief based on the family planning policy. See 8 C.F.R. § 1003.2(c).
B. Christianity Claim
The BIA also did not err in declining to reopen Chen’s proceedings based on her new practice of Christianity because she failed to submit an application for asylum regarding such a claim for relief. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief.”). In addition, the BIA did not err in finding that Chen’s new practice of Christianity constituted a change in her personal circumstances and not a change in country conditions excusing the time and numerical limitations for filing her motion to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). The BIA also reasonably found that Chen failed to demonstrate material changed country conditions related to her Christianity claim because she did not submit in support of her motion any country conditions evidence discussing the treatment of Christians in China. See 8 U.S.C. § 1229a (c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Accordingly, the BIA did not abuse its discretion in denying her untimely and number-barred motion to reopen to apply for relief based on her religion. See 8 C.F.R. § 1003.2(c)(3)(h); see also Wei Guang Wang, 437 F.3d at 273-74.
For the foregoing reasons, the petition for review is DENIED. As we have com*495pleted our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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*502
SUMMARY ORDER
Michael Golden appeals from an order dismissing his complaint pursuant to the doctrine of res judicata. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
In 2007, the district court granted summary judgment to defendant New York City Department of Environmental Protection on Golden’s complaint alleging a violation of, inter alia, the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654. Golden thereafter filed a new complaint in which he raised effectively the same FMLA claim that the court dismissed in 2007.
We affirm for substantially the reasons stated in the district court’s opinion. See Golden v. N.Y. City Dep’t of Envtl. Prot., No. 08-civ-1513, 2008 WL 4344524 (S.D.N.Y. Sept. 16, 2008).
Finding no merit in Golden’s remaining arguments, we hereby AFFIRM the judgment of the district court.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Antonio Revis 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. Revis, No. 4:06-cr-00091-FL-1 (E.D.N.C. July 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.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ellis Eric Evans, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, although we grant leave to proceed in forma pau-peris, we affirm for the reasons stated by the district court. See Evans v. Rivera, No. 0:09-cv-01153-JFA, 2009 WL 2232807 (D.S.C. July 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in *636the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John J. Wesley 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. Wesley, No. 3:07-cr-00053-JRS-1 (E.D.Va. May 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, Kevin Smith, a/k/a Bar None Royal Blackness, appeals the district court’s orders accepting the recommendations of the magistrate judge and dismissing two Defendants because the Defendants were not state actors and granting summary judgment to the remaining Defendants and dismissing 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. See Smith v. Ozmint, No. 9:07-cv-03644-PMD, 2009 WL 692828 (D.S.C. Mar. 12, 2009); 2009 WL 2226194 (July 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Edward Kennedy, a federal prisoner, appeals the district court’s order 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. Kennedy v. United States, No. 1:07-cv02964-BEL (D. Md. filed Nov. 27, 2007; entered Nov. 28, 2007). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis Holland appeals the district court’s order denying Holland’s motion to compel the Government to file a substantial assistance motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons *645stated by the district court. United States v. Holland, No. 1:03-cr-00264-TDS-1 (M.D.N.C. Feb. 18, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John J. Wesley 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. Wesley, No. 3:07-cr-00053-JRS-1 (E.D.Va. May 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, Kevin Smith, a/k/a Bar None Royal Blackness, appeals the district court’s orders accepting the recommendations of the magistrate judge and dismissing two Defendants because the Defendants were not state actors and granting summary judgment to the remaining Defendants and dismissing 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. See Smith v. Ozmint, No. 9:07-cv-03644-PMD, 2009 WL 692828 (D.S.C. Mar. 12, 2009); 2009 WL 2226194 (July 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Henriques appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c) (2006) based on Amendment 591. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Henriques, No. 3:93-cr-00089-MR-2, 2009 WL 1606444 (W.D.N.C. *665June 5, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duvell Mozart Everett seeks to appeal the district court’s order denying Everett’s 28 U.S.C.A. § 2255 (West Supp.2009) motion. On appeal, we confine our review to the issues raised in the Appellant’s brief. See 4th Cir. Rule 34(b). Everett’s brief fails to challenge the district court’s dis-positive conclusion that he failed to demonstrate ineffective assistance of counsel. Accordingly, we deny a certificate of ap-pealability, deny Everett’s motion to appoint counsel, and 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 in the deci-sional process.
DISMISSED.
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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.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Duvell Mozart Everett seeks to appeal the district court’s order denying Everett’s 28 U.S.C.A. § 2255 (West Supp.2009) motion. On appeal, we confine our review to the issues raised in the Appellant’s brief. See 4th Cir. Rule 34(b). Everett’s brief fails to challenge the district court’s dis-positive conclusion that he failed to demonstrate ineffective assistance of counsel. Accordingly, we deny a certificate of ap-pealability, deny Everett’s motion to appoint counsel, and 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 in the deci-sional process.
DISMISSED.
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PER CURIAM: *
The attorney appointed to represent Kevin L. Cockerham 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). Cockerham 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 Cm. 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 Cm. R. 47.5.4.
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PER CURIAM: *
The Federal Public Defender appointed to represent Joaquin DeLeon-Galvez 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). DeLeon-Galvez 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.
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PER CURIAM: *
The attorney appointed to represent Nicholas Castillo 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). Castillo has filed a response. Our independent review of the record, counsel’s brief, and Castillo’s response 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.
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PER CURIAM: *
The attorney appointed to represent Dorian Tyrone Hart 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). Hart 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 *687leave 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 the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Kevin L. Cockerham 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). Cockerham 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 Cm. 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 Cm. R. 47.5.4.
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PER CURIAM: *
The Federal Public Defender appointed to represent Joaquin DeLeon-Galvez 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). DeLeon-Galvez 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.
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PER CURIAM: *
The attorney appointed to represent Pedro Gabriel Collazo-Alicea (Collazo) 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). Collazo has filed a response. Our independent review of the record, counsel’s brief, and Collazo’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for *692leave 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 the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The Federal Public Defender appointed to represent Irene Asuquo Anderson 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). Anderson has filed a response. Our independent review of the record, counsel’s brief, and Anderson’s response 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 Cm. 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.
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PER CURIAM: *
The attorney appointed to represent Jose Candelario Villatoro-Escobar (Villa-toro) 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). Villatoro has filed a response. Our independent review of the record, counsel’s brief, and Villatoro’s response 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. Villatoro’s request to proceed pro se on appeal is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.1998).
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.
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PER CURIAM.
Orlando Townsend appeals the district court’s1 dismissal of his employment-discrimination action. Upon de novo review, see Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir.2009), cert. filed, 78 U.S.L.W. 3302 (Nov. 4, 2009) (No. 09-561), we agree with the district court that the claims were time-barred. Therefore, we affirm. See 8th Cir. R. 47B.
. The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.
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PER CURIAM: *
The attorney appointed to represent Jose Candelario Villatoro-Escobar (Villa-toro) 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). Villatoro has filed a response. Our independent review of the record, counsel’s brief, and Villatoro’s response 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. Villatoro’s request to proceed pro se on appeal is DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.1998).
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.
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COOK, Circuit Judge.
Defendant Kevin Whitely appeals the district court’s decision revoking his supervised release and imposing a 36-month prison sentence. We affirm.
I.
In 2001, after a government investigation implicated him in recruiting couriers to smuggle drugs from Jamaica into the United States, Whitely pleaded guilty to conspiracy to import five kilograms or more of cocaine. See 21 U.S.C. § 963. The district court sentenced him to 72 months’ imprisonment followed by five years of supervised release. Whitely’s supervised-release term commenced on December 30, 2005, subject to numerous conditions.
In February 2007, the government urged the district court to revoke Whitely’s supervised release, alleging violations of two conditions. The government contended that Whitely failed to timely notify his probation officer of residence and employment changes, and failed to report to the probation office on time or submit the required monthly report, both of which constituted Grade C violations. After further investigation, the probation office issued a supplemental violation report (SVR) charging Whitely with several more serious violations, including engaging in conduct that constituted a crime (a Grade A violation), as well as leaving the judicial district without permission and associating with a convicted felon. The SVR accused Whitely of traveling to Jamaica and attempting to coerce a female courier and convicted felon, Ashley Carr, to transport cocaine into the United States on a commercial flight — practically the same conduct that produced his original federal conviction.
At first, Whitely denied all of the alleged violations. The district court conducted a hearing, at which the government introduced certified copies of several documents from the St. James, Jamaica, Magistrate’s Court. One document charged Whitely and Carr with jointly possessing 1.25 kilograms of cocaine, dealing in cocaine, attempting to export cocaine, and conspiracy. According to the charging document, Jamaican authorities arrested both Whitely and Carr at the Montego Bay airport on or about September 26, 2006. Officers first stopped Carr and found three packages of cocaine on her person. When asked about the drugs, Carr told the police that Kevin Whitely forced her to carry the drugs in exchange for his providing her a ticket to return to the United States. According to the charging document, the authorities found Whitely upstairs in the airport’s departure lounge awaiting boarding and arrested him. When questioned about the drugs found on Carr, the Jamaican certified charging document quoted Whitely as saying, “I did not put anything on her ... if you are asking if I knew about it that would be another matter.”
At the hearing, the government opened by explaining the events that took place in Jamaica and introducing the certified documents, which the court accepted into evi*842dence without objection. Whitely’s probation officer appeared at the hearing and the court asked him to “bring us up to date” on the underlying and supplemental violations. So confronted with the scenario painted by the probation officer, Whitely confessed to several of the Grade C violations — he admitted traveling to Jamaica without authorization and failing to notify the probation office of a change in his employment. He disputed, however, the existence of any relationship with Ms. Carr, as well as the government’s related accusations of criminal conduct involving transportation of cocaine. But prompted by questions from the court, he admitted that he and Carr “went down there on the same date,” that she named him when arrested because she did not want him to leave her down there, that Jamaican authorities charged and released him on bond, and that he flew to Toronto before returning home. The court and the probation officer engaged in several colloquies, with the officer explaining his interpretation of the facts as set forth in the Jamaican charging and bond documents, and essentially advocating the government’s position in support of revocation. The government never called the officer as a witness, and the court never placed him under oath. Whitely’s counsel raised no objection to this procedure and did not seek to cross-examine. Likewise, the court permitted Whitely to respond to the probation officer’s views, which he did, without formally taking the stand or an oath.
Relying on the documentary evidence and the presentation of the probation officer, the court found by a preponderance of the evidence that by committing another federal crime — conspiring with Carr to transport cocaine from Jamaica to the United States — Whitely violated a mandatory condition of his supervised release. The court grounded this finding on the contents of the charging document issued by the Jamaican court, noting the consistency of Whitely’s conduct with the conduct that led to his earlier federal conviction. It found Whitely’s inconsistent account entirely devoid of credibility. The court also found that Whitely committed several other violations, including leaving the judicial district without permission and failing to notify the probation office of a change in his residence or employment (both of which he admitted), associating with an individual involved in criminal activity, and failing to submit a complete written report within the first five days of each month. The court expressly declined to rule on the government’s charge of associating with a known felon. After resolving the alleged violations, the court noted that it believed the probation officer’s statements and disbelieved Whitely’s protestations. It then sentenced Whitely to a 36-month term of imprisonment, followed by two years of supervised release. When presented with the opportunity to do so, Whitely’s counsel stated no objections to the sentence. Whitely now appeals.
II.
On appeal, Whitely raises three arguments: he claims that the court (1) abused its discretion by considering the Jamaican court documents; (2) erred by failing to require that the probation officer testify under oath; and (3) imposed a procedurally unreasonable sentence. Addressing these contentions in turn, we reject them all and affirm.
A. Jamaican Court Documents
Whitely challenges the decision to admit certified copies of Jamaican court documents as evidence against him in the revocation proceedings, claiming that they constitute inadmissible hearsay and lack sufficient indicia of reliability. We disagree.
*843District courts may consider hearsay evidence during revocation proceedings as long as they find sufficient indications of reliability. United States v. Waters, 158 F.3d 933, 940 (6th Cir.1998). We review the determination of reliability for abuse of discretion, see Waters at 941, and here find none, with several factors lending support to the district court’s decision to admit the Jamaican court records. Most importantly, the facts described in the Jamaican documents bear remarkable similarity to those that landed Whitely in federal prison in the first place — soliciting financially-strapped women to body-carry powder cocaine from Jamaica into the United States on commercial flights. The district court quite correctly found the striking congruence between the allegations in the documents and Whitely’s prior offense supported a finding of reliability. And Whitely himself admitted to being present at the Montego Bay airport in Jamaica on the date listed on the document, and having traveled to Jamaica on the same date as Ashley Carr (both from Columbus, Ohio). Under these circumstances, given the relaxed evidentiary standards that apply to supervised-release revocation proceedings, the district court did not abuse its discretion in finding the Jamaican court documents sufficiently reliable to merit consideration.
B. Probation Officer’s Statements
Whitely claims that the district court erred by soliciting the probation officer’s statements without requiring the officer to be under oath and further erred in relying on those unsworn statements in revoking his supervised release. We review this claim for plain error affecting substantial rights because he failed to raise this objection in the district court. United States v. Roberge, 565 F.3d 1005, 1010 (6th Cir.2009).
