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OPINION
PER CURIAM.
Petitioners, Naseem and Twinkle Vithla-ni, seek review of two orders of the Board of Immigration Appeals (“BIA”), one denying their motion to reopen and the other denying their motion for reconsideration. For the reasons that follow, we will deny their petition for review.
Naseem Vithlani, a native and citizen of India, entered the United States in November 1998 on an Hl-B visa. Her husband Anant and daughter Twinkle followed on H4 visas in February 1999. In 1999, Naseem filed an affirmative application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”), listing her husband and daughter as derivative beneficiaries. (A.R.603.) In it, she alleged that she and her husband had been persecuted by members of her husband’s family based on their interfaith marriage. (A.R.606.) On September 4, 2001, they were served with Notices to Appear, alleging that they had remained in the United States without authorization *279beyond the time period permitted by their visas, which charges they conceded. (A.R. 624.)
On August 8, 2002, the IJ denied their requests for relief, concluding that they had failed to establish that they suffered past persecution or had a well-founded fear of future persecution. (A.R.398-404.) On January 16, 2004, the BIA issued an opinion agreeing with the IJ and dismissing their appeal. (A.R.156-57.) Petitioners did not file a petition for review in this Court at that time. They allege that, following the issuance of the BIA’s decision, their attorney, Ana Juneau, told them that there was nothing else they could do with respect to their case and that their options were either to go back to India or to remain in the United States illegally. They claim that they first learned that they could have filed a petition for review in this Court on December 30, 2006, after Anant was taken into custody by Immigration and Customs Enforcement agents based on a warrant for his deportation stemming from the BIA’s final order of removal.
Naseem then retained the services of a second attorney, Rahul Manchanda, who assigned an associate at his firm, Shahla Khan, to represent the Vithlanis. On January 22, 2007, they filed a motion to reopen with the BIA, alleging that prior counsel, Ms. Juneau, had been ineffective in her representation of them throughout the removal proceedings and in failing to inform them of their right to appeal. (A.R.287-307.) They claimed that they first learned of their counsel’s ineffectiveness on or about December 30, 2006, and that their motion to reopen was filed within 90 days of that discovery. On March 26,’ 2007, the BIA denied the motion based on petitioners’ failure to comply with the requirements for alleging ineffective assistance of counsel as set out in Matter of Assaad, 23 I. & N. Dec. 553 (BIA 2003), and Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). (A.R.175-76.) The BIA further concluded that petitioners had not exercised due diligence in pursing their claims, as they failed to explain the delay between the alleged ineffective assistance of counsel from 2002 to 2004 and the filing of their motion in 2007. (Id.) Petitioners did not seek review of that decision.
Through present counsel, petitioners filed a second motion to reopen on September 10, 2007, alleging that attorneys Manchanda and Khan provided ineffective assistance in filing their first motion to reopen. (A.R.93-145.) They claimed that they first learned of this ineffectiveness on or about August 1, 2007, more than four months after the BIA denied their first motion to reopen. The BIA denied the second motion on November 13, 2007 as time — and number-barred and concluded that petitioners were not entitled to equitable tolling. (A.R.54-55.) The BIA held that petitioners had failed to explain the steps, if any, that they took to investigate and assert their claims during that time and, additionally, that they had failed to show how the conduct of the attorneys who represented them in connection with their first motion to reopen prejudiced their case, as there was nothing those attorneys could have done to alter the fact that petitioners failed to exercise due diligence in pursuing their claims for relief and investigating any potential recourse against their first attorney. (A.R.55.) As the BIA noted, petitioners were present at the 2002 hearing when the IJ rendered his decision, noting all of the inadequacies in their case. In them 2007 letter to Attorney Juneau,1 petitioners detailed six alle*280gations of misconduct which occurred during the removal proceedings. (A.R.249-250.) Based on this sequence of events, the BIA concluded: “The respondents have simply failed to explain why they were completely unaware of any problems with their 2002 removal proceedings until December 30, 2006, more than four years after their removal hearing and nearly three years after their appeal was dismissed. They have failed to show that they took any steps to address these issues or otherwise investigate and assert their claims.” (A.R.55.)
Petitioners then filed their first petition for review on December 10, 2007, which was docketed at C.A. No. 07-4623. Petitioners concurrently filed a motion for reconsideration pursuant to 8 C.F.R. § 1003.2(b), which the BIA denied on June 13, 2008. (A.R.7.) On June 27, 2008, petitioners filed the petition for review docketed at C.A. No. 08-2990. These petitions for review were consolidated and we have jurisdiction over both of them pursuant to 8 U.S.C. § 1252.
Petitioners challenge the BIA’s denial of their second motion to reopen and the denial of their motion for reconsideration of the denial of their second motion to reopen. The second motion to reopen was premised on the ineffectiveness of the attorneys who perfected the first motion to reopen. We review the BIA’s denial of a motion to reopen or for reconsideration for an abuse of discretion, under which standard we will uphold the Board’s decision unless it was arbitrary, irrational or contrary to law. See Sevoian v. Ashcroft, 290 F.3d 166, 170, 174 (3d Cir.2002).
The BIA concluded that petitioners were not entitled to equitable tolling under Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). In Mahmood, this Court confirmed that the time for filing a motion to reopen is subject to equitable tolling and that ineffective assistance of counsel can provide the basis for such tolling. See id. at 251. However, this Court further held that Mahmood was not entitled to equitable tolling as he had not exercised the requisite diligence in pursuing his claims. See id. at 252. The BIA here reached a similar conclusion. Assuming Attorney Juneau did provide ineffective assistance, the BIA concluded that petitioners failed to diligently pursue any relief in the period between the BIA’s entry of a final order of removal and Anant’s deportation. Having reached this determination, the BIA concluded that even if their first motion to reopen had been properly prepared by Attorneys Manchanda and Khan, they could not have taken advantage of equitable tolling due to this lack of diligence and therefore, they had not established prejudice attributable to the deficient preparation of the second motion to reopen. See Fadiga v. Attorney General, 488 F.3d 142, 157 (3d Cir.2007) (explaining that once the BIA determines that the Lozada requirements are met, it proceeds to assess whether competent counsel would have acted differently and whether the petitioner was prejudiced by counsel’s actions).
Petitioners contest the BIA’s diligence determination, arguing that it is the date of discovery of the ineffective assistance, not the date of the ineffective assistance itself, that “marks the beginning of the timeline for a finding that the alien has exercised due diligence in pursuing her claim.” (Pet’r Reply Br., 3.) “[I]n order to equitably toll the filing deadline for a motion to reopen based on ineffective assistance of counsel, an alien must demonstrate that he or she has exercised due diligence during the entire period he or she seeks to toll. This includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point *281until the motion to reopen was filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008). As the BIA made clear, petitioners set forth six grounds on which they claimed Attorney Juneau’s representation during the initial removal proceedings was deficient. While they may not have been aware of the legal concept of “ineffective assistance of counsel” until meeting with Attorneys Manehanda and Khan at the end of 2006, they were aware of all of the facts underlying their claim for the preceding four years. The fact that they waited until Anant was taken into custody in 2006 to seek a second opinion does not render them unaware of the basis for their claim until that time. As the BIA’s decision was not arbitrary, irrational or contrary to law, we conclude that it acted within its discretion in denying petitioners’ second motion to reopen.
With respect to their motion for reconsideration, the BIA held that rather than specifying any errors of fact or law in its previous decision as required by 8 C.F.R. § 1003.2(b), the motion essentially restated all of the arguments previously made. (A.R.7.) We agree that, under these circumstances, the BIA properly denied the motion for reconsideration. See Nocon v. I.N.S., 789 F.2d 1028, 1033 (3d Cir.1986) (upholding denial of motion for reconsideration as proper exercise of the BIA’s discretion where petitioner failed to meet regulatory requirements).
Finally, for the first time in their opening brief, petitioners raise a claim alleging that they should not have been placed into removal proceedings in 2001 while they were still residing legally in the United States. As the Government argues, this issue is both waived and unexhausted. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). Accordingly, we will not address it any further.
Based on the foregoing, we will deny the consolidated petitions for review.
. While the letter was dated February 25, 2005, all parties agree that it was written in 2007. (A.R.55, n. 2.)
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OPINION
PER CURIAM.
Petitioners Roman Paprskarz and Alena Krivakova, natives and citizens of the Czech Republic, seek review of a final order issued by the Board of Immigration Appeals (“BIA”). For the following reasons, we will deny the petition for review.
I.
Paprskarz and Krivakova were admitted to the United States in May and October 2001, respectively, on non-immigrant visas and they were authorized to remain in the United States until August 2001 and April 2002. Both petitioners filed affirmative asylum applications in 2004, but because Krivakova’s claim is based on the persecution allegedly suffered by Paprskarz, she is considered a derivative asylum applicant. See 8 U.S.C. § 1158(b)(3)(A). The petitioners applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) based on the mistreatment Paprskarz suffered due to his Roma ethnicity. After an interview with the Department of Homeland Security (“DHS”), they were placed in removal proceedings for overstaying their visas. They conceded removability, but renewed their request for asylum and related relief.
At the petitioners’ December 2006 hearing before the Immigration Judge (“IJ”), Paprskarz was the only testimonial witness. In brief summary of his testimony, Paprskarz was discriminated against while in school, in finding employment, and in obtaining housing. He was also physically attacked several times due to his ethnicity. Two particularly violent attacks underpin the asylum claim.
First, in February 1995, Paprskarz was attacked as he was returning home from work by four men whom he described as skinheads. Although Paprskarz was not seriously injured, the men attacked him with sticks, called him a “dirty Gypsy,” and threatened to kill him if he did not leave town. The next day, Paprskarz reported the attack to the police, who did nothing other than prepare a written report.
The second attack occurred in August 1997. Paprskarz and two of his friends were returning home from work via a shortcut by a river when they were assaulted by skinheads. Paprskarz was beaten with a wooden axe handle or baseball bat, and his right leg was broken. He and his friends escaped by swimming across the river. Paprskarz went to the hospital where he spent the night and his leg was placed in a cast. The hospital reported the attack to the police, and police officers came to the hospital to speak ■with him about the attack. Although the police wrote a report about the incident, no investigation or arrest followed.
Paprskarz was attacked several more times by skinheads and also by men whom he described as neo-Nazis. None of these attacks were as severe as those that occurred in 1995 and 1997.
*285In 2000, the petitioners married and they soon applied for a visa to the United States because Paprskarz “had about enough to live there. [He] wanted to try something else.” (A.R.159.) Paprskarz’s parents and sister remain in the Czech Republic in the town where he was born. His wife’s family also remains in the Czech Republic. He fears returning to the Czech republic because he believes that he will be killed.
In support of his claim, Paprskarz submitted background information regarding the treatment of Roma in the Czech Republic, affidavits from the men who were attacked with him in 1997, and an affidavit from Dr. Matt T. Salo, a research anthropologist who concluded that Paprskarz is an ethnic Bergita Gypsy and that his story is consistent with conditions in Eastern Europe. The government submitted the most recent United States Department of State Country Report for the Czech Republic.
On cross-examination, the government highlighted inconsistencies between Pa-prskarz’s testimony and the written statement that accompanied his asylum application. As to the 1995 attack, Paprskarz’s written statement asserted that he did not “even attempt to report the incident to the police, because members of the police force in essence had the same beliefs as [his attackers].” (A.R.340.) Paprskarz explained the inconsistency by asserting that, because the written statement was prepared in English, he did not read it before it was submitted and thus that there must have been a mistranslation.
The IJ then questioned Paprskarz regarding an inconsistency between his testimony and written statement as to the August 1997 attack. Although Paprskarz testified that he spoke to the police regarding the attack after the hospital reported the incident, his written statement asserted that “no reports were filed and no investigation followed. I did not know my attackers and it was pointless to report it to the police who would not act anyway.” (A.R.341.) Paprskarz explained that this was not really an inconsistency, because although he spoke to the police, he did not file a criminal complaint because he did not know who attacked him. (A.R.204.)
On December 21, 2006, the IJ denied all requested relief. He determined that while Paprskarz had established his Roma ethnicity, he was not credible and failed to carry his burden of proof on his claims. The IJ based the adverse credibility determination largely on the inconsistencies between the written statement and the testimony regarding the 1995 and 1997 attacks, as well as Paprskarz’s lack of corroboration regarding those events. The IJ declined to accept Paprskarz’s explanation that the translator had made a mistake as to the 1995 attack.
The petitioners appealed to the BIA. They argued that the adverse credibility determination was unsustainable because the IJ’s corroboration analysis was improper, the inconsistency regarding the 1995 attack was minor, and because the written statement and testimony concerning the 1997 attack were not contradictory.
The BIA dismissed the appeal, finding that the IJ’s credibility determination was not clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(l). First, as to the discrepancy regarding the 1995 attack, the BIA stated that “given the lead respondent’s assertions in the statement attached to his asylum application that he did not report the incident because the police would not have acted upon it, we find no clear error in the Immigration Judge’s refusal to accept the lead respondent’s explanation of the discrepancy.” (A.R.3.) The BIA continued by determining that Paprskarz did not adequately explain the inconsistency as to whether he informed the police of the *286second beating. The BIA then stated that “the two material discrepancies” “relate to a central element” of the petitioner’s claim “that he was beaten by non-governmental actors due to his Roma ethnicity and that the government was unable or unwilling to help him.” (Id.) It thus determined that it could not “credit the lead respondent’s claim that he suffered past persecution.”1 (Id.)
Through counsel, the petitioners now seek review of the BIA’s final order of removal.
II.
We exercise jurisdiction over a petition for review pursuant to 8 U.S.C. § 1252(a)(1). Our review of the denial of an application for asylum and withholding of removal2 is for substantial evidence, that is, “[w]e will defer to and uphold the IJ’s adverse credibility determinations if they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole,’ but such findings must be based on inconsistencies and improbabilities that ‘go to the heart of the asylum claim.’ ” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).3 We must affirm “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted).
The Petitioners challenge the adverse credibility determination primarily by asserting that: (1) the IJ should not have relied on Paprskarz’s written statement because the statement was unreliable; (2) the IJ improperly failed to evaluate whether Paprskarz’s explanation for the inconsistencies rebutted the regulatory presumption that he was aware of the statement’s contents; and (3) the IJ failed to make a formal finding in this regard. Under 8 U.S.C. § 1252(d)(1), we lack jurisdiction to consider these challenges because the petitioners did not raise them before the BIA. See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009).
We conclude that the adverse credibility finding was based on substantial evidence supported by the record. See Chen v. Gonzales, 434 F.3d at 216. To establish eligibility for asylum, an applicant must demonstrate, among other things, that the harm supporting his or her claim was “committed either by the government or by forces that the government is either unwilling or unable to control.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003). Because Paprskarz asserts that he was attacked by non-governmental actors, establishing the government’s unwillingness or inability to protect him is crucial to his claim.
The record supports the finding that there was a clear inconsistency as to whether Paprskarz reported the 1995 attack to the police. And the BIA properly rejected Paprskarz’s explanation of a mistranslation, especially considering the written statement’s detailed explanation as to his reasons for not reporting the incident. It is less clear whether the written *287statement and the testimony regarding the 1997 incident were inconsistent or whether Paprskarz’s written statement was merely less detailed than his testimony. Nevertheless, we cannot say that the BIA’s and IJ’s adverse credibility determination is not supported by substantial evidence, and they properly addressed and rejected Pa-prskarz’s explanations for the discrepancies between the statement and his testimony. In sum, the evidence does not compel us to overturn the decision to deny the petitioners’ claims.
For the foregoing reasons, we deny the petition for review.
. Because the petitioners did not address the decision that they failed to establish a well-founded fear of future persecution, we do not have jurisdiction to review that determination. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 2 (3d Cir.2005).
. The petitioners do not seek review of the denial of their claim for CAT relief.
.Because the petitioners applied for relief before May 11, 2005, the REAL ID Act’s standard governing review of adverse credibility determinations is not applicable to this case. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008) (explaining the pre-REAL ID Act standard of review).
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OPINION
BARRY, Circuit Judge.
Benjamin Arzola, Ruben Soto, Domingo Hernandez, and Maximino Nieves raise numerous challenges to their convictions, sentences, and orders of forfeiture following a lengthy drug trafficking trial.1
At trial, the prosecution presented powerful evidence of a vast drug trafficking conspiracy beginning in 1999 and ending in June 2005. Among other evidence, the prosecution presented the testimony of numerous cooperating witnesses, substantial police surveillance of drug transactions, testimony regarding controlled purchases, hundreds of recorded phone conversations by and among the defendants, and physical evidence seized during an early morning raid of the conspiracy’s stash houses and the defendants’ residences, including substantial quantities of cocaine; drug paraphernalia such as cutting agents, scales, and drug ledgers; guns; and thousands of dollars in cash.
The jury convicted the defendants of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a) & (b) and 21 U.S.C. § 846. Hernandez was also convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
On appeal, Arzola argues that:
(1) he was denied a fair trial by:
(a) the prosecution’s violation of the Jencks Act, 18 U.S.C. § 3500;
(b) the District Court’s failure to grant a mistrial following purported juror misconduct;
(c) the District Court’s failure to dismiss the indictment due to an attorney’s conflict of interest;
(d) prosecutorial misconduct during the prosecutor’s rebuttal argument, including mischaracterization of facts, impugning defense counsel’s integrity, and improper vouching; and
(e) the District Court’s denial of counsel’s attempt to use an easel during the presentation of evidence;
(2) the District Court improperly denied his request for a hearing on the calculation of the drug quantity;
(3) the District Court misunderstood the nature of its discretion at sentencing;
(4) the District Court improperly imposed a two-level enhancement for possession of a firearm;
(5) the prosecution failed to establish by sufficient evidence both the drug quantity and his aggravating role in the conspiracy; and
(6) his residence should not have been forfeited.
Soto argues that:
*289(1) there was insufficient evidence supporting his conviction and the weight of drugs attributed to him;
(2) the prosecution improperly impugned defense counsel’s ethics and integrity;
(3) the prosecution improperly vouched for a government witness;
(4) his right to remain silent was violated;
(5) the cumulative effect of the trial errors denied him a fair trial;
(6) the District Court abused its discretion in denying him a hearing to challenge the weight of drugs attributed to him; and
(7) the District Court misconstrued its discretion to sentence him.
Hernandez argues that:
(1) there was insufficient evidence supporting his convictions;
(2) the prosecutor made improper comments during summation;
(3) the District Court erred in concluding that he was responsible for fifty kilograms of drugs;
(4) for purposes of sentencing, he should only be held accountable for his relevant conduct, not that of his co-conspirators;
(5) the District Court should have granted a mistrial based on a government witness’s reference to money laundering;
(6) the District Court erred by applying the enhanced penalty of 21 U.S.C. § 851 to him;
(7) the prosecution selectively and vindictively prosecuted him for not accepting a plea agreement;
(8) his Fifth Amendment right to silence was violated;
(9) a mistrial should have been declared based on juror misconduct; and
(10) his prior counsel’s conflict of interest required dismissal of the case.
Finally, Nieves contends that:
(1) there was insufficient evidence underlying his conviction;
(2) his Fifth Amendment rights were violated;
(3) the prosecution improperly solicited evidence of money laundering;
(4) juror misconduct occurred during trial;
(5) the imposition of a gun enhancement was improper;
(6) the calculation of the drug quantity applicable to him for sentencing was improper;
(7) the District Court erred in failing to grant him a minor role reduction; and
(8) his sentence was both procedurally and substantively unreasonable.
Each defendant has joined all other arguments raised by his co-defendants to the extent applicable to him.
We have carefully reviewed the record, which contained overwhelming evidence of guilt, and we have considered all of the issues raised by all of the defendants. We find those issues to be without merit, and reject them without further discussion. See United States v. Salemo, 61 F.3d 214, 216 n. 1 (3d Cir.1995).
We will affirm the judgments of sentence.
. In a separate opinion, we address and reject the challenges of two of their co-defendants, Arsenio and Misael Arzola.
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OPINION
PER CURIAM.
Petitioner Qin Chen is a citizen of China. He entered the United States in 2006 without inspection and was charged as removable. Before the Immigration Judge (“IJ”), Chen conceded removability and sought asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The IJ denied all relief and the Board of Immigration Appeals (“BIA”) dismissed his subsequent appeal. Chen then filed a petition for review.
I
Chen based his requests for relief on his practice of Falun Gong, which is outlawed in China. Chen testified that, as a teenager, he suffered from poor health. In 2003, a friend invited him to practice Falun Gong, suggesting that it might improve Chen’s health. Chen stated that he began practicing at the home of his friend’s uncle and continued to do so once a week from early 2003 until December 2005.
In December 2005, police raided the uncle’s house during a meeting of Falun Gong practitioners, including Chen. Chen was arrested; he testified that he was beaten, hanged upside down, and interrogated. He was held for about a month and released when his mother paid a substantial fee. Although his mother paid for Chen’s release, she received no receipt. Chen explained that the police would not give out a receipt because the fee his *291mother paid was a bribe, not official bail. Chen was also required to sign a document stating that he renounced Falun Gong, although he produced no copy of the document at his removal hearing, and the police instructed him to report once per week.
After his release, Chen was assaulted on the street by police when he was seen associating with a group of friends, presumably because the police believed he was engaging in activities related to Falun Gong. Because he felt intense pressure and fear from having to report to police and not associate with his friends, Chen left China for the United States in 2006. Chen now lives in a residence owned by his boss, not far from his father’s home in New Jersey.
In addition to his own testimony before the IJ, Chen presented unsworn letters from his mother and the friend who introduced him to Falun Gong. Chen also submitted some pictures of himself posing with unknown practitioners at a pro-Falun Gong demonstration in Washington, D.C.
The IJ denied all relief, reasoning that Chen failed to sufficiently corroborate his claim that he experienced or faced persecution for practicing Falun Gong. Specifically, the IJ noted that Chen failed to produce any evidence that he was in poor health before starting Falun Gong, so as to establish that he ever began to practice it, or that he was ever arrested, bailed out, or forced to renounce Falun Gong. The IJ further noted that although he went to the trouble of obtaining unsworn letters from individuals in China — including his mother, who had an interest in the outcome of the case — Chen did not produce affidavits from his father or boss, who both live near him in the United States, or local Falun Gong practitioners, who could attest to his continued practice of Falun Gong. The IJ also questioned the veracity of Chen’s claim, citing inconsistencies and weaknesses in his testimony and other evidence. The IJ however, did not make an express adverse credibility determination.
The BIA dismissed Chen’s appeal, reasoning that the IJ properly determined that Chen failed to offer sufficient corroborating evidence or adequate explanations for his failure to produce such evidence.
II
We have jurisdiction over Chen’s petition under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal quotation marks and citations omitted).
As an initial matter, we reiterate that the IJ did not make an explicit adverse credibility finding, contrary to Chen’s assertion. He merely noted inconsistencies in Chen’s testimony and expressed some doubts about his story as a result. We have several times affirmed the rule that in the absence of an explicit adverse credibility finding, we must proceed as if the applicant’s testimony were credible and determine whether the IJ’s decision is supported by substantial evidence. See Toure v. Att’y Gen., 443 F.3d 310, 325-26 (3d Cir.2006); Lusingo v. Gonzales, 420 F.3d 193, 197 n. 5 (3d Cir.2005); Li, 400 F.3d at 163-164; Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003). Accordingly, we will presume the credibility of Chen’s testimony and proceed to evaluate the Agen-*292c/s conclusion that Chen failed to meet his burden of establishing eligibility because he failed to provide reasonable corroboration.
A failure to corroborate may be relied on to deny relief when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (8) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Toure, 443 F.3d at 323; Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)).1 Here, the BIA affirmed the IJ’s decision on the ground that Chen should have provided evidence from his father or boss that would help demonstrate his adherence to Falun Gong. Chen merely produced un-sworn statements from his mother and friend, as well as a photograph of himself with Falun Gong practitioners at a rally. However, despite his testimony that his father knew of his Falun Gong practice and that he lived with — or at least near— his boss, Chen failed to obtain any statements from them about whether he actually adheres to the practice.2 We agree that Chen could have easily obtained such evidence and that he unreasonably provided no explanation for his failure to corroborate his claim in that regard.
Because the IJ conducted the required inquiry and reasonably concluded that Chen failed to offer adequate reasons for his failure to corroborate his claims for relief, we will uphold the BIA decision affirming the denial of relief. We have considered Chen’s other arguments on appeal and conclude that they lack merit. Accordingly, we will deny the petition for review.
. This standard applies to claims for relief, such as Chen's, that were filed after the enactment of the REAL ID Act of 2005. See Chuk-wu, 484 F.3d at 192 & n. 2.
. The IJ noted that he understood why Chen's father, who apparently remains in the country despite an order of deportation, would not come to the removal hearing, but expressed doubts about Chen's claim because he could have easily obtained a sworn statement from his father, who would not have been required to appear at the hearing.
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McKEE, Circuit Judge.
Sidnei De Miranda appeals the district court’s denial of his motion for a judgment of acquittal. The sole issue on appeal is whether the government presented sufficient evidence of alienage to support De Miranda’s conviction for unlawful reentry following his deportation from the United States in violation of 8 U.S.C. § 1326. For the reasons that follow, we will affirm the judgment of conviction.1
I.
In deciding if a verdict is supported by sufficient evidence to establish guilt beyond a reasonable doubt, we must view the evidence in the light most favorable to the government and draw all reasonable inferences in the government’s favor. United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996).
Viewed in that light, the evidence established that Sidnei De Miranda arrived at the airport in St. Thomas to board an airplane bound for Fort Lauderdale, Florida in March of 2008. However, he was taken to secondary inspection because he could not produce evidence of citizenship, and because he seemed suspiciously nervous. When officials asked him about his nationality, De Miranda stated that he was a Brazilian-born Brazilian citizen. Upon reviewing De Miranda’s Alien File, officials found a fully executed Warrant of Deportation which included his photograph and a fingerprint from his right index finger. Thereafter, they arrested De Miranda and sent his fingerprints and the warrant for forensic analysis. That examination and subsequent investigation disclosed that De Miranda had previously been deported. Accordingly, he was subsequently he was charged with illegally attempting to enter the United States following deportation in violation of 8 U.S.C. § 1326. He proceeded to trial before a jury, and was convicted of that charge. This appeal followed.