Compared to criminal trials, supervised release revocation hearings are subject to few constitutional or procedural safeguards, as “[pjrobation revocation ... is not a stage of a criminal prosecution,” Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and “there is no thought to equate” the two. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The flexible evidentiary standard that applies to revocation proceedings allows consideration of evidence that would be inadmissible in a criminal prosecution, United States v. Kirby, 418 F.3d 621, 628 (6th Cir.2005), including letters, affidavits, and other documents, Morrissey, 408 U.S. at 489, 92 S.Ct. 2593, as well as hearsay that bears indicia of reliability, United States v. Stephenson, 928 F.2d 728, 732 (6th Cir.1991). But despite these relaxed standards, “defendants are entitled to minimal due process requirements, including the right to confront and cross examine adverse witnesses.” United States v. Torrez, No. 96-1973, 1997 WL 745520, at *2 (6th Cir. Nov.24, 1997); see also Fed.R.Crim.P. 32.1(b)(2)(C) (providing accused the right to question adverse witnesses at supervised release revocation hearing). Despite these limited protections, we can assume, without deciding, that the district court’s consideration of the unsworn probation officer’s statements violated Whitely’s rights and constituted an obvious error. We conclude, however, that any error was harmless because it did not affect Whitely’s substantial rights.1,2
*844In most cases, an error affecting substantial rights is one that prejudices the affected party; “ ‘[i]t must have affected the outcome of the district court proceedings.’ ” United States v. Johnson, 403 F.3d 813, 815 (6th Cir.2005) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). To decide the prejudice issue here we examine whether the record — without the probation officer’s statements — independently supports the court’s findings and withstands a sufficiency challenge. We conclude that it does, and therefore find no prejudice to Whitely from this error.
Apart from the probation officer’s un-sworn statements, the evidence before the district court included: (1) the three certified Jamaican court documents indicating that Whitely was arrested in Jamaica for possession and distribution of cocaine and that he had solicited Carr to help him transport pounds of the drug back to the United States; (2) the district court’s knowledge of the facts and circumstances of Whitely’s prior conviction — which closely mirrored the conduct upon which the government based its revocation request— as the same judge who presided over the underlying criminal proceedings; and (3) Whitely’s own vacillations and admissions during the supervised-release revocation hearing regarding his presence in Jamaica, his association with Carr both in Jamaica and Ohio, and his various admissions and retractions concerning whether he had committed any of the charged infractions. By weighing only this evidence, and drawing reasonable inferences therefrom, we conclude that a preponderance of the evidence supports the district court’s determination that Whitely engaged Carr to smuggle cocaine from Jamaica into the United States. This conduct violated the condition of Whitely’s supervised release that prohibited him from committing a federal crime, thereby requiring the district court to revoke his supervised release. See U.S. Sentencing Guidelines § 7B1.3(a)(l) (requiring revocation for a Grade A infraction).
As for the other violations found by the district court, Whitely admitted two of them (traveling outside the judicial district without permission and failing to report a change in employment), and the third— failing to timely file monthly reports with the probation office — he does not challenge on appeal. Thus, even without the probation officer’s statements, the record supports all of the violations the district court found when revoking Whitely’s supervised release. Because the error caused no prejudice, Whitely cannot show plain error.
C. Whitely’s Sentence
Whitely challenges the procedural reasonableness of the within-Guidelines *84536-month sentence imposed by the district court, claiming that the court failed to consider the § 3553(a) factors or explain its reasoning, thus mandating reversal.
Ordinarily, we review sentences imposed following revocation of supervised release under the same deferential abuse of discretion standard that applies to post-conviction sentences. United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007). Here, however, we review only for plain error because Whitely failed to object to his sentence after the district court asked for Bostic objections. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). Procedural reasonableness review requires that we “ensure that the district court committed no significant procedural error, such as ... failing to consider the § 3553(a) factors ... or failing to adequately explain the chosen sentence.” Gall v. United States, 128 S.Ct. 586, 597 (2007).
Without question, the district court calculated the Guidelines range correctly, and then sentenced Whitely at the high end of that range. To uphold a sentence, we require neither ritual incantation of the factors, United States v. Johnson, 403 F.3d 813, 816 (6th Cir.2005), nor explicit references to the statute, United States v. Smith, 505 F.3d 463, 467-68 (6th Cir.2007). The record suffices if “the district court’s explanation of the sentence makes it clear that it considered the required factors.” United States v. Washington, 147 F.3d 490, 491 (6th Cir.1998).
Since Whitely offered no objection or argument disfavoring the sentence imposed — geared to § 3553(a) or otherwise — ■ his sentence called for little explanation. The court’s statements at the conclusion of the hearing evince sufficient consideration of the required factors to withstand plain error review. The transcript reflects the court’s consideration of the striking similarity between the conduct underlying Whitely’s supervised release violations and his prior conviction, his lack of candor with his probation officer, and his evasiveness and lack of credibility in conversations with the court. These facts, on which the court expressly relied when revoking Whitely’s supervised release and imposing his sentence, relate to several 3553(a) factors, including the nature and circumstances of the offense, the need to deter criminal conduct, and the protection of the public. Facing no contrary arguments from the defendant, the court’s discussion of these facts suffices.
Rita clarified that the district court in its discretion decides how much explanation to provide, and that “when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). But even if we accept Whitely’s contention that the district court failed to adequately explain its reasoning, that failure did not affect his substantial rights. On appeal, Whitely gives no indication of what he would have argued that might have persuaded the judge to sentence him to less than 36 months. Thus, he advances no grounds to support a conclusion that the court’s alleged explanatory failure prejudiced him.
Moreover, even if Whitely could show that the alleged error affected his substantial rights, we nevertheless decline to afford him relief because this case does not present the requisite “exceptional circumstances.” See Vonner, 516 F.3d at 386. Where the appellant shows a plain error affecting substantial rights, we may then exercise our discretion to notice the error, but only if we find that it seriously affected the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). *846Judged by this standard, Whitely’s claim fails to merit the exercise of our discretion. After voicing no objections, offering no arguments, and not even submitting his view of an appropriate sentence, he received a presumptively reasonable within-Guidelines sentence premised upon a correctly-calculated range. See Vonner, 516 F.3d at 389-90. His appellate arguments leave that presumption unrebutted. Accordingly, we cannot say that the alleged error seriously affected the fairness of the proceedings.
III.
We affirm.
. Without citing any authority, the government asks us to completely bar Whitely's challenge due to his failure to object, thus allowing the government to sustain the revocation of his supervised release using the probation officer's unsworn testimony as support. Instead we review for plain error so that Whitely’s failure to object below raises the bar for reversal, but does not waive the issue entirely. United States v. Pluta, 176 F.3d 43, 51 (2d *844Cir.1999), and United States v. Talk, 13 F.3d 369, 371 (10th Cir.1993), cert. denied, 513 U.S. 844, 115 S.Ct. 135, 130 L.Ed.2d 78 (1994).
. Whitely argues that this finding of error warrants reversal regardless of whether it affected his substantial rights because it qualifies as "structural,” and thus falls outside the plain error analysis mandated by Federal Rule of Criminal Procedure 52. We reject this contention, as the "structural error” cases he cites — Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), and Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) — originated outside the federal system, and the Supreme Court has expressly declined to carve out such an exception. See Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (indicating that the "seriousness of the error" claimed on appeal does not work to remove the error completely from the plain-error analysis of Federal Rule of Criminal Procedure 52(b) but goes to whether “substantial rights” have been affected).
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KAREN NELSON MOORE, Circuit Judge,
dissenting in part.
Because I believe that Whitely’s sentence was procedurally unreasonable, I dissent with respect to the majority’s resolution of Whitely’s sentencing challenge. Although this court generally “review[s] supervised release revocation sentences ... under a deferential abuse of discretion standard for reasonableness,” United States v. Bolds, 511 F.3d 568, 575 (6th Cir.2007) (quotation omitted), because Whitely did not object to his sentence after the district court requested any objections not previously raised, review is for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc). To obtain plain-error relief, Whitely must show an “obvious or clear” error that affected his substantial rights and “the fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotation omitted).
A sentence is procedurally unreasonable when, inter alia, a district court “fail[s] to calculate (or improperly calculates]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). As the majority highlights, a district court is not required to state every factor listed in § 3553(a) or even reference the statute when sentencing a defendant, but a district court must “ ‘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 deci-sionmaking authority.’ ” United States v. Thomas, 498 F.3d 336, 341 (6th Cir.2007) (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Thus, “regardless of whether the sentence falls within the Guideline range, we review the sentencing transcript to ensure ... that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly stated [its] reasons for imposing the chosen sentence.” United States v. Liou, 491 F.3d 334, 339 (6th Cir.2007). In the instant case, I believe that the district court plainly erred by failing to consider the § 3553(a) factors and by failing to state clearly its reasons for Whitely’s sentence. And for those reasons, I would vacate Whitely’s sentence and remand for resentencing.
As an initial matter, the district court “never mentioned anything resembling the § 3553(a) factors” during Whitely’s sentencing. Thomas, 498 F.3d at 340. The totality of the district court’s explanation for Whitely’s sentence was as follows:
I don’t find [Whitely] to be credible because of the inconsistent statements that he made before this Court in this Court; therefore, I am going to impose a sentence of 36 months imprisonment, which will be followed by a two-year term of supervised release.
Hr’g Tr. of 4/27/07, at 32. In essence, the record indicates that the district court based the length of Whitely’s sentence on its conclusion that Whitely was a liar and that he had committed the supervised-re*847lease infraction. Contrary to the majority^ contention, I do not believe that the district court’s discussion of Whitely’s conduct in the context of determining whether to revoke his supervised release reflects consideration of the § 3553(a) factors sufficient to render the sentence procedurally reasonable and to withstand plain-error review. See Liou, 491 F.3d at 339 n. 4 (noting the need to vacate a sentence when “the context and the record do not make clear the court’s reasoning” (quotation omitted)). Based on the revocation portion of the transcript, I am willing to assume that, for sentencing purposes, the district court was aware of the nature and circumstances of Whitely’s offense, which is a § 3553(a) factor. Once the district court made the decision to revoke Whitely’s supervised release, however, there was no discussion impheating the remainder of the factors or any mention of what constituted an appropriate sanction for the supervised-release infractions. This circuit has found a sentence procedurally unreasonable when a district court did more. See United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005) (finding a sentence procedurally unreasonable where “the district court provided a list of various characteristics of the defendant that it considered during sentencing” but the reasoning “did not include any reference to the applicable Guidelines provisions or further explication of the reasons for the particular sentence imposed”).
Whitely offered no arguments as to why he merited a lower sentence in either a sentencing memorandum or in response to the district court’s request for objections to his sentence, as the majority notes. But this does not automatically make any sentence within the Guidelines range procedurally reasonable. “The amount of reasoning required varies according to context,” Liou, 491 F.3d at 338, but in addition to finding procedural error when a district court has failed to address a defendant’s arguments, we have emphasized that procedural error also exists when a “district judge ... simply selected] what the judge deem[ed] an appropriate sentence without [the] required consideration” of § 3553(a). United States v. Jones, 489 F.3d 243, 250-51 (6th Cir.2007). Thus, although the district court was not required to anticipate and address arguments that Whitely never even made, it was required to set forth the reasons for Whitely’s sentence in order to allow this court to determine whether the district court considered the relevant statutory factors and ultimately relied on appropriate considerations in selecting the sentence.3
*848Because the district court apparently failed to consider the § 3553(a) factors and provided absolutely no justification for its sentence at the high end of the Guidelines range, I believe that the district court committed an obvious error. I also believe that the error affected Whitely’s substantial rights such that Whitely meets the plain-error standard, of review. The majority concludes that, even assuming sentencing error, it did not affect Whitely’s substantial rights because “Whitely gives no indication of what he would have argued that might have persuaded the judge to sentence him to less than 36 months.” Maj. Op. at 845. In accord with the forgiving reading of the hearing transcript that allows the majority to conclude that the district court considered the nature and circumstances of Whitely’s offense, however, Whitely’s discussion of how he was “doing well” on his supervised release prior to being arrested in Jamaica, Hr’g Tr. of 4/27/07, at 24, is an argument for reduced sentencing that the district court failed to address and that could have persuaded the judge to opt for a lower sentence.
This is not a case where the district court’s explanation and reference to the § 3553(a) factors was less than “ideal.” Vonner, 516 F.3d at 386. This is a case where there was no explanation, id., and I believe that a sentence without any explanation affects the fairness and integrity of the district-court proceedings. For the foregoing reasons, I would conclude that Whitely’s sentence was plainly procedurally unreasonable and would vacate his sentence and remand for resentencing. I respectfully dissent.
. Whitely concedes that he was sentenced within the Guidelines range. Although the range was not explicitly mentioned during the revocation hearing, because the SVR was filed before the district court, this court is permitted to presume that the district court was aware of the range. See United States v. Polihonki, 543 F.3d 318, 324 (6th Cir.2008). Presumptions can be rebutted, however. See Liou, 491 F.3d at 338-39. Along these lines, it is of note that during the probation officer's colloquy with the district court, the probation officer recommended “a sentence clearly above the guideline range.” Hr'g Tr. of 4/27/07, at 27 (emphasis added). In response, the district court stated, "I take it you [the probation officer] stick with your recommendation of 36 months.” Id. Thirty-six months was at the high end of the 30 to 37 month range, but based on the probation officer's recommendation for an above-Guidelines-range sentence, the record does not make clear whether the district court knew the appropriate range despite being provided with the SVR. This confusion provides additional support for remanding this case to the district court for resentencing. Not only are the justifications for Whitely's sentence inadequate, but also it is not clear based on the exchange between the district court and the probation officer that it is appropriate to presume the district court's knowledge of the Guidelines range from the SVR.
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MEMORANDUM **
Jose Alberto Tapia-Hernandez appeals from the 57-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Tapia-Hernandez contends that the district court erred by treating the Guidelines as presumptively reasonable in the absence of extraordinary factors to justify a downward variance. The district court did not procedurally err by concluding that a sentence below the Guidelines range was not warranted in light of the circumstances of the case. See United States v. Carty, 520 F.3d 984, 994-95 (9th Cir.2008) (en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jose Alberto Tapia-Hernandez appeals from the 57-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Tapia-Hernandez contends that the district court erred by treating the Guidelines as presumptively reasonable in the absence of extraordinary factors to justify a downward variance. The district court did not procedurally err by concluding that a sentence below the Guidelines range was not warranted in light of the circumstances of the case. See United States v. Carty, 520 F.3d 984, 994-95 (9th Cir.2008) (en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Armando Naranjo-Barrajas, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“U”) decision denying his application for adjustment of status and a BIA order denying his motion to reopen alleging ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We grant the petitions for review and remand.
In No. 05-76737, the IJ denied Naranjo-Barrajas’ adjustment of status application solely because at the time of his hearing the United States Citizenship and Immigration Services had not processed the I-130 visa petition submitted on his behalf by his United States citizen daughter, which has since been approved. We remand to the agency for reconsideration of Naranjo-Barrajas’ adjustment application in light of the BIA’s intervening decision in Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009). See generally INS v. Ventu-ra, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
*924In No. 07-72147, the BIA concluded that Naranjo-Barrajas’ prior counsel’s failure to challenge the IJ’s conclusion that Naranjo-Barrajas’ conviction under California Penal Code § 278.5(a) is categorically a crime involving moral turpitude did not prejudice his appeal to the BIA from the IJ’s decision denying his cancellation of removal application. The BIA, however, did not have the benefit of our intervening decision in Morales-Garcia v. Holder, 567 F.3d 1058, 1067 (9th Cir.2009), and we, therefore, remand to the BIA for reconsideration of whether prior counsel’s performance prejudiced his appeal. See generally Ventura, 537 U.S. at 16, 123 S.Ct. 353.
PETITIONS FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Vitaliy Antonets, a native of the former Soviet Union and citizen of Ukraine, petitions for review of the Board of Immigration Appeals’' order affirming an immigration judge’s (“U”) 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 factual findings, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we review de novo constitutional claims, Rivera v. Mukasey, 508 F.3d 1271, 1274-75 (9th Cir.2007). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on the inconsistencies between An-tonets’ testimony and the Record of Sworn Statement in Proceedings as to his reasons for coming to the United States and whether he feared returning to Ukraine, see Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.2004) (sworn airport interview statement was a rehable impeachment source to support an adverse credibility finding), an inconsistency relating to Anto-nets’ hospital visits, see id. at 963, and his inability to corroborate his membership in Vilnyy Shlyah, see Sidhu v. INS, 220 F.3d 1085, 1091 (9th Cir.2000) (“[W]here the IJ has reason to question the applicant’s credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review.”).
*923In the absence of credible testimony, Antonets failed to establish he is eligible for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Antonets’ CAT claim is based on the testimony the agency found not credible, and he points to no other evidence to show it is more likely than not he would be tortured if he returned to Ukraine, his CAT claim fails. See id. at 1156-57.
Finally, we deny Antonets’ due process contention because there was no error in the agency’s handling of the Record of Sworn Statement in Proceedings. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Armando Naranjo-Barrajas, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“U”) decision denying his application for adjustment of status and a BIA order denying his motion to reopen alleging ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We grant the petitions for review and remand.
In No. 05-76737, the IJ denied Naranjo-Barrajas’ adjustment of status application solely because at the time of his hearing the United States Citizenship and Immigration Services had not processed the I-130 visa petition submitted on his behalf by his United States citizen daughter, which has since been approved. We remand to the agency for reconsideration of Naranjo-Barrajas’ adjustment application in light of the BIA’s intervening decision in Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009). See generally INS v. Ventu-ra, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
*924In No. 07-72147, the BIA concluded that Naranjo-Barrajas’ prior counsel’s failure to challenge the IJ’s conclusion that Naranjo-Barrajas’ conviction under California Penal Code § 278.5(a) is categorically a crime involving moral turpitude did not prejudice his appeal to the BIA from the IJ’s decision denying his cancellation of removal application. The BIA, however, did not have the benefit of our intervening decision in Morales-Garcia v. Holder, 567 F.3d 1058, 1067 (9th Cir.2009), and we, therefore, remand to the BIA for reconsideration of whether prior counsel’s performance prejudiced his appeal. See generally Ventura, 537 U.S. at 16, 123 S.Ct. 353.
PETITIONS FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
James Michael Jerra appeals from his jury-trial conviction and 30-month sentence for subscribing to false tax returns, in violation of 26 U.S.C. § 7206(1).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Jerra’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. A pro se supplemental brief and an answering brief have been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Gurdeep Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Singh’s motion to reopen as untimely where the motion was filed over eighteen months after the BIA’s final decision. See 8 C.F.R. § 1003.2(c)(2).
We lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen the case. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
James Michael Jerra appeals from his jury-trial conviction and 30-month sentence for subscribing to false tax returns, in violation of 26 U.S.C. § 7206(1).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Jerra’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. A pro se supplemental brief and an answering brief have been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Michael Anthony Stella appeals from the district court’s judgment affirming an order of the bankruptcy court denying his counsel’s application for additional attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review decisions of the bankruptcy court independently without deference to the district court’s determinations. Leichty v. Neary (In re Strand), 375 F.3d 854, 857 (9th Cir.2004). We affirm.
Based on the evidence in the record, the bankruptcy court did not clearly err by finding that no additional fees were warranted. See Law Offices of David A. Boone v. Derham-Burk (In re Eliapo), 468 F.3d 592, 596 (9th Cir.2006) (“We will not reverse an award of fees unless we have a definite and firm conviction that the bankruptcy court committed clear error in the conclusion it reached after weighing all of the relevant factors.”).
Stella’s remaining contentions are unavailing.
We deny appellee’s motion to dismiss this appeal as moot because the bankruptcy court retains subject matter jurisdiction over attorney’s fees issues despite the dismissal of the underlying bankruptcy case. See Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478, 481 (9th Cir.1989) (stating that a bankruptcy court retains jurisdiction “to dispose of ancillary matters such as an application for an award of attorney’s fees for services rendered in connection with the [dismissed] underlying action”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Everardo Salgado-Rojas appeals from his guilty-plea conviction and 120-month mandatory minimum sentence for manufacture of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(vii). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Salga-do-Rojas’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Sarabjit Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion for a continuance. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion the denial of a motion for a continuance, Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988), we deny the petition for review.
The IJ did not abuse her discretion in denying Singh’s motion for a continuance where he claimed he was tired and could not testify properly. See 8 C.F.R. § 1003.29 (IJ may grant a motion for continuance for good cause); Baires, 856 F.2d at 91.
It follows that Singh’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Michael Anthony Stella appeals from the district court’s judgment affirming an order of the bankruptcy court denying his counsel’s application for additional attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review decisions of the bankruptcy court independently without deference to the district court’s determinations. Leichty v. Neary (In re Strand), 375 F.3d 854, 857 (9th Cir.2004). We affirm.
Based on the evidence in the record, the bankruptcy court did not clearly err by finding that no additional fees were warranted. See Law Offices of David A. Boone v. Derham-Burk (In re Eliapo), 468 F.3d 592, 596 (9th Cir.2006) (“We will not reverse an award of fees unless we have a definite and firm conviction that the bankruptcy court committed clear error in the conclusion it reached after weighing all of the relevant factors.”).
Stella’s remaining contentions are unavailing.
We deny appellee’s motion to dismiss this appeal as moot because the bankruptcy court retains subject matter jurisdiction over attorney’s fees issues despite the dismissal of the underlying bankruptcy case. See Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478, 481 (9th Cir.1989) (stating that a bankruptcy court retains jurisdiction “to dispose of ancillary matters such as an application for an award of attorney’s fees for services rendered in connection with the [dismissed] underlying action”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Sarabjit Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion for a continuance. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion the denial of a motion for a continuance, Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988), we deny the petition for review.
The IJ did not abuse her discretion in denying Singh’s motion for a continuance where he claimed he was tired and could not testify properly. See 8 C.F.R. § 1003.29 (IJ may grant a motion for continuance for good cause); Baires, 856 F.2d at 91.
It follows that Singh’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Domingo Nunez-E spinoza, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order summarily dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion for a continuance and his applications for a waiver under former Immigration and Nationality Act § 212(c) and for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion for continuance, Nakamoto v. Ashcroft, 363 F.3d 874, 883 n. 6 (9th Cir.2004), and review de novo questions of law, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for review.
The IJ did not abuse his discretion in denying Nunez-Espinoza’s motion for a continuance because Nunez-E spinoza did not establish good cause for failing to provide his fingerprints as ordered, and the IJ warned him that failure to comply would result in the denial of his applications. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246-47 (9th Cir.2008); cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir.2008). It follows that Nunez-Espinoza’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to establish a due process violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Gurdeep Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Singh’s motion to reopen as untimely where the motion was filed over eighteen months after the BIA’s final decision. See 8 C.F.R. § 1003.2(c)(2).
We lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen the case. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
California state prisoner Lionel Taplin appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Taplin contends that statements made by the prosecutor in closing argument violated his right to due process. First, Taplin argues that the prosecutor’s arguments regarding the taped statement of Dexter Goodman constituted misconduct. Even assuming that the prosecutor’s statements were improper, Taplin has failed to establish that these statements “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristo-foro, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Given the weight of the evidence indicating that the drugs seized in Taplin’s bedroom closet belonged to him, Goodman’s taped statement that he was the owner of the drugs was insufficient to create reasonable doubt on this point. Because Taplin cannot establish *938that the prosecutor’s statements “had substantial and injurious effect or influence in determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 622, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kot-teakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)), the district court did not err in denying this claim.
Taplin also argues that the prosecutor’s statements regarding the presumption of innocence constituted misconduct. The district court did not err in determining that the prosecutor’s subsequent statements and the court’s instructions to the jury were curative.
Finally, Taplin contends that the prosecutor introduced evidence previously excluded under Miranda, engaged in vouching, and argued that prosecution experts were entitled to more credence than other witnesses. Because these claims were not raised before the district court in the habeas petition, they are not cognizable on appeal. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994).
We deny Taplin’s request to expand the certificate of appealability to include his claim that defense counsel was ineffective in failing to object to the prosecutor’s statements. See 9th Cir. R. 22-1 (e).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Michael D. Clark, a state prisoner, appeals pro se from the district court’s summary judgment for defendants in his 42 U.S.C. § 1983 action alleging retaliation under the First Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary judgment, Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.2003), and a dismissal for failure to state a claim, Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir.2009). We review for an abuse of discretion the district court’s discovery rulings, Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir.2004), denial of sanctions, Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 819 (9th Cir.2009), and refusal to appoint counsel, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).
We affirm the challenged rulings for the reasons stated by the district court. We affirm the denial of Rule 11 sanctions on other grounds. See Corales v. Bennett, 567 F.3d 554, 562 (9th Cir.2009) (“We may affirm on any grounds supported by the record.”) (citation and internal quotation marks omitted). The record reflects that Clark served the motion for sanctions on defendants at least twenty-one days before filing the motion with the court, and thus, the district court improperly denied the motion based on Clark’s failure to show compliance with the safe harbor provision of Rule 11. See Fed.R.Civ.P. 11(c)(2). Nevertheless, because the record shows that Clark was not entitled to sanctions, the denial of sanctions was proper. See Conn v. Borjorquez, 967 F.2d 1418, 1421 (9th Cir.1992) (explaining that the “standard for determining the propriety of Rule 11 sanctions is one of objective reasonableness for determinations of frivolousness as well as of improper purpose”).
Clark’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*942ed by 9th Cir. R. 36-3.
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OPINION
PER CURIAM.
In February 2009 Juan Mota filed this pro se mandamus petition seeking an order that the District Court immediately rule upon the motion he filed pursuant to 28 U.S.C. § 2255 four years ago.
Subsequently, on February 9, 2009, the District Court appointed counsel for Mota and scheduled an evidentiary hearing on his § 2255 motion. That hearing took place on March 17, 2009. The government has filed a memorandum in the District Court and Mota has been given until April 6, 2009 to respond.
*419The District Court has now proceeded on Mota’s § 2255 motion, and we are confident that the court will eventually rule on the motion promptly. Accordingly, we will deny his petition for a writ of mandamus.
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MEMORANDUM **
Washington state prisoner Charles Frank Lowery (“Lowery”) appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Lowery contends that his Sixth Amendment right to effective assistance of counsel was violated when counsel failed to *939adequately investigate and warn him about the unreliability of polygraph examinations, and when the attorney failed to ensure that the prosecution had sufficient evidence to convict Lowery on all of the charged counts.
We agree with the district court’s conclusion that Lowery failed to show that his trial counsel’s performance fell below an objective standard of reasonableness, or that any deficient performance caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (reaffirming that the Strickland standard “applies to challenges to guilty pleas based on ineffective assistance of counsel”). The state court’s decision rejecting Lowery’s claim was not contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
To the extent that Lowery raises uncer-tified issues, we construe such argument as a motion to broaden the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-l(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Michael D. Clark, a state prisoner, appeals pro se from the district court’s summary judgment for defendants in his 42 U.S.C. § 1983 action alleging retaliation under the First Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a grant of summary judgment, Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir.2003), and a dismissal for failure to state a claim, Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir.2009). We review for an abuse of discretion the district court’s discovery rulings, Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir.2004), denial of sanctions, Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 819 (9th Cir.2009), and refusal to appoint counsel, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991).
We affirm the challenged rulings for the reasons stated by the district court. We affirm the denial of Rule 11 sanctions on other grounds. See Corales v. Bennett, 567 F.3d 554, 562 (9th Cir.2009) (“We may affirm on any grounds supported by the record.”) (citation and internal quotation marks omitted). The record reflects that Clark served the motion for sanctions on defendants at least twenty-one days before filing the motion with the court, and thus, the district court improperly denied the motion based on Clark’s failure to show compliance with the safe harbor provision of Rule 11. See Fed.R.Civ.P. 11(c)(2). Nevertheless, because the record shows that Clark was not entitled to sanctions, the denial of sanctions was proper. See Conn v. Borjorquez, 967 F.2d 1418, 1421 (9th Cir.1992) (explaining that the “standard for determining the propriety of Rule 11 sanctions is one of objective reasonableness for determinations of frivolousness as well as of improper purpose”).
Clark’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*942ed by 9th Cir. R. 36-3.
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OPINION
PER CURIAM.