II.
8 U.S.C. § 1326, makes it illegal for an alien who has previously been deported or removed from the United States to reenter without the Attorney General’s permission. The government therefore had to prove beyond a reasonable doubt that De Miranda was an alien who attempted to reenter the United States after being deported or removed, and that he did so without having permission to reenter. Id; see also United States v. Dixon, 327 F.3d 257, 259 (3d Cir.2003). The evidence here clearly *297was clearly sufficient to prove each of those elements.
The jury heard evidence that when he was questioned at the St. Thomas airport, De Miranda admitted that he had been born in Brazil, and that he had neither a U.S. passport nor “green card.” The government introduced the executed warrant of deportation containing a photograph and fingerprint taken when he was previously removed, as well as the testimony of a fingerprint expert tying the fingerprint to De Miranda and there was testimony that he was trying to board a plane in St. Thomas that was bound for Fort Lauder-dale Florida when he was arrested. De Miranda’s claim that this was not sufficient to support his conviction is therefore as woeful as it is frivolous.
III.
For the reasons set forth above, the judgment of the district court will be affirmed.
. We have appellate jurisdiction to review the District Court’s final judgment under 28 U.S.C. § 1291.
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https://www.courtlistener.com/api/rest/v3/opinions/8476587/
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OPINION
McKEE, Circuit Judge.
Wilbert Williams appeals the district court’s dismissal of his complaint pursuant to the abstention principles articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. Williams filed the complaint against the Virgin Islands Board of Medical Examiners and three of its members (hereinafter the “Board”), after the Board suspended his license to practice medicine. For the reasons that follow, we will affirm the district court’s decision to abstain pursuant to Younger.1
I.
Because we write primarily for the parties who are familiar with the underlying facts and procedural history, we need not recite either here.
“Abstention is a judicially created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or agency will have the opportunity to decide the matters at issue.” Kentucky West Virginia Gas Co. v. Pennsylvania Public Utility Commission, 791 F.2d 1111, 1114 (3d Cir.1986) (citation omitted). The doctrine is rooted in concerns for the maintenance of the federal system and “represents an extraordinary and narrow exception to the ‘virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.’ ” Id. (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Consequently, abstention is justified “only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.” Id. (citation omitted). In other words, “[ajbstention from the exercise of federal jurisdiction is appropriate only under certain limited circumstances.” Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 630 (3d Cir.1991) (citation omitted). Those circumstances “are loosely gathered under discrete concepts of abstention named after leading Supreme Court cases,” Chiropractic America v. Lavecchia, 180 F.3d 99, 103 *299(3d Cir.1999), viz., “Pullman” (Railroad Comm’n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)), “Burford” (Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)), “Younger” (Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)), and “Colorado River” (Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). As we have noted, this appeal involves Younger abstention.
In Younger, the district court enjoined the Los Angeles County District Attorney from prosecuting the defendant under a eonstitutionally-suspect state statute. The Supreme Court reversed, finding the injunction “a violation of the national policy forbidding federal courts [from] staying] or enjoin[ing] pending state court proceedings except under special circumstances.” Younger, 401 U.S. at 41, 91 S.Ct. 746. “Although Younger involved a state court criminal proceeding, the national policy against enjoining pending state court proceedings has since been extended to noncriminal proceedings,” including administrative proceedings. Zahl v. Harper, 282 F.3d 204, 208 (3d Cir.2002) (citations omitted). The Supreme Court has set out a three-part test for determining whether Younger abstention is appropriate. “Abstention is appropriate when: (1) there is a pending state judicial proceeding; (2) the proceeding implicates important state interests; and (3) the state proceeding affords an adequate opportunity to raise constitutional challenges.” Id. at 209 (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). However, even if the Younger test is met, abstention is not appropriate in all circumstances. A federal court may interfere with a state proceeding “in certain exceptional circumstances — where irreparable injury is ‘both great and immediate,’ where the state law is ‘flagrantly and patently violative of express constitutional prohibitions,’ or where there is a showing of ‘bad faith, harassment, or ... other unusual circumstances that would call for equitable relief.’ ” Mitchum v. Foster, 407 U.S. 225, 230, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (quoting Younger, 401 U.S. at 46-54, 91 S.Ct. 746).
II.
In holding that the Younger test was met, the district court found: (1) that the Board’s proceedings are ongoing and judicial in nature; (2) that the Board has a “significant interest ... in regulating the practice of medicine with an eye toward improving the public health;” and (3) that Williams has an adequate opportunity to raise his constitutional claims because he can assert his due process claims during the territorial forum’s review of the Board’s decision. 2008 WL 5142181 at *3-5. The district court also rejected William’s contention that abstention is not appropriate under the Younger bad faith and extraordinary circumstances exceptions. Id. at *5-10.
In his appeal, Williams does not challenge the district court’s holding that the Younger test was met. Instead, he contends that there are extraordinary circumstances present in his case that make abstention inappropriate. The extraordinary circumstances exception is part of the Younger “bad faith, harassment or any other unusual circumstance that would call for equitable relief’ exception. Diamond “D” Construction Corp. v. McGowan, 282 F.3d 191, 201 (2nd Cir.2002). In Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975), the Supreme Court explained the extraordinary circumstances exception:
Only if “extraordinary circumstances” render the state court incapable of fairly and fully adjudicating the federal issues *300before it, can there be any relaxation of the deference to be afforded to the state criminal process. The very nature of “extraordinary circumstances,” of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be “extraordinary” in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.
Id. at 124-25, 95 S.Ct. 1524 (footnote omitted). Although Kugler spoke in the context of criminal prosecutions, the same standard applies in the civil context. Moore v. Sims, 442 U.S. 415, 433, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979).
As the Second Circuit noted in Diamond “D”, the Supreme Court has found extraordinary circumstances present on only two occasions: (1) “when a state statute is flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it”; and (2) “when the state administrative agency was incompetent by reason of bias to adjudicate the issues pending before it.” 282 F.3d at 201 (citations and internal quotations omitted).
Williams contends that abstention is inappropriate because of the Board’s bias against him. “Bias exists where a court has prejudged, or reasonably appears to have prejudged, an issue.” Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir.1992) (citation omitted). “[T]he baseline showing of bias necessary to trigger Younger’s escape mechanism requires the plaintiff to offer some evidence that abstention will jeopardize his due process right to an impartial adjudication.” Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 640 (1st Cir.1996) (citations omitted). “To implicate due process, claims of general institutional bias must be harnessed to a further showing, such as a potential conflict of interest, or a pecuniary stake in the outcome of the litigation.” Id.
To support his claim of bias, Williams contended in the district court that he was in direct competition with Michelle Dizon, a medical doctor and a member of the Board during the disciplinary proceedings against him. He further contended that the Board overlooked or ignored that conflict and permitted Dizon to participate in those proceedings. However, the district court rejected Williams’ contentions. It found that “Williams has presented little, if any, persuasive evidence that Dizon and he are in competition with each other or that Dizon has even a slight pecuniary interest in the outcome of the Board’s proceedings against Williams.” 2008 WL 5142181 at *9. Upon our review of the record, we agree with the district court that Williams did not present any persuasive evidence of bias on the part of the Board. Accordingly, his bias claim is without merit.2
Williams also argues that the Board waived its right to assert any Younger abstention because the Board stipulated to a permanent injunction on July 22, 2005, enjoining the Board from enforcing *301its June 17, 2005, suspension of Williams’ license. However, Williams offers absolutely no authority for this waiver argument. He does cite to Herz v. Degnan, 648 F.2d 201, 209-210 (3d Cir.1981), which he claims stands for the proposition that “Younger issues raised after substantial litigation had taken place in the district court should not deprive a plaintiff of his or her chosen forum.” Williams’ Br. at 24. While we do not agree with Williams’ characterization of our holding in Herz, we note that Herz has nothing to do with the waiver of a party’s ability to raise a Younger abstention issue. Rather, in Herz, we simply affirmed the district court’s decision to not abstain under Younger under the facts of that case.
III.
For all of the above reasons, we will affirm the district court.
. "In reviewing the district court’s abstention, the underlying legal questions are subject to plenary review, but the decision to abstain is reviewed for an abuse of discretion.” Grode v. Mutual Fire, Marine and Inland Ins. Co., 8 F.3d 953, 957 (3d Cir.1993) (citation omitted).
. In his brief, Williams argues that the district abused its discretion by not making any findings regarding all of his other claims of the Board’s bias. William’s Br. at 38-43. However, those issues were raised by Williams in his claim in the district court that the Board acted in bad faith and, therefore, abstention was not appropriate tinder the bad faith exception to Younger. As noted, the district court rejected Williams’ contention that it should not abstain under the bad faith exception to Younger. Williams does not challenge the district court's holding on the bad faith exception in his appeal.
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OPINION
MCKEE, Circuit Judge.
Dale R. Michael appeals the district court’s grant of summary judgment in favor of the defendants in this action alleging that the defendants defrauded him out of an interest in real estate. For the reasons that follow, we will affirm.
Inasmuch as we are writing primarily for the parties who are familiar with the rather contentious background of this suit, we need not set forth the procedural or factual history. We have reviewed the record and the briefs of the parties as well as the district court’s very thorough and thoughtful Memorandum dated July 31, 2008. In that Memorandum, Judge Stengel carefully explains that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law. We can add little to Judge Stengel’s explanation, and we will therefore affirm substantially for the reasons set forth in his July 31, 2008 Memorandum.
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OPINION
PER CURIAM.
Muhamad Nudir, a native and citizen of Indonesia, was admitted to the United States in 1998 as a non-immigrant visitor authorized to stay in this country until January 22, 1999. He remained in the United States undetected until he was placed in removal proceedings under INA § 212(a)(1)(B) in 2003. Nudir conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), claiming that he fled Indonesia because the military had forced him to transport residents of Aceh Province for torture and killing for an eight month period in 1991-1992. He feared that the military would kill him if he returned to Indonesia.
At the hearing, Nudir testified that he was from Aceh Province and that he lived there with his wife and children until 1992. According to Nudir, the military forced him to provide military transport in early 1991 because they forced all villagers with cars to drive for them. (AR 148-49; 152.) His job was to drive members of the military to various places in Aceh Province so that they could pick up villagers. (AR 140; 152-154.) Initially, he denied knowing what the military’s motives were and what they were doing with the people they apprehended. (AR 136; 155.) He testified that he first realized that the military was torturing people when they directed him to pick up three of his friends on three consecutive nights in late 1991, and tortured them. (AR 138-139; 156.) Ultimately, he admitted that he was aware all along that the military was engaged in torture, but that there was nothing he could do about it. (AR 157.) He said that once his friends were tortured, “I couldn’t hold my heart anymore.” (AR 135-36.)
In 1992, soon after he saw his friends tortured, Nudir lied to the military that he needed to go to Medan to replace his broken down truck, and fled Aceh Province with his wife and children. (AR 157.) He worked odd jobs driving a truck in Medan and in Jakarta. He moved constantly to different addresses so that the military would not find him. (AR 189-90.) He left Indonesia in 1998 to attend a symposium in New York City at which he was invited to speak about human rights violations in Aceh Province. (AR 163.) He said that he feared that the military would harm him if he returned to Indonesia because he fled from them in 1992, and because the military knew that he participated in human rights demonstrations against atrocities in Aceh Province in the United States. (AR 160-63; 177; 182.) His wife and children, with whom he remains in regular contact, continue to live in Indonesia unharmed. (AR 191-92.)
As for his belief that the military would kill him because he fled Aceh Province against their wishes, Nudir’s testimony about the death of another military transporter was contradictory. When asked whether he knew anyone who was killed by the military for refusing to obey their orders, he said “Yes, I saw it.” (AR 146.) *326He said that the transporter told the military that he could not drive for them because his children were sick, but that the military did not listen. (AR at 146-47.) When asked why the military shot the man, however, he answered that “all I know your honor is that I saw many bodies in the street.” (AR 147.) As for when the military transporter was killed, Nudir first said that “[i]t was around 1992 and I work for military eight months.” (AR 149.) A few questions later, he reiterated that “[t]his happened in 1992.” (Id.) When asked whether the man was killed before Nudir became a driver, however, Nudir responded “[bjefore I became a driver it was the story in [the] next village. After that happened in the next village, of course all the news we heard in our village.” (AR 150.) When asked “[w]as he killed by the military before you began working for them or after?” he said, “[b]efore I was working for the military.” (Id.)
In addition to his asylum application, which lacked detail and contained no affidavit or personal statement, Nudir also submitted a letter inviting him by name to a human rights conference in New York City in 1998, the State Department’s 2004 Country Report for Indonesia, the 2005 Amnesty International Report, his birth certificate, his marriage certificate, a news report on Indonesia’s human rights network, and undated photos of Nudir appearing in demonstrations.
The IJ denied Nudir’s asylum application as time-barred and determined that he failed to show his eligibility for an exemption from the one-year deadline. The IJ also denied asylum, withholding of removal, and CAT relief, based on Nudir’s lack of credibility and his failure to provide reasonably available corroboration from his wife. Moreover, the IJ concluded that Nudir assisted in the persecution of others, and thus, he was barred by statute from obtaining asylum or withholding of removal.
The BIA upheld the denial of Nudir’s asylum application as time-barred, noting that Nudir failed to challenge the IJ’s findings as to the time-bar and as to his failure to demonstrate that he qualified for an exemption from the one-year deadline. The Board concluded that, in any event, Nudir’s asylum application was time-barred based on the information contained in the application.1 The Board found no clear error in the IJ’s adverse credibility determination and it agreed with the IJ’s conclusion that Nudir failed to provide sufficient corroborating evidence of his claims for relief. The BIA declined to address Nudir’s ineligibility for asylum or withholding of removal as someone who assisted in the persecution of others on account of a protected ground. Nudir filed a timely petition for review.
We will deny the petition. We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the final order of the BIA denying Nudir’s request for asylum, withholding of removal and for CAT relief. When, as here, the BIA substantially relies on the IJ’s adverse credibility determination, the Court reviews the decisions of both the IJ and the BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Whether the BIA applied the appropriate standard of review is a question of law, and is therefore subject to de novo review. See Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004). We *327review the factual findings of the IJ, including adverse credibility findings, for substantial evidence. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003). The IJ’s adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir.2004). “In making a credibility determination, the IJ must provide ‘specific, cogent reasons[s]’ why the applicant is not credible.” Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.2006) (citation omitted).
Nudir’s primary claim is that § 101(a)(3) of the REAL ID Act does not apply to him because he filed his asylum application in 2003, well before the REAL ID Act was enacted. He maintains that the IJ’s adverse credibility determination is erroneous under the pre-REAL ID Act standard, as any inconsistencies in his testimony did not go to the heart of his claim. The Government counters that Nudir filed his asylum application in 2006, and, thus, he is subject to the credibility standard set forth in § 101(a)(3). Under § 101(a)(3), the trier of fact may consider any inconsistency, inaccuracy or falsehood in an asylum applicant’s written or oral statements, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Gabuniya, 463 F.3d at 322 n. 7. We need not decide which standard should have applied because we conclude that the credibility determination was proper under the more generous pre-REAL ID Act standard.
The IJ noted several inconsistencies in Nudir’s testimony which called his credibility into question. Many of these discrepancies pertained to the question of whether Nudir was barred from obtaining withholding of removal based on his role in assisting the Indonesian military in the persecution of Aceh villagers, a ground that the BIA specifically declined to address. Another inconsistency noted by the IJ could be viewed as minor. In that instance, the IJ highlighted the discrepancy in Nudir’s testimony regarding whether he traveled alone in his truck or whether the military rode with him. As the Board correctly pointed out, however, Nudir provided a reasonable explanation for the discrepancy, stating that he drove in the cab while the military rode in the truck bed. (See BIA Op. at 2 n. 1.)
The remaining inconsistency, Nudir’s changing testimony concerning the murder of another military transporter, is especially significant as it bears directly on his fear that he would be persecuted for having fled the military in 1992. According to Nudir, the murder of a fellow transporter made him fear that the military would kill him too. Initially, Nudir said that he actually saw the military kill the transporter in 1992, almost eight months after he began working. On repeated questioning, however, he changed his earlier testimony, stating that the murder had occurred before he started driving for the military in early 1991, and that he had only heard through the informal village grapevine about a killing in another village. Based on this discrepancy, no reasonable adjudicator would be compelled to find Nudir’s testimony credible. See Xie, 359 F.3d at 243; see also Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir.2003) (holding that an adverse credibility determination is supported by substantial evidence even where only some of the stated bases are appropriate). Because the IJ gave specific, cogent reasons for disbelieving Nudir, which the Board adopted, we must uphold the adverse credibility determination. 8 U.S.C. § 1252(b)(4)(B).
Nudir next claims that the IJ and the BIA erred when they determined that he failed to provide necessary corroboration. Corroboration goes to the sufficiency of *328the evidence; thus, it requires analysis independent of an adverse credibility determination. See Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir.2005). A credible applicant for asylum and other relief may be required to supply corroborating evidence to meet his burden of proof. Id. at 218. Here, Nudir testified that he was frequently in contact with his wife in Indonesia, who could have confirmed his account of the incidents that occurred in Aceh Province from 1991-1992.2 His only explanation for failing to provide his wife’s affidavit is that he did not know that he needed it. Based on the record, we cannot say that the IJ or the BIA erred in determining that the claim lacked necessary corroboration. Nudir had an abundance of time (from 1998 through 2006) to obtain reasonably available corroboration. It appears that Nudir blames his immigration attorney for failing to supplement his asylum application with his personal statement and for failing to advise him about the need for corroboration. (See Petitioner’s Brief, at 20-21.) To the extent that he raises ineffectiveness of immigration counsel in his petition for review, we cannot address it because Nudir failed to raise the claim before the IJ or the BIA and the BIA did not address the issue sua sponte on its merits. Lin v. Attorney General, 543 F.3d 114, 121-23 (3d Cir.2008).
Because we have determined that substantial evidence supports the adverse credibility and lack of available corroboration findings, and because Nudir has not cited to evidence indicating that he might be tortured for reasons unrelated to his claims for asylum and withholding of removal, we will uphold the BIA’s decision to deny the CAT claim. See Ezeagwu v. Mukasey, 537 F.3d 836, 840 (8th Cir.2008).
We have thoroughly reviewed Nudir’s remaining claims presented for our review and conclude that they are meritless. Accordingly, we will deny the petition for review.
. Nudir claims that the BIA failed to consider the arguments he raised in his BIA brief demonstrating that he qualified for an exemption from the one-year limitations period. It appears that the BIA did overlook these arguments. We note, however, that the BIA ruled alternatively that the IJ’s denial of asylum and other relief based on Nudir’s lack of credibility and on his failure to provide reasonably available corroboration was not clearly erroneous. (See IJ Op. at 18-19; BIA Op. at 2-3.)
. According to Nudir, his wife had received several anonymous phone calls asking for his whereabouts as recently as May 2006. There is no evidence, however, that the military made these phone calls.
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OPINION
WEIS, Circuit Judge.
A Pennsylvania State trooper stopped a sport utility vehicle occupied by defendant Vutha Kao, the driver, and defendant Jeremy Warren, the passenger, for exceeding the speed limit. As he approached the defendants’ automobile, the trooper observed inside several large opaque bags, an obscured box, empty cans of energy drink, and multiple cell phones. He obtained a driver’s license from a nervous Kao, who claimed not to possess the SUV’s registration and insurance information because the SUV had been rented by Warren’s girlfriend, and then secured Warren’s identification.
The trooper returned to his patrol car, discovered that Warren had given him a fraudulent identification card, and went back to the SUV to issue Kao a warning. After receiving the admonition, Kao was told that he “was free to go[,]” but, prior to *330leaving, agreed to answer some additional questions. The questioning complete, the trooper noticed the muzzle of a firearm protruding from a compartment underneath Warren’s seat.
Both defendants were removed from the SUV and handcuffed. The trooper subsequently obtained and executed a search warrant for the vehicle, recovering the firearm, ammunition, and a box containing a large amount of pills.
Defendants were tried jointly, and a jury convicted them of conspiracy to distribute approximately 60,000 MDMA (“ec-stacy”) pills in violation of 21 U.S.C. § 846, possession of around 45,000 ecstacy pills with the intent to distribute them in contravention of 21 U.S.C. § 841, possession of a firearm by a convicted felon in breach of 18 U.S.C. § 922(g), and possession of a “short-barreled rifle” in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c). The District Court sentenced each defendant to, among other things, 860 months imprisonment and supervised release for five years.
Defendants have appealed, and their cases have been consolidated. They first contend that the District Court erred in denying their motions to suppress. According to defendants, the legitimate purpose for the traffic stop ended when the trooper issued Kao a warning, and the trooper’s subsequent inquiries and actions, which extended the duration of the encounter, constituted an unlawful seizure under the Fourth Amendment.
We disagree. The inquiries were proper. See Arizona v. Johnson, — U.S. -,-, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009) (“[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop”). In addition, the trooper’s observations and discovery of Warren’s false identification justified detaining defendants and their vehicle until the trooper observed the firearm. See United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (after a lawful traffic stop, “an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation”). The District Court did not err in denying the defendants’ motions to suppress.
Defendants next argue that the District Court should not have admitted evidence from cooperating witnesses that they had, on a previous occasion, traveled to North Carolina to collect money defendants owed them from a prior consignment of ecstacy pills. The District Court indicated that the cooperating witnesses’ testimony was evidence of a common scheme or plan. See Fed.R.Evid. 404(b) (evidence of prior crimes admissible to show, among other things, “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”). It also was evidence that defendants knew what they were carrying in the SUV on the day they were arrested. We find no abuse of discretion in the District Court’s admission of that evidence. See Givan, 320 F.3d at 463.
Defendants lastly assert that they were minor participants in a large-scale drug trafficking operation and should have been given less severe sentences. The evidence, however, was that there were approximately 45,000 ecstacy pills in the van, defendants knew that a large shipment was involved, and they were not simply one-time, outside “mules.” In fact, both defendants were career criminals. The District Court weighed all of the evidence and was in a position to evaluate the defendants’ complicity. We find no clear *331error in the sentencing judge’s decision to deny minor participation status to the defendants pursuant to U.S.S.G. § 3B1.2. See United States v. Carr, 25 F.3d 1194, 1207 (8d Cir.1994) (where “defendant takes issue with [a] district court’s denial of a reduction for being a minimal or minor participant which was based primarily on factual determinations, we review only for clear error”).
Accordingly, the judgments of the District Court will be affirmed.
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OPINION
PER CURIAM.
Almost immediately after Ronald Alberto Zavaleta-Lopez, a citizen of El Salvador, entered the United States without inspection in 2005, the Government charged him with removability. Conceding the charge, Zavaleta-Lopez sought asylum, withholding, and relief under the Convention Against Torture (“CAT”).
In his affidavit in support of his application, Zavaleta-Lopez stated that he had been robbed more than once and threat*332ened by the “maras” or gangs. R. 190. He noted one incident in particular in which the maras robbed and assaulted him and threatened to kill him if he denounced them to the authorities. Id. Apparently from that incident, the maras obtained Za-valeta-Lopez’s cell-phone number and called to threaten him, telling him they were watching his every move. Id. He stated in his affidavit that he did not seek help from the authorities. Id.
At his hearing, Zavaleta-Lopez’s lawyer explained that Zavaleta-Lopez based his claims on the treatment he faced as a member of the particular social group described as young men who have been targeted by gangs for membership and who have refused to join gangs. R. 98. In his testimony, Zavaleta-Lopez elaborated that he had problems with members of the Mara Salvatrucha in his native El Salvador in 2004, namely that they pressed him to join the gang, and threatened that they would kill him if he did not join. R. 87-88. When he told his parents about the problems he was having, they moved “that same year” (which appears also as “2001” in the transcript). R. 89. After the move, he regularly returned to his old neighborhood to visit his girlfriend. R. 90. During one visit at the end of December 2004, gang members accosted him and told him to join them. Id. When he turned his back on them, they pulled guns on him, robbed him, and assaulted him. Id. He repeated that they subsequently called his home and harassed him to join them, threatening that they would kill him if he did not join. R. 91. Zavaleta-Lopez reported the incident to the police, but police efforts to capture the perpetrators were unsuccessful. R. 91-92. He testified that gang members were still looking for him after he left the country in 2005. R. 94.
The Immigration Judge (“IJ”) denied Zavaleta-Lopez’s applications for relief. The IJ recognized that gang violence is a problem in El Salvador but held that Za-valeta-Lopez had not shown that he was targeted on the basis of a protected ground. The IJ concluded that Zavaleta-Lopez had failed to identify a particular social group of which he was a part and had not presented any evidence that the gang recruitment related in any way to an actual or imputed political opinion held by Zavaleta-Lopez. The IJ separately rejected the CAT claim, noting, among other things, that the El Salvadoran government, which took steps to try to find Za-valeta-Lopez’s attackers, had not tortured or acquiesced to any torture of Zavaleta-Lopez.
Zavaleta-Lopez appealed the denial of his asylum claim to the Board of Immigration Appeals (“BIA”). R. 12-16. Through counsel, he highlighted his testimony that he did not join the Mara Salvatrucha because gang members “were bad people who kill and rob,” and argued that qualified for asylum because he refused gang membership based on his religious beliefs. R. 16.
The BIA also concluded that Zavaleta-Lopez had not shown that his membership in a particular social group was a reason for the alleged persecution by the Mara Salvatrucha. The BIA noted the problem with gangs in El Salvador, but agreed with the IJ that Zavaleta-Lopez’s proffered social group was too sweeping and without the social visibility required to qualify as a particular social group. The BIA also noted that any political opinion, imputed or otherwise, of Zavaleta-Lopez was unrelated to the Mara Salvatrucha’s recruitment efforts. The BIA held that no evidence supported Zavaleta-Lopez’s argument on appeal that he was targeted by the gang, or that he opposed them, on the basis of his religious beliefs. The BIA rejected Zavaleta-Lopez’s claims for asylum, withholding, and CAT relief.
*333Zavaleta-Lopez, through counsel, presents a petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252. We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005).
In his petition, Zavaleta-Lopez argues that he is entitled to asylum and assigns two errors to the IJ. He contends that the IJ erred in concluding that he had not suffered past persecution based on a protected ground, and that the IJ erred in holding that he is not a member of a particular social group.1 On review, we find no error, and we will deny the petition for review.
To be eligible for asylum, a petitioner must show past persecution or a well-founded fear of future persecution, by the government or forces that the government is not able or willing to control, on account of a specific statutorily enumerated ground, namely race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42); Kibinda v. Attorney Gen. of the United States, 477 F.3d 113, 119 (3d Cir.2007). Zavaleta-Lopez did not establish past persecution on account of a protected ground.
To establish persecution on the basis of membership in a social group, “an alien must (1) identify a group that constitutes a ‘particular social group’ ..., (2) establish that he or she is a member of that group, and (3) show that he or she would be persecuted or has a well-founded fear of persecution based on that membership.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). A particular social group, as the BIA has explained in a definition we have accepted, is “ ‘a group of persons all of whom share a common, immutable characteristic.’ ” Id. (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)). We have recognized the difficulty of discerning the contours of particular social groups, but we focus on whether putative group members possess common, immutable characteristics such as race, gender, or a prior position, status, or condition, or characteristics that are capable of being changed but are of such fundamental importance that persons should not be required to change them, such as religious beliefs. See Escobar v. Gonzales, 417 F.3d 363, 366-67 (3d Cir.2005).
In this case, we agree with the agency that Zavaleta-Lopez did not identify a particular social group as that term is used in the asylum statute. As Zavaleta-Lopez notes, we previously declined to decide a similar question in the first instance, namely whether “‘young Honduran men who have been actively recruited by gangs and who have refused to join the gangs’ ” is a particular social group. Valdiviezo-Galdamez v. Attorney Gen. of the United States, 502 F.3d 285, 290 (3d Cir.2007). However, since that decision, the BIA has weighed in on a similar question even closer to the question at issue in this case. Namely (and contrary to Zavaleta-Lopez’s implications to the contrary), in Matter of S-E-G-, the BIA held that “a proposed group of young Salvadorans who have been subject to recruitment efforts by criminal gangs, but who have refused to join for personal, religious, or moral reasons” did not constitute a particular social group. See 24 I. & N. Dec. 579, 588 (BIA 2008). The BIA concluded that the group simply did not have a shared characteristic with the social visibility required under its precedent. See id. at 587-88. After a *334review of the Department of State Country Report in that case, the BIA also determined that the risk of gang violence was not limited to young men who resist recruitment but instead affected all segments of the population. See id. The evidence is similar in this case; for instance, the Country Report in this case highlights that gang-related violence is widespread. R. 17. In light of the background evidence, the BIA reasonably relied on its prior precedents to conclude that the social group Zavaleta-Lopez proposed is simply too diffuse and without the common, immutable characteristics necessary to establish the contours of a particular social group.
Furthermore, Zavaleta-Lopez failed to establish with his testimony and other evidence that he would be persecuted on account of his political opinion or an imputed political opinion. His simple resistance to the recruitment efforts of the Mara Salva-trucha is not enough. See Lukwago v. Ashcroft, 329 F.3d 157, 173 (3d Cir.2003) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), for its support of the proposition that mere opposition to forced conscription into guerilla or rebel forces is not the same as political opposition to such a group).
Moreover, there is no evidence in the record that Zavaleta-Lopez was targeted by the Mara Salvatrucha because of his religious beliefs. Although he raised this issue before the BIA, he did not present evidence of this in his affidavit or testimony (he did not even check the box for religious persecution on his asylum application). At his hearing, Zavaleta-Lopez said that he resisted the efforts to recruit him simply because the Mara Salvatrucha were “bad people who kill and rob.” R. 88.
In sum, although Zavaleta-Lopez faced violence from gangs in El Salvador, he did not prove that he was singled out for past persecution by those gangs on the basis of one of the protected grounds. And he has not shown that he has a well-founded fear of future persecution. Generally harsh conditions shared by many other persons, such as the widespread gang violence described in the Country Report in this case, do not amount to persecution. See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir.2005). For these reasons, we will deny his petition for review.
. We agree with the Respondent that by not addressing in his brief the agency’s conclusions regarding his withholding and CAT claims, Zavaleta-Lopez has waived these issues on appeal. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir.2000).
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OPINION
PER CURIAM.
Petitioner Jairaj Bissoo is a native and citizen of Trinidad and Tobago, who entered the United States as a visitor in 1995. He was placed in deportation proceedings soon thereafter. He then applied for asylum, but withdrew the application when the Immigration Judge (IJ) granted him voluntary departure to France by December 15, 1996. Bissoo was still in the United States in October 1996, when he married a United States citizen whom he had met in August of that year. On November 25, 1996, his wife filed an 1-130 petition for an alien relative on his behalf and an 1-485 application for adjustment of status. On December 18, 1996, the INS returned the 1-485 application, explaining that Bissoo had to reopen his deportation case first. Bissoo hired an attorney to file motions to reopen and to extend his time for voluntary departure in immigration court, but neither motion was filed. His wife’s 1-130 petition filed on his behalf was approved in 1999. Bissoo remained in the United States for eleven years.
In September 2006, Bissoo sought sua sponte reopening in immigration court, in order to clear the way for him to proceed with his application for an adjustment of status. He asserted that prior immigration counsel was ineffective for failing to pursue timely reopening and voluntary departure extension motions in 1996. Next, he claimed that he was not barred from pursuing an adjustment of status because more than five years had passed since he violated the voluntary departure order. Bissoo also alleged that erroneous advice given to him by an INS employee in Newark caused his failure to file a motion to reopen and to leave the country by December 15,1996.
The IJ denied Bissoo’s motion, finding that there was no discernible basis for granting the extraordinary remedy of sua sponte reopening. The IJ also rejected the ineffectiveness of counsel claim because Bissoo failed to comply with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA agreed with the IJ’s denial of *336reopening. First, the Board dismissed Bissoo’s appeal because his motion to reopen in the immigration court was untimely under 8 C.F.R. § 1008.2(c)(2). Second, like the IJ, the BIA declined to exercise its discretion to reopen removal proceedings sua sponte pursuant to 8 C.F.R. § 1008.2(a). Specifically, the Board rejected Bissoo’s arguments that his eligibility for adjustment of status and the hardship to his family constituted exceptional circumstances warranting reopening. The BIA also rejected Bissoo’s ineffective assistance of counsel claim as procedurally barred, and held that his claim of delay caused by an immigration officer’s erroneous advice lacked evidence to support it.1 Bissoo filed a timely petition for review.
Bissoo argues that the BIA should have equitably tolled the ninety-day filing period for filing a motion to reopen under 8 C.F.R. § 1003.2(c)(2). Specifically, he asserts that an Immigration Officer’s erroneous advice led him to follow the wrong procedure, which, in turn, caused him to file an untimely motion to reopen. The Government asserts that we lack jurisdiction to consider Bissoo’s argument because he failed to exhaust it before the Immigration Court or the BIA.
Our jurisdiction is limited under § 242(d)(1) of the INA to cases where the petitioner “has exhausted all administrative remedies available to the alien as of right....” 8 U.S.C. 1252(d)(1); see Abdul-rahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). A petitioner has exhausted his administrative remedies if he raises all issues before the BIA. Under our liberal exhaustion policy, “so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted [his] administrative remedies.” Joseph v. Attorney General, 465 F.3d 123, 126 (3d Cir.2006). The exhaustion policy, however, does “not require the BIA to guess which issues have been presented and which have not.” Bin Lin v. Attorney General, 543 F.3d 114, 122 (3d Cir.2008). “[W]e will not punish the BIA by interfering in the administrative process with regard to issues that the BIA did not address.” Id.
Bissoo acknowledges that he did not specifically invoke the phrase “equitable tolling” before the BIA. He contends, however, that he raised the factual predicate for such a claim in detail, sufficient to put the BIA on notice of it. Bissoo’s notice of appeal and his brief appear to be devoted solely to justifying sua sponte reopening, the only ground upon which the IJ rejected his motion. But the very nature of Bissoo’s erroneous advice claim goes to delay, which is relevant to the timeliness issue. We need not decide whether Bissoo raised the equitable tolling claim before the BIA, however. Even if Bissoo did not, we conclude that the BIA reached the issue sua sponte. Id. at 123-24 (holding that we have jurisdiction where the BIA engages in sua sponte consideration of a claim). Without calling it “equitable tolling,” the BIA considered the erroneous advice claim and rejected it for lack of evidentiary support. Based on the foregoing, we are satisfied that we have jurisdiction to consider Bissoo’s claim.
We have jurisdiction to review the BIA’s decision to deny the motion to reopen as untimely under 8 C.F.R. § 1003.2(c)(2). We review the Board’s denial of a motion to reopen as untimely for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 170-71 (3d Cir.2002). Under this stan*337dard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary to law. Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001); see also Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). Here, in the absence of any indication in the record to the contrary, we conclude that the BIA’s denial of Bissoo’s motion to reopen as untimely because it was filed almost ten years too late was not arbitrary, irrational, or contrary to law. We hold that the BIA acted well within its discretion in denying Bissoo’s equitable tolling claim.2 According to Bissoo’s affidavit, his only evidence, the immigration officer’s alleged erroneous advice, was countermanded two months later, in December 1996, by the Immigration and Naturalization Service, which explained that he had to file a motion to reopen. (J.A. at 22-23, ¶¶ 8-11.) Bissoo failed to provide any evidence establishing that the immigration officer’s erroneous advice caused him to miss the deadline for filing a timely motion to reopen for almost ten years. The Board’s denial of Bissoo’s ineffectiveness of counsel claim as procedurally barred is not arbitrary, irrational, or contrary to law. Bissoo has conceded that he failed to follow the requirements for raising such a claim pursuant to Matter of Lozada. (See Petitioner’s Brief at 11.) We will therefore deny the petition for review.
To the extent that Bissoo challenges the BIA’s decision not to invoke its discretionary authority to reopen under 8 C.F.R. § 1003.2(a), we agree with the Government that we lack jurisdiction to review it. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003).
Accordingly, the Government’s motion to dismiss is granted in part, and we will dismiss for lack of jurisdiction Bissoo’s petition for review of the Board’s decision to deny reopening as a matter of discretion pursuant to 8 C.F.R. § 1003.2(a). We will deny the petition for review as to the BIA’s decision that the motion to reopen was untimely pursuant to 8 C.F.R. § 1003.2(c)(2).
. Bissoo correctly notes that the BIA mistakenly identified the IJ as the source of the alleged erroneous advice, rather than the Immigration Officer. The BIA's mistaken characterization has no bearing on our decision here.
. Although the Government addressed equitable estoppel in its brief, Bissoo asserts that he “is not claiming equitable estoppel...." (Reply Br. at 5.) Hence, we will not consider the issue.
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OPINION
PER CURIAM.
Kelly Conard appeals from the District Court’s grant of summary judgment in favor of Appellees in her employment discrimination lawsuit. For the following reasons, we will affirm the District Court’s order.
Conard worked as a Police Communications Operator (“PCO”) with the Pennsylvania State Police (“PSP”) from 1985 until November 2002, when she voluntarily retired to join her husband who was serving in the military in Texas. In August 2004, Conard notified the staff of the PSP that she wanted to come back to work as a PCO. The selection process for the PCO position consisted of an interview and a background investigation. The PSP interviewed Conard for the PCO position but she was not selected because the results of the background investigation were unsatisfactory. Specifically, Appellees Hile and Tripp, as well as a former co-worker, told the trooper conducting the background investigation that Conard abused sick leave *339during her previous employment and had to be placed on leave restriction. The background investigator also found that Conard’s credit history was troublesome because she was delinquent on several of her accounts. Further, the investigation revealed that Conard left a former job in Texas as an emergency dispatcher in 2003 due to stress. The PSP ultimately hired another female applicant for the position.
In her lawsuit, Conard alleged that Hile and Tripp retaliated against her in violation of her rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by not recommending her for the PCO position. She alleged that Hile treated her differently after she called his supervisor to request assistance for troopers in an emergency situation. She also brought a claim of gender discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act against the PSP. After the close of discovery, the Appellees moved for summary judgment. At oral argument before the District Court, Conard withdrew all of her claims except for the First Amendment retaliation claim and the equal protection claims against Hile and Tripp. The District Court granted Appellees’ motion for summary judgment and entered judgment in their favor. Conard filed a timely notice of appeal challenging the District Court’s order.
We have jurisdiction over the final orders of district courts under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of Appellees’ motion for summary judgment. See Monroe v. Beard, 536 F.3d 198, 206 (3d Cir.2008). We apply the same standard in reviewing a motion for summary judgment as the District Court. Id. A motion for summary judgment should be granted only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c).
First, we agree with the District Court and Appellees that Conard’s equal protection claim is foreclosed by the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). In that case, the Court determined that the class-of-one theory, under which Conard brought her equal protection claim, is not applicable to the public employment context. Id. at 2148-49.1 Therefore, the District Court properly granted summary judgment on this claim.
We further agree that Conard failed to raise a genuine issue of material fact with respect to her First Amendment claim. The Supreme Court has held that when a public employee makes a statement during the course of her official duties, the employee is not speaking as a citizen for First Amendment purposes, and thus “the Constitution does not insulate [her] communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Only if the employee speaks on a matter of public concern or the government employer did not have an “adequate justification for treating the employee differently from any other member of the general public,” are the employee’s statements protected under the First Amendment. Id. at 418, 126 S.Ct. 1951.
Here, Conard alleges that Hile retaliated against her because she made a *340phone call to Hile’s supervisor about his failure to respond to a shooting incident. According to Conard, she “broke the chain of command” and called Hile’s supervisor so that he would assist two troopers who needed backup. (Appellant’s Br. at 3.) Inasmuch as Conard’s duties included answering phone calls regarding police services and dispatching messages to state troopers, Conard’s call to a state trooper regarding a police emergency was an act performed during the course of her duties. Conard’s arguments that the call was outside of her “job description” and contrary to the PSP manuals are unpersuasive. See Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951 (Formal job descriptions are neither necessary nor sufficient to demonstrate that a task is within an employee’s professional duties for First Amendment purposes.) Further, we agree with the District Court that Conard’s attire at work, Tripp’s refusal to approve a personal day, and Tripp’s criticism of Conard’s phone manners are not matters of public concern. Id. at 420, 126 S.Ct. 1951 (“[Wjhile the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’ ”) (citation omitted).
For the foregoing reasons, we will affirm the District Court’s order granting Appellees’ motion for summary judgment.2
. A plaintiff states a claim under the class-of-one theory if she can demonstrate that defendant intentionally treated her differently from others similarly situated and that there was no rational basis for such treatment. Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir.2008).
. Appellant's motion to supplement the record is denied. See Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3d Cir.1986) ("The only proper function of a court of appeals is to review the decision below on the basis of the record that was before the district court.”)
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OPINION OF THE COURT
FISHER, Circuit Judge.
Clark Motor Company, Inc. (“Clark Motor”) and its officers, Robert and David Clark, appeal from an order of the District Court granting summary judgment to Manufacturers and Traders Trust Company (“M & T”). See Clark Motor Co., Inc. v. Manufacturers and Traders Trust, Co., No. 4:07-CV-856 (M.D.Pa. Nov. 20, 2008). Clark Motor filed suit claiming damages for breach of contract, negligent misrepresentation, negligence, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In June 2003, Clark Motor entered into an agreement with M & T for a floor plan line of credit. Under the agreement, M & T provided financing for Clark Motor’s purchase of new, used, and program vehicles. When Clark Motor purchased a vehicle, it would enter information, including the vehicle identification number (‘WIN”) and the vehicle’s purchase price, into M & T’s Dealer Access System (“DAS”). M & T would then deposit funds for the purchase of the vehicle into Clark Motor’s checking account to allow for the purchase of the vehicle. After the vehicle was sold to a customer, Clark Motor would repay M & T with interest.
Clark Motor was owned by brothers Robert and David Clark. Robert Clark was the President and majority owner of Clark Motor, while David Clark was its minority owner and Vice-President. In July 2001, Clark Motor hired Sally Smith (“Smith”) to serve as office manager. Smith had been previously employed by Mifflin County Coalition to Prevent Teen Pregnancy (“Coalition”) and Lazer Pro Digital Media Group (“Lazer Pro”). (Appellant Br. at 7.) On January 8, 1999, Smith pleaded guilty to charges of fraudulently endorsing checks payable to the Coalition. Later, on May 14, 2001, Smith pleaded guilty to 22 counts of forgery, theft, and receiving stolen property relating to actions she took at Lazer Pro. (J.A. A237-240.)
No one at Clark Motor was aware of Smith’s criminal record when she was hired. Robert Clark became aware of Smith’s criminal past, at the latest, on February 10, 2003, when a restitution order was served on Clark Motor requiring it to deduct money from Smith’s salary.
Notwithstanding Smith’s history, Clark Motor gave Smith the pin number to the DAS after it entered into its agreement with M & T. Smith was therefore able to enter new and used cars into the system and cause funds to be transferred from the line of credit to Clark Motor’s checking account.
All parties agree that Smith acted fraudulently in her use of the DAS. Beginning in 2005, using information from a separate Chrysler Dealer Information System, Smith entered new vehicles into the DAS which were owned by other dealers. Smith also overvalued used cars, inflating the amount Clark Motor paid for those *343vehicles. All told, Smith entered over 35 new vehicles into the DAS that were never owned by Clark Motor. This fraud caused M & T to loan Clark Motor some $1.5 million more than it otherwise would have in order to fund Clark’s purchases.
The parties agree that Smith used roughly $100,000 of the fraudulently loaned money herself. While M & T asserts in its brief that the most likely scenarios are that the remaining $1.4 million was either taken by Robert and/or David Clark or used to cover Clark Motor’s operating losses, there is little by way of evidence in the record to show what happened to the remaining funds.
The agreement authorized M & T to audit Clark Motor’s inventory. M & T did carry out audits of Clark Motor’s inventory, but Clark Motor argues on appeal that these audits should have been more detailed. When performing an audit, M & T would check each vehicle entered into the DAS against the vehicles on the lot. When vehicles were missing from the lot, auditors would seek an explanation from Smith. There were several legitimate reasons why a vehicle might appear on the list for financing but not be physically present on Clark Motor’s lot at the time of the audit. Some vehicles were loaned by Robert Clark to his family and to other individuals. Other vehicles had been ordered from other dealers but had not yet arrived or had been taken by customers before Clark Motor remitted payment to M & T.
On December 19, 2006, M & T and Clark Motor executed a new agreement for financing with a substantially increased fine of credit. Smith’s fraud was subsequently uncovered in January 2007.
II.
The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1332. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review a District Court’s order granting summary judgment de novo applying the same standard as the District Court. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.2007). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001).
We exercise plenary review over the District Court’s interpretation of state law. Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 89 F.3d 976, 983 (3d Cir.1996).
III.
The District Court entered summary judgment for M & T. On appeal, Clark Motor claims that there were genuine issues of material fact with regards to several of its claims. Before the District Court, Clark Motor raised five claims, two of which, the breach of contract and negligent misrepresentation claims, are at issue in this appeal. We will consider each of the plaintiffs’ claims in turn.
A.
A plaintiff alleging breach of contract under Pennsylvania law must prove the existence of a contract between the parties, a breach of a duty imposed by the contract, and resulting damages. Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir.2003); see also CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.Ct.1999). There is no dispute that the parties had a contract, so we will consider whether the contract was breached.
Clark Motor claims that M & T breached the contract by funding its loan requests without proper documentation, failing to properly conduct required audits, breaching the duty of good faith and fair *344dealing, and providing loans in excess of the maximum amount set by the agreement.
We first consider whether the use of the DAS complied with the agreement’s documentation requirements. The Pennsylvania Supreme Court has stated that course of performance can be “perhaps the strongest indication of what the writing means.” Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736, 741 (1978). In this case, the District Court found that “the parties employed the DAS both before and after the 2004 and 2006 agreements governed their relationship. Therefore, the course of dealing and course of performance indicate that both parties agreed the submission of the required information via the DAS would satisfy the agreements.” (J.A. A33.)
There is strong evidence in the record that suggests that Clark Motor not only consented to the use of the DAS, but did so enthusiastically. The agreement allowed loan money to be advanced to Clark Motor at the request of any person authorized by the President, Vice President, or Treasurer of Clark Motor. Because Smith was provided with a PIN by Clark Motor to use the DAS, her use of the system was authorized by the agreement.
Clark Motor benefited from the use of the DAS to promptly receive financing for its vehicle inventory. According to Clark Motor’s Sales Manager, Jeff Hollingshead, the loss of the ability to receive prompt financing using the DAS, after Smith’s fraud was uncovered, contributed to Clark Motor’s failure as a business. (J.A. A551-52.)
Plainly the use of the DAS was considered by both parties to be an efficient and convenient way of doing business to which both parties acquiesced over a period of three years. Clark Motor cannot now decide that the conduct in which it voluntarily participated constituted a breach on the part of M & T. Cf. Agathos v. Starlite Motel, 977 F.2d 1500, 1509 (3d Cir.1992) (“[A] course of performance by one party accepted or acquiesced in without objection by the other may be evidence of an agreed modification or waiver of a written term.”).
We find that based on the course of performance it is clear both parties agreed that the information logged into the DAS satisfied the requirements of the agreement.
We also concur with M & T that even if the DAS did not satisfy the documentation requirement, there was, nonetheless, no breach of contract. The documentation was a condition precedent to M & T’s obligation to loan money. See Am. Leasing v. Morrison Co., 308 Pa.Super. 318, 454 A.2d 555, 559 (1982) (citing Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d 1001, 1016 (3d Cir.1980)). Without the required paper work, M & T was under no obligation to loan money to Clark Motor. See Keystone Tech. Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223, 1227-28 (Pa.Super.Ct.2003) (citing Acme Mkts., Inc. v. Fed. Armored Express, Inc., 437 Pa.Super. 41, 648 A.2d 1218, 1220 (1994)). M & T, in its discretion, could waive the paperwork requirement and loan money without it. See Prime Medica Assocs. v. Valley Forge Ins. Co., 970 A.2d 1149, 1156-57 (Pa.Super.Ct.2009).
The condition precedent only existed to protect M & T from fraud. The requirement that paperwork be sent to M & T cannot possibly be interpreted as a provision designed to protect both parties because there is no way in which sending paper work to M & T would protect Clark Motor against fraud perpetrated by M & T. Clark Motor could have employed internal procedures to protect itself against employees like Smith who would steal from the company. M & T’s decision to waive a *345condition precedent to loaning money cannot constitute a breach.
B.
Clark Motor asserts that M & T breached its contract by failing to thoroughly audit Clark Motor’s inventory. M & T relied on explanations provided by Clark Motor employees as to why vehicles on the Floor Plan were not physically present on Clark Motor’s lot. In Clark Motor’s view, M & T should not have accepted these explanations and should have undertaken a more thorough audit.
The District Court found no duty imposed by any of the agreements between the parties for M & T to audit Clark Motor’s inventory and we likewise find no such duty existed. While the financing agreements between the parties gave M & T the right to conduct an audit, the agreements did not require the audits. M & T had the right to audit but not the duty to do so. See Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 (1983).
Because there was no duty to perform the audits in the first place, we concur with the District Court that there is no reason to examine whether M & T was negligent in performing the audits.
C.
Clark Motor next argues that M & T breached the agreement by providing financing for used vehicles in excess of their NADA values.
The 2003 and 2004 Agreements state that financing for used vehicles was subject to restrictions set by M & T. Among these restrictions was “the percentage of NADA value.... ” 2003 Floor Plan Agreement, ¶ 4.2.2 (J.A. A251); 2004 Floor Plan Agreement ¶ 4.2.2 (J.A. A265.) A precise percentage, however, was not defined. With regard to used cars, the 2006 Agreement provided that M & T would loan the lesser of “(I) the Borrower’s acquisition price” or “(II) one hundred percent (100%) of the current NADA wholesale/trade value for such Used Motor Vehicle.” 2006 Loan Agreement ¶ 1.3(b) (J.A. A278.)
We agree with the District Court that M & T could not have breached on these terms. Because there was no percentage given in the 2003 or 2004 agreements, M & T could not have breached by financing more than 100 percent of the NADA value. Instead, the NADA value was only one factor in determining whether M & T would finance the vehicles. Even after the 2006 Agreement was signed and the 100 percent cap was in place, M & T did not breach because the record shows that Clark Motor requested the increased financing. The District Court cited a number of Pennsylvania cases, including Byrne v. Kanig, 231 Pa.Super. 531, 332 A.2d 472, 475 (1974), which make clear one party to a contract may not request that the other party breach an agreement and then claim a breach of contract on the breach he himself requested.
Additionally, the cap on the amount of a vehicle’s value that M & T would finance was in place solely for the protection of M & T. If M & T were to loan more than a vehicle was worth, then it would find itself unsecured for the difference between the amount it loaned and the vehicle’s actual value. M & T relied on this contract provision to protect itself from being placed in an unsecured position. Clark Motor, on the other hand, did not need to rely on this provision because it was the party purchasing the vehicle. If a vehicle was priced higher than Clark Motor could sell it, then Clark Motor could refuse to make the purchase. It needed no protection from the financing agreement.
M & T’s willingness to waive the provision to aid Clark Motor does not constitute a breach of contract. Formigli Corp. v. Fox, 348 F.Supp. 629, 646 (E.D.Pa.1972) *346(citing Mayer Bros. Constr. Co. v. Am. Sterilizer Co., 258 Pa. 217, 101 A. 1002 (1917); McKenna v. Vernon, 258 Pa. 18, 101 A. 919 (1917)). For these two reasons, M & T did not breach the contract by loaning amounts in excess of the NADA value for used cars.