Petitioner Zhima Jiata, a native of Tibet and citizen of China, was admitted to the United States on or about August 31, 2005. On April 17, 2006, he was served with a Notice to Appear, which charged that he was removable under Immigration & Nationality Act (“INA”) § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an alien who did not possess a valid entry document. On May 5, 2006, Jiata filed an application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming persecution based on his Tibetan ethnicity and his Buddhist religion, and he attached to it a personal statement about events that transpired in his Tibetan village in 2004 and 2005.
Jiata conceded that he was removable as charged. At his merits hearing in Immigration Court on October 19, 2006, he testified that he was from Yazhong, a small village in the Lithang District of occupied Tibet. All of the people in his village were, like him, ethnic Tibetans and followers of the Buddhist teachings of His Holiness the Dalai Lama. He testified that his wife, Abang, and their eldest daughter, Luorang Zhema, remained in Yazhong, but that, in 2004, he sent his two younger daughters, Tashi Choezom and Namgyal Wangmo, to India in the company of his elder brother. He did this so that they could study the Tibetan culture and heritage in Dharamsala, the Tibetan community in exile in India.
Because he sent his daughters to school in India, the Chinese police in Yazhong arrested him on December 20, 2004 on charges that he supported the Tibetan government in exile. The police detained him for two weeks at the local police station and questioned him about whether he had political connections with the Dalai Lama in India. When he denied that he had any such connections, they beat him on the back with a rubber stick, hit him in the face, and kicked him in the legs. Jiata testified that the police would not release him until he paid a 5000 RMB fine, which sum he lacked and had to borrow from his wife’s relative. The police released him on January 4, 2005 on the condition that he report to the station every month or face further arrests and fines. The pain he felt from the beatings caused him to consult a local doctor three or four times during the month after he was released from detention. Jiata testified that he left Tibet on August 31, 2005, because he was afraid that he might again face arrest, and he testified that he was afraid to return to Tibet because he might face life imprisonment.
On cross-examination, Jiata was asked whether the Chinese police had been looking for him in Yazhong since he left, and he testified: “At home, I have no contact right now.” App. 177. He admitted, however, that he had contact with his wife, Abang, in Yazhong, through her relative, Lobsang. See id. Asked whether Lob-sang had told him that anyone had been looking for him since he left home, Jiata testified: “I didn’t get any such information.” Id. at 178. Asked why he believed the police even cared about him now, since he had not reported, as required, for over a year, he testified: “I have no information.” Id. at 179. Asked whether he had contact with his daughters in India, Jiata testified that, since his arrival in the United States, he had talked with them by *423telephone on their school holidays. Id. at 167.
Along with his asylum application and attached statement, Jiata submitted into evidence a copy of the following documents: (a) his passport and visa; (b) his Household Register; (c) his Freedom Movement Book; (d) his Residence ID; (e) a letter from the Dhokham Chushi Grang-druk, Inc., in New York; (f) undated photographs of his family, and a photograph of a Free Tibet demonstration in New York; (g) the affidavit of Kalsang Gyatotsang, from New York; (h) the State Department’s 2005 Country Report for China (including Tibet); (i) the State Department’s 2005 Profile of Asylum Claims and Country Conditions in China; (j) a Washington Post newspaper article on Tibetans in China; (k) a report entitled, “Prisons in non-TAR Tibet;”1 (l) an internet report from guchusum.org on deaths in Tibet; (m) a 1997 report, entitled “Striking Hard: Torture in Tibet;” (n) a 2000 report entitled, “Torture in Tibet,” submitted to the United Nations Committee Against Torture; and (o) the 2005 Report to Congress on human rights in China.
The Immigration Judge denied relief and ordered Jiata removed to China. The IJ found that Jiata’s testimony compelled an adverse credibility finding due to two material omissions from his application and attached statement: that police demanded that he pay a fine before they would release him from detention, and that his pain from the beatings in detention caused him to seek treatment from a doctor three or four times during the month after his release from detention. The IJ pointed out that Jiata could have, but did not, provide documentary evidence that might have overcome the weaknesses in his case and the discrepancies between his testimony and his application; for example, he could have corroborated his testimony that his daughters attended a Tibetan school in India and he could have corroborated his testimony that he was arrested and detained because his daughters attended the school. He could have provided a statement from his wife to corroborate his arrest on December 20, 2004, and he could have provided a statement from his wife’s relative to corroborate his testimony that the police would not release him until he paid them a fine. The IJ also found that Jiata had failed to prove that he had a well-founded fear of future persecution, in part because of his admission that his wife and all of the other Tibetan Buddhists in Yazhong remained there. The IJ also noted that, despite Jiata’s testimony that he might be imprisoned for life if he returned home, his application contained no mention of the police contacting anyone in his family about him since he left his village. The IJ found that Jiata failed to meet the higher standard required to establish eligibility for withholding of removal, and he also denied Jiata’s CAT claim for lack of evidence.
Jiata appealed to the Board of Immigration Appeals. On March 21, 2008, the Board dismissed his appeal, concluding that the IJ’s credibility determination was not clearly erroneous, 8 C.F.R. § 1003.1(d)(3). The Board agreed with the IJ that material inconsistencies existed between Jiata’s testimony and his asylum application and statement regarding the medical treatment he received after his detention and the fine he was required to pay to secure his release. He also failed to provide readily available corroboration from his daughters and his wife. The Board noted that, although Jiata claimed to have a well-founded fear of persecution, he failed to provide any evidence that his wife or any of his family members have been contacted by police or have experi*424enced any problems since his departure in August 2005. The Board also agreed with the IJ that Jiata failed to establish that he is more likely than not to be tortured, citing 8 C.F.R. § 1208.16(c)(2).
Jiata did not file a petition for review of the Board’s March 21, 2008 final order. On or about May 12, 2008, he filed a timely motion to reopen with the Board pursuant to 8 C.F.R. § 1003.2(c), explaining that he had recently obtained evidence to substantiate his claim of past persecution. Specifically, he now had an affidavit from his wife and one from his brother-in-law, Lob-sang, attesting to his treatment by the Chinese government in 2004 and 2005. His wife asserted in her statement that the Chinese police have paid her a visit and questioned her about Jiata’s whereabouts, verbally and physically abusing, harassing and intimidating her. She believes that she is still being monitored. Lobsang asserted in his statement that he paid 5000 RMB to secure Jiata’s release from detention on January 4, 2005. In addition, Jiata had evidence to document that his two daughters are bona fide students at the Tibetan SOS Children’s Village. The motion to reopen also relied on the recently issued 2007 State Department Country Report on China.
Jiata claimed that he obtained these statements and documents only recently, and he attached an envelope in which they had arrived, via mail, that was postmarked October 22, 2006, and which, he asserted, demonstrated that they were not available and could not have been presented at his October 19, 2006 hearing.
On September 22, 2008, the Board denied Jiata’s motion to reopen, concluding that he failed to show that his new evidence was material, unavailable and could not have been presented at his original hearing. See 8 C.F.R. § 1003.2(c)(1); Caushi v. Att’y Gen. of U.S., 436 F.3d 220, 231 (3d Cir.2006). The Board reasoned that Jiata had failed to explain adequately why his family members’ statements, describing events in 2004 and 2005, were not available and could not have been presented at his October 19, 2006 hearing, given that they contained information that was clearly discoverable at an earlier time. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 408-10 (3d Cir.2003). It appeared to the Board that Jiata was simply tardy in requesting the evidence from family members. The information about his daughters’ school attendance also could have been obtained earlier through the exercise of diligence. Furthermore, it did not corroborate Jiata’s claim that he had been arrested and beaten by Chinese authorities because of their school attendance in India. Finally, the 2007 Country Report did not, by itself, given the previous adverse credibility determination, establish that Jiata now had a prima facie case for asylum, and, in any event, the pertinent information in the Country Report was previously available.
Jiata has timely petitioned for review of the Board’s decision denying his motion to reopen, and thus we may exercise jurisdiction, 8 U.S.C. § 1252(a)(1). We lack jurisdiction to review any claims regarding the Board’s March 21, 2008 order, because Jiata did not file a timely petition for review of that decision. See 8 U.S.C. § 1252(b)(1); Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Thus, we cannot review the agency’s initial adverse credibility determination.
We review the Board’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Do-herty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Under this standard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). “As a general rule, *425motions to reopen are granted only under compelling circumstances.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
In a motion to reopen removal proceedings, the alien must proffer “new facts to be proven at a hearing to be held if the motion is granted,” and the motion “shall be supported by affidavits or other eviden-tiary material.” 8 C.F.R. § 1003.2(c)(1). A motion to reopen proceedings “shall not be granted” unless it appears to the Board that the evidence offered “is material and was not available and could not have been discovered or presented at the former hearing.” Id. See also Caushi, 436 F.3d at 232. Even if prima facie eligibility for the underlying relief of asylum is shown, the Board still has discretion to deny the motion. 8 C.F.R. § 1003.2(a).
The alien carries the heavy burden of demonstrating that his motion should be granted; there are both procedural and substantive hurdles that must be overcome. Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 313 (3d Cir.2007). The Board may deny a motion to reopen proceedings on any of these grounds: (1) it may hold that the alien has failed to establish a prima facie case for the underlying substantive relief; (2) it may conclude that the alien has failed to introduce previously unavailable and material evidence; and (3) if the underlying substantive relief is discretionary, it may decline to consider the first two threshold requirements and, instead, determine that the alien would not be entitled to the requested discretionary grant of relief. Doherty, 502 U.S. at 323, 112 S.Ct. 719 (citing Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)).
We conclude that the Board did not abuse its discretion in denying Jiata’s motion to reopen. Its reasons for denying the motion were not arbitrary, capricious or contrary to law. Jiata argues that the Board engaged in speculation when it found that the statements of family members that he submitted were previously discoverable and available and could have been presented at his hearing. Specifically, he contends that the postmark on the envelope containing them postdated his hearing and, thereby, proves that they were not available on October 19, 2006. (Petitioner’s Brief, at 4-6).
We reject this argument as meritless. Under the regulation, the date on which the statements were mailed is irrelevant. A motion to reopen proceedings “shall not be granted” unless it appears to the Board that the evidence offered “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1) (emphasis added). The Board could, without abusing its discretion, conclude that the statements and documents were discoverable prior to Jiata’s October 2006 hearing date; that is, that Jiata, had he taken reasonable steps, could have obtained the statements concerning events which transpired in 2004 and 2005. Jiata’s hearing testimony establishes that he had contact with his wife through her brother. He also had contact with his daughters. Jiata did not address in his motion to reopen why he could not have contacted the school earlier and obtained his daughters’ records in advance of his hearing. Since there was contact with both his brother-in-law, Lob-sang, and his daughters, and with his wife through Lobsang, the Board had discretion to conclude that Jiata could have obtained the materials in time for his October 2006 hearing. See Ezeagwuna, 325 F.3d at 409.
In addition, Jiata did not address the Board’s concern that he failed to establish that the school report, which only indicates that his daughters attended the school in November of 2006, corroborated his claim that he was persecuted by Chinese authorities in 2004 and 2005 because of their attendance. The school records *426submitted in support of the motion to reopen failed to establish that his daughters attended a Tibetan school in India during the relevant time period. See 8 C.F.R. § 1003.2(c)(1) (stating that a motion to reopen shall not be granted unless the evidence offered is “material”); Abudu, 485 U.S. at 104-05, 108 S.Ct. 904 (stating that the Board may deny a motion where the movant has failed to establish a prima facie case for the underlying substantive relief, or failed to introduce material evidence). Further, Jiata he did not show that the information in the 2007 Country Report about the treatment of Tibetans in China differed in a material way from the information contained in the 2005 Country Report. See id. Both reports, in fact, provide similar information concerning the Chinese government’s serious human rights abuses against Tibetans. Accordingly, the Board acted within its discretion in concluding that reopening Jiata’s removal proceedings was not warranted. Doherty, 502 U.S. at 823, 112 S.Ct. 719; Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
We will deny the petition for review.
. The initials TAR stand for the Tibet Autonomous Region.
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*427OPINION
AMBRO, Circuit Judge.
Dale Brandon appeals the sentence imposed on him by the District Court after he pled guilty to a two-count indictment for (1) conspiracy to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), and (2) aiding and abetting the distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. Brandon claims that the Court erred in sentencing him pursuant to the career offender enhancement in the United States Sentencing Guidelines § 4B1.1. He contends that the charging document for a predicate offense did not prove that it was a felony controlled substance offense punishable by over one year in prison, even though he was actually sentenced to two to four years’ imprisonment for that offense. We affirm in all respects.
I.
In October 2007, Brandon was indicted by a grand jury for violations of the statutes noted above. He was arrested in November 2007, and pled guilty in February 2008. This was an open plea, not pursuant to any written agreement with the Government.
In May 2008, the final Pre-Sentence Investigation Report (“PSR”) was issued by the assigned United States Probation Officer. The PSR concluded that Brandon was subject to the career offender provisions of § 4B1.1 of the Guidelines. This conclusion was based on two predicate offenses: (1) a state court conviction for robbery; and (2) a state court conviction for possession of a controlled substance with intent to distribute. Brandon does not dispute that the first offense qualifies as a predicate offense. He does, however, dispute that the second offense qualifies. He challenged the PSR insofar as it designated him a career offender, and declined to stipulate to any predicate offenses. After the Government filed its response, Brandon was sentenced to 100 months’ imprisonment by the District Court in August 2008, and he appeals.1
II.
Brandon’s claim essentially is this: although he was actually sentenced to two to four years’ imprisonment for a predicate offense, that is not sufficient to show that it was an offense punishable by more than one year imprisonment for the purposes of the career offender enhancement. We disagree.