M & T also did not breach the agreements by temporarily increasing Clark Motor’s credit limit. The 2004 Agreement states that “[M & T] may, at the request of the Borrower and in [M & T]’s sole discretion, make Loans to the Borrower ... in excess of the Approved Principal Amount.” (J.A. A264 ¶ 2.2.) The District Court concluded that this provision allowed M & T to make a loan in excess of the credit limit if such a loan was requested by Clark Motor. The District Court declined to read into the provision a requirement that M & T “provide Clark Motor written notification of something it recently requested and of which it was already aware.” (J.A. A41.) Additionally, because M & T sent Clark Motor both daily floor plan activity reports and summaries each month showing how much credit was available, Clark Motor cannot claim it was unaware that its loan requests were in excess of its credit limit under the agreement. We thus And M & T did not breach the agreement by failing to provided written notification that it was providing financing in excess of Clark Motor’s credit limit.
D.
There is a second basis for affirming the District Court’s grant of summary judgment on the breach of contract counts.1 In a breach of contract case, damages are a necessary element of the claim. Ware, 822 F.3d at 225. In this case, M & T actually paid Clark Motor all of the money that Clark is now claiming as damages. Clark Motor had control over the funds from the date they were requested in the DAS to the present. Even if M & T breached the contract by loaning money to Clark Motor, Clark Motor could have avoided all damages by simply repaying the amount loaned in breach of the contract.
E.
We quickly dispose of Clark Motor’s claim that M & T violated the implied duty of good faith and fair dealing in the contract. As the District Court put it, Clark Motor is “essentially arguing that M & T breached the implied covenant of good faith and fair dealing by acquiescing to Clark Motor’s request for additional funding.” (J.A. A44.) Clark Motor could have put additional procedures in place to ensure that its employees did not request financing either above the existing credit limit or for vehicles Clark Motor did not purchase. Clark Motor requested financing that went beyond M & T’s duty to perform under the contract, and in fact M & T performed beyond what the contract required.
In Pennsylvania, implied covenants do not impose an obligation to perform beyond what a contract requires. Cable & Assocs. Ins. Agency v. Commercial Nat’l Bank of Pa., 875 A.2d 361, 364 (Pa.Super.Ct.2005). Because M & T breached no contractual duty, it likewise did not violate the duty of good faith and fair dealing.
F.
Clark Motor’s negligent misrepresentation claim alleges that M & T provided false information in its audit summaries *347and failed to exercise reasonable care in conducting and communicating the audit results to Clark Motor.
The District Court held that the gist of the action doctrine barred Clark Motor’s negligent misrepresentation claim. The gist of the action doctrine exists “to maintain the conceptual distinction between breach of contract claims and tort claims.” eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa.Super.Ct.2002). Under the gist of the action doctrine, a plaintiff may not through artful pleading attempt to frame a breach of contract claim as a tort claim. The differences between tort and contract claims in Pennsylvania have been described as follows: “Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.” Bash v. Bell Tele. Co., 411 Pa.Super. 347, 601 A.2d 825, 829 (1992).2
On appeal Clark Motor argues that the negligent misrepresentation claim should have been permitted in light of the District Court’s ruling on the breach of contract claim. Because the District Court found that there was no duty to audit imposed by the contract, Clark Motor contends that the gist of the action doctrine should not be a barrier to proceeding with a tort action.
The social duty needed to maintain a tort claim arises, according to Clark Motor, from Section 552 of the Restatement (Second) of Torts, which provides in part:
One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Restatement (Second) of Torts § 552. According to Clark Motor, because M & T had the right to audit the vehicle inventory and provided the results of these audits to Clark Motor in the course of its business and in its pecuniary interest, the duty to exercise reasonable care and competence arose from the Restatement provision rather than the contract itself.
Clark Motor’s argument fails for two reasons. First, applying the gist of the action doctrine, M & T’s right to conduct audits of Clark Motor’s vehicle inventory arose only because of the contract between the parties. Any obligation on M & T’s part to ensure the accuracy of the information arose from the implied duty of good faith between parties to a contract, not the Restatement of Torts.
Next, we find, as the District Court suggested in a footnote, that Clark Motor is the source of the false information. (J.A. A48, n. 7.) When M & T found vehicles missing from Clark Motor’s inventory, they sought an explanation from Clark Motor employees. M & T accepted the explanations and then provided a courtesy copy of the audit to Clark Motor. The Restatement provides liability against one who “supplies false information for the guidance of others.” Restatement (Second) of Torts § 552(1). In this case, the false information was supplied by Clark *348Motor when it provided M & T with inaccurate explanations regarding the missing vehicles. There is no evidence to suggest that M & T believed Clark Motor provided it with false information in the audit, and, therefore, nothing to suggest that M & T believed it was repeating false information when it provided courtesy copies of the audits to Clark Motor. It is also difficult to construe the audit forms M & T gave Clark Motor as providing guidance, when they merely restated the (false) information that Clark Motor already had its disposal. In sum, we share the District Court’s skepticism of a claim where “a party ... wishes to be compensated for deceiving itself.” (J.A. A48, n. 7.) M & T was therefore entitled to summary judgment on the negligent misrepresentation claim.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. Although the District Court did not reach this issue, we may affirm the District Court on any grounds supported by the record. See Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 303 (3d Cir.2008).
. While the Pennsylvania Supreme Court has never adopted the gist of the action doctrine, the Pennsylvania Superior Court has applied the doctrine. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 577 (Pa.Super.Ct.2003); eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa.Super.Ct.2002). This Court previously applied the gist of the action doctrine applying Pennsylvania law in Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 103-04 (3d Cir.2001).
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*349OPINION
SMITH, Circuit Judge.
In this declaratory judgment action, the District Court held that appellant Coun-tryway Insurance Co. (“Countryway”) had a duty to defend its insured, Paul Slaugen-houp, in a negligence lawsuit brought by Dustin C. Sams (“Sams”) against Paul and his father, Walter Slaugenhoup.1 Coun-tryway appeals. We will reverse.
I.
Paul Slaugenhoup was the owner of a farmowner’s insurance policy issued by Countryway. His policy provided personal liability coverage, under which Country-way agreed to defend Paul in lawsuits seeking damages for bodily injury or property damage, provided that coverage was not otherwise excluded by the policy.
Paul and his father Walter were joint owners of a combine used on the Slaugen-houp farm. On July 17, 2006, Paul and Walter set out to repair a tire on their combine. Paul removed the tire, loaded it onto Walter’s pickup truck, and told his father to “go get her fixed.” Walter was 93 years old, had a history of glaucoma, and was not wearing his glasses despite a driver’s license requirement that he wear corrective lenses when operating a motor vehicle. As Walter drove to get the tire fixed, his vehicle collided with Sams’s vehicle. Sams was severely injured.
Through his guardian, Sams filed a two-count complaint against the Slaugenhoups in the Court of Common Pleas for Clarion County, Pennsylvania. Count I alleged that Walter operated his motor vehicle negligently. Count II alleged that Paul was negligent under § 302 of the Restatement (Second) of Torts, whieh provides that “an act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person.” According to Sams, Paul was negligent when he placed the tire in Walter’s pickup truck and asked Walter to transport the tire for repair, knowing that his father was incapable of driving safely.
On November 21, 2007, Countryway filed a declaratory judgment action pursuant to 28 U.S.C. § 2201 in the United States District Court for the Western District of Pennsylvania.2 Countryway sought a declaration that it had no duty to defend or indemnify Paul in the negligence action brought by Sams, because Exclusion 1(f) of Paul’s policy excluded coverage for that claim. The District Court held that Countryway had a duty to defend Paul under the policy, and granted summary judgment for the Slaugenhoups and Sams. Countryway filed this timely appeal.3
II.
This Court exercises plenary review over the District Court’s grant of summary judgment. Camiolo v. State Farm, 334 F.3d 345, 354 (3d Cir.2003). Furthermore, the interpretation of an insurance exclusion is a question of law, over which this Court exercises plenary review. Canal Ins. Co. v. Underwriters at Lloyd’s London, 435 F.3d 431, 434 (3d Cir.2006). The parties agree that Pennsylvania substantive law applies.
*350III.
Paul Slaugenhoup’s policy provided personal liability coverage (“coverage L”), subject to certain exclusions. Exclusion 1(f), the only exclusion at issue in this appeal, states that coverage L does not apply to:
“bodily injury” or “property damage” which results from liability imposed by law on an “insured” for the use of a “motorized vehicle,” aircraft, or watercraft, except if coverage is provided for by an Incidental Motorized Vehicle or Watercraft Coverage.4
The District Court found this exclusion ambiguous, and therefore interpreted it in favor of coverage. The District Court offered three reasons for its conclusion that Exclusion 1(f) was ambiguous. First, it thought it unclear whether Paul “used” the pickup truck involved in the accident, since he neither owned nor operated it at any time relevant to the accident. Second, the District Court believed that the policy was unclear as to whose “use” of a vehicle would trigger the exclusion, and whether the exclusion applied in cases of vehicle use by anyone other than the insured. Third, the District Court distinguished Exclusion 1(f) from the exclusions in other cases in which Pennsylvania courts had applied motor vehicle exclusions in general liability policies. See Wilcha v. Nationwide Mut. Fire Ins. Co., 887 A.2d 1254 (Pa.Super.Ct.2005); Erie Ins. Exch. v. Transamerica Ins. Co., 352 Pa.Super. 78, 507 A.2d 389 (1986); Pulleyn v. Cavalier Ins. Corp., 351 Pa.Super. 347, 505 A.2d 1016 (1986). The Court pointed out that the exclusions applied in Wilcha, Erie, and Pulleyn excluded coverage for bodily injury “arising from” or “arising out of’ motor vehicle use, while the Countryway exclusion contained no such “arising from” language. The District Court held that the absence of such language contributed to the policy’s ambiguity.
The District Court was correct that under Pennsylvania law, ambiguities in an insurance policy are to be construed against the insurer. 401 Fourth St., Inc. v. Investors Ins. Group., 583 Pa. 445, 879 A.2d 166, 171 (2005). That rule is inapplicable here, however, because Exclusion 1(f) is not ambiguous.
The District Court erred in asking as a threshold question whether Paul Slaugen-houp used a motor vehicle. The Court should have first asked whether the exclusion even required that the insured “use” the motorized vehicle. In our view, it does not. Exclusion 1(f) states that the policy does not provide coverage for bodily injury resulting from (1) liability imposed by law (2) on an insured (3) “for the use of a motorized vehicle.” All three of those requirements are met here. The Sams negligence action sought to (1) impose liability through law (2) on Paul, the insured (3) “for the use” of the pickup truck. The “use” in question, of course, was Walter’s use of his pickup truck to transport the tire, which resulted in the accident and without which Sams would have no claim against Paul. As Countryway notes, the operative word in the exclusion is “use.” Walter was using a motor vehicle when he struck and injured Sams, and that use was sufficient to trigger Exclusion 1(f). Nothing in the policy states that Exclusion 1(f) applies only to Paul’s use of a vehicle. Because there is no need to decide whether Paul used the pickup, one of the chief sources of ambiguity identified by the District Court vanishes.
The District Court correctly noted that “the policy language begs the question of *351who must be using the vehicle in order for coverage to be excluded.” The Court thought that the policy’s failure to identify whose use of a vehicle would trigger the exclusion also suggested that the exclusion is ambiguous. We disagree. A more natural reading of the policy is that Country-way did not identify a specific person whose vehicle use would trigger the exclusion because it did not intend to limit the exclusion based on the identity of the user. Rather, it meant to exclude all coverage for liability imposed by law as the result of motor vehicle use — by anyone. See, e.g., Hanson v. North Star Mut. Ins. Co., 71 F.Supp.2d 1007, 1014 (D.S.D.1999) (interpreting nearly identical motor vehicle exclusion to exclude coverage, when the insured loaned an ATV to a young woman whose use of the ATV resulted in injuries and led to a lawsuit against the insured).
The District Court’s analysis effectively rewrites the policy to exclude “bodily injury ... which results from liability imposed by law on an insured for the use of a motorized vehicle by the insured.” The exclusion could have been written to say just that, but it was not. Notably, other exclusions in the policy are explicitly limited to the actions of the insured, while Exclusion 1(f) is not. For example, Exclusion 1(c) excludes coverage for “bodily injury ... which results from the ownership, operation, maintenance, [or] use ... of motorized vehicles ... owned or operated by or rented to or loaned to an insured ” (emphasis added). Similarly, Exclusion l(j) applies to “bodily injury ... which is expected by, directed by, or intended by the insured; or that is the result of intentional and malicious acts of the insured ” (emphasis added).
Clearly, Countryway knew how to limit an exclusion to the actions of the insured when it intended to do so. The presence of such limiting language in other exclusions, coupled with its absence from Exclusion 1(f), demonstrates that Exclusion 1(f) was not intended to be so limited. Reading the phrase “by the insured” into Exclusion 1(f) would be inconsistent with Pennsylvania law, which honors the intent of the parties evidenced by the language of the contract. See, e.g., Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999) (where “the language of a contract is clear and unambiguous, a court is required to give effect to that language ... [and must not] distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity”).5
Attempting to escape the plain language of Exclusion 1(f), Sams insists that his negligence claim against Paul is not connected to any “use” of a motor vehicle. Sams emphasizes that he has not asserted claims against Paul for vicarious liability, negligent entrustment, or negligent supervision of Walter’s use of the pickup. Instead, he limits his negligence allegations against Paul to two specific acts: placing the tire in Walter’s truck, and requesting Walter to drive the tire for repair. Neither of those acts, Sams argues, implicates the use of a motor vehicle, and therefore neither falls within the exclusion.
Pennsylvania courts interpreting motor vehicle exclusions have faced similar argu*352ments in negligent entrustment cases, and have consistently rejected attempts to divorce allegations of negligent entrustment from the excluded “use” of a vehicle that actually causes the plaintiffs injuries. See, e.g., Pulleyn, 505 A.2d at 1020. In Pulleyn, a man driving his employers’ vehicle crashed into another vehicle and killed two of the passengers. The victims’ family sued the employers for negligent entrustment of their vehicle. The issue was whether the employers’ insurer was required to defend them in light of the motor vehicle exclusion in their liability policy, which excluded “bodily injury or property damage arising out of the ownership ... operation, [or] use ... of any other automobile or aircraft operated by any person in the course of his employment by any insured.” Id. at 1018. The victims argued that this exclusion did not preclude coverage for their negligent entrustment claim because the entrustment was separate and distinct from the use of the vehicle that had caused their injury. The court rejected that distinction and held that the policy excluded coverage for the negligent entrustment claim, because “liability giving rise to the tort is not actually triggered until the motor vehicle is used in a negligent manner resulting in injury.” Id. at 1020 (quoting Mich. Mut. Ins. Co. v. Sunstrum, 111 Mich.App. 98, 315 N.W.2d 154, 157 (1981)). It was not the entrustment of the vehicle to the employee, the court reasoned, but the employee’s use of the vehicle that gave rise to the insured’s alleged liability. Id. at 1020.
Other Pennsylvania cases involving motor vehicle exclusions have similarly rejected attempts to separate allegations of negligent entrustment from the use of the vehicle that caused injury. See, e.g., Erie, 507 A.2d at 394 (rejecting the view that “negligent entrustment of the automobile” is “separate from the use of the vehicle” and holding that motor vehicle exclusion in a homeowner’s policy excluded coverage for negligent entrustment claim); Wilcha, 887 A.2d at 1259 (holding that a homeowner’s policy excluding coverage for “bodily injury ... arising out of the ownership, maintenance, or use of a motor vehicle” owned or operated by an insured also excluded coverage for a negligent entrustment claim, because “the use of the vehicle [was] an integral part of the tort of negligent entrustment”).6
Admittedly, Pulleyn, Eñe, and Wilcha are distinguishable in that they involved allegations of negligent entrustment. Here, there is no allegation of negligent entrustment, nor could there be, since Walter was driving his own truck at the time of the accident. Nevertheless, we believe that the reasoning employed in those cases forecloses Sams’s attempts to separate his negligent delegation allegations from the use of the vehicle that actually gave rise to his claims. Here, Walter’s use of the pickup truck is “integral” to Sams’s allegations against Paul, Wilcha, 887 A.2d at 1259, just as the use of the vehicle was integral to the negligent entrustment claims in Pulleyn, Erie, and Wilcha. As in those cases, there could be no negligence claim against the insured but for someone’s — ie., Walter’s — “use” of a motor vehicle.
*353IV.
An insurance policy is ambiguous “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 519 A.2d 385, 390 (1986). Exclusion 1(f) is not ambiguous. It excludes coverage for liability imposed by law resulting from the use of a motorized vehicle, regardless of whose use of the motor vehicle caused the bodily injury. Sams’s lawsuit clearly seeks to impose liability on Paul “for the use” of a motorized vehicle — specifically, the use of a pickup truck by Walter. Therefore, coverage is excluded, and Countryway has no duty to defend.
We will reverse the order of the District Court granting summary judgment for the Slaugenhoups and Sams. The case will be remanded, and the District Court is instructed to enter judgment in favor of Countryway.
.The father's name is Walter C. Slaugenhoup and the son's given name is Walter P. (Paul) Slaugenhoup. For ease of reference, we will refer to the father as "Walter" and the son as "Paul.”
. The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1).
. This Court has jurisdiction under 28 U.S.C. § 1291.
. The parties agree that no coverage is provided by an Incidental Motorized Vehicle or Watercraft Coverage.
. The District Court also overstated the significance of the absence of “arising from" language. It assigned great weight to the fact that, unlike the exclusions in Pulleyn, Erie, and Wilcha, the Country way exclusion did not contain the words "arising from” or "arising out of.” The District Court implied that the presence of those words in Pulleyn, Erie, and Wilcha was somehow central to those courts' analyses. It was not. None of those cases turned on the "arising from” language in the policies. The presence of "arising from” language may be sufficient for an insurer to effect a broad motor vehicle exclusion, but there is no suggestion in any of those cases that it is necessary to do so.
. Accord Bankert v. Threshermen's Mut. Ins. Co., 110 Wis.2d 469, 329 N.W.2d 150, 156 (1983). In Bankert, the court held that a homeowner's policy excluding coverage for the “ownership, operation, maintenance or use of automobiles while away from the insured premises” did not provide coverage for a negligent entrustment claim when the alleged negligence entrustment occurred on the premises but the injury occurred away from home. The court refused to separate the negligent entrustment from tire actual “use” that caused the injury, because “the parents' acts could not render them liable without their son's operation of the vehicle.” Id.
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FISHER, Circuit Judge,
dissenting.
I write separately to express disagreement with my colleagues’ conclusion that Exclusion 1(f) is not ambiguous. I agree the majority applied the correct Pennsylvania law governing contract interpretation, but its holding is incorrect. I believe Exclusion 1(f) is ambiguous, as it is subject to two reasonable interpretations. Further, the majority’s analysis of the relevant case law, while thorough, relies on cases where the underlying negligence claim is for negligent entrustment. As the underlying cause of action in the instant case is for negligent supervision, and not for negligent entrustment, I do not agree with the conclusions drawn from those eases. Therefore, I would affirm the District Court’s finding that Exclusion 1(f) is ambiguous and that the ambiguity should be construed in favor of the insured, thereby requiring coverage.
The question of an ambiguity “is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). The exclusion in question here has two equally reasonable meanings.
First, the exclusion can reasonably be read to exclude liability for any injury caused as a result of the use of a motor vehicle. ■ This interpretation allows for anyone, not only the insured, to be operating the vehicle in order for the exclusion to apply. Second, it is reasonable to interpret the clause as requiring that the “insured,” in this case Paul, be the one using the motor vehicle, either through ownership or actual physical use. Under this reading, the insured would have to have some type of connection to the motor vehicle at issue.
The ability to read Exclusion 1(f) in two different, yet equally reasonable, ways leads me to the conclusion that the clause is indeed ambiguous. While we are bound to interpret a policy to avoid ambiguities, not to find them, neither interpretation of the policy language violates this principle. City of Erie v. Guaranty Nat’l Ins. Co., 109 F.3d 156, 162-64 (3d Cir.1997). Rather, each has equal merit and comes directly from the text of the exclusion.
In brushing aside Sams’ assertion that Exclusion 1(f) does not apply because his negligence claims against Paul do not involve a motor vehicle, the majority relies on eases applying the doctrine of negligent entrustment. Sams’ complaint does not seek to hold Paul liable for negligent en-trustment, but for (1) placing the tire in his father’s truck, and (2) requesting his father to transport the tire for repair. Sams does not seek to hold Paul liable for *354his use of a motor vehicle, but only for negligently allowing his father to transport a tire.
Negligent entrustment, by its very definition, will always connect an insured to the motor vehicle in question.7 The insured in these negligent entrustment cases always owned, controlled, or employed the motor vehicle that caused the harm. If the insured did not have one of these relationships to the vehicle, there could be no claim of negligent entrustment. Transposing the legal conclusions from these cases onto a case involving negligent supervision or delegation under § 302A of the Restatement (Second) of Torts is plainly incorrect. The opinion goes as far as to acknowledge that “there is no allegation of negligent entrustment, nor could there be, since Walter was driving his own truck at the time of the accident.” Majority Op. at Part III. The majority, in spite of this acknowledgment, nevertheless relies heavily on the reasoning in these factually distinguishable cases.
The majority further relies on Exclusions 1(c) and l(j) to support its conclusion that Exclusion 1(f) is not ambiguous. The opinion asserts that the language in these exclusions demonstrates that “Countryway knew how to limit an exclusion to the actions of the insured when it intended to do so,” but chose not to include such language in Exclusion 1(f). Majority Op. at Part III. I find this reasoning unconvincing. Exclusion 1(c) excludes coverage for “bodily injury ... which results from the ownership, operation, maintenance, [or] use ... of motorized vehicles ... owned or operated by or rented to or loaned to an insured.” The majority emphasizes that this exclusion includes the “owned or operated” language and that Exclusion 1(f) does not. Exclusion 1(c) is, in fact, designed specifically to address claims of negligent entrustment against the insured. Negligent entrustment requires control over another person or item. Thus, the very definition of negligent entrustment dictates that the “owned or operated” language in this clause is required to give it effect. If Countryway wished to exclude coverage for negligent entrustment, it had no choice but to include the “owned or operated” language. This is no indication that Countryway made a conscious decision not to limit Exclusion 1(f) to apply only to the insured’s use of a motor vehicle. Further, Exclusion l(j) applies to “bodily injury ... which is expected by, directed by, or intended by the insured; or that is the result of intentional and malicious acts of the insured.” The majority emphasizes that this exclusion contains “by the insured” as limiting language. I find this not to be language of limitation but, rather, language of identification. I am unconvinced that either of the above mentioned exclusions are indicative of Coun-tryway choosing not to limit Exclusion 1(f) only to the actions of the insured.
In sum, Exclusion 1(f) can be interpreted in two reasonable ways. First, the exclusion can be read to disclaim coverage any time a motor vehicle is involved in causing liability to be imposed on the insured, regardless of the insured’s use of or control over the vehicle. Second, the exclusion can be read to apply only when the insured is the person “using” the motor vehicle, either through physical use, ownership, or control over the user of the vehicle. As such, Exclusion 1(f) is ambiguous and the ambiguity of the Exclusion *355should be construed against the insurer and in favor of the insured, thereby providing coverage. For this reason, I would affirm the order of the District Court granting summary judgment for the Slau-genhoups and Sams on Countryway’s Declaratory Judgement action.
. Restatement (Second) of Torts § 308 provides: "It is negligent to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should have known that such person intends or is likely to use the thing or conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others."
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OPINION OF THE COURT
PER CURIAM.
Appellant Robin McIntyre, proceeding pro se, appeals the order of the District Court denying her motion to reopen. For the following reasons, we will vacate the District Court’s order and remand for further proceedings.
In October 2008, McIntyre filed in the District Court a complaint under Title VII alleging employment discrimination. During the screening process required by 28 U.S.C. § 1915 for actions filed in forma pauperis, the District Court determined— based on McIntyre’s statement that she had yet to file an EEOC complaint — that McIntyre had not yet exhausted her administrative remedies, as required to file a Title VII discrimination action. See Anjel-ino v. New York Times Co., 200 F.3d 73, 87-88 (3d Cir.1999). Accordingly, the District Court dismissed the complaint without prejudice and afforded McIntyre 30 days to file an amended complaint. McIntyre did not file an amended complaint— indeed, she could not, because the EEOC had not yet ruled. Two months later, the District Court dismissed the case and ordered it closed.
Several months later, on May 5, 2009, McIntyre received the EEOC determination and right to sue letter. In June, she filed a motion to reopen, to which she attached a copy of the EEOC decision dismissing her complaint. The District Court treated McIntyre’s motion to reopen as a motion for reconsideration under Federal Rule of Civil Procedure 59(e), and denied it on the merits. McIntyre then filed a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.1
Although the District Court construed McIntyre’s “motion to reopen” as a motion under Rule 59, her motion actually appears to be a request for relief from judgment under Civil Rule 60(b). See United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir.2003) (noting that Rule 59(e) is a device used to allege legal error, not merely request reconsideration). We therefore review the denial of her motion for abuse of discretion. See Brown v. Philadelphia Hous. Auth., 350 F.3d 338, 342 (3d Cir.2003).
Although the failure to pursue administrative remedies before filing a lawsuit may prevent a plaintiff from proceeding in federal court, see Wilson v. MVM, Inc., 475 F.3d 166, 174-75 (3d Cir.2007), this Court has held that failure to exhaust is an affirmative defense and should not be the basis of a sua sponte dismissal. See Ray v. Kertes, 285 F.3d 287 (3d Cir.2002). McIntyre’s later motion was her attempt, pro se, to reinstate proceedings after properly exhausting her remedies. While the better course would have been for her to file a new action, she should not be prejudiced by her choice to file a motion to reopen instead in artful drafting. If the District Court was not prepared to reopen the case, it should have directed her to file a new complaint in light of her clear right to sue.2 Now, 90 days *357has passed,3 and McIntyre, a pro se litigant, will have lost her right to sue notwithstanding her having taken affirmative steps to come back into court following exhaustion, if she is not afforded relief. We conclude that her motion should have been treated as a Rule 60(b) motion and granted by the District Court, since her exhaustion and right to sue was then clear.
Accordingly, we will summarily VACATE the order of the District Court and REMAND for further proceedings.
. The Clerk listed this appeal for possible dismissal due to a jurisdictional defect because McIntyre’s notice of appeal appeared on the District Court docket as a challenge to the District Court order dismissing her case. However, the District Court docket merely reflected a clerical error: McIntyre's notice of appeal only indicates a challenge to the denial of her "motion to reopen." In that regard, McIntyre’s appeal suffers no jurisdictional problem, and we need not consider whether jurisdiction might be asserted over the dismissal order.
. Alternatively, the district court could have construed the motion as a new complaint and opened a new case.
. McIntyre was required to file a civil action within 90 days of the EEOC decision. See 42 U.S.C. § 2000e-5(f)(l).
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OPINION
PER CURIAM.
Hector Huertas, proceeding pro se, has filed a petition for a writ of mandamus seeking to compel the United States District Court for the District of New Jersey to rule on a motion for default judgment and asking this Court to set aside a scheduled conference. We will deny the mandamus petition.
Huertas filed a complaint against Tran-sUnion, LLC, Experian, Inc., Doctor Ronald Brody, NRA Group, LLC, and Citi*358group, Inc. alleging violations of the Fair Credit Reporting Act, fraud, medical malpractice, libel, and slander. On August 21, 2009, Huertas filed a motion for default judgment against Brody because he had not responded to the complaint. On August 31, 2009, the District Court issued an order dismissing the action, stating that it had been reported that the parties had settled the matter.
Huertas wrote a letter to the District Court on November 12, 2009, requesting a ruling on his motion for default judgment against Brody. On November 23, 2009, the District Court issued an order reopening the case as to Huertas’s claims against Brody, noting that it had come to the Court’s attention that Brody was not a party to the settlement and that he remained in default. On December 10, 2009, the District Court scheduled a conference for January 12, 2010, with Huertas and Brody. Huertas seeks a writ of mandamus compelling the District Court to rule on his motion for default judgment and asks us to set aside the scheduled conference.
The writ of mandamus traditionally has been used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. In re Patenaude, 210 F.3d 135, 140 (3d Cir.2000) (citations omitted). The writ is a drastic remedy that is seldom issued and its use is discouraged. Id. A petitioner must show that he has no other adequate means to attain the desired relief and that the right to a writ is clear and indisputable. Id. at 141.
Docket management is committed to the sound discretion of the District Court. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Although mandamus relief may be warranted where a district court’s delay is tantamount to a failure to exercise jurisdiction, Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996), such is not the case here. Huertas’s action was dismissed shortly after he filed his motion for default judgment. The District Court reopened Huertas’s case as to Brody when Huertas notified the Court of the pending motion for default judgment. The District Court scheduled a conference shortly thereafter. The delay in adjudicating the motion for default judgment does not amount to a failure to exercise jurisdiction. Huertas has not shown that the right to a writ is clear and indisputable. Similarly, mandamus relief is not warranted as to Huertas’s request that we set aside the conference scheduled by the District Court. Huertas has not established a right to such relief. Huertas also has not asked the District Court to defer the conference or presented to that Court any argument as to why it should not hold the conference.
Accordingly, we will deny the petition for a writ of mandamus.
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OPINION OF THE COURT
PER CURIAM.
Asdrubal Cardenas Rincon and Luz Miriam Ossa Villegas, husband and wife, are citizens of Colombia who were charged with removability for entering the United States without valid entry documents. See Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I) ]. Rincon conceded removability, but applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”).1 Rincon claimed that he was persecuted in Colombia by the Nation*360al Liberation Army (“ELN”), a terrorist organization, because he worked with the Liberal Party to provide medical care to victims of the guerillas. Rincon alleged that the ELN threatened him with death multiple times beginning in May 1999. Scared by the threats, Rincon and his wife departed for the United States. Rincon claimed that he returned to Colombia in November 2001 after learning that his father had suffered a heart attack. Back in Colombia, the ELN allegedly attempted to kill him. According to Rincon’s testimony, he was riding a motorcycle at 10 p.m. on February 13, 2002, when a man exited a car and fired a gun at him. After driving around town to make sure he was not being followed, Rincon went to his parents’ house. When Rincon arrived, his father received a telephone call from someone identifying himself as a representative of the ELN, warning that while Rincon had escaped this time, he would not be “saved” the next time. Rincon testified that he reported the incident to the police the next day, but that he was not sure whether they investigated. Fearful for his life, Rincon departed again for the United States on February 17, 2002.
The Immigration Judge (“IJ”) denied relief, finding that Rincon’s account of the February 13, 2002, attempt on his life was not credible because of inconsistencies in his written applications, his testimony, and documentary evidence. The IJ also cited his failure to provide reasonably expected corroboration. The Board of Immigration Appeals (“BIA”) affirmed without opinion. Rincon filed a petition for review, and we granted the Government’s unopposed motion to remand the case to the Board to reassess whether the IJ’s adverse credibility determination was supported by the record. See Rincon, et al. v. Att’y Gen., 06-4136 (order entered on April 23, 2007). On remand, the BIA analyzed the record and concluded that the IJ’s credibility determination was not clearly erroneous.2 Rincon filed a timely petition for review.
We have jurisdiction under INA § 242 [8 U.S.C. § 1252], Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this Court reviews the decisions of both the BIA and the IJ. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). Our review of these decisions is for substantial evidence, considering whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Liv-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir.2009) (en banc) (quotation marks *361and internal citation omitted). We will uphold an adverse credibility determination under the substantial evidence standard “‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir.2008) (internal citation omitted). Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”3 INA § 242(b)(4) [8 U.S.C. § 1252(b)(4) ]; see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009).
The adverse credibility determination centered on allegedly differing accounts of the ELN’s efforts to kill Rincon on February 13, 2002. The record contains a police report, prepared the day after the shooting, which contains the following account:
[A]t arounfd] 10:00 PM in the evening, I was in the sector of Cali in the Alto Refugio neighborhood])] I was [driving] my father’s] motorcycle on Carrera 67 between [S]econd and [T]hird [S]treet, when a Renaul[t] car appeared[.] I cannot say the plate numbers nor the color since it was very dark[.] [F]rom there a person fired at me with a weapon[.] I was able ... to keep the motorcycle balance[d] and fortunately the shot did not reach me.... [The car] took a different direetion[.] I was going to my parents’] house whose address is the same where I live.
Administrative Record (“A.R.”), 528. The IJ concluded that this story “variefd] significantly” from Rincon’s testimony that he was shot at twice and the Renault was parked at the time of the shooting. We disagree. Rincon provided reasonable explanations for both of these perceived inconsistencies. For instance, Rincon explained during his testimony that he “didn’t tell [the police] about the second shot ... because I didn’t see it and at the that time I omitted it.” A.R. 374. Indeed, earlier in his testimony, Rincon stated that “I only heard a second shot but I did not see [it].”4 A.R. 303. When asked to explain why he had told the police that the Renault was moving, Rincon stated, “when I made the report, I saw the car, which was moving, and then it stopped. I said that the car had come out.... He came out and then he stopped and somebody then got out of the car.” A.R. 373. This account corresponds with Rincon’s earlier testimony that “a car parked, exited and parked. As I approached, somebody exited the vehicle.” A.R. 301. The explanation also is consistent with Rincon’s asylum interview and an addendum attached to his first asylum application, in which Rincon stated, respectively, that “someone came out of the car” and that “a man came out of a dark Renault that was parked across the street.” A.R. 482, 522-23. Notably, the IJ failed to acknowledge either of Rin-con’s explanations for the alleged discrepancies. In any event, they represent minor inconsistencies in Rincon’s description of a traumatic event. Cf. Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir.2006) (criticizing IJ for concluding that a “traumatic *362event” would be “forever seared in [the petitioner’s] memory”).
The adverse credibility determination also rested on discrepancies in Rincon’s account of his escape. In both his asylum interview and in the asylum application addendum, Rincon stated that he went to a friend’s house before returning to his parents’ home. A.R. 482, 523. Although Rin-con did not mention going to a friend’s house in his testimony, he did state that he did not immediately return to his parents house because he was afraid that he was being followed. A.R. 376-78. Notably, the IJ acknowledged that she “overlooked [her] obligation to ask [Rincon] to explain this discrepancy.” See Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006) (holding that “an IJ may not rest an adverse credibility finding on non-dramatic putative contradictions or incongruities in an alien’s narrative without first giving the applicant a chance to reconcile the testimony”). The asylum addendum also indicated that Rincon went to his parent’s house two hours after the shooting, but he testified that it “was in a half hour that I got home.” A.R. 357. We conclude that these inconsistencies are minor and do not support an adverse credibility determination, particularly in light of Rincon’s otherwise consistent account.5
Further, substantial evidence does not support the BIA’s conclusion that Rincon was unable to remember reporting the shooting incident to a human rights office. In addition to the police report, which indicated that it was made at 10:00 a.m. on February 14, 2002, the record also contained a statement from the Human Rights Chief at the Security Administrative Department (“DAS”), noting that Rin-con appeared there at 3:00 p.m. on February 14 to “request help due to the death threats and psychological terrorism.” A.R. 415. The IJ asked Rincon, “[d]id you go to more than one office to file a complaint the day after the shooting?” Rincon explained, “I didn’t consider them to be two offices. I went to the police and the DAS.... I consider them the same office. I went to both places but I didn’t think of one being different than the other. For me it’s the same office.” A.R. 380. We also perceive no inconsistency in the 5-hour difference between the reports. Indeed, Rincon’s description of going to the police in the morning is supported by the Human Rights Chiefs statement that Rin-con “presented [a] copy of the complaint submitted to the metropolitan police” when he appeared in the DAS office at 3:00 p.m. A.R. 415.
The BIA also agreed with the IJ that Rincon failed to establish that he was in Colombia from November 2001 to February 2002.6 In particular, the BIA stated that the “police and human rights complaints were not authenticated and are not reliable evidence of [Rincon’s] presence in Colombia on February 14, 2002, in light of the inconsistencies between [his] testimony and the police complaint, and his vague testimony regarding his visit to the human rights office.” We have already rejected the BIA’s reasoning concerning the alleged inconsistencies. With respect to authentication of the documents, we emphasize that the IJ specifically stated that she was *363“reifying] on documents presented by [Rincon] in support of [his] claims, despite their not being authenticated.” The IJ noted that it was “impossible” for Rincon to attempt to authenticate the documents because the Government did not return the documents to Rincon’s counsel with such a request. The Board offered no explanation for its decision to hold the lack of authentication against Rincon. Cf. Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir.2004) (holding that failure to properly authenticate a document is not an absolute rule of exclusion).
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order of February 20, 2008, including that portion of the order which denied Rincon’s motion to remand on futility grounds, see footnote 2, supra, and remand for further proceedings consistent with this opinion.
. Although this opinion will refer to the lead petitioner, Rincon, it should be understood to include Villegas' derivative application as well. See Al-Fara v. Gonzales, 404 F.3d 733, 736 n. 1 (3d Cir.2005).
. The Board also rejected Rincon’s request to remand the matter to the IJ for consideration of evidence allegedly demonstrating ineffective assistance of counsel and establishing his status as a health care worker. The Board’s decision was based in part on Rincon’s perceived failure to comply with the procedural requirements established by Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
We have generally approved the application of the Lozada procedural requirements to claims of ineffective assistance of counsel in removal proceedings. See Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir.2007). However, we have modified Lozada to excuse strict compliance with its requirements under particular circumstances. See id. at 157 (alien was excused from explaining his failure to file a disciplinary complaint against allegedly ineffective counsel because counsel freely admitted his ineffectiveness); see also Rranci v. Att’y Gen., 540 F.3d 165, 172-73 (3d Cir.2008).
The BIA decision does not specify — and we are unable to clearly discern from the record — the particular Lozada requirement with which Rincon failed to comply. We are therefore unable to meaningfully review the BIA’s application of those requirements to Rincon. The Board, in reviewing upon remand Rincon's evidence that he was targeted by the ELN because he was a health-care worker, should reconsider Rincon’s ineffective-assistance claim in light of our ruling and our cases modifying Lozada.
. The provisions of the Real ID Act of 2005 that address the Court's review of an adverse credibility finding do not apply in this case because Rincon applied for relief before the Act's effective date. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007).
. We note that when Rincon was asked how many times he was fired at, the IJ commented, "I wouldn't expect anybody to ... sit and take notes.” A.R. 303.
. For instance, Rincon consistently maintained that the attack occurred at 10:00 p.m. on Route 67, between Second and Third Streets, that the car from which the shooter emerged was a Renault, and that his parents received a threatening telephone call shortly after the shooting. A.R. 301, 304, 373, 522-23, 528.
. The IJ also faulted Rincon for providing "peculiar new added details (including [his] sudden claim that his parents have received phone calls about [him] since his return here in 2002).” A.R. 205. Given that the family may have received the phone calls after Rin-con filed his asylum application, it is unclear why such evidence was "peculiar.”
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the Court on an appeal brought by John Hyland in this action that Hyland brought against his former employer, American General Life Companies, L.L.C., a wholly-owned subsidiary of American International Group, Inc. In his complaint Hyland charged that American General terminated his employment by reason of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (West 2002). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. After discovery American General moved for summary judgment and the District Court granted the motion by an opinion and order dated September 12, 2008, entered September 17, 2008, 2008 WL 4308219. Hyland then appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review on this appeal and thus can affirm only “if the pleadings, de*367positions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [American General] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir.2009).
The basic facts in this case in an overview sense are not in dispute. Hyland is an attorney at law whom American General or its predecessor employed in a legal position from 1989, when he graduated from law school, until August 2005 when American General terminated his employment when he was 56 years old by eliminating his position at the time of a reorganization of its employment structure. Though Hyland indicates that he “was terminated as part of an overall reorganization and/or reduction in force,” he contends that “this so-called reorganization was actually an attempt to get rid of one older employee,” i.e., him. Appellant’s br. at 19.
Hyland contends that American General replaced him with Timothy Bolden who is about nine years younger than he is. In Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir.2001), we indicated that one of the elements of a prima facie case in an age discrimination action predicated on indirect evidence is that the person ultimately replacing the plaintiff be sufficiently younger than the plaintiff so that an inference of age discrimination can be drawn from the replacement. The difference in age between Hyland and Bolden satisfies that criterion.
Notwithstanding the difference in ages between Hyland and Bolden, the District Court held that a reasonable fact finder could not conclude that Bolden had replaced Hyland and thus Hyland did not make out a prima facie case of discrimination. In this regard, the record shows that Hyland served in the position of Senior Attorney but that American General appointed Bolden to fill a new position as Associate General Counsel. Of course, an employer does not ensure that one position will be considered to have replaced another simply by changing the title of the original position. Here, however, as Associate General Counsel Bolden performed functions that Hyland had not performed but did not perform duties that Hyland had performed. Though there was some overlap between Hyland’s and Bolden’s duties the difference between their positions was so significant that a reasonable trier of the fact cannot say that the differences in their positions was simply cosmetic. In considering the two positions it is highly significant that Bolden’s gross salary was almost $55,000 higher than Hy-land’s, making it very difficult to conclude that Bolden replaced Hyland. See Monaco v. American General Assurance Co., 359 F.3d 296, 305 (3d Cir.2004). In fact, after American General terminated Hy-land it divided his responsibilities among various employees, some older and some younger than Hyland. In the circumstances, we agree with the District Court that Hyland did not establish a prima facie case and thus his case had to fail.
We realize that at a November or December 2004, staff meeting Marc Her-ling, Hyland’s direct supervisor and the prime mover in the reorganization that resulted in Hyland’s termination referred to Hyland as the “old man” of the operation. But the District Court believed that this stray remark made ten months before Hyland’s termination could not support an inference of age discrimination underlying Hyland’s termination and we agree. See Fuentes v. Perskie, 32 F.3d 759, 767 (3d Cir.1994). We do not think that a single remark that might reflect the declarant’s recognition of an employee’s age in a context unrelated to the employee’s termi*368nation is sufficient evidence to support a prima facie case of age discrimination based on direct evidence at the time that the employer later terminates the employee. After all, whether or not a supervisor makes reference to an employee’s age it is likely that he will have some concept of it. In any event, it would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation.
We can understand why Hyland believes that American General treated him unfairly though we, of course, express no view on that possibility. Nevertheless, it is necessary to remember that the age discrimination laws are not intended to remedy all of the possible wrongful adverse employment decisions by an employer and the law surely should not be used to impede an employer’s effort to organize its business as it deems fit so long as the employer in doing so does not violate employment age discrimination restrictions. See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1088 (3d Cir.1992) (“[T]he ADEA is a discrimination statute and is not intended to handcuff the management and owners of businesses to the status quo”).
For the foregoing reasons as well as for the reasons that District Court set forth in its opinion dated September 12, 2008, we will affirm the order for summary judgment dated September 12, 2008, entered September 17, 2008.
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OPINION
COWEN, Circuit Judge.
Darnell Jackson appeals from the judgment of conviction and sentence entered by the United States District Court for the Western District of Pennsylvania. We will affirm.
I.
A federal grand jury returned a superseding indictment charging Jackson and others with conspiring to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(A)(i).
The government filed an information pursuant to 21 U.S.C. § 851(a), notifying Jackson of its intention to use one of his prior convictions as a basis to enhance his sentence. Specifically, the government alleged that he had been convicted, on or about April 10, 2006, of felony “Possession with Intent to Deliver a Controlled Substance (i.e., heroin)” in “the Allegheny County (Pennsylvania) Court of Common Pleas.” (A28.) It appears that, under 21 U.S.C. §§ 841 and 846, this prior conviction increased the statutory mandatory minimum term of imprisonment from ten to twenty years.
A plea hearing was then conducted on October 23, 2008. Represented by the Federal Public Defender’s Office, Jackson pled guilty. The District Court specifically addressed the government’s § 851(a) filing and its potential effect on the sentence. It therefore asked Jackson whether he understood “that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack your sentence” and whether he understood “that the minimum penalty to count one is 20 years imprisonment.” (A44.) Jackson personally responded in the affirmative to both questions.
*370Later in the plea hearing, an exchange occurred between the District Court and the defense counsel regarding the applicable mandatory minimum sentence and the prior Pennsylvania conviction. The defense counsel specifically noted that the minimum penalty if the District Court accepted the § 851(a) information would be twenty years’ imprisonment. On the other hand, the minimum penalty would be only ten years in prison if the District Court did not accept the information. Both the prosecutor and the District Court eventually agreed with the defense counsel’s assessment, and the District Court stated that:
THE COURT: We should have that in the colloquy, then we should have that in there. I’m assuming you’re correct. We’re going to have to redo the colloquy and ask him those questions because it has to be on the record perfectly.
Marshal, you just keep him here. We’ll take a short recess and we’ll correct that.
(A49-A50.)
Following a brief recess, the District Court evidently sought to ask Jackson about the prior Pennsylvania conviction alleged in the § 851(a) information and the possible mandatory minimum sentence:
THE COURT: The government did file a notice with the Court, and in the early part of the colloquy, I did tell him that. Now, he might want to challenge that at the time of sentencing but the minimum sentence is 20 years with the government having notice of that.
MS. LONG [Defense Counsel]: That’s correct. But if the Court has not accepted the conviction as a predicate offense under 851, yes, that would happen at the time of sentencing.
THE COURT: So, the minimum sentence is 20 years. If he wants to challenge that at the time of sentencing, he can. Is that what you’re saying?
MS. LONG: Yes, Your Honor.
THE COURT: Does he understand that? Do you understand that?
MS. LONG: Your Honor, if I could just speak. If Mr. Jackson, were he able to successfully challenge the 851, then the mandatory minimum would drop to 10 years.
THE COURT: I don’t dispute that with you but as long as he understands, the government, having notified the Court of the previous conviction, the minimum is 20 years. Now, if he’s going to challenge that previous conviction; is that what you have in mind?
MS. LONG: That he would — he’s not waiving the right to challenge that previous conviction. If he does successfully challenge it, then the 20-year minimum would not apply. The 10-year minimum would apply.
THE COURT: That’s correct. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: In other words, is there, as a I understand it, some reason for you to believe that he doesn’t have a previous conviction?
MS. LONG: I’d like to reserve. I don’t want to waive the right to challenge that, Your Honor. Neither does Mr. Jackson at this point. That was all.
THE COURT: Good enough. I think we’re all right then.
(AR50-AR51.)
The Pre-Sentence Report (“PSR”) expressly listed the prior Pennsylvania conviction alleged in the § 851(a) information and noted the applicability of a twenty-year (or 240 months) mandatory term of imprisonment. Jackson filed written objections to the PSR. The District Court then filed its “Tentative Findings and Rulings Concerning Disputed Facts or Factors.” The District Court stated, inter alia, that Jackson was subject to a statute-*371ry minimum sentence of not less than 240 months or twenty years. Jackson submitted, under seal, a “Memorandum in Mitigation of Sentence.” Among other things, he acknowledged facing “a minimum of 240 months’ imprisonment” and asked for this mandatory minimum sentence. (A71.)
Jackson was sentenced on January 22, 2009. His defense counsel evidently conceded at the hearing that her client was subject to a 240-month mandatory minimum term of imprisonment because of the prior Pennsylvania conviction. She specifically stated that “the conviction that the government has attached to that 851 is a one-time sale of $55 worth of heroin, and that is what is making Mr. Jackson subject to double the mandatory minimum.” (A66.) She then said that “I would just make the argument that I have already submitted to the Court.” (Id.) In the end, the District Court sentenced Jackson to a total term of imprisonment of 240 months. This appeal followed.
II.
Jackson argues that the conviction and sentence must be overturned because the District Court committed plain error by failing to comply with 21 U.S.C. § 851(b) and inquire “whether he affirms or denies that he has been previously convicted as alleged in the information.”1 According to Jackson, the prior Pennsylvania conviction was obtained in violation of his federal constitutional right to a speedy trial. We nevertheless conclude that the District Court’s judgment must be affirmed under either the invited error or the waiver doctrine. In the alternative, we conclude that Jackson fails to make out a violation of his speedy trial rights, at least for purposes of the plain error standard of review.
§ 851(b) provides that:
If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
It is uncontested that the second prong of this provision was satisfied. Jackson admits that “[t]he court here did advise Mr. Jackson that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack your sentence.” (Appellant’s Br. at 8 (quoting A44, A50-A51).) Under the circumstances, it appears clear that the defense was well aware of the right to challenge the prior Pennsylvania conviction. In fact, the defense counsel made repeated interjections at the plea hearing regarding the prior Pennsylvania conviction and its potential effect on the mandatory minimum sentence. When asked by the District Court whether her client was “going to challenge that previous conviction,” the attorney stated that Jackson was “not waiving the right to challenge that previous conviction.” (A51.) Asked again whether she had “some reason” to believe that her client did not have a previous conviction, she reiterated her wish to reserve on this issue, stating that “I don’t want to waive the right to challenge that” conviction and that Jackson also did not want to do so. (Id.) She then said, “That was all,” meriting the following understandable response from the District Court: “Good enough. I think we’re all right then.” (Id.) Jackson even acknowledges in his appellate brief that he thereby *372“reserved his right to deny that he had been previously convicted as alleged in the information.” (Appellant’s Br. at 6 (citing A50-A51).) As the government notes in its own brief, the defense counsel’s own repeated statements evidently indicated “that there would be no point in asking Jackson directly” whether he affirmed or denied the prior Pennsylvania conviction alleged in the § 851(a) information. (Ap-pellee’s Br. at 15.)
Defense counsel’s statements at the plea hearing seemed to indicate that she might file a written challenge to the prior Pennsylvania conviction pursuant to 21 U.S.C. § 851(c). But no such challenge was ever filed with the District Court. On the other hand, Jackson failed to attack the existence or constitutionality of the prior Pennsylvania conviction in his written PSR objections. Furthermore, his mitigation memorandum went so far as to ask the District Court to impose the mandatory minimum sentence of 240 months’ imprisonment. As repeatedly emphasized by the defense counsel herself, such a mandatory minimum sentence would apply only if the District Court accepted the government’s § 851(a) information and its allegations of a prior Pennsylvania conviction. Likewise, the defense counsel never disputed the existence or constitutionality of the prior Pennsylvania conviction at the sentencing hearing. She instead conceded that her client was subject to the 240-month mandatory minimum sentence and successfully asked the District Court to impose this sentence.
Given what actually occurred before the District Court, it appears that Jackson’s attempt to use § 851(b) in order to bring a new speedy trial claim must be rejected based on either the invited error or the waiver doctrine. See, e.g., United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (distinguishing between waiver and forfeiture); United States v. Console, 13 F.3d 641, 660 (3d Cir.1993) (invited error doctrine). As the government points out, a defendant is not really in a position to challenge a sentence when the sentencing court gave “him exactly the sentence he wanted.” (Appellee’s Br. at 17.)
Nevertheless, even assuming that the plain error standard of review applies and that the District Court committed an error that was plain, the underlying judgment still must be upheld either because the error failed to affect Jackson’s substantial rights or because he failed to demonstrate a miscarriage of justice. See, e.g., United States v. Thielemann, 575 F.3d 265, 270 n. 9 (3d Cir.2009) (substantial rights requirement); United States v. Corso, 549 F.3d 921, 929 (3d Cir.2008) (miscarriage of justice requirement). Simply put, Jackson does not make out a viable claim that his constitutional right to a speedy trial was violated in connection with his prior Pennsylvania conviction.2 See, e.g., Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (indicating that courts assess such claims by considering “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant” (footnote omitted)). Admittedly, the Pennsylvania prosecution did take a rather long time, with the charges being filed in January 2001, and Jackson finally entering his guilty plea in April 2006. However, for a *373significant portion of this time, Jackson was either free on bond or was a fugitive. He also was a rather uncooperative client. For instance, he refused to communicate fully with his initial counsel and filed disciplinary charges against a subsequent lawyer. Focusing on the time he spent incarcerated after his capture, we note that the prosecution should not be held responsible for the time needed for his new defense counsel to obtain discovery when it is unclear what kind of discovery his counsel expected to receive. Likewise, it appears that the continuance obtained in order to reschedule the case for a jury trial was actually requested by the defense because, among other things, the relevant document was evidently completed and signed by Jackson’s defense attorney and noted that it was the defendant who actually requested the jury trial.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court possessed jurisdiction over this criminal matter pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291.