We begin by looking to the career offender provision of the Guidelines. Section 4B1.1 defines a career offender as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Guidelines § 4Bl.l(a). A controlled substance offense is also defined in the Guidelines:
The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a *428term exceeding one year, that prohibits the manufacture, import, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
Guidelines § 4B1.2(b). Finally, a felony is defined as “a prior adult federal or state conviction for an offense punishable by ... imprisonment for a term exceeding one year.” Guidelines § 4B1.2 cmt. n. 1.
Brandon pled guilty to a violation of 35 Pa. Cons.Stat. § 780-113(a)(30) in September 2004. The statute reads as follows:
The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
Subsection 780 — 113(f) establishes a penalty schedule for violations of § 780-113(a)(30). It provides four categories of offense that are punishable by more than one year, and one category that is punishable by less than one year.
In October 2004, Brandon was actually sentenced for this offense to, among other things, “[n]ot less than Two nor more than Four years state custody.” The signed order of sentence was presented to the District Court. At no point did Brandon object to or appeal the sentence as being in violation of the penalty schedule in § 780-113(f), but Brandon now submits that, because the offense could in some instances be punished by less than one year, the evidence submitted by the Government as proof that his conviction for possession with intent to distribute qualified as a “controlled substance offense” under § 4B1.1 — namely, the signed order of sentence — was insufficient. He speculates that “perhaps [he] and his prior counsel agreed not to challenge the length of that sentence on appeal, even though it is, in fact, greater than one year, because his guilty plea ... would not enhance a future federal court conviction, like the one currently before this Court.” (Appellant’s Br. 20.) This argument falls far short of succeeding.
In Shepard v. United States, 544 U.S. 13, 16-17, 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court outlined the “modified categorical approach” to apply if the statutory elements of a prior conviction are unclear as to whether they satisfy a sentence enhancement. While keeping in mind the need to “avoid[ ] subsequent evidentiary enquiries into the factual basis for the earlier conviction,” the Court did not limit the judicial inquiry strictly to charges and instructions. Id. at 20, 125 S.Ct. 1254. It also permitted reference to a judge’s formal rulings of law and findings of fact, the statement of factual basis as shown by a transcript of plea colloquy or written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. Id. An order sentencing a defendant to a term of imprisonment is certainly a judge’s formal ruling that a subsequent court may look to under Shepard.
Accordingly, the formal order of the Court in 2004 for Brandon’s drug offense under Pennsylvania law establishes that he was convicted of a controlled substance offense felony punishable by imprisonment exceeding one year. Thus, the § 4B1.1 enhancement was proper.
i{i # 'Jfi # *
*429We hold that the Brandon met the requirements for a sentence enhancement under Guidelines § 4B1.1, and thus affirm the judgment of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. To the extent Brandon contends that his sentence was imposed in violation of law, we have jurisdiction under 18 U.S.C. § 3742. Because Brandon raises purely legal issues of statutory and constitutional interpretation, our review is plenary. See, e.g., United States v. Singletary, 268 F.3d 196, 199 (3d Cir.2001).
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OPINION
PER CURIAM.
Vetetim Skenderi petitions for review of a decision rendered by the Board of Immigration Appeals on August 15, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Skenderi is a native and citizen of Albania. He entered the United States in November 2002 and was placed in removal proceedings. In June 2003, Skenderi applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), based upon his support for Albania’s Democratic Party (“DP”).
After a February 2004 hearing, the Immigration Judge (“IJ”) denied relief. Skenderi appealed the decision to the BIA, which remanded the matter for further consideration of Skenderi’s credibility and the merits of his claim. On remand, the IJ held another hearing and permitted Sken-deri to present additional evidence. In a May 16, 2007, decision, the IJ again denied Skenderi’s claims.
Skenderi appealed. On August 15, 2008, the BIA affirmed the IJ’s decision and dismissed the appeal. Because the decision was mailed to the incorrect address, the BIA re-issued the decision on October 23, 2008. This timely petition for review followed.
II. Analysis
We generally review only final decisions by the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, because the BIA substantially relied upon the IJ’s adverse credibility determination, we review both the BIA’s and the IJ’s decisions with regard to the credibility determination. See Xie v. Ashcroft, 359 F.3d 239, 241-42 (3d Cir.2004). We review legal conclusions de novo, see Eze-agwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, this Court “must find that the evidence not only supports that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812,117 L.Ed.2d 38 (1992).
Concluding that the IJ’s findings of fact were not clearly erroneous, the BIA affirmed the adverse credibility determination. We have recognized that an IJ is normally in the best position to make a credibility determination and is “uniquely qualified to decide whether an alien’s testimony has about it the ring of truth.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003) (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985)). We review adverse credibility determinations for substantial evidence. Chen v. Ashcroft, 376 F.3d 215, 221-22 (3d Cir. *4342004). We will affirm the adverse credibility finding if it is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Skenderi’s credibility must be so strong “that in a civil trial he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
We conclude that the adverse credibility determination rests upon substantial evidence. The IJ provided numerous specific and cogent reasons for concluding that Skenderi lacked credibility, many of which go to the “heart” of his claims.1 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Specifically, the IJ identified the following inconsistencies within Skenderi’s testimony and/or between Skenderi’s testimony, application, and prior statements 2:
(1) Skenderi submitted a newspaper article concerning his alleged political persecution. He originally testified that he obtained the article from a friend, but later testified that his family sent it to him. He also originally testified that the article was from a national Albanian newspaper, but later testified that it was from a small local paper that could not afford to register with the Library of Congress.
(2) Skenderi originally testified that when he was arrested on May 5, 2002, he was met by the prosecutor; he later testified that the prosecutor met him the following day.
(3) Skenderi originally stated in his airport interview that he was never arrested, but later testified that he was arrested multiple times for his political activities.
(4) Skenderi and his wife both stated that he left Albania on August 28, 2002. His asylum application stated that he went immediately to the United States without traveling through or staying in any other country. However, Skenderi did not did not arrive in the United States until November 3, 2002.
(5) His airport interview, credible fear interview, and hearing testimony did not consistently describe Skenderi’s history of alleged arrests, including arrests taking place in the months immediately preceding his flight from Albania.
In addition, the IJ identified the following inherent implausibilities within Skenderi’s testimony:
(1) Skenderi obtained a passport reflecting his name, signature, and photograph and was able to leave Albania without incident, despite the alleged presence of his name on a police “blacklist.”
(2) Skenderi claims he was beaten and arrested by the police in May 2002, but also testified that the police took him to the hospital for treatment after the beating and were sufficiently careless that he was able to escape by walking through a back door of the hospital.3
*435(3) Skenderi’s family was allegedly involved so deeply in DP activities that they remained in politics despite the fact that family members were assassinated in the 1990s, but he testified that his family left politics completely when he departed from Albania.
Skenderi argues that the adverse credibility determination was “based upon [the IJ’s] failure to review the transcripts, her refusal to allow the Petitioner to testify completely at his hearings and her refusal to listen to Petitioner’s credible and consistent explanation of alleged inconsistencies.” We cannot agree.
The record demonstrates that the IJ permitted Skenderi to testify at the evidentiary hearings. She also closely reviewed the transcripts of Skenderi’s testimony, as reflected by her decision’s detailed summary of Skenderi’s testimony, complete with transcript references.4 In our view, the IJ based her conclusions concerning Skenderi’s lack of credibility upon a logical, eommonsense interpretation of the facts that were presented. Cf., Butt v. Gonzales, 429 F.3d 430, 436 (3d Cir.2005).
Skenderi responds with a series of what he proposes are “credible and plausible” explanations for each of the credibility problems that the IJ identified. We find no error in the decision not to credit Sken-deri’s proposed explanations. As the BIA appropriately noted, the Supreme Court has instructed that “[wjhere there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Skenderi has not demonstrated that the IJ’s findings of fact were clearly erroneous. His contention that there could be other plausible interpretations of the evidence is not sufficient to undermine the IJ’s adverse credibility determination.5
The BIA concluded that the IJ’s adverse credibility finding was dispositive and relied upon it as the basis to deny Skenderi’s *436appeal. “An alien’s credibility, by itself, may satisfy his burden, or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc). In this case, the adverse credibility determination dooms Skenderi’s claim. Skenderi bore the burden of supporting his asylum claim through credible testimony. Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001). He failed to meet that burden.
Finally, Skenderi claims that we must remand his case because he appealed the Id’s decision to deny withholding of removal and CAT protection, but the BIA “inexplicably” deemed those claims abandoned. We disagree. Although the notice of appeal initially indicated an intent to pursue those claims, see A.R. 331, in his brief to the BIA, Skenderi did not present any argument in support of withholding of removal or CAT protection. See A.R. 14-41. Because Skenderi only briefed his asylum claim, we find no error in the BIA’s conclusion that he abandoned the other claims. See, e.g., Chen v. Ashcroft, 376 F.3d 215, 221 (3d Cir.2004); Kost v. Ko-zakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
III. Conclusion
We have considered all of Skenderi’s remaining arguments and conclude that none has merit. Accordingly, we will deny the petition for review.
. Because Skenderi filed his asylum application in 2004, the REAL ID Act, effective May 11, 2005, does not apply to his claims. See 8 U.S.C. § 1158(b)(1)(B).
. The IJ expressly noted that the inconsistencies between Skenderi's airport statement and testimony did not provide the sole basis for the adverse credibility determination. Cf., Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir.1998) (holding that inconsistencies between hearing testimony and an airport statements are not sufficient, standing alone, to support an adverse credibility determination).
.Skenderi argues that the IJ's finding in this regard is erroneous because the IJ stated that the testimony concerning the escape from the *435hospital was internally consistent. See A.R. 229 (Hrg. Tr., 03/07/07, at 140 (“All right. That’s consistent enough.”)). However, consistent does not mean credible. An adverse credibility determination may be based on implausibility or inherent improbability. See Berishaj v. Ashcroft, 378 F.3d 314, 324 (3d Cir.2004).
. We note that some of the IJ's transcript references cite to an incorrect page number. Relying upon these apparent typographical errors, Skenderi argues rather disingenuously that the IJ did not review his testimony. For instance, Skenderi argues that although “the IJ stated 'the Respondent originally testified that the article [supporting his claim of persecution] was from a national newspaper published and distributed throughout Albania’ See [transcript] at 45 .... a simple review of page 45 of the transcripts establishes that the Petitioner never made the statement cited by the IJ." See Petitioner’s Brief at 22. However, while Skenderi did not make that statement on page 45, he did make that precise statement a few pages later. A.R. 132 (Hrg. Tr., 2/26/04, at 148) (“This is a national paper published and distributed throughout Albania.”).
. By way of example, with regard to the IJ’s finding of implausibility concerning Sken-deri’s ability to obtain a passport despite being blacklisted, Skenderi contends that "Petitioner did not obtain a valid passport. He testified that his brother obtained the document.” However, Skenderi also testified that he signed the passport documents in his own name, submitted his picture with them, and had no trouble obtaining the passport or leaving the country despite the fact that his name was allegedly on a "blacklist" and that the police knew him by name and appearance. See A.R. 52 (IJ Decision at 9), see also A.R. 221-22 (Hrg. Tr., 03/07/07, at 132-33). Thus, even considering that his brother submitted the application, substantial evidence supports the IJ’s conclusion that Skenderi’s ability to obtain a passport undermined the credibility of his claim.
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OPINION
PER CURIAM.
Petitioner Simerjeet Singh, a native and citizen of India, seeks review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen proceedings. Because we conclude that the BIA did not abuse its discretion in denying that motion, we will deny Singh’s petition for review.
I.
Singh entered the United States without inspection in December 1992. His status was eventually adjusted to that of a conditional permanent resident following his marriage to Hattie Pender, a United States citizen. When the two divorced, the Government terminated Singh’s conditional permanent resident status and initiated removal proceedings. At a hearing before the Immigration Judge (“IJ”), Singh sought to block his removal by arguing that he was entitled to relief under 8 U.S.C. § 1186a(c)(4)(B).1 In February 2006, the IJ denied the application, finding that Singh had “failed to show by a preponderance of the evidence that his marriage was entered into in good faith and not for the purpose of obtaining an Immigration benefit.” On November 13, 2007, the BIA upheld the IJ’s findings and dismissed the appeal. On December 6, 2007, Singh filed a motion to remand, claiming that his daughter’s anticipated naturalization entitled him to an adjustment of status. The BIA denied the motion on February 1, 2008, finding that since the daughter’s naturalization process was still pending, “any potential claim to adjustment of status is premature, and at best, speculative.”
Singh filed a motion to reopen proceedings on February 19, 2008, primarily claiming that he received ineffective assistance from his previous counsel who did not inform him that he could obtain a *446hardship waiver under § 1186a(c)(4)(A) (“extreme hardship would result if such alien is removed”). On May 15, 2008, the BIA denied the motion, concluding that it exceeded the numerical and time limitations for motions to reopen under 8 C.F.R. § 1003.2(c)(2). The BIA determined that even if Singh could overcome the motion’s procedural deficiencies, and presuming that his prior counsel’s performance was deficient, Singh’s claim of “extreme hardship” lacked the requisite merit to demonstrate any prejudice resulting from counsel’s deficient performance. The BIA also determined that, insofar as Singh had raised a claim of ineffective assistance based on counsel’s failure to advise him of his ability to file a petition for review with this Court, Singh had “failed to substantially comply with the procedural requirements provided in Matter of Lozada [, 19 1. & N. Dec. 637 (BIA 1988) ] as it relates to this claim.”2 Singh appealed, and the Government moved to dismiss his petition for review for lack of jurisdiction.
II.
We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252(a).3 We review the denial of a motion to reopen for abuse of discretion. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005); see also Cruz v. Attorney General of the United States, 452 F.3d 240, 242 (3d Cir.2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We exercise de novo review of the BIA’s determination concerning an underlying procedural due process claim, such as a determination that an alien has failed to comply with the Lozada requirements to establish an ineffective assistance of counsel claim. See Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir.2007).