. Both parties have filed motions to supplement the record with documentation from the Pennsylvania prosecution. Both motions are granted so that we may conduct an informed review of Jackson's speedy trial allegations. As noted above, this additional documentation confirms that his allegations ultimately lack any real merit. We further grant Jackson's motion to seal Volume III of his appendix as well as the government's amended motion to file a sur-reply in opposition to Jackson’s own motion to supplement the record.
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OPINION
PER CURIAM.
Shaun Wright, proceeding pro se, appeals an order of the United States District Court for the Middle District of Pennsylvania granting summary judgment in favor of Appellee Scott Altland, a Sprin-gettsbury Township police officer, in his civil rights action. Wright was charged with two robberies in 2005; a bank robbery and the robbery of a Hardee’s restaurant. He was later acquitted of the Har-dee’s robbery, and his complaint alleges false arrest and imprisonment and malicious prosecution in connection with the Hardee’s robbery. Wright also claims that property was seized during the investigation of that robbery in violation of his Fourth Amendment rights.1 We will affirm the District Court’s order to the extent it granted summary judgment on Wright’s false arrest and imprisonment and malicious prosecution claims, but will vacate as to Wright’s unconstitutional seizure of property claim.
The record reflects that Detective Alt-land was assigned to investigate an armed robbery that occurred on September 15, 2005, at approximately 8:30 p.m. at a Har-dee’s restaurant. On the night of the robbery, Springettsbury Township police officers interviewed Hardee’s employees Rachel Watkins and Christina Osborn, who identified the robber as a black male, 5'8" to 6' tall with a thin build, and wearing a white t-shirt, blue jeans with red stitching around the pockets, and a black knit cap pulled down over his face. Watkins and Osborn stated that the male entered the store carrying a black revolver and demanded all of their money. Watkins gave the robber $300.00 from her cash register and the robber fled.
On September 20, 2005, Detective Alt-land heard a radio dispatch reporting an armed robbery at a bank in Hellam Township, the neighboring municipality. Detective Altland and another detective went to the bank. Like the robber of Hardee’s, the bank robber reportedly wore a white t-shirt and a black knit cap pulled down over his face and carried a black revolver. Later that day, Hellam Township police advised Detective Altland that the car used by the bank robber to flee the scene was registered to Jora Rial, who lived in the Yorkshire Apartments in Springettsbury Township.
Detective Altland went to the Yorkshire Apartments and interviewed Rial, who lived with Wright. Rial told Detective Alt-land that she and Wright went to the York Fair on September 15, 2005. Rial explained that she was with Wright until 6:30 or 7:00 p.m., when he left the apartment *375because he had something to do. Rial stated that Wright returned at 8:45 p.m. and they went to the fair. Rial told Detective Altland that Wright had a lot of money, that she asked Wright where he got the money because Wright was unemployed, and that Wright did not respond. Detective Altland obtained three money orders from Rial in the Yorkshire Apartments rental office in the amounts of $1000.00, $500.00, and $15.00. He gave the money orders to the Hellam Township police. Detective Altland later learned that Wright had bought the money orders on September 20, 2005, after the bank robbery occurred.
Wright was arrested for the bank robbery. York County Detective Ray Taylor interviewed Wright after his arrest about the Hardee’s robbery. Taylor reported that Wright told him that he had met “P” at Hardee’s and that “P” had asked him to check how many people were inside the restaurant. Wright went inside and asked for a cup of water and then told “P” what he saw. Wright then asked “P” why he wanted to know the number of people inside. “P” replied, “I’m about to get 'em.” Altland Certification at 3. Wright stated that he understood that “P” was about to rob Hardee’s, that he left the area, and that he had no more contact with “P.” According to Taylor, Wright told police, “I’ll take a conspiracy on this case, but I didn’t do the robbery.” Altland Certification at 3.
Detective Altland spoke again to Har-dee’s employee Christina Osborn, asking her if she remembered a black male ordering a cup of water before the robbery. Osborn stated that she did, and that when the same black male returned to rob the store, she thought it was a joke. Osborn also stated that the robber had the same jeans and mouth features as the person who ordered the cup of water. Thereafter, Detective Altland filed a criminal complaint against Wright and an affidavit of probable cause for his arrest for committing the Hardee’s robbery. As noted above, Wright was acquitted of the charges arising from the Hardee’s robbery and he then filed his present complaint.
In granting summary judgment for Detective Altland on Wright’s false arrest and imprisonment and malicious prosecution claims, the District Court recognized that lack of probable cause is an element of these claims and properly considered whether Detective Altland had probable cause to arrest Wright for the robbery. See Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir.2007) (malicious prosecution); Groman v. Township of Manalapan, 47 F.3d 628, 634-36 (3d Cir.1995) (false arrest and imprisonment).2 As noted by the District Court, the descriptions of the robbers involved in the Hardee’s robbery and the bank robbery, and the robbers’ modus operandi, were similar, and Wright already had been arrested for the bank robbery. In his affidavit of probable cause, Detective Altland set forth Rial’s statements that she was with Wright on the night of the Hardee’s robbery until 6:30 or 7:00, that Wright returned at 8:45 with a lot of money, that she asked Wright where he got the money but he did not respond, and that Wright had not had a job in over a month.
The affidavit also includes Wright’s statements to Detective Taylor that Wright had gone into the Hardee’s on the night of the robbery and asked for a cup of water in order to see how many people were there, and that he would “take a conspiracy” but he did not commit the *376robbery. The affidavit also recounts Detective Altland’s later conversation with a Hardee’s employee, who stated that a person ordered water on the day of the robbery and that this person was the same person as the robber.
These facts were sufficient to establish probable cause for Wright’s arrest. See Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir.2003) (noting that probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a reasonable person to believe that an offense has been committed by the person to be arrested). Although Wright disputes some of the information relied upon by Detective Altland, we agree with the District Court that Wright has not shown that Detective Altland had reason to doubt the information.
The District Court further concluded that Wright had not shown that Detective Altland knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions in applying for a warrant, and that such statements or omissions were material to the finding of probable cause. See Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir.2000). Although Wright did establish that Detective Altland omitted the fact that Hardee’s employees had stated that the robber resembled a former employee, the District Court noted that, even if this information had been included in the affidavit, there was still probable cause to arrest and prosecute Wright. We agree. The District Court did not err in granting summary judgment for Detective Altland on Wright’s false arrest and imprisonment and malicious prosecution claims.
The District Court also granted summary judgment on Wright’s claim that Detective Altland seized the three money orders in violation of his Fourth Amendment rights, concluding that Wright was collaterally estopped from bringing his claim because his motion for return of property on Fourth Amendment grounds was denied in state court. The District Court found Wright’s contention that the state court judge never heard the motion on the merits unsupported by the record.
Collateral estoppel requires a final adjudication of an issue on the merits. Office of Disciplinary Counsel v. Kiesewetter, 585 Pa. 477, 889 A.2d 47, 50 (2005).3 Although Altland states in his brief that it is undisputed that there was an adjudication on the merits, Wright contests that there was such an adjudication, arguing that his motion was denied on procedural grounds. Wright states that the court referred the motion to his public defender, who refused to litigate it because it was a civil matter, and that the court told him that he would have to get another lawyer. Wright’s motion for return of property was docketed on the state court’s miscellaneous docket. Detective Altland relies on the docket, which reflects only that Wright’s motion was denied. Because the record does not conclusively establish that there was an adjudication on the merits, Detective Alt-land has not shown that he is entitled to summary judgment on Wright’s Fourth Amendment claim based on collateral es-toppel.4
*377Detective Altland also argues that Wright lacks standing to assert a constitutional violation because he seized the money orders from Rial. The District Court rejected this argument and explained that Wright has a possessory interest in the money orders, which he bought and gave to Rial to pay the rent for them apartment. See Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (stating that a seizure occurs for Fourth Amendment purposes when there is some meaningful interference with an individual’s possessory interests in that property). We agree that Wright has standing to bring a Fourth Amendment claim. He alleges an injury in fact and asserts his own legal right and interest. Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).5
In the ordinary case, seizure of personal property is per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause. United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Detective Altland asserts that Rial consented to the seizure and that stolen money funded the money orders. The District Court should address in the first instance whether Detective Altland has established that an exception to the warrant requirement applies.6 We will thus remand this matter to the District Court.
Accordingly, we will affirm in part and vacate in part the District Court’s order.
. Wright also brought claims against the Springettsbury Township Police and York County, and claims against Detective Altland for due process violations, negligence per se, and intentional infliction of emotional distress. The District Court dismissed these claims pursuant to 28 U.S.C. § 1915(e)(2) and Wright does not pursue them on appeal.
. Wright was charged with violating 18 Pa. Cons.Stat. § 3701(a)(l)(v), which provides that a person is guilty of robbery if, in the course of committing a theft, he physically takes or removes property from the person of another by force however slight.
. We look to the law of Pennsylvania, the adjudicating state, to determine its preclusive effect. See Delaware River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 573 (3d Cir.2002).
. Detective Altland might be able to establish on remand that there was an adjudication on the merits in state court with the submission of additional evidence. We also note that Detective Altland has not asserted, and it is unclear from this record, whether Wright’s Fourth Amendment claim was adjudicated in his criminal proceedings for the bank robbery.
. In Rakas, the Supreme Court also explained that the definition of Fourth Amendment rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing. Id. at 140.
. The District Court, of course, need not reach this question if Detective Altland establishes that Wright's claim was adjudicated on the merits in state court.
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OPINION
PER CURIAM.
Petitioner, Yanick Voltaire Montel, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her petition.
I.
Montel is a native and citizen of Haiti. Montel conceded that she was removable for entering the United States without inspection or parole, but applied for asylum and related relief on the ground that she would face persecution by the controlling Lavalas party if forced to return to Haiti.
Montel testified that her political problems in Haiti began on April 9, 2005, when six armed men entered her beauty salon and forced her to shut it down. Montel explained that the men were part of an anti-Lavalas rebel group who were hiding from the police. The men vandalized the salon and slapped her in the face. Montel claimed that after the incident, she began receiving threatening phone calls from La-valas supporters accusing her of providing sanctuary to the rebels. Fearing for her safety, Montel closed her salon down for several months. She testified that she reported the incident to the police on April 17, 2005.
According to Montel, approximately two months after the incident at the salon, on June 12, 2005, a group of Lavalas supporters went to her house looking for her. Montel was not at home at the time, but her uncle, Mario, was. The men assaulted Mario.
Montel testified that she reopened her salon on August 20, 2005. That morning, five men pulled up to the salon in a white van and kidnapped her. Montel testified that two of the men in the van raped her. She was in her sixth month of pregnancy at the time. Eventually, the van began to experience mechanical problems, and the driver pulled over to the side of the road. Montel stated that she was then told to get out of the van, which she did. She then walked away and was able to escape any further harm. Montel did not report this incident to police because she feared that the attack would be made public, subjecting her to humiliation and shame. She stated that her mother advised her to go to the doctor, but she was too upset to discuss the sexual assault.
After this last incident, Montel fled to Baro to hide. She then went to Port-de-Paix, where a friend helped her find passage to the United States. Montel testified that, meanwhile, the men who had beaten her uncle returned to her home looking for her a second time. When her father told them that she had left the country, the men assaulted him as well as her younger sister.
Montel told the court that she sought asylum in the United States because she would be killed by Lavalas if she were forced to return to Haiti; according to Montel, the Lavalas party, which is still in power, believes that she voluntarily gave sanctuary to anti-Lavalas rebels during the April 9, 2009 incident, and has been looking for her ever since.
On cross-examination, the government inquired into several inconsistencies in the record. First, the government noted that Montel’s asylum application made no mention of the August 20, 2005 kidnapping and sexual assault, and asked Montel to provide an explanation for the discrepancy. She stated that she did not include the incident in her application because she was not comfortable talking about the sexual *383assault. The government also asked why her mother, who had provided a statement in support of Montel’s story, did not mention the kidnapping and sexual assault— particularly given Montel’s testimony that she told her mother about the assault. Montel surmised that her mother must have omitted it because she knew that she, Montel, did not like to discuss it.
Next, the government asked Montel about three different police reports that she had submitted to corroborate the April 9, 2005 incident at her salon. Initially, Montel had submitted two reports: one dated February 15, 2007, which stated that her salon had been destroyed on an unspecified date in 2005, that she had been assaulted, and that her uncle had been present during the incident; and one dated June 13, 2005, which stated that, at 2:00 p.m. on June 12, 2005, her salon had been destroyed and she had been hit and threatened.1 Montel later submitted a third police report, which was dated April 9, 2005, and stated that, at 11:00 a.m. that morning, her salon was destroyed and she was hit and threatened. When asked to explain the inconsistencies among the reports, she stated that a friend in Haiti had retrieved the first two reports on her behalf, and must have given the police the wrong information. According to Montel, the third report was the authentic report. As the government pointed out, however, even the third report — which was dated April 9, 2005 — was inconsistent with her testimony insofar as she stated that she had waited until April 17, 2005 to go to the police.
After the parties had finished questioning Montel, the Immigration Judge (“IJ”) asked Montel why, in her initial statement about the April 9, 2005 incident at the salon, she failed to mention that six men had been involved, that the men had damaged property in the shop, and that they had assaulted her. Montel stated that she had in fact provided that information to her attorney, and she did not know why it was not included in her written statement.
After the hearing, the IJ found that Montel was not credible because she had provided conflicting statements and material omissions regarding her mistreatment in Haiti. Based on this adverse credibility determination, the IJ denied Montel’s applications for asylum and withholding of removal. He also denied her application for relief under the CAT. Upon review, the BIA agreed with the IJ’s adverse credibility determination and dismissed the appeal. Montel now petitions for review of the BIA’s order.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001). When, as in this case, the BIA substantially relies on the findings of the IJ, we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Because Montel filed her application for relief after the enactment of the REAL ID Act of 2005, the BIA’s credibility determinations are governed by the Act. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Un*384der the REAL ID Act, an IJ may base his credibility determination on observations of the applicant’s demeanor, the plausibility of the applicant’s story, and on the consistency of the applicant’s statements. See INA § 208(b)(l)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
Montel first argues that the agency’s adverse credibility determination is not supported by substantial evidence. We disagree. The record reveals several inconsistencies in Montel’s story that she could not explain. For example, although she stated at the hearing that, on August 20, 2005, a group of Lavalas supporters kidnapped and raped her, she made no mention whatsoever of this incident in her application for asylum. Nor did her mother, who knew about the abduction, mention it in the statement she made to corroborate Montel’s story. Similarly, although Montel testified at the hearing that the men who entered her salon on April 9, 2005 slapped her in the face and destroyed her property, her application failed to include these material facts. In addition, while Montel testified that she reported the April 9, 2005 incident to the police on April 17, 2005, the report itself is dated April 9, 2005. While Montel argues on appeal that she provided convincing explanations for these inconsistencies and omissions, we cannot conclude that “any reasonable adjudicator” would have been convinced. See 8 U.S.C. § 1252(b)(4)(B). Therefore, we will defer to the agency’s findings. See Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir.2005).
Montel also makes three due process arguments on appeal. First, she claims that the IJ violated her due process rights by denying her request to withdraw from the record the two police reports that were inconsistent with the third. Montel does not, however, cite any authority for the proposition that she was entitled to remove previously-submitted documents from the record on the ground that they contradict others, and we see no other error in the IJ’s ruling. Next, Montel argues that the IJ, in determining that Mon-tel failed to establish a well-founded fear of persecution, impermissibly relied on certain country reports that had not been presented to her for examination. However, as the BIA noted, Montel did not object to the admission of these reports at the hearing or ask to review them. Therefore, she has waived her ability to challenge them on appeal. See In re R-S-H, 23 I. & N. Dec. 629, 638 (BIA 2003). Finally, Montel argues that the IJ violated her due process rights by relying on a lack of evidence as a factor in determining her credibility. Montel, however, failed to present this argument to the BIA. Therefore, it has been waived. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
Given that substantial evidence supports the BIA’s adverse credibility determination, and that Montel has failed to demonstrate that her due process rights were violated at the removal hearing, we agree with the BIA that she failed to establish eligibility for asylum on the basis of past persecution, and that nothing in the record demonstrates that she has a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42)(A); Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006). Furthermore, because Montel’s claims for withholding of removal and relief under the CAT are based on the same evidence as her asylum claim, we conclude that substantial evidence supports the denial of these claims as well.
Accordingly, we will deny the petition for review.
. At the beginning of the hearing, Montel's counsel sought to withdraw the first two police reports, but the IJ denied her request.
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OPINION
PER CURIAM.
Petitioners Yan Zhen Zhang and Hong Biao Chen (collectively, “Petitioners”), a married couple from China, seek review of a final order of removal. Zhang, as the lead petitioner, claims that she suffered past persecution at the hands of government officials through their enforcement of China’s coercive family planning policy. She fears future persecution if removed to China based on her giving birth to a second child while in the United States. Because the Immigration Judge’s (“IJ”) adverse credibility determination is supported by substantial evidence, and because Zhang has failed to brief any issue other than her purported eligibility for asylum, we will deny the petition for review.
I.
Petitioners arrived in the United States sometime in 2005 at an unknown point of entry. In October of that year, Zhang filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 One *386month later, Petitioners were served with a Notice to Appear. After an evidentiary hearing, the IJ concluded that Zhang had failed to establish eligibility for any of the aforementioned forms of relief, as her testimony was not credible and there were no allegations of past or prospective torture.
The BIA dismissed Zhang’s appeal. It concluded that the IJ’s adverse credibility determination was not clearly erroneous, and that the IJ properly considered the following inconsistencies and omissions to support that determination: (1) Zhang’s asylum application did not mention the alleged IUD removal and reinsertion in 1997; (2) the letter from Zhang’s father failed to mention that she was hiding in his home in May 1994, as alleged; (3) the letter from Chen’s mother failed to mention visits from family planning officials in May 1994; and (4) the dates put forth by Zhang and Chen about when Zhang had her IUD removed differed by more than a year’s time. The BIA alternatively determined that with respect to Zhang’s “claim of future persecution based on the birth of her son in the United States ..., the record does not support [her] apparent claim that parents of foreign-born children would face sanctions amounting to persecution upon their return to China.” The BIA also determined that Zhang had failed to “raise any arguments on appeal challenging the [IJ’s] denial of protection under the Convention Against Torture.” Zhang appealed.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 289 F.3d 542, 547 (3d Cir.2001). “[W]hen the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because Zhang filed her asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go the heart of her claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n. 5 (3d Cir.2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Zhang’s demeanor, the plausibility of her story, and on the consistency of her statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
III.
We conclude that substantial evidence supports the IJ’s adverse credibility determination. Specifically, the inconsistencies with regard to Zhang’s asylum application, the letter from Zhang’s father, the letter from Chen’s mother, and Zhang’s and Chen’s testimony, are supported by the record, and were even conceded by Zhang on appeal to the BIA. (AR 18-19.) Under the REAL ID Act, these inconsistencies justify the adverse credibility determination. Thus, Petitioners are ineligible for asylum and withholding of removal.
Zhang argues in her brief that “the omissions the IJ found did not go to the heart of petitioner’s claim,” and also that “it is unfair to require the petitioner and her witnesses to include every single detail in their written statements.” (Pet. Br. at 14.) Her first point highlights her misunderstanding of the law. As described above, after the passage of the REAL ID Act, an IJ may base her adverse credibility determination on inconsistencies and omissions that do not concern the heart of an asylum-seeker’s claim. See Lin, 543 F.3d at 119 n. 5. Zhang’s second point is disingenuous. The IJ did not require Zhang and her witnesses to furnish “every single detail” related to her claim; the IJ merely *387sought specific information about the most salient events in Zhang’s testimony that supported her claim (i.e., the forced abortions, the IUD insertions, and the visits from family planning officials). The IJ’s inquiry was not only reasonable but also permissible. See 8 U.S.C. § 1158(b)(1)(B)(iii) (IJ considers “the totality of the circumstances, and all relevant factors” in making an adverse credibility determination). As a result, we are unable to say that “no reasonable factfinder could conclude as [she] did” in finding that Zhang was not credible. Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).
On appeal to the BIA, Zhang did not challenge the IJ’s determination that she was ineligible for relief under the CAT. Nor does she do so here. As we have stated many times, an appellant’s failure to raise an issue in her opening brief effectively waives our consideration of that issue. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
Accordingly, we will deny the petition for review.
. Chen applied as a derivative rider. His eligibility for asylum is therefore predicated on Zhang's claims.
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OPINION
PER CURIAM.
Petitioner Shan Gui Chen, a native and citizen of China, entered the United States in September of 2004 along the Texas border. App. 294. On June 13, 2005, he filed an application for asylum under Immigration & Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of persecution on account of his opposition to China’s population control policies. In his asylum application, Shan Chen stated that his wife, Xi Yue Lin, gave birth to their second daughter, Chu Bing Chen, on June 27, 2000, following a Caesarean section at Liang Qi Hospital in Fu Zhou City (Fujian Province). App. 294. Without her knowledge, the doctor sterilized her at the time *389of the delivery. On August 15, 2005, removal proceedings were initiated against Shan Chen when the Department of Homeland Security filed a Notice to Appear with the Immigration Court, charging that he was subject to removal pursuant to INA § 212(a)(6)(A)©, 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Shan Chen admitted the allegations in the NTA and conceded remova-bility.
A hearing on the merits was held on December 12, 2006. At the hearing, Shan Chen testified that he and his wife, who has remained in China, were married in China on April 22, 1993. App. 70. They had two children together, both daughters. Id. at 71. Shan Chen testified that, following the birth of his second child on June 27, 2000, his wife was sterilized against her will following a Caesarean section procedure. Id. at 72-75. Neither he nor his wife knew that the sterilization procedure was going to be performed and they did not consent to it. Shan Chen remained in China for four more years until July 8, 2004. Id. at 77. He did not leave China immediately because his children were very young. Id. at 80. In support of his asylum application, Shan Chen submitted a letter from his wife, in which she stated that she was forcibly sterilized on June 27, 2000 following the birth of her second daughter by Caesarean section at Lang Qi Town Hospital. Id. at 227. The 2005 State Department Country Report on China also was made a part of the Administrative Record.
The Immigration Judge issued a decision at the end of the merits hearing, concluding that Shan Chen did not testify credibly and did not meet his burden of proof under the asylum statute. The IJ also denied withholding of removal, and found that Shan Chen failed to show that it was more likely than not that he would be tortured upon his return to China. The IJ doubted Shan Chen’s claim that his wife was forcibly sterilized,1 because this testimony was belied by the country conditions evidence of record, and, although Shan Chen submitted an affidavit from his wife, the statements contained in it were nearly identical to those in his personal statement, which rendered it less trustworthy than it might have been otherwise. App. 37. The IJ ordered Shan Chen’s removal to China.
Shan Chen appealed to the Board of Immigration Appeals, challenging the IJ’s adverse credibility determination and assessment of country conditions in China. On October 31, 2008, the Board dismissed the appeal, concluding that, even assuming that Shan Chen testified credibly, he did not establish eligibility for asylum. Under Matter ofJ-S- 24 I. & N. Dec. 520 (A.G. 2008), which overruled Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), and Matter of C-Y-Z-, 211. & N. Dec. 915 (BIA 1997), a husband like Shan Chen, who has not claimed or shown that he was forcibly sterilized, experienced harm because he refused to undergo sterilization, or demonstrated other resistance to China’s population control policies, is no longer automatically entitled to refugee status based solely on the forced sterilization of his wife. Accordingly, Shan Chen did not establish past persecution in China that would give rise to a presumption of a well-founded fear of persecution on the same basis. Furthermore, although he testified that he would continue to be harmed by China’s policies, the contention was vague, and the fact remained that he stayed in China for four years after his wife allegedly was forcibly sterilized, and had no further en*390counters with Chinese authorities. The IJ’s withholding of removal and CAT determinations also were upheld. Shan Chen has timely petitioned for review of the Board’s decision.
We will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Where the Board adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review both decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). An applicant bears the burden of proving eligibility for asylum. Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir.2007). In the absence of evidence of past persecution, the applicant must demonstrate a subjective fear of persecution through credible testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003), and the applicant must show that a reasonable person in his circumstances would fear persecution if returned to the country in question, see id. The Board’s findings in this regard “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, Shan Chen must establish that the evidence does not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).
The more exacting withholding of removal standard requires an alien to show by a “clear probability” that his life or freedom would be threatened on account of a protected ground in the proposed country of removal. INS v. Stevie, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“would be threatened” standard has no subjective component). In making out a CAT claim, the burden of proof is on the applicant to establish that it is more likely than not that he would be tortured in his native country. 8 C.F.R. § 1208.16(c)(2).
Shan Chen contends in his brief on appeal that he has established a well-founded fear of persecution through his wife’s forced sterilization. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which added the following language at the end of INA § 101(a)(42)’s definition of refugee:
For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.
INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2009).
The Board previously held that, under INA § 101(a)(42), a husband who established that his wife underwent a forced abortion or sterilization was per se entitled to refugee status, see Matter of C-Y-Z-, 21 I. & N. Dec. 915, and Matter of S-LL-, 24 I. & N. Dec. 1. We extended Chevron deference2 to this interpretation by the Board in Sun Wen Chen v. Attorney *391General, 491 F.3d 100, 107-08 (3d Cir.2007). However, the Attorney General recently overruled Board precedent in Matter of J-S- 24 I. & N. Dec. 520, concluding that a proper reading of INA § 101(a)(42) does not encompass a per se entitlement to asylum for the spouses of those who have undergone a forced abortion or involuntary sterilization, id. at 529-30. Rather, the statute extends relief only to those who have actually undergone the procedures. See id.3
We independently reached the same conclusion with respect to the proper interpretation of the plain language of the statute in Lin-Zheng v. Attorney General, 557 F.3d 147, 157 (3d Cir.2009) (en banc) (overruling Sun Wen Chen). The statute is unambiguous and does not extend automatic refugee status to spouses. Id. at 156-57. Therefore, the experiences of one’s spouse are legally insufficient to establish eligibility for asylum. Id. at 156 (“Thus, there is no room for us to conclude that Congress intended to extend refugee status to anyone other than the individual who has either been forced to submit to an involuntary abortion or sterilization, has been persecuted for failure or refusal to undergo such a procedure, or has a well-founded fear of that occurring in the future”). The statute cannot be more clear in its reference to a person rather than a couple. See id.