When a motion to reopen is denied on prima facie grounds, we review any findings of fact for substantial evidence. See Sevoian, 290 F.3d at 174. Even if the movant has made out a prima facie case, the BIA has discretion to deny a motion to reopen if it is procedurally deficient. See 8 C.F.R. § 1003.2(a). In general, motions to reopen must be filed within ninety days from the date “the final administrative decision was rendered,” and only one such motion is allowed. 8 C.F.R. § 1003.2(c)(2). A motion to remand is equivalent to a motion to reopen for § 1003.2(c)(2) purposes where it requests the relief normally sought in a motion to reopen. See Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992).
*447III.
Pursuant to Matter of Coelho, the BIA was permitted to construe Singh’s motion to remand as a motion to reopen. See id. (“the motion to remand is in the nature of a motion to reopen since the respondent requests additional proceedings to present evidence ... which was not available during the initial proceedings”). As a result, the BIA did not abuse its discretion in concluding that Singh’s subsequent motion to reopen was number-barred under 8 C.F.R. § 1003.2(c)(2). Nor did it abuse its discretion to the extent it denied the motion to reopen on prima facie grounds. The BIA rightly concluded that Singh’s ineffective assistance claim, based on the alleged failure of prior counsel to apprise Singh of his eligibility for a § 1186a(c)(4)(A) hardship waiver, lacked merit because Singh had not demonstrated that he was prejudiced by not having applied for that waiver. To that end, we find no error in the BIA’s conclusion that Singh’s “simply stating that he has a lawful permanent resident daughter and United States citizen grandchildren, that he is a member of a Sikh association, that he is a business owner, and that he is learning English, without further explanation of what, if any, hardships are involved, does not show a prima facie claim of extreme hardship.”
Accordingly, we will deny the petition for review.
. Pursuant to 8 U.S.C. § 1186a(c)(4)(B), the Attorney General has discretion to remove the conditional basis of permanent resident status for an alien who, although divorced from the United States citizen spouse, nevertheless demonstrates that the marriage was entered into in good faith.
. Singh does not address this part of the BIA’s decision in his brief on appeal. As a result, any issues relating thereto are deemed waived. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
. The Government cites to Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir.2004), and Cospito v. Att’y Gen., 539 F.3d 166 (3d Cir.2008), for the proposition that we lack jurisdiction to review the discretionary denial of waivers under 8 U.S.C. § 1186a(c)(4). But we are not reviewing the denial of a discretionary hardship waiver; instead, we are reviewing the BIA's denial of Singh's motion to reopen based on the alleged ineffective assistance of his prior counsel. The Government, inadvertently perhaps, concedes this distinction. (Gov't Br. at 10) ("the Board did not adjudicate the hardship waiver[,] it adjudicated a motion to reopen"). Moreover, Cospito, and each of the cases we cited to therein, involved an alien's attempt at direct judicial review of the denial of a discretionary waiver, not review of the denial of a motion to reopen. Thus, the cases cited to by the Government are easily distinguishable, and we deny its motion to dismiss. In addition, Singh’s argument that the BIA lacked jurisdiction to adjudicate the hardship waiver application fails for the reasons just discussed. See also Sevoian, 290 F.3d at 170.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Charles Lawson appeals from a March 11, 2009 judgment of the United States District Court for the Middle District of Pennsylvania sentencing him to 151 months’ imprisonment for distribution and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841. For the following reasons, we will affirm.
I. Background
On May 29, 2008, Lawson sold $500 worth of crack cocaine to a confidential informant who was working with the Harrisburg, Pennsylvania police. Based on that transaction, Lawson eventually pled guilty to one count of distribution and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841. A presentence report (“PSR”) was issued on January 29, 2009, and, shortly thereafter, the Government filed a motion pursuant to U.S.S.G. § 5K1.1 for a downward departure in Lawson’s offense level because of his substantial assistance to law enforcement.
Lawson lodged an objection to the PSR, and asked that the Court grant him a downward variance in light of the 80:1 ratio that currently exists between sentencing ranges for powder versus crack cocaine.1
At a sentencing hearing on March 11, 2009, the District Court adopted the findings and Guidelines calculations contained in the PSR, and reduced Lawson’s offense level pursuant to the government’s § 5K1.1 motion. The District Court then discussed the sentencing factors enumerated in 18 U.S.C. § 3553(a) and declined to vary from the Guidelines, saying,
I recognize that I have discretion to adopt an appropriate ratio in lieu of that provided in the sentencing guidelines. I decline to do so. The sentencing commission has amended the guidelines to reduce the ratio ... and I believe it, that is the amended ratio between powder [ ] cocaine, and crack cocaine, to be the appropriate ratio under the circum*452stances. In short, I concur with the policy judgment reflected in the amended ratio.
(1 App. at 26-27.)
With the downward departure, Lawson’s offense level was twenty-nine and his criminal history category was VI, resulting in a Guidelines range of 151 to 188 months’ imprisonment. The Court sentenced Lawson to a 151 month term of imprisonment.
Lawson filed a timely appeal, arguing that the sentence imposed by the District Court is unreasonable because the Court did not adequately consider the effect of the craek/powder cocaine ratio on the § 3553(a) factors, and failed to depart below the Guidelines range in recognition of the disparity caused by that ratio.
II. Discussion2
We review a criminal sentence for reasonableness, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), which generally involves two levels of inquiry. We begin by determining whether the District Court committed any “significant procedural error, such as ... failing to consider the § 3553(a) factors.” Id. at 51, 128 S.Ct. 586. Upon satisfying ourselves that a sentence is “procedurally sound,” we then ask whether the sentence is substantively reasonable. Id. “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).
A. Procedural Reasonableness
Lawson complains that his sentence is procedurally unreasonable because the District Court failed to adequately consider three of the § 3553(a) factors. First, Lawson argues that the court failed to adequately consider objectives identified in § 3553(a)(2), namely, the need for his sentence to reflect the seriousness of his offense, to promote his respect for the law, and to provide just punishment. Had the Court considered those objectives, says Lawson, his sentence would have been “similar to one that would be given in a cocaine powder case.” (Appellant’s Op. Br. at 19.) Second, Lawson argues that the court ignored the need to avoid unwarranted sentence disparities pursuant to § 3553(a)(6) because “[i]t is fundamentally unfair for one defendant to get a sentence much greater than another simply because he was selling the same substance in a different form.” (Appellant’s Op. Br. at 19.) He notes that at least one district court has used a 1:1 ratio rather than adhere to the Guidelines ratio when sentencing a defendant convicted of a crack cocaine crime.3 Finally, Lawson asserts that the District Court did not adequately consider pertinent policy statements as required by § 3553(a)(5), because there are indications that President Obama’s administration is working to eliminate the crack/powder cocaine disparity, so since “change is coming, ... that should be applied in this case.” (Id. at 20.)
Our review of the record reveals that, contrary to Lawson’s contentions, the District Court did engage in a “meaningful consideration” of the § 3553(a) factors. At the sentencing hearing, the Court explained in detail the reasoning upon which it based Lawson’s sentence. While the Court did not specifically mention each of the factors enumerated in § 3553(a), it explicitly considered several of those factors and stated that the sentence “reflects [the] court’s full consideration of all [the] factors *453relevant to the sentencing determination.” (1 App. at 24.) As we have said before, “[t]here are no magic words that a district judge must invoke when sentencing....” United States v. Cooper, 437 F.3d 324, 332 (3d Cir.2006), abrogation on other grounds recognized by United States v. Wells, 279 Fed.Appx. 100 (3d Cir.2008). What was said here was sufficient. See United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007) (“A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account.”). Because Lawson’s sentence is procedurally sound, we turn to the question of substantive reasonableness
B. Substantive Reasonableness
Lawson argues that his sentence is substantively unreasonable because the District Court failed to impose a below-Guidelines sentence based on the crack/powder cocaine disparity.
A sentence is substantively unreasonable where “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; see also Gall, 552 U.S. at 51, 128 S.Ct. 586 (explaining that, in reviewing a sentence for substantive reasonableness, “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify a reversal of the district court”).
The District Court recognized that it had “discretion to adopt an appropriate ratio in lieu of that provided in the sentencing guidelines,” but it declined to do so because, in its opinion, “the amended ratio between powder, cocaine, and crack cocaine ... [is] the appropriate ratio under the circumstances.” (1 App. at 26-27.) The Court thus stated that, in the particular case before it, it “concurr[ed] with the policy judgment reflected in the amended ratio.” (Id. at 27.) Although a downward variance was possible under Spears,4 the District Court was certainly not obligated to vary downward. The fact that it chose not to does not mean that Lawson’s sentence is substantively unreasonable, and indeed it is not unreasonable.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District Court.
. Until recently, the Sentencing Guidelines included a 100:1 ratio, adopted from the Anti-Drug Abuse Act of 1986, “that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine.” United States v. Arrelucea-Zamudio, 581 F.3d 142, 147 (3d Cir.2009) (quoting Kimbrough v. United States, 552 U.S. 85, 96, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)). However, in 2007, the Sentencing Commission amended the Guidelines, “reduc[ing] the base offense level associated with each quantity of crack by two levels.” Kimbrough, 552 U.S. at 99-100, 128 S.Ct. 558. We have recognized that “a district court may deviate from the Guidelines range for crack cocaine offenses ... if it concludes that the disparity between ranges for crack and powder cocaine results in a sentence 'greater than necessary’ to achieve the sentencing objectives of § 3553(a).” United States v. Arrelucea-Zamudio, 581 F.3d 142, 147-48 (3d Cir.2009) (citing Kimbrough, 552 U.S. at 91, 128 S.Ct. 558). Earlier this year, the Supreme Court explained that district courts have the "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.” Spears v. United States, - U.S. -, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (original emphasis).
In his objection, Lawson urged the District Court to impose a lower sentence because the amended ratio continues to "promulgate unwarranted disparities.” (2 App. at 10.) In other words, Lawson apparently hoped that the District Court, based on a policy disagreement with the amended Guidelines, would impose a below-Guidelines sentence because his crime involved crack cocaine, rather than powder cocaine.
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to review Lawson's sentence pursuant to 28 U.S.C. § 1291.
. Specifically, Lawson cites to United States v. Gully, 619 F.Supp.2d 633 (N.D.Iowa 2009). (Appellant's Opening Brief at 18.)
. See supra, note 1.
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MEMORANDUM **
Roberto Jimenez-Huerta, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We dismiss the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that Jimenez-Huerta failed to show exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). We need not reach Jimenez-Huerta’s challenge to the IJ’s continuous physical presence determination because the agency’s hardship determination is dispositive. See 8 U.S.C. § 1229b(b)(l).
We lack jurisdiction to consider Jimenez-Huerta’s due process challenge because he failed to exhaust it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
We lack jurisdiction to consider Jimenez-Huerta’s claim that the BIA improperly denied his request for voluntary departure. See 8 U.S.C. § 1229c(f); Kalilu v. Mukasey, 548 F.3d 1215, 1217 n. 1 (9th Cir.2008) (per curiam).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
O. Paul Schlenvogt appeals pro se from the district court’s judgment dismissing his action brought under 42 U.S.C. § 1983 and the Racketeer Influenced and Corrupt Organizations Act. He also appeals from the order denying his motion to disqualify the district and magistrate judges. To the extent we have jurisdiction, it is under 28 U.S.C. § 1291. We affirm in part and dismiss in part.
The district court did not abuse its discretion by denying Schlenvogt’s motion for disqualification because the motion was *957based on adverse rulings and unsupported assertions. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”); Pesnell v. Ar-senault, 543 F.3d 1038, 1043-44 (9th Cir. 2008) (concluding that the district court did not abuse its discretion by denying a motion for disqualification where there was no showing that the judge was likely to be a material witness).
We lack jurisdiction to review the underlying judgment because Schlen-vogt’s notice of appeal was filed more than thirty days after entry of judgment. See Fed. R.App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (stating that a timely notice of appeal is mandatory and jurisdictional). The postjudgment motions did not toll the time to appeal from the judgment. See Fed. R.App. P. 4(a)(4)(A) (listing tolling motions); Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir.1988) (explaining that we will not “strain to characterize artificially” a postjudgment motion “merely to keep the appeal alive”).
Appellees’ request for judicial notice is denied. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to resolution of the appeal).
AFFIRMED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Homer Earl Hawkins appeals pro se from the district court’s judgment in his 42 U.S.C. § 1983 action alleging due process violations arising from the sale of his impounded car. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, McDade v. West, 223 F.3d 1135, 1139 (9th Cir.2000), and we affirm.
The district court properly dismissed the due process claims against the county employees because they were not lienholders and therefore had no duty under California law to provide notice to Hawkins regarding the impending sale of his vehicle. See Cal. Civ.Code § 3072(b) (requiring lienholder to provide notice pri- or to sale of impounded vehicle); Shouse v. Ljunggren, 792 F.2d 902, 904-05 (9th Cir. 1986) (analyzing federal due process claim by evaluating whether defendant had a duty to provide notice under state law).
The district court properly granted summary judgment on the claims against El Dorado Tow Company because Hawkins failed to controvert the evidence that El Dorado Tow Company provided the required notice to Hawkins regarding the sale of the vehicle. See Cal. Civ.Code § 3072(b) (explaining notice requirement); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[In opposing summary judgment, the nonmov-ing party must] designate specific facts showing that there is a genuine issue for trial.”).
Hawkins’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Kenneth W. Foose, a Nevada state prisoner, appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We affirm.
DISCUSSION
Foose claims his constitutional due process rights were violated when the state trial court admitted evidence of prior acts of misconduct. Contrary to the state’s contention, this claim was properly exhausted. See Chambers v. McDaniel, 549 F.3d 1191, 1195-99 (9th Cir.2008) (concluding under similar circumstances that the Nevada Supreme Court’s denial of a petition for extraordinary writ satisfies the federal exhaustion requirement).
On the merits, Foose’s contention that he is entitled to federal habeas relief because the state trial court admitted propensity evidence has been rejected by this court. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 941, 173 L.Ed.2d 141 (2009); Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir.2006). We explained in those cases that Estelle v. McGuire, 502 U.S. 62, 75 n. 5,112 S.Ct. 475, 116 L.Ed.2d 385 (1991), expressly reserved deciding whether admission of propensity evidence violates due process. Accordingly, a state court’s decision rejecting such a claim cannot be said to be contrary to, or an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of the United States.” See 28 U.S.C. § 2254(d).
To the extent Foose seeks to raise additional uncertified issues or expand the certificate of appealability, we deny the motion. See 9th Cir. R. 22-l(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nigel Nicholas Douglas appeals the district court’s order denying his motion to modify his sentence pursuant to 18 U.S.C.A. § 3582(c)(2) (West 2000 & Supp. 2009). We have reviewed the record and find no reversible error. Accordingly, we deny Douglas’s motion for grand jury minutes and discovery and affirm for the reasons stated by the district court. See *511United States v. Douglas, No. 2:93-cr-00131-HCM-7 (E.D. Va. filed June 1, 2009 & entered June 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
Roberto Jimenez-Huerta, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We dismiss the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that Jimenez-Huerta failed to show exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). We need not reach Jimenez-Huerta’s challenge to the IJ’s continuous physical presence determination because the agency’s hardship determination is dispositive. See 8 U.S.C. § 1229b(b)(l).
We lack jurisdiction to consider Jimenez-Huerta’s due process challenge because he failed to exhaust it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
We lack jurisdiction to consider Jimenez-Huerta’s claim that the BIA improperly denied his request for voluntary departure. See 8 U.S.C. § 1229c(f); Kalilu v. Mukasey, 548 F.3d 1215, 1217 n. 1 (9th Cir.2008) (per curiam).
PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
O. Paul Schlenvogt appeals pro se from the district court’s judgment dismissing his action brought under 42 U.S.C. § 1983 and the Racketeer Influenced and Corrupt Organizations Act. He also appeals from the order denying his motion to disqualify the district and magistrate judges. To the extent we have jurisdiction, it is under 28 U.S.C. § 1291. We affirm in part and dismiss in part.
The district court did not abuse its discretion by denying Schlenvogt’s motion for disqualification because the motion was *957based on adverse rulings and unsupported assertions. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”); Pesnell v. Ar-senault, 543 F.3d 1038, 1043-44 (9th Cir. 2008) (concluding that the district court did not abuse its discretion by denying a motion for disqualification where there was no showing that the judge was likely to be a material witness).
We lack jurisdiction to review the underlying judgment because Schlen-vogt’s notice of appeal was filed more than thirty days after entry of judgment. See Fed. R.App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 209, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (stating that a timely notice of appeal is mandatory and jurisdictional). The postjudgment motions did not toll the time to appeal from the judgment. See Fed. R.App. P. 4(a)(4)(A) (listing tolling motions); Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir.1988) (explaining that we will not “strain to characterize artificially” a postjudgment motion “merely to keep the appeal alive”).
Appellees’ request for judicial notice is denied. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to resolution of the appeal).
AFFIRMED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Homer Earl Hawkins appeals pro se from the district court’s judgment in his 42 U.S.C. § 1983 action alleging due process violations arising from the sale of his impounded car. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, McDade v. West, 223 F.3d 1135, 1139 (9th Cir.2000), and we affirm.
The district court properly dismissed the due process claims against the county employees because they were not lienholders and therefore had no duty under California law to provide notice to Hawkins regarding the impending sale of his vehicle. See Cal. Civ.Code § 3072(b) (requiring lienholder to provide notice pri- or to sale of impounded vehicle); Shouse v. Ljunggren, 792 F.2d 902, 904-05 (9th Cir. 1986) (analyzing federal due process claim by evaluating whether defendant had a duty to provide notice under state law).
The district court properly granted summary judgment on the claims against El Dorado Tow Company because Hawkins failed to controvert the evidence that El Dorado Tow Company provided the required notice to Hawkins regarding the sale of the vehicle. See Cal. Civ.Code § 3072(b) (explaining notice requirement); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[In opposing summary judgment, the nonmov-ing party must] designate specific facts showing that there is a genuine issue for trial.”).
Hawkins’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard W. Bell appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) action as frivolous. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bell v. Franis, No. 1:09-cv-00650-JCC-IDD, 2009 WL 2877079 (E.D.Va. Sept. 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before *523the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
Vikas Sareen, an attorney, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional violations in connection with his child custody proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We affirm.
The district court properly concluded that the Rooker-Feldman doctrine barred Vikas Sareen’s action because it is a “forbidden de facto appeal” of a state court decision, and raises constitutional claims that are “inextricably intertwined” with that prior state court decision. Id. at 1158; see also Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n. 4 (9th Cir.2003) (explaining that under the Rooker-Feldman doctrine, “[i]t is immaterial that [the plaintiff] frames his federal complaint as a constitutional challenge to the state eourt[’s] decision[], rather than as a direct appeal of [that decision]”).
Appellant’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Stanley H. Brandon, Jr., appeals pro se from the district court’s summary judgment for his former employer, NWO, Inc., in his action alleging NWO breached the collective bargaining agreement (“CBA”) between Brandon’s union and NWO. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Bliesner v. Commc’n Workers of Am., 464 F.3d 910, 913 (9th Cir.2006), and we affirm.
The district court properly granted summary judgment to NWO because Brandon’s action — a “hybrid” action against both NWO for breach of the CBA and the union for breach of its duty of fair representation to Brandon — was untimely. See id. (“An aggrieved party may bring a hybrid fair representation/ § 301 suit against the union, the employer, or both. In order to prevail in any such suit, the plaintiff must show that the union and the employer have both breached their respective duties.”); Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 404 (9th Cir.1990) (applying six-month statute of limitations to “hybrid” suits).
The district court also properly granted summary judgment on the merits, because Brandon failed to raise a triable issue as to whether his union breached its duty of fair representation when it declined to take Brandon’s grievance to arbitration. See Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985) (“We have emphasized that, because a union balances many collective and individual interests in deciding whether and to what extent it will pursue a particular grievance, courts should accord substantial deference to a union’s decisions regarding such matters.”) (internal quotation marks omitted).
We decline to consider issues raised by Brandon for the first time on appeal. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086 (9th Cir.2006).
Brandon’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.
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MEMORANDUM **
Daniel Gabino Martinez appeals pro se from the district court’s judgment dismissing his tort action against the United States for lack of subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Billings v. United States, 57 F.3d 797, 799 (9th Cir.1995) (certification by the Attorney General, pursuant to 28 U.S.C. § 2679(d)(1), that named defendant was federal employee acting within the scope of her employment). We affirm.
Martinez filed this action in Arizona state court against employees of the United States Forest Service, alleging unlawful seizure of his cattle.
“When a federal employee is sued for wrongful or negligent conduct, the [West-fall] Act empowers the Attorney General to certify that the employee was acting within the scope of his office or employment. ... [T]he United States is substituted as defendant in place of the employee. The litigation is thereafter governed by the Federal Tort Claims Act (“FTCA”). If the action commenced in state court, the case is to be removed to a federal district court, and the certification remains conclusive for purposes of removal.” Osborn v. Haley, 549 U.S. 225, 229-30, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (internal quotation marks, citations, ellipses and brackets omitted).
Accordingly, substitution of the United States for the individually named defendants, and removal of this action to federal court, was proper because the United States Attorney, acting on behalf of the Attorney General, certified that the named defendants were acting within the scope of their employment.
Martinez failed to disprove the certification. See Billings, 57 F.3d at 800 (“Certification by the Attorney General is prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident and is conclusive unless challenged. The party seeking review bears the burden of presenting evidence and disproving the Attorney General’s certification by a preponderance of the evidence.”) (citation omitted).
Because Martinez failed to demonstrate that he exhausted the administrative remedies of the FTCA, the district court properly dismissed the action against the United States. See Jerves v. United States, 966 F.2d 517, 519 (9th Cir.1992) (explaining that a court lacks subject matter jurisdiction where the plaintiff has failed to exhaust the FTCA’s administrative remedies).
Martinez’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Gary William Hallford, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to comply with a court order. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). We affirm.
The district court did not abuse its discretion by dismissing Hallford’s action for failure to comply with a court order where the district court described the inadequacies of Hallford’s complaint, warned him that failure to file a second amended complaint would result in dismissal, and gave him ample time to amend. See id. at 1260-62; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir.2004) (“The failure of the plaintiff eventually to respond to the court’s ultimatum — either by amending the complaint or by indicating to the court that [he] will not do so — is properly met with the sanction of a Rule 41(b) dismissal.”).
Hallford’s remaining contentions are unpersuasive.
Hallford’s “Motion For Service Upon Particular Defendants” is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Vikas Sareen, an attorney, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional violations in connection with his child custody proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We affirm.
The district court properly concluded that the Rooker-Feldman doctrine barred Vikas Sareen’s action because it is a “forbidden de facto appeal” of a state court decision, and raises constitutional claims that are “inextricably intertwined” with that prior state court decision. Id. at 1158; see also Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n. 4 (9th Cir.2003) (explaining that under the Rooker-Feldman doctrine, “[i]t is immaterial that [the plaintiff] frames his federal complaint as a constitutional challenge to the state eourt[’s] decision[], rather than as a direct appeal of [that decision]”).
Appellant’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Stanley H. Brandon, Jr., appeals pro se from the district court’s summary judgment for his former employer, NWO, Inc., in his action alleging NWO breached the collective bargaining agreement (“CBA”) between Brandon’s union and NWO. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Bliesner v. Commc’n Workers of Am., 464 F.3d 910, 913 (9th Cir.2006), and we affirm.
The district court properly granted summary judgment to NWO because Brandon’s action — a “hybrid” action against both NWO for breach of the CBA and the union for breach of its duty of fair representation to Brandon — was untimely. See id. (“An aggrieved party may bring a hybrid fair representation/ § 301 suit against the union, the employer, or both. In order to prevail in any such suit, the plaintiff must show that the union and the employer have both breached their respective duties.”); Harris v. Alumax Mill Products, Inc., 897 F.2d 400, 404 (9th Cir.1990) (applying six-month statute of limitations to “hybrid” suits).
The district court also properly granted summary judgment on the merits, because Brandon failed to raise a triable issue as to whether his union breached its duty of fair representation when it declined to take Brandon’s grievance to arbitration. See Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985) (“We have emphasized that, because a union balances many collective and individual interests in deciding whether and to what extent it will pursue a particular grievance, courts should accord substantial deference to a union’s decisions regarding such matters.”) (internal quotation marks omitted).
We decline to consider issues raised by Brandon for the first time on appeal. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1086 (9th Cir.2006).
Brandon’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.
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MEMORANDUM **
Daniel Gabino Martinez appeals pro se from the district court’s judgment dismissing his tort action against the United States for lack of subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Billings v. United States, 57 F.3d 797, 799 (9th Cir.1995) (certification by the Attorney General, pursuant to 28 U.S.C. § 2679(d)(1), that named defendant was federal employee acting within the scope of her employment). We affirm.
Martinez filed this action in Arizona state court against employees of the United States Forest Service, alleging unlawful seizure of his cattle.
“When a federal employee is sued for wrongful or negligent conduct, the [West-fall] Act empowers the Attorney General to certify that the employee was acting within the scope of his office or employment. ... [T]he United States is substituted as defendant in place of the employee. The litigation is thereafter governed by the Federal Tort Claims Act (“FTCA”). If the action commenced in state court, the case is to be removed to a federal district court, and the certification remains conclusive for purposes of removal.” Osborn v. Haley, 549 U.S. 225, 229-30, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (internal quotation marks, citations, ellipses and brackets omitted).
Accordingly, substitution of the United States for the individually named defendants, and removal of this action to federal court, was proper because the United States Attorney, acting on behalf of the Attorney General, certified that the named defendants were acting within the scope of their employment.
Martinez failed to disprove the certification. See Billings, 57 F.3d at 800 (“Certification by the Attorney General is prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident and is conclusive unless challenged. The party seeking review bears the burden of presenting evidence and disproving the Attorney General’s certification by a preponderance of the evidence.”) (citation omitted).
Because Martinez failed to demonstrate that he exhausted the administrative remedies of the FTCA, the district court properly dismissed the action against the United States. See Jerves v. United States, 966 F.2d 517, 519 (9th Cir.1992) (explaining that a court lacks subject matter jurisdiction where the plaintiff has failed to exhaust the FTCA’s administrative remedies).
Martinez’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Gary William Hallford, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to comply with a court order. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.1992). We affirm.
The district court did not abuse its discretion by dismissing Hallford’s action for failure to comply with a court order where the district court described the inadequacies of Hallford’s complaint, warned him that failure to file a second amended complaint would result in dismissal, and gave him ample time to amend. See id. at 1260-62; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir.2004) (“The failure of the plaintiff eventually to respond to the court’s ultimatum — either by amending the complaint or by indicating to the court that [he] will not do so — is properly met with the sanction of a Rule 41(b) dismissal.”).
Hallford’s remaining contentions are unpersuasive.
Hallford’s “Motion For Service Upon Particular Defendants” is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Plaintiff appeals (1) the dismissal of his Federal Tort Claims Act (“FTCA”) suit for lack of subject-matter jurisdiction and (2) the denial of leave to file a motion for *983reconsideration of the dismissal. Reviewing the dismissal de novo, Erlin v. United States, 364 F.3d 1127, 1130 (9th Cir.2004), and the denial of leave for abuse of discretion, Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009), we affirm.
Plaintiffs claim accrued no later than September 14, 2004. His counsel’s letter of that date demonstrated unequivocally that Plaintiff knew of “both his injury and its cause.” United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). He may have lacked conclusive evidence to prove his claim at that time, but his position was analogous to that of any plaintiff who knows of an injury, but lacks sufficient evidence that it was negligently inflicted. Kubrick instructs that the statute of limitations nevertheless begins to run for such a plaintiff. Id. at 124, 100 S.Ct. 352. Because Plaintiffs claim accrued by September 14, 2004, and he did not file an administrative claim until 2007, the two-year statute of limitations contained in the FTCA bars his suit. 28 U.S.C. § 2401(b).