Both Lin-Zheng and Matter of J-S- foreclose eligibility for asylum in Shan Chen’s case solely on the basis of his wife’s alleged forced sterilization. Shan Chen does not present any argument challenging Lin-Zheng’s interpretation of INA § 101(a)(42). Thus, he can only establish a basis for asylum if he shows that he suffered past persecution or has a well-founded fear of persecution in China on account of his “other resistance” to the Chinese government’s population control policies. Lin-Zheng, 557 F.3d at 157; Matter of JS- 24 I. & N. Dec. at 538. The phrase other resistance “covers a wide range of circumstances, including expressions of general opposition, attempts to interfere with enforcement of government policy in particular cases, and other overt forms of resistance to the requirements of the family planning law,” see Matter of S-L-L-, 24 I. & N. Dec. at 10, but Shan Chen produced no evidence of resistance on his part to China’s population control policies. Accordingly, the evidence does not compel the conclusion that he exercised “other resistance” to China’s population control policies. 8 U.S.C. § 1252(b)(4)(B).
In his brief, Shan Chen contends that his right to due process was violated because the change in the law deprived him of a full and fair hearing on the issues. See Pet’r Br. 8. Due process protections are afforded to aliens facing removal. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. We are not persuaded that due process requires a remand in Shan Chen’s case. Although the agency’s interpretation of INA § 101(a)(42) changed with respect to spousal eligibility, and we overruled Sun Wen Chen, an alien’s eligibility for asylum on the basis of “other resistance” has remained constant. The Board has long recognized, and it certainly did at the time of Shan Chen’s merits hearing, that an alien’s eligibility for asylum under INA § 101(a)(42) included eligibility for persecution or feared persecution on account of the alien’s other resistance to family planning policies. See, *392e.g., Matter of J-S-, 24 I. & N. Dec. at 527; Li v. Att’y Gen. of U.S., 400 F.3d 157, 163 (3d Cir.2005). This part of INA § 101(a)(42) has been at all times relevant in Shan Chen’s case. Although he argues that his case should be remanded for consideration of the “other resistance” issue, he does not point to any evidence in the record that could support such a finding, nor does he allege any facts, not previously submitted, that could support such a finding. See 8 C.F.R. § 1003.2 (“A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.”)
Substantial evidence also supports the Board’s determination that Shan Chen failed to demonstrate a well-founded fear of future persecution. He did not claim any personal harm arising from a violation of China’s population control policies, and he remained in China for four years after his wife’s alleged involuntary sterilization without further incident. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (when family members remain in petitioner’s native country without meeting harm, and there is no individualized showing of persecution, the reasonableness of alien’s well-founded fear of persecution is diminished). Shan Chen contends in his brief that the 2005 Country Report for China refers to the detention of tens of thousands of individuals in population schools in Linyi, Shandong Province, for the purpose of forcing them or their relatives to submit to abortion or sterilization, see Pet’r Br. 7-8; App. 96, but he has not established that he and those individuals detained in population schools are similarly situated, or that there is any basis for him to be detained in one.
Because Shan Chen failed to show past persecution or a reasonable fear of future persecution under the lower burden of proof required for asylum, he is necessarily ineligible for withholding of removal. Cardoza-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. In addition, the record does not compel a conclusion that he met his burden of establishing that it is more likely than not that he will be tortured upon his return to China, 8 C.F.R. § 1208.16(c)(2).
For the foregoing reasons, we will deny the petition for review.
. The IJ did not seem to doubt that Shan Chen's wife had been sterilized. App. 44. There is evidence supporting that assertion in the record. App. 249, 252.
. We extend Chevron deference to "an agency’s construction of the statute which it administers.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
. The Attorney General further concluded that the statute’s underlying legislative and enforcement history did not support extending automatic refugee status to spouses. Id. at 538-42.
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OPINION
PER CURIAM.
Chang Hao Lin-Lin petitions for review of an order of the Board of Immigration Appeals (“BIA”). For the reasons below, we will deny the petition for review.
Lin-Lin, a native of China, entered the United States in December 2004. He was charged as removable as an alien who entered without being admitted or paroled. See Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i) ]. He conceded remova-bility and applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). Specifically, he argued that as the spouse of a woman who had been forced to have an IUD inserted and undergo two abortions, he qualified as a refugee under the Act. Following both abortions, Lin-Lin became “angry” and “extremely upset,” and went to the family planning office to protest. The first time, Lin-Lin “quarreled” with the family planning authorities. As a result, he was detained for two days and “beaten up,” resulting in leg “injuries] and bleeding.” Lin-Lin went to his village doctor, who treated him with medicine. After learning of his wife’s second forced abortion, Lin-Lin returned to the family planning office and was again “beat[en] ... up badly.” He also had to pay fines totaling 8000 RMB.
The Immigration Judge (“U”) denied Lin-Lin’s applications, concluding that he was not credible. On appeal, the BIA *394assumed Lin-Lin was credible, but held that he could not base his own asylum claim on the forced abortion and contraception of his wife. The Board further determined that the harm Lin-Lin suffered as a result of other resistance to China’s family planning policies was not so severe as to amount to persecution under the Act. The BIA also rejected Lin-Lin’s claim for withholding and relief under the CAT. Lin-Lin filed a timely petition for review.
We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252]. Because the BIA independently assessed the record, we review only the BIA’s final order of removal. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003). We use a substantial evidence standard to review factual findings, Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003), including findings concerning an applicant’s past persecution or “well-founded fear of future persecution,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Under the substantial evidence standard, findings are upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001). We review the BIA’s legal conclusions de novo. See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007).
An applicant may demonstrate eligibility for asylum by showing either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]. Significantly, “persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. (quotation omitted).
The spouses of those who have been persecuted by coercive population control policies are not automatically eligible for asylum. Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir.2009) (en banc) (holding that there is no automatic refugee status for spouses of individuals subjected to coercive population control policies). Based on the statutory definition of “refugee” under INA § 101(a)(42) [8 U.S.C. § 1101(a)(42) ], we concluded in Lin-Zheng that refugee status extends only to the individual who had been subjected to an involuntary abortion or sterilization procedure, had been persecuted for failing or refusing to undergo such a procedure, or had a well-founded fear of such persecution in the future. See id. at 156. Lin-Lin implicitly acknowledges this, but argues that he established past persecution based on his own resistance to China’s family planning policy. See id. at 157 (noting that spouses remain eligible for relief if they qualify as a refugee under § 1101(a)(42) based upon their own persecution, or well-founded fear of persecution, for “other resistance” to a coercive population control program). As evidence of persecution, Lin-Lin points to the fines, detention and beatings, and psychological harm brought on by his wife’s abortions and forced contraception.
While Lin-Lin’s complaints about his wife’s abortions to family planning officials likely constitute “other resistance,” the record does not compel a finding that his experiences based on that resistance rise to the level of persecution. Lin-Lin claimed that he paid fines totaling 8000 RMB. He did not allege, however, that those fines were so onerous that they threatened his life or freedom. See Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.*3952005). Moreover, the short detention and beatings were not sufficiently severe to constitute persecution, particularly when Lin-Lin’s injuries required only medicine from the village doctor. See Kibinda v. Att’y Gen., 477 F.3d 113, 119-20 (3d Cir.2007) (holding that a single detention and beating requiring a few stitches and leaving a scar was not “severe enough to constitute persecution under our stringent standard”). Lin-Lin also alleged that he was “angry” and “extremely upset” as a result of his wife’s forced abortions and contraception. “[A] finding of past persecution might rest on a showing of psychological harm.” Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir.2006). But, even assuming that a spouse’s emotional suffering remains a cognizable basis for asylum following Lin-Zheng, 557 F.3d at 156, we conclude that the record here does not establish that Lin-Lin suffered psychological harm rising to the level of persecution. See Jiang v. Gonzales, 500 F.3d 137, 141-43 (2d Cir.2007) (finding no past persecution where forced abortion resulted in illness and diminished health to petitioner’s mother, imposing “ ‘anguish’ and ‘economic loss’” to him). Additionally, Lin-Lin argued that the BIA failed to consider whether the cumulative effect of his experiences constitute persecution. We disagree. The BIA found that Lin-Lin “has not shown that the level of harm that he suffered on account of his ‘other resistance,’ which consisted of a 2-day detention, a beating that caused bleeding to his legs, and the imposition of a fine, was so severe as to amount to persecution under the Act.”
Because Lin-Lin cannot satisfy the asylum standard, he cannot satisfy the more difficult withholding of removal standard. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003). Finally, substantial evidence supports the BIA’s conclusion that Lin-Lin failed to demonstrate that it is more likely than not that he would be tortured by the Chinese government, or that the government would consent or acquiesce to his torture.
For the above reasons, we will deny the petition for review.
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OPINION
COWEN, Circuit Judge.
Andre Henry appeals from the judgment of conviction and sentence entered by the United States District Court for the Eastern District of Pennsylvania. We will affirm.
I.
Henry was convicted and sentenced in Pennsylvania state court for robbery at gunpoint. On April 25, 2003, he was released on parole. He signed the standard Pennsylvania form giving parole agents consent to search his person, property, and residence without a warrant.
Henry was subsequently arrested by state parole agents on October 21, 2003. On January 24, 2006, a federal grand jury returned a twenty-eight-count indictment against him and six other defendants. The grand jury subsequently returned a superseding indictment with the same number of counts on October 24, 2006. He was charged with various firearms offenses, Hobbs Act robbery, armed bank robbery, carjacking, and solicitation to commit murder. Henry filed numerous counseled and pro se pretrial motions, and specifically *397sought to suppress evidence obtained in connection with the search of his automobile and his residence on October 21, 2003.
After an evidentiary hearing, the District Court denied the suppression motions on February 2, 2007. It provided its reasoning for doing so in a thorough memorandum. Refraining from deciding the question of whether reasonable suspicion was even required given his written consent to warrant-less searches as a condition of parole, the District Court concluded that there was reasonable suspicion to conduct the two searches at issue in this case. It further found that Henry’s suppression testimony was properly stricken because he had invoked his Fifth Amendment rights on cross-examination. The District Court finally noted that “there is uncontro-verted testimony that defendant consented to the search of his vehicle immediately prior to the October 21, 2003 search of his vehicle, and that defendant’s mother consented to the search of her house immediately prior to the October 21, 2003 search of defendant’s residence.” (82a (citing Jan. 29, 2007 Hearing Transcript at 55, 106).)
On February 22, 2007, the jury found Henry guilty on twenty-seven counts (a single count (possession of body armor) was dismissed by the government). The District Court subsequently sentenced him to a total term of imprisonment of 982 months. This appeal followed.
II.
We agree with the District Court that the parole agents clearly possessed reasonable suspicion to conduct the searches, and we therefore need not decide whether the Supreme Court’s decision in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), otherwise permits suspicion-less searches in the current circumstances.1
The existence of reasonable suspicion is ascertained from the totality of the circumstances. See, e.g., United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Id. (quotation omitted). “Although an officer’s reliance on a mere ‘hunch’ is insufficient [to satisfy the reasonable suspicion requirement], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274, 122 S.Ct. 744 (citations omitted); see also, e.g., United States v. Baker, 221 F.3d 438, 444 (3d Cir.2000) (“The decision to search must be based on ‘specific facts,’ but the officer need not possess probable cause.” (quotation omitted)).
Initially, the District Court properly determined that the parole agents possessed reasonable suspicion to search Henry’s vehicle on October 21, 2003. Special Agent Gerald Gallagher of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) learned on October 7, 2003 that Henry was involved in the August 2003 straw purchases of several “long guns” in Montgomery County. Agent Gallagher then spoke with Donna Henry, who supervised the *398parole officer assigned to Henry, on October 20, 2008. He told her about the Montgomery County straw purchases and his desire to speak with Henry. On the next day, Henry arrived at the parole office without a scheduled appointment and asked for the ankle monitor to be removed. Based on the information from Agent Gallagher, Henry was detained. He admitted that he traveled outside of Philadelphia County. After purportedly obtaining his consent, his vehicle was searched. The parole agents found, inter alia, a turnpike ticket, which indicated travel outside Philadelphia County in violation of the conditions of parole, a bumper sticker for the gun shop mentioned by Agent Gallagher, and three metal pipes (eventually determined not to contain explosives). In the end, the information regarding possible parole violations, combined with Supervisor Henry’s knowledge of Henry’s own prior criminal history, the circumstances of his unexpected visit to the parole office asking for the removal of his ankle monitor, and her own experience as a parole agent, clearly furnished reasonable suspicion to believe that Henry’s ear would contain evidence of parole violations.
Henry acknowledges that the parole agents had “reason to suspect that appellant had violated the conditions of his release (by participating in the straw purchases and leaving the County).” (Appellant’s Br. at 19.) However, he claims that “what is missing here are the ‘specific facts’ that would have permitted a reasonable inference that evidence of those violations (or some other violation) would be found inside the vehicle.” (Id.) But, contrary to his characterizations, Supervisor Henry never actually conceded this point in her testimony. She did admit that Agent Gallagher never specifically told her that she might find weapons in Henry’s vehicle or on his person and that she likewise did not have particular information that he had weapons on his person, in his vehicle, or in his residence. She further admitted that she “didn’t enter the car to look for a turnpike ticket.” (92a.) On the other hand, Supervisor Henry testified that, in her experience, parolees, particularly those with convictions for violent offenses involving weapons, often have weapons in their vehicles. While Henry emphasizes her passing statement that she was looking for “[fjurther violations of any kind,” this assertion came in response to a cross-examination question that inaccurately claimed that Supervisor Henry had previously testified that she “had no reason to believe there were weapons in there.” (92a-93a.)
We likewise must reject Henry’s argument that the present circumstances are analogous to the circumstances addressed by this Court in United States v. Baker, 221 F.3d 438 (3d Cir.2000). In Baker, the defendant was arrested by parole agents because he violated a parole condition against driving without a license. Id. at 440. The agents then searched the trunk of his car, finding drug paraphernalia. Id. at 440-41. We held that they lacked reasonable suspicion to search the trunk because the parole violation of driving without a license had no apparent relation to anything that could be found in the trunk. Id. at 445 (“[Njeither Baker’s violation of his parole by driving a vehicle nor his failure to document that he owned the vehicle can give rise to a reasonable suspicion that he was committing other, unspecified, unrelated parole violations — the evidence of which might be found in the trunk.” (citation omitted)). On the other hand, the parole agents here had a reasonable basis to search Henry’s vehicle, especially in light of the specific information regarding the straw purchases across county lines.
Following the search of the car and questioning by Agent Gallagher (after Mi*399randa warnings were given and he signed a waiver), parole agents searched Henry’s residence with the permission of his own mother. They seized a number of items, including the weapons acquired in the straw purchases. Henry’s challenge to this search largely rests on the notion that this second search (as well as his statements to Agent Gallagher at the parole office) constituted the “inadmissible fruit” of the constitutionally deficient search of his vehicle. (Appellant’s Br. at 17.) We, however, have already concluded that this initial search was supported by reasonable suspicion. Likewise, his assertion that “there were no ‘specific facts’ which could have possibly given rise to a reasonable suspicion that firearms or evidence of some other unspecified violation would be found” must be rejected given Agent Gallagher’s own testimony that Henry admitted to him that the guns had been stored at the house at some point. (Appellant’s Br. at 20.) Agent Gallagher further told the District Court that, in his experience, suspects tend to keep guns in their residences, that such guns are often recovered some time after the authorities receive information about their location, and that long guns especially tend to be kept longer than handguns. Supervisor Henry confirmed this account by testifying that parolees who had been convicted of weapons offenses often keep firearms at their homes. Even setting aside the fact that Henry’s mother consented to the search itself, the District Court properly found that the search of the residence was supported by reasonable suspicion.2
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court possessed subject matter jurisdiction over this criminal matter pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. We review a district court's findings of fact in connection with a suppression motion under a clear error standard of review. See, e.g., United States v. Williams, 413 F.3d 347, 351 (3d Cir.2005); United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002). In turn, the district court’s application of the law to these facts is subject to plenary review. See, e.g. Perez, 280 F.3d at 336.
. The government raises a number of additional grounds for why we should uphold the District Court's ruling denying Henry's motions to suppress. But, given the clear existence of reasonable suspicion, we need not address these additional points to resolve this appeal.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry L. Oliver, a Virginia state prisoner, appeals the district court’s dismissal of his 42 U.S.C. § 1983 (2006) action for failure to state a claim, pursuant to 28 U.S.C. § 1915A (b)(1) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm substantially on the reasoning of the district court. Oliver v. Gray, No. 7:09-cv00004-jct-mfu, 2009 WL 366150 (W.D.Va. Feb. 12, 2009). With regard to Oliver’s claim of denial of access to the courts, we find that Oliver has failed to demonstrate that he suffered an actual injury because of the Defendants’ actions; thus, his claim is not actionable. See Lewis v. Casey, 518 U.S. 343, 351-52, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). 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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PER CURIAM: *
The attorney appointed to represent Ed-mundo Rufino 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). Rufino has filed a response. Our independent review of the record, counsel’s brief, and Rufino’s response discloses no nonfrivolous issue for appeal. Accordingly, the motion for leave to withdraw is GRANTED, Rufi-no’s motion for appointment of substitute counsel is DENIED, 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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OPINION
MCKEE, Circuit Judge.
Dale R. Michael appeals the district court’s grant of summary judgment in favor of the defendants in this action alleging that the defendants defrauded him out of an interest in real estate. For the reasons that follow, we will affirm.
Inasmuch as we are writing primarily for the parties who are familiar with the rather contentious background of this suit, we need not set forth the procedural or factual history. We have reviewed the record and the briefs of the parties as well as the district court’s very thorough and thoughtful Memorandum dated July 31, 2008. In that Memorandum, Judge Stengel carefully explains that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law. We can add little to Judge Stengel’s explanation, and we will therefore affirm substantially for the reasons set forth in his July 31, 2008 Memorandum.
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https://www.courtlistener.com/api/rest/v3/opinions/8476601/
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OPINION
WEIS, Circuit Judge.
A Pennsylvania State trooper stopped a sport utility vehicle occupied by defendant Vutha Kao, the driver, and defendant Jeremy Warren, the passenger, for exceeding the speed limit. As he approached the defendants’ automobile, the trooper observed inside several large opaque bags, an obscured box, empty cans of energy drink, and multiple cell phones. He obtained a driver’s license from a nervous Kao, who claimed not to possess the SUV’s registration and insurance information because the SUV had been rented by Warren’s girlfriend, and then secured Warren’s identification.
The trooper returned to his patrol car, discovered that Warren had given him a fraudulent identification card, and went back to the SUV to issue Kao a warning. After receiving the admonition, Kao was told that he “was free to go[,]” but, prior to *330leaving, agreed to answer some additional questions. The questioning complete, the trooper noticed the muzzle of a firearm protruding from a compartment underneath Warren’s seat.
Both defendants were removed from the SUV and handcuffed. The trooper subsequently obtained and executed a search warrant for the vehicle, recovering the firearm, ammunition, and a box containing a large amount of pills.
Defendants were tried jointly, and a jury convicted them of conspiracy to distribute approximately 60,000 MDMA (“ec-stacy”) pills in violation of 21 U.S.C. § 846, possession of around 45,000 ecstacy pills with the intent to distribute them in contravention of 21 U.S.C. § 841, possession of a firearm by a convicted felon in breach of 18 U.S.C. § 922(g), and possession of a “short-barreled rifle” in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c). The District Court sentenced each defendant to, among other things, 860 months imprisonment and supervised release for five years.
Defendants have appealed, and their cases have been consolidated. They first contend that the District Court erred in denying their motions to suppress. According to defendants, the legitimate purpose for the traffic stop ended when the trooper issued Kao a warning, and the trooper’s subsequent inquiries and actions, which extended the duration of the encounter, constituted an unlawful seizure under the Fourth Amendment.
We disagree. The inquiries were proper. See Arizona v. Johnson, — U.S. -,-, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009) (“[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop”). In addition, the trooper’s observations and discovery of Warren’s false identification justified detaining defendants and their vehicle until the trooper observed the firearm. See United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (after a lawful traffic stop, “an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation”). The District Court did not err in denying the defendants’ motions to suppress.
Defendants next argue that the District Court should not have admitted evidence from cooperating witnesses that they had, on a previous occasion, traveled to North Carolina to collect money defendants owed them from a prior consignment of ecstacy pills. The District Court indicated that the cooperating witnesses’ testimony was evidence of a common scheme or plan. See Fed.R.Evid. 404(b) (evidence of prior crimes admissible to show, among other things, “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”). It also was evidence that defendants knew what they were carrying in the SUV on the day they were arrested. We find no abuse of discretion in the District Court’s admission of that evidence. See Givan, 320 F.3d at 463.
Defendants lastly assert that they were minor participants in a large-scale drug trafficking operation and should have been given less severe sentences. The evidence, however, was that there were approximately 45,000 ecstacy pills in the van, defendants knew that a large shipment was involved, and they were not simply one-time, outside “mules.” In fact, both defendants were career criminals. The District Court weighed all of the evidence and was in a position to evaluate the defendants’ complicity. We find no clear *331error in the sentencing judge’s decision to deny minor participation status to the defendants pursuant to U.S.S.G. § 3B1.2. See United States v. Carr, 25 F.3d 1194, 1207 (8d Cir.1994) (where “defendant takes issue with [a] district court’s denial of a reduction for being a minimal or minor participant which was based primarily on factual determinations, we review only for clear error”).
Accordingly, the judgments of the District Court will be affirmed.
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01-04-2023
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11-05-2022
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OPINION
PER CURIAM.
Petitioner Jairaj Bissoo is a native and citizen of Trinidad and Tobago, who entered the United States as a visitor in 1995. He was placed in deportation proceedings soon thereafter. He then applied for asylum, but withdrew the application when the Immigration Judge (IJ) granted him voluntary departure to France by December 15, 1996. Bissoo was still in the United States in October 1996, when he married a United States citizen whom he had met in August of that year. On November 25, 1996, his wife filed an 1-130 petition for an alien relative on his behalf and an 1-485 application for adjustment of status. On December 18, 1996, the INS returned the 1-485 application, explaining that Bissoo had to reopen his deportation case first. Bissoo hired an attorney to file motions to reopen and to extend his time for voluntary departure in immigration court, but neither motion was filed. His wife’s 1-130 petition filed on his behalf was approved in 1999. Bissoo remained in the United States for eleven years.
In September 2006, Bissoo sought sua sponte reopening in immigration court, in order to clear the way for him to proceed with his application for an adjustment of status. He asserted that prior immigration counsel was ineffective for failing to pursue timely reopening and voluntary departure extension motions in 1996. Next, he claimed that he was not barred from pursuing an adjustment of status because more than five years had passed since he violated the voluntary departure order. Bissoo also alleged that erroneous advice given to him by an INS employee in Newark caused his failure to file a motion to reopen and to leave the country by December 15,1996.
The IJ denied Bissoo’s motion, finding that there was no discernible basis for granting the extraordinary remedy of sua sponte reopening. The IJ also rejected the ineffectiveness of counsel claim because Bissoo failed to comply with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA agreed with the IJ’s denial of *336reopening. First, the Board dismissed Bissoo’s appeal because his motion to reopen in the immigration court was untimely under 8 C.F.R. § 1008.2(c)(2). Second, like the IJ, the BIA declined to exercise its discretion to reopen removal proceedings sua sponte pursuant to 8 C.F.R. § 1008.2(a). Specifically, the Board rejected Bissoo’s arguments that his eligibility for adjustment of status and the hardship to his family constituted exceptional circumstances warranting reopening. The BIA also rejected Bissoo’s ineffective assistance of counsel claim as procedurally barred, and held that his claim of delay caused by an immigration officer’s erroneous advice lacked evidence to support it.1 Bissoo filed a timely petition for review.
Bissoo argues that the BIA should have equitably tolled the ninety-day filing period for filing a motion to reopen under 8 C.F.R. § 1003.2(c)(2). Specifically, he asserts that an Immigration Officer’s erroneous advice led him to follow the wrong procedure, which, in turn, caused him to file an untimely motion to reopen. The Government asserts that we lack jurisdiction to consider Bissoo’s argument because he failed to exhaust it before the Immigration Court or the BIA.
Our jurisdiction is limited under § 242(d)(1) of the INA to cases where the petitioner “has exhausted all administrative remedies available to the alien as of right....” 8 U.S.C. 1252(d)(1); see Abdul-rahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). A petitioner has exhausted his administrative remedies if he raises all issues before the BIA. Under our liberal exhaustion policy, “so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted [his] administrative remedies.” Joseph v. Attorney General, 465 F.3d 123, 126 (3d Cir.2006). The exhaustion policy, however, does “not require the BIA to guess which issues have been presented and which have not.” Bin Lin v. Attorney General, 543 F.3d 114, 122 (3d Cir.2008). “[W]e will not punish the BIA by interfering in the administrative process with regard to issues that the BIA did not address.” Id.
Bissoo acknowledges that he did not specifically invoke the phrase “equitable tolling” before the BIA. He contends, however, that he raised the factual predicate for such a claim in detail, sufficient to put the BIA on notice of it. Bissoo’s notice of appeal and his brief appear to be devoted solely to justifying sua sponte reopening, the only ground upon which the IJ rejected his motion. But the very nature of Bissoo’s erroneous advice claim goes to delay, which is relevant to the timeliness issue. We need not decide whether Bissoo raised the equitable tolling claim before the BIA, however. Even if Bissoo did not, we conclude that the BIA reached the issue sua sponte. Id. at 123-24 (holding that we have jurisdiction where the BIA engages in sua sponte consideration of a claim). Without calling it “equitable tolling,” the BIA considered the erroneous advice claim and rejected it for lack of evidentiary support. Based on the foregoing, we are satisfied that we have jurisdiction to consider Bissoo’s claim.