The statute of limitations was not tolled by the alleged fraudulent concealment. Plaintiff had actual knowledge of his injury by September 14, 2004, even if the dentists did not provide his dental records to him on request. Grimmett v. Brown, 75 F.3d 506, 514 (9th Cir.1996).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Justin Hegney appeals the denial of his petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
A district court’s decision to deny a federal habeas petition is reviewed de novo. Koerner v. Grigas, 328 F.3d 1039, 1045 *3(9th Cir.2003). Pursuant to the Antiter-rorism and Effective Death Penalty Act (“AEDPA”), a habeas petition
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1).
There is no clearly established federal law creating a right to a jury and a reasonable doubt standard in a juvenile decline proceeding. See State v. Kalmakoff, 122 P.3d 224, 227 (Alaska Ct.App.2005). Hegney urges the announcement of a new rule requiring a jury and a reasonable doubt standard, and argues that the claim is not barred by Teague v. Lane, 489 U.S. 288, 309-10, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Under AEDPA, however, we consider only whether the state court’s ruling was contrary to, or an unreasonable application of, Supreme Court precedent. Thus, we are bound to defer to the state coui't’s determination regardless of whether we formulate a new rule.
Hegney was not similarly situated to juveniles whose cases are retained in juvenile court, subject to the manifest injustice determination. See Kent v. United States, 383 U.S. 541, 566-67, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Additionally, because no Supreme Court case requires states to make changes to them penal code retroactive to avoid an equal protection violation, the state court did not err in rejecting Hegney’s claim that Wash. Rev. Code § 9.94A.540(1) should have been applied to him. See Foster v. Wash. State Bd. of Prison Terms & Parole, 878 F.2d 1233, 1235 (9th Cir.1989). Furthermore, the state legislature had a rational basis to improve its sentencing scheme gradually. See Powell v. Ducharme, 998 F.2d 710, 716 (9th Cir.1993); Foster, 878 F.2d at 1235. Therefore, the state court did not act contrary to or engage in an unreasonable application of Supreme Court precedent when it rejected Hegney’s equal protection claims.
Hegney claims that treating him as an adult defendant, rather than as a juvenile, violated his Eighth Amendment rights. However, he has not shown that doing so was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. See Harris v. Wright, 93 F.3d 581, 583 (9th Cir.1996) (citing Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)). The state court’s determination that the international treaties cited by Hegney did not change its Eighth Amendment analysis also was not contrary to, or an unreasonable application of, clearly established federal law.
The state court’s rejection of Hegney’s ineffective assistance of counsel claim was not contrary to or an unreasonable application of federal law. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The state court reasonably determined that even if Hegney’s attorney’s performance was deficient, that deficiency did not prejudice Hegney’s decline hearing. See Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009).
The court’s finding that the prosecutor had no duty to disclose evidence that was not in the prosecution’s possession or control during the decline hearing was not contrary to, or an unreasonable application of federal law, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a review of the record shows that there was no “reason*4able probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Further, the “to convict” jury instruction, read in conjunction with the instruction that the jury determine separately the guilt or innocence of Hegney and his co-defendant, was appropriate, and there was no reasonable likelihood that the jury applied the challenged instruction in an inappropriate manner. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
The admission of statements by co-defendant Jesse Hill was not contrary to, nor did it involve an unreasonable application of, clearly established federal law on the Confrontation Clause. See Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). The testifying detective providing redacted testimony about Hill’s statements “eliminate[d] not only [Hegney’s] name, but any reference to his ... existence.” Richardson, 481 U.S. at 211, 107 S.Ct. 1702. Any facts that may have “allowed the jury to infer that [the co-defendant’s] statement implicated [the defendant] came through though other, properly admitted evidence.” Mason v. Yarborough, 447 F.3d 693, 696 (9th Cir.2006). Under the AEDPA standard of review, Hegney is not entitled to relief.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Plaintiff Alice H. Morgan appeals, and Defendant Chicago Title Insurance Company cross-appeals, the district court’s judgment in favor of Plaintiff on one claim and the order of limited attorney’s fees and prejudgment interest to Plaintiff. We affirm.
1. Reviewing de novo, United States v. Perez, 475 F.3d 1110, 1112 (9th Cir.2007), we hold that the district court correctly recognized that it was bound by the mandate in Morgan v. Chicago Title Insurance Co. (“Morgan II”), 230 Fed.Appx. 656 (9th Cir.2007) (unpublished decision) (affirming in part, reversing in part, and remanding for further proceedings). To the extent that Plaintiff argues that we should reconsider our decision in Morgan II under an exception to the law of the case doctrine, we decline to do so because none of the exceptions applies here. See Disimone v. Browner, 121 F.3d 1262, 1266 (9th Cir.1997) (listing the exceptions).
2. The district court did not err in granting judgment in favor of Plaintiff on the compensatory damages claim. See Morgan II, 230 Fed.Appx. at 658 (remanding for further proceedings on this point). The district court did not clearly err in finding that the surrender of the $30,096.64 judgment was reasonable and in good faith. See Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849 (9th Cir.2009) (order) (holding that we review factual findings for clear error). Nor did the district court commit legal error. See id. (holding that we review de novo the district court’s legal conclusions).
3. The district court did not abuse its discretion or otherwise err in awarding attorney’s fees to Plaintiff. See Avery v. First Resolution Mgmt. Corp., 568 F.3d 1018, 1021 (9th Cir.2009) (holding that we review for abuse of discretion a district court’s award of attorney’s fees), petition for cert, filed, 78 U.S.L.W. 3113 (U.S. Aug. 14, 2009) (No. 09-300). Plaintiff’s arguments challenging the correctness of Morgan II were plainly foreclosed by the rule of mandate; the district court reasonably declined to award attorney’s fees for the hours spent on those arguments. The district court’s 10% reduction for Plaintiffs use of quarter-hour billing was not an abuse of discretion. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 949 (9th Cir.2007). The district court properly rejected Plaintiffs arguments that this case materially differed from Welch. The district court correctly held that there is no 25% cap on attorney’s fees here, where the fees are awarded pursuant to Hawaii Revised Statutes section 431:10-242. In determining reasonable attorney’s fees, the district court correctly applied Hawaii law, as described in Schefke v. Reliable Collection Agency, Ltd., 96 Hawai’i 408, 32 P.3d 52, 89 (2001). Finally, the district court’s ultimate determination of reasonable attorney’s fees was within its discretion.
*74. The district court did not abuse its discretion or otherwise err in awarding prejudgment interest under state law. See Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1020 (9th Cir.2003) (holding that we review for abuse of discretion the district court’s award of prejudgment interest under state law). The district court’s determination of the commencement date for purposes of calculating prejudgment interest was within its discretion. See Haw.Rev.Stat. § 636-16 (“In awarding interest in civil cases, the judge is authorized to designate the commencement date to conform with the circumstances of each case.... ”); Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1088 (9th Cir.2003) (discussing the district court’s discretion concerning the award of prejudgment interest under Hawaii Revised Statutes section 636-16).
AFFIRMED. The parties shall bear their own costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM ***
Appellant, Anne Cates, appeals from the district court’s summary judgment in favor of Appellees Public Employee Retirement System of Nevada, Dana Bilyeu, Tina Leiss, and Holly Zimmermann (collectively, “PERS”) in Cates’s employment action against PERS. Cates alleged that she was retaliated against and constructively discharged from her employment because she filed workplace grievances after receiving negative performance evaluations, and because she took medical leave and qualified leave pursuant to the Family Medical Leave Act of 1993 (“FMLA”). Cates asserted a claim under 42 U.S.C. § 1983 for violation of her rights under the First Amendment, a claim under the FMLA, and a claim under Nevada law for tortious constructive discharge. We review the district court’s grant of summary judgment de novo, Gorman v. Wolpoff & Abramson, LLP, 552 F.3d 1008, 1013 (9th Cir.2009), and we affirm.
The district court properly granted summary judgment on Cates’s First Amendment claim because Cates failed to raise a genuine issue of material fact as to whether she engaged in protected speech. To survive summary judgment, Cates had to show that her speech involved a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Cates’s grievances challenging her negative performance evaluations, however, were personal and private matters that were of no concern to the public. Ulrich v. City & County of San Francisco, 308 F.3d 968, 978 (9th Cir.2002).
*10The district court also properly granted summary judgment on Cates’s FMLA claim. 29 U.S.C. § 2601, et seq. Cates failed to present evidence that she suffered an adverse employment action as a result of her leave of absence. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124-26 (9th Cir.2001). Applying the “totality of the circumstances” standard, PERS made no significant change in Cates’s employment status, such as firing or demoting her or reassigning her with significantly different responsibilities, nor did PERS make any decision that caused a significant change in Cates’s salary or benefits. Brooks v. City of San Mateo, 229 F.3d 917, 928-29 (9th Cir.2000). The limited reassignment of Cates’s email and custom correspondence duties as well as her retirement counseling coordinator duties constituted an insignificant change in her employment status, and did not, individually or cumulatively, constitute an adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir.2000).
Finally, the district court properly granted summary judgment on Cates’s claim for tortious constructive discharge. Martin v. Sears, Roebuck & Co., 111 Nev. 923, 899 P.2d 551, 553 (1995). Cates’s subjective descriptions of her supervisors’ body language and eye contact fall short of the proof necessary to establish working conditions so intolerable that a reasonable person in Cates’s position would resign or feel that she had no choice but to leave her position.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8475767/
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MEMORANDUM **
In this appeal, Kevin Vanginderen claims errors of law, fact, and in the admission of evidence. We have carefully examined these claims of error and determine that the rulings of the district court did not prejudice Vanginderen.
Accordingly, we AFFIRM. No costs are allowed on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9TH CIR. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8477471/
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ON MOTION
ORDER
Upon consideration of the appellant’s motion to dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.*
(2) Each side shall bear its own costs.
The appellant asks that the dismissal be entered as "without prejudice.” It is not the court's usual practice to designate a dismissal as being with or without prejudice.
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https://www.courtlistener.com/api/rest/v3/opinions/8475756/
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MEMORANDUM **
Louis Curry appeals the district court’s grant of summary judgment in favor of the Department of Veterans Affairs (“VA”) on his Title VII claims of racial discrimination, 42 U.S.C. § 2000e-16, and retaliation, 42 U.S.C. § 2000e-3. Curry has not exhausted his racial discrimination claim and some of his retaliation claims with the Equal Employment Opportunity Commission (“EEOC”) and has not offered sufficient evidence to raise a genuine issue of material fact on his remaining retaliation claim. We therefore vacate the district court’s grant of summary judgment on Curry’s unexhausted claims and order dismissal of these claims for lack of subject matter jurisdiction, and we affirm the grant of summary judgment on the exhausted retaliation claim.
1. In order to bring a Title VII claim in district court, a plaintiff must first exhaust administrative remedies. 42 U.S.C. § 2000e-16(c). “The district court has jurisdiction over any charges of discrimination that are like or reasonably related to the allegations in the EEOC charge, or that fall within the EEOC investigation which can reasonably be expected to grow out [of] the charge of discrimination.” Sommatino v. United States, 255 F.3d 704, 708 (9th Cir.2001) (internal quotation marks omitted). “[T]he charge must at least be sufficient to notify the agency that employment discrimination is claimed.” Id. at 710.
Curry did not exhaust his racial discrimination claim or his claims of past instances of retaliation. He failed to list racial discrimination or specific instances of past retaliation in his complaint to the EEOC. He argues, however, that because these complaints reasonably relate to his *985complaint for “reprisal for prior EEO activity,” that his racial discrimination claim and claims of past retaliation were exhausted. Because his complaint identifies retaliation only in the form of “non-selection” for the “supervisory program specialist” position due to his “prior EEO activity,” the agency was not on notice to investigate racial discrimination claims or instances of past retaliation. The agency was on notice to investigate only the claim the VA did not promote Curry in retaliation for his previous complaints.
We have held that “substantial compliance with the presentment of discrimination complaints to an appropriate administrative agency is a jurisdictional prerequisite.” Sommatino, 255 F.3d at 708. Although the district court granted summary judgment to the VA on the grounds that Curry had not exhausted his claims, it should have found that it lacked subject matter jurisdiction over Curry’s non-exhausted Title VII claims. We vacate the district court’s grant of summary judgment on Curry’s non-exhausted Title VII claims and order these claims dismissed.
2. Curry also argues that the district court’s grant of summary judgment on his exhausted retaliation claim was improper. Assuming that Curry made out a prima facie case of retaliation, the burden shifted to the VA to advance non-retaliatory reasons for Curry’s non-selection. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir.1994). The VA offered several explanations for promoting another over Curry, and it was incumbent upon Curry to show that the VA’s reasons were pretextual. “[A] plaintiff can prove pretext ... by showing that the employer’s proffered explanation is ... internally inconsistent or otherwise not believable.... Where the evidence of pretext is circumstantial, rather than direct, the plaintiff must present specific and substantial facts showing there is a genuine issue for trial.” Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir.2007) (citations and internal quotation marks omitted) (alteration in original). Curry offers an award he received a year before the promotion and the description of his qualifications in arguing that the non-selection for the promotion was internally inconsistent. Curry’s argument is unpersuasive because the VA never said he was a bad employee; rather, it said only that he was not the most qualified candidate for the position. Furthermore, Curry fails to articulate his argument to this court that the person promoted over him was unqualified for the position.
Because Curry merely asserts allegations, not specific, substantial facts showing a genuine issue for trial, we affirm the district court’s grant of summary judgment on the retaliation claim.
AFFIRMED in part; VACATED in part; REMANDED with instructions to dismiss remaining claims. The VA is awarded costs on appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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