We have jurisdiction to review the BIA’s decision to deny the motion to reopen as untimely under 8 C.F.R. § 1003.2(c)(2). We review the Board’s denial of a motion to reopen as untimely for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 170-71 (3d Cir.2002). Under this stan*337dard, we will reverse the Board’s decision only if it is arbitrary, irrational, or contrary to law. Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.2001); see also Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). Here, in the absence of any indication in the record to the contrary, we conclude that the BIA’s denial of Bissoo’s motion to reopen as untimely because it was filed almost ten years too late was not arbitrary, irrational, or contrary to law. We hold that the BIA acted well within its discretion in denying Bissoo’s equitable tolling claim.2 According to Bissoo’s affidavit, his only evidence, the immigration officer’s alleged erroneous advice, was countermanded two months later, in December 1996, by the Immigration and Naturalization Service, which explained that he had to file a motion to reopen. (J.A. at 22-23, ¶¶ 8-11.) Bissoo failed to provide any evidence establishing that the immigration officer’s erroneous advice caused him to miss the deadline for filing a timely motion to reopen for almost ten years. The Board’s denial of Bissoo’s ineffectiveness of counsel claim as procedurally barred is not arbitrary, irrational, or contrary to law. Bissoo has conceded that he failed to follow the requirements for raising such a claim pursuant to Matter of Lozada. (See Petitioner’s Brief at 11.) We will therefore deny the petition for review.
To the extent that Bissoo challenges the BIA’s decision not to invoke its discretionary authority to reopen under 8 C.F.R. § 1003.2(a), we agree with the Government that we lack jurisdiction to review it. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003).
Accordingly, the Government’s motion to dismiss is granted in part, and we will dismiss for lack of jurisdiction Bissoo’s petition for review of the Board’s decision to deny reopening as a matter of discretion pursuant to 8 C.F.R. § 1003.2(a). We will deny the petition for review as to the BIA’s decision that the motion to reopen was untimely pursuant to 8 C.F.R. § 1003.2(c)(2).
. Bissoo correctly notes that the BIA mistakenly identified the IJ as the source of the alleged erroneous advice, rather than the Immigration Officer. The BIA's mistaken characterization has no bearing on our decision here.
. Although the Government addressed equitable estoppel in its brief, Bissoo asserts that he “is not claiming equitable estoppel...." (Reply Br. at 5.) Hence, we will not consider the issue.
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OPINION OF THE COURT
FISHER, Circuit Judge.
Clark Motor Company, Inc. (“Clark Motor”) and its officers, Robert and David Clark, appeal from an order of the District Court granting summary judgment to Manufacturers and Traders Trust Company (“M & T”). See Clark Motor Co., Inc. v. Manufacturers and Traders Trust, Co., No. 4:07-CV-856 (M.D.Pa. Nov. 20, 2008). Clark Motor filed suit claiming damages for breach of contract, negligent misrepresentation, negligence, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
In June 2003, Clark Motor entered into an agreement with M & T for a floor plan line of credit. Under the agreement, M & T provided financing for Clark Motor’s purchase of new, used, and program vehicles. When Clark Motor purchased a vehicle, it would enter information, including the vehicle identification number (‘WIN”) and the vehicle’s purchase price, into M & T’s Dealer Access System (“DAS”). M & T would then deposit funds for the purchase of the vehicle into Clark Motor’s checking account to allow for the purchase of the vehicle. After the vehicle was sold to a customer, Clark Motor would repay M & T with interest.
Clark Motor was owned by brothers Robert and David Clark. Robert Clark was the President and majority owner of Clark Motor, while David Clark was its minority owner and Vice-President. In July 2001, Clark Motor hired Sally Smith (“Smith”) to serve as office manager. Smith had been previously employed by Mifflin County Coalition to Prevent Teen Pregnancy (“Coalition”) and Lazer Pro Digital Media Group (“Lazer Pro”). (Appellant Br. at 7.) On January 8, 1999, Smith pleaded guilty to charges of fraudulently endorsing checks payable to the Coalition. Later, on May 14, 2001, Smith pleaded guilty to 22 counts of forgery, theft, and receiving stolen property relating to actions she took at Lazer Pro. (J.A. A237-240.)
No one at Clark Motor was aware of Smith’s criminal record when she was hired. Robert Clark became aware of Smith’s criminal past, at the latest, on February 10, 2003, when a restitution order was served on Clark Motor requiring it to deduct money from Smith’s salary.
Notwithstanding Smith’s history, Clark Motor gave Smith the pin number to the DAS after it entered into its agreement with M & T. Smith was therefore able to enter new and used cars into the system and cause funds to be transferred from the line of credit to Clark Motor’s checking account.
All parties agree that Smith acted fraudulently in her use of the DAS. Beginning in 2005, using information from a separate Chrysler Dealer Information System, Smith entered new vehicles into the DAS which were owned by other dealers. Smith also overvalued used cars, inflating the amount Clark Motor paid for those *343vehicles. All told, Smith entered over 35 new vehicles into the DAS that were never owned by Clark Motor. This fraud caused M & T to loan Clark Motor some $1.5 million more than it otherwise would have in order to fund Clark’s purchases.
The parties agree that Smith used roughly $100,000 of the fraudulently loaned money herself. While M & T asserts in its brief that the most likely scenarios are that the remaining $1.4 million was either taken by Robert and/or David Clark or used to cover Clark Motor’s operating losses, there is little by way of evidence in the record to show what happened to the remaining funds.
The agreement authorized M & T to audit Clark Motor’s inventory. M & T did carry out audits of Clark Motor’s inventory, but Clark Motor argues on appeal that these audits should have been more detailed. When performing an audit, M & T would check each vehicle entered into the DAS against the vehicles on the lot. When vehicles were missing from the lot, auditors would seek an explanation from Smith. There were several legitimate reasons why a vehicle might appear on the list for financing but not be physically present on Clark Motor’s lot at the time of the audit. Some vehicles were loaned by Robert Clark to his family and to other individuals. Other vehicles had been ordered from other dealers but had not yet arrived or had been taken by customers before Clark Motor remitted payment to M & T.
On December 19, 2006, M & T and Clark Motor executed a new agreement for financing with a substantially increased fine of credit. Smith’s fraud was subsequently uncovered in January 2007.
II.
The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 1332. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review a District Court’s order granting summary judgment de novo applying the same standard as the District Court. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.2007). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001).
We exercise plenary review over the District Court’s interpretation of state law. Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 89 F.3d 976, 983 (3d Cir.1996).
III.
The District Court entered summary judgment for M & T. On appeal, Clark Motor claims that there were genuine issues of material fact with regards to several of its claims. Before the District Court, Clark Motor raised five claims, two of which, the breach of contract and negligent misrepresentation claims, are at issue in this appeal. We will consider each of the plaintiffs’ claims in turn.
A.
A plaintiff alleging breach of contract under Pennsylvania law must prove the existence of a contract between the parties, a breach of a duty imposed by the contract, and resulting damages. Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir.2003); see also CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.Ct.1999). There is no dispute that the parties had a contract, so we will consider whether the contract was breached.
Clark Motor claims that M & T breached the contract by funding its loan requests without proper documentation, failing to properly conduct required audits, breaching the duty of good faith and fair *344dealing, and providing loans in excess of the maximum amount set by the agreement.
We first consider whether the use of the DAS complied with the agreement’s documentation requirements. The Pennsylvania Supreme Court has stated that course of performance can be “perhaps the strongest indication of what the writing means.” Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736, 741 (1978). In this case, the District Court found that “the parties employed the DAS both before and after the 2004 and 2006 agreements governed their relationship. Therefore, the course of dealing and course of performance indicate that both parties agreed the submission of the required information via the DAS would satisfy the agreements.” (J.A. A33.)
There is strong evidence in the record that suggests that Clark Motor not only consented to the use of the DAS, but did so enthusiastically. The agreement allowed loan money to be advanced to Clark Motor at the request of any person authorized by the President, Vice President, or Treasurer of Clark Motor. Because Smith was provided with a PIN by Clark Motor to use the DAS, her use of the system was authorized by the agreement.
Clark Motor benefited from the use of the DAS to promptly receive financing for its vehicle inventory. According to Clark Motor’s Sales Manager, Jeff Hollingshead, the loss of the ability to receive prompt financing using the DAS, after Smith’s fraud was uncovered, contributed to Clark Motor’s failure as a business. (J.A. A551-52.)
Plainly the use of the DAS was considered by both parties to be an efficient and convenient way of doing business to which both parties acquiesced over a period of three years. Clark Motor cannot now decide that the conduct in which it voluntarily participated constituted a breach on the part of M & T. Cf. Agathos v. Starlite Motel, 977 F.2d 1500, 1509 (3d Cir.1992) (“[A] course of performance by one party accepted or acquiesced in without objection by the other may be evidence of an agreed modification or waiver of a written term.”).
We find that based on the course of performance it is clear both parties agreed that the information logged into the DAS satisfied the requirements of the agreement.
We also concur with M & T that even if the DAS did not satisfy the documentation requirement, there was, nonetheless, no breach of contract. The documentation was a condition precedent to M & T’s obligation to loan money. See Am. Leasing v. Morrison Co., 308 Pa.Super. 318, 454 A.2d 555, 559 (1982) (citing Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d 1001, 1016 (3d Cir.1980)). Without the required paper work, M & T was under no obligation to loan money to Clark Motor. See Keystone Tech. Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223, 1227-28 (Pa.Super.Ct.2003) (citing Acme Mkts., Inc. v. Fed. Armored Express, Inc., 437 Pa.Super. 41, 648 A.2d 1218, 1220 (1994)). M & T, in its discretion, could waive the paperwork requirement and loan money without it. See Prime Medica Assocs. v. Valley Forge Ins. Co., 970 A.2d 1149, 1156-57 (Pa.Super.Ct.2009).
The condition precedent only existed to protect M & T from fraud. The requirement that paperwork be sent to M & T cannot possibly be interpreted as a provision designed to protect both parties because there is no way in which sending paper work to M & T would protect Clark Motor against fraud perpetrated by M & T. Clark Motor could have employed internal procedures to protect itself against employees like Smith who would steal from the company. M & T’s decision to waive a *345condition precedent to loaning money cannot constitute a breach.
B.
Clark Motor asserts that M & T breached its contract by failing to thoroughly audit Clark Motor’s inventory. M & T relied on explanations provided by Clark Motor employees as to why vehicles on the Floor Plan were not physically present on Clark Motor’s lot. In Clark Motor’s view, M & T should not have accepted these explanations and should have undertaken a more thorough audit.
The District Court found no duty imposed by any of the agreements between the parties for M & T to audit Clark Motor’s inventory and we likewise find no such duty existed. While the financing agreements between the parties gave M & T the right to conduct an audit, the agreements did not require the audits. M & T had the right to audit but not the duty to do so. See Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 (1983).
Because there was no duty to perform the audits in the first place, we concur with the District Court that there is no reason to examine whether M & T was negligent in performing the audits.
C.
Clark Motor next argues that M & T breached the agreement by providing financing for used vehicles in excess of their NADA values.
The 2003 and 2004 Agreements state that financing for used vehicles was subject to restrictions set by M & T. Among these restrictions was “the percentage of NADA value.... ” 2003 Floor Plan Agreement, ¶ 4.2.2 (J.A. A251); 2004 Floor Plan Agreement ¶ 4.2.2 (J.A. A265.) A precise percentage, however, was not defined. With regard to used cars, the 2006 Agreement provided that M & T would loan the lesser of “(I) the Borrower’s acquisition price” or “(II) one hundred percent (100%) of the current NADA wholesale/trade value for such Used Motor Vehicle.” 2006 Loan Agreement ¶ 1.3(b) (J.A. A278.)
We agree with the District Court that M & T could not have breached on these terms. Because there was no percentage given in the 2003 or 2004 agreements, M & T could not have breached by financing more than 100 percent of the NADA value. Instead, the NADA value was only one factor in determining whether M & T would finance the vehicles. Even after the 2006 Agreement was signed and the 100 percent cap was in place, M & T did not breach because the record shows that Clark Motor requested the increased financing. The District Court cited a number of Pennsylvania cases, including Byrne v. Kanig, 231 Pa.Super. 531, 332 A.2d 472, 475 (1974), which make clear one party to a contract may not request that the other party breach an agreement and then claim a breach of contract on the breach he himself requested.
Additionally, the cap on the amount of a vehicle’s value that M & T would finance was in place solely for the protection of M & T. If M & T were to loan more than a vehicle was worth, then it would find itself unsecured for the difference between the amount it loaned and the vehicle’s actual value. M & T relied on this contract provision to protect itself from being placed in an unsecured position. Clark Motor, on the other hand, did not need to rely on this provision because it was the party purchasing the vehicle. If a vehicle was priced higher than Clark Motor could sell it, then Clark Motor could refuse to make the purchase. It needed no protection from the financing agreement.
M & T’s willingness to waive the provision to aid Clark Motor does not constitute a breach of contract. Formigli Corp. v. Fox, 348 F.Supp. 629, 646 (E.D.Pa.1972) *346(citing Mayer Bros. Constr. Co. v. Am. Sterilizer Co., 258 Pa. 217, 101 A. 1002 (1917); McKenna v. Vernon, 258 Pa. 18, 101 A. 919 (1917)). For these two reasons, M & T did not breach the contract by loaning amounts in excess of the NADA value for used cars.
M & T also did not breach the agreements by temporarily increasing Clark Motor’s credit limit. The 2004 Agreement states that “[M & T] may, at the request of the Borrower and in [M & T]’s sole discretion, make Loans to the Borrower ... in excess of the Approved Principal Amount.” (J.A. A264 ¶ 2.2.) The District Court concluded that this provision allowed M & T to make a loan in excess of the credit limit if such a loan was requested by Clark Motor. The District Court declined to read into the provision a requirement that M & T “provide Clark Motor written notification of something it recently requested and of which it was already aware.” (J.A. A41.) Additionally, because M & T sent Clark Motor both daily floor plan activity reports and summaries each month showing how much credit was available, Clark Motor cannot claim it was unaware that its loan requests were in excess of its credit limit under the agreement. We thus And M & T did not breach the agreement by failing to provided written notification that it was providing financing in excess of Clark Motor’s credit limit.
D.
There is a second basis for affirming the District Court’s grant of summary judgment on the breach of contract counts.1 In a breach of contract case, damages are a necessary element of the claim. Ware, 822 F.3d at 225. In this case, M & T actually paid Clark Motor all of the money that Clark is now claiming as damages. Clark Motor had control over the funds from the date they were requested in the DAS to the present. Even if M & T breached the contract by loaning money to Clark Motor, Clark Motor could have avoided all damages by simply repaying the amount loaned in breach of the contract.
E.
We quickly dispose of Clark Motor’s claim that M & T violated the implied duty of good faith and fair dealing in the contract. As the District Court put it, Clark Motor is “essentially arguing that M & T breached the implied covenant of good faith and fair dealing by acquiescing to Clark Motor’s request for additional funding.” (J.A. A44.) Clark Motor could have put additional procedures in place to ensure that its employees did not request financing either above the existing credit limit or for vehicles Clark Motor did not purchase. Clark Motor requested financing that went beyond M & T’s duty to perform under the contract, and in fact M & T performed beyond what the contract required.
In Pennsylvania, implied covenants do not impose an obligation to perform beyond what a contract requires. Cable & Assocs. Ins. Agency v. Commercial Nat’l Bank of Pa., 875 A.2d 361, 364 (Pa.Super.Ct.2005). Because M & T breached no contractual duty, it likewise did not violate the duty of good faith and fair dealing.
F.
Clark Motor’s negligent misrepresentation claim alleges that M & T provided false information in its audit summaries *347and failed to exercise reasonable care in conducting and communicating the audit results to Clark Motor.
The District Court held that the gist of the action doctrine barred Clark Motor’s negligent misrepresentation claim. The gist of the action doctrine exists “to maintain the conceptual distinction between breach of contract claims and tort claims.” eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa.Super.Ct.2002). Under the gist of the action doctrine, a plaintiff may not through artful pleading attempt to frame a breach of contract claim as a tort claim. The differences between tort and contract claims in Pennsylvania have been described as follows: “Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.” Bash v. Bell Tele. Co., 411 Pa.Super. 347, 601 A.2d 825, 829 (1992).2
On appeal Clark Motor argues that the negligent misrepresentation claim should have been permitted in light of the District Court’s ruling on the breach of contract claim. Because the District Court found that there was no duty to audit imposed by the contract, Clark Motor contends that the gist of the action doctrine should not be a barrier to proceeding with a tort action.
The social duty needed to maintain a tort claim arises, according to Clark Motor, from Section 552 of the Restatement (Second) of Torts, which provides in part:
One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Restatement (Second) of Torts § 552. According to Clark Motor, because M & T had the right to audit the vehicle inventory and provided the results of these audits to Clark Motor in the course of its business and in its pecuniary interest, the duty to exercise reasonable care and competence arose from the Restatement provision rather than the contract itself.
Clark Motor’s argument fails for two reasons. First, applying the gist of the action doctrine, M & T’s right to conduct audits of Clark Motor’s vehicle inventory arose only because of the contract between the parties. Any obligation on M & T’s part to ensure the accuracy of the information arose from the implied duty of good faith between parties to a contract, not the Restatement of Torts.
Next, we find, as the District Court suggested in a footnote, that Clark Motor is the source of the false information. (J.A. A48, n. 7.) When M & T found vehicles missing from Clark Motor’s inventory, they sought an explanation from Clark Motor employees. M & T accepted the explanations and then provided a courtesy copy of the audit to Clark Motor. The Restatement provides liability against one who “supplies false information for the guidance of others.” Restatement (Second) of Torts § 552(1). In this case, the false information was supplied by Clark *348Motor when it provided M & T with inaccurate explanations regarding the missing vehicles. There is no evidence to suggest that M & T believed Clark Motor provided it with false information in the audit, and, therefore, nothing to suggest that M & T believed it was repeating false information when it provided courtesy copies of the audits to Clark Motor. It is also difficult to construe the audit forms M & T gave Clark Motor as providing guidance, when they merely restated the (false) information that Clark Motor already had its disposal. In sum, we share the District Court’s skepticism of a claim where “a party ... wishes to be compensated for deceiving itself.” (J.A. A48, n. 7.) M & T was therefore entitled to summary judgment on the negligent misrepresentation claim.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. Although the District Court did not reach this issue, we may affirm the District Court on any grounds supported by the record. See Rodriguez v. Our Lady of Lourdes Med. Ctr., 552 F.3d 297, 303 (3d Cir.2008).
. While the Pennsylvania Supreme Court has never adopted the gist of the action doctrine, the Pennsylvania Superior Court has applied the doctrine. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 577 (Pa.Super.Ct.2003); eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa.Super.Ct.2002). This Court previously applied the gist of the action doctrine applying Pennsylvania law in Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 103-04 (3d Cir.2001).
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*349OPINION
SMITH, Circuit Judge.
In this declaratory judgment action, the District Court held that appellant Coun-tryway Insurance Co. (“Countryway”) had a duty to defend its insured, Paul Slaugen-houp, in a negligence lawsuit brought by Dustin C. Sams (“Sams”) against Paul and his father, Walter Slaugenhoup.1 Coun-tryway appeals. We will reverse.
I.
Paul Slaugenhoup was the owner of a farmowner’s insurance policy issued by Countryway. His policy provided personal liability coverage, under which Country-way agreed to defend Paul in lawsuits seeking damages for bodily injury or property damage, provided that coverage was not otherwise excluded by the policy.
Paul and his father Walter were joint owners of a combine used on the Slaugen-houp farm. On July 17, 2006, Paul and Walter set out to repair a tire on their combine. Paul removed the tire, loaded it onto Walter’s pickup truck, and told his father to “go get her fixed.” Walter was 93 years old, had a history of glaucoma, and was not wearing his glasses despite a driver’s license requirement that he wear corrective lenses when operating a motor vehicle. As Walter drove to get the tire fixed, his vehicle collided with Sams’s vehicle. Sams was severely injured.
Through his guardian, Sams filed a two-count complaint against the Slaugenhoups in the Court of Common Pleas for Clarion County, Pennsylvania. Count I alleged that Walter operated his motor vehicle negligently. Count II alleged that Paul was negligent under § 302 of the Restatement (Second) of Torts, whieh provides that “an act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person.” According to Sams, Paul was negligent when he placed the tire in Walter’s pickup truck and asked Walter to transport the tire for repair, knowing that his father was incapable of driving safely.
On November 21, 2007, Countryway filed a declaratory judgment action pursuant to 28 U.S.C. § 2201 in the United States District Court for the Western District of Pennsylvania.2 Countryway sought a declaration that it had no duty to defend or indemnify Paul in the negligence action brought by Sams, because Exclusion 1(f) of Paul’s policy excluded coverage for that claim. The District Court held that Countryway had a duty to defend Paul under the policy, and granted summary judgment for the Slaugenhoups and Sams. Countryway filed this timely appeal.3
II.
This Court exercises plenary review over the District Court’s grant of summary judgment. Camiolo v. State Farm, 334 F.3d 345, 354 (3d Cir.2003). Furthermore, the interpretation of an insurance exclusion is a question of law, over which this Court exercises plenary review. Canal Ins. Co. v. Underwriters at Lloyd’s London, 435 F.3d 431, 434 (3d Cir.2006). The parties agree that Pennsylvania substantive law applies.
*350III.
Paul Slaugenhoup’s policy provided personal liability coverage (“coverage L”), subject to certain exclusions. Exclusion 1(f), the only exclusion at issue in this appeal, states that coverage L does not apply to:
“bodily injury” or “property damage” which results from liability imposed by law on an “insured” for the use of a “motorized vehicle,” aircraft, or watercraft, except if coverage is provided for by an Incidental Motorized Vehicle or Watercraft Coverage.4
The District Court found this exclusion ambiguous, and therefore interpreted it in favor of coverage. The District Court offered three reasons for its conclusion that Exclusion 1(f) was ambiguous. First, it thought it unclear whether Paul “used” the pickup truck involved in the accident, since he neither owned nor operated it at any time relevant to the accident. Second, the District Court believed that the policy was unclear as to whose “use” of a vehicle would trigger the exclusion, and whether the exclusion applied in cases of vehicle use by anyone other than the insured. Third, the District Court distinguished Exclusion 1(f) from the exclusions in other cases in which Pennsylvania courts had applied motor vehicle exclusions in general liability policies. See Wilcha v. Nationwide Mut. Fire Ins. Co., 887 A.2d 1254 (Pa.Super.Ct.2005); Erie Ins. Exch. v. Transamerica Ins. Co., 352 Pa.Super. 78, 507 A.2d 389 (1986); Pulleyn v. Cavalier Ins. Corp., 351 Pa.Super. 347, 505 A.2d 1016 (1986). The Court pointed out that the exclusions applied in Wilcha, Erie, and Pulleyn excluded coverage for bodily injury “arising from” or “arising out of’ motor vehicle use, while the Countryway exclusion contained no such “arising from” language. The District Court held that the absence of such language contributed to the policy’s ambiguity.
The District Court was correct that under Pennsylvania law, ambiguities in an insurance policy are to be construed against the insurer. 401 Fourth St., Inc. v. Investors Ins. Group., 583 Pa. 445, 879 A.2d 166, 171 (2005). That rule is inapplicable here, however, because Exclusion 1(f) is not ambiguous.
The District Court erred in asking as a threshold question whether Paul Slaugen-houp used a motor vehicle. The Court should have first asked whether the exclusion even required that the insured “use” the motorized vehicle. In our view, it does not. Exclusion 1(f) states that the policy does not provide coverage for bodily injury resulting from (1) liability imposed by law (2) on an insured (3) “for the use of a motorized vehicle.” All three of those requirements are met here. The Sams negligence action sought to (1) impose liability through law (2) on Paul, the insured (3) “for the use” of the pickup truck. The “use” in question, of course, was Walter’s use of his pickup truck to transport the tire, which resulted in the accident and without which Sams would have no claim against Paul. As Countryway notes, the operative word in the exclusion is “use.” Walter was using a motor vehicle when he struck and injured Sams, and that use was sufficient to trigger Exclusion 1(f). Nothing in the policy states that Exclusion 1(f) applies only to Paul’s use of a vehicle. Because there is no need to decide whether Paul used the pickup, one of the chief sources of ambiguity identified by the District Court vanishes.
The District Court correctly noted that “the policy language begs the question of *351who must be using the vehicle in order for coverage to be excluded.” The Court thought that the policy’s failure to identify whose use of a vehicle would trigger the exclusion also suggested that the exclusion is ambiguous. We disagree. A more natural reading of the policy is that Country-way did not identify a specific person whose vehicle use would trigger the exclusion because it did not intend to limit the exclusion based on the identity of the user. Rather, it meant to exclude all coverage for liability imposed by law as the result of motor vehicle use — by anyone. See, e.g., Hanson v. North Star Mut. Ins. Co., 71 F.Supp.2d 1007, 1014 (D.S.D.1999) (interpreting nearly identical motor vehicle exclusion to exclude coverage, when the insured loaned an ATV to a young woman whose use of the ATV resulted in injuries and led to a lawsuit against the insured).
The District Court’s analysis effectively rewrites the policy to exclude “bodily injury ... which results from liability imposed by law on an insured for the use of a motorized vehicle by the insured.” The exclusion could have been written to say just that, but it was not. Notably, other exclusions in the policy are explicitly limited to the actions of the insured, while Exclusion 1(f) is not. For example, Exclusion 1(c) excludes coverage for “bodily injury ... which results from the ownership, operation, maintenance, [or] use ... of motorized vehicles ... owned or operated by or rented to or loaned to an insured ” (emphasis added). Similarly, Exclusion l(j) applies to “bodily injury ... which is expected by, directed by, or intended by the insured; or that is the result of intentional and malicious acts of the insured ” (emphasis added).
Clearly, Countryway knew how to limit an exclusion to the actions of the insured when it intended to do so. The presence of such limiting language in other exclusions, coupled with its absence from Exclusion 1(f), demonstrates that Exclusion 1(f) was not intended to be so limited. Reading the phrase “by the insured” into Exclusion 1(f) would be inconsistent with Pennsylvania law, which honors the intent of the parties evidenced by the language of the contract. See, e.g., Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999) (where “the language of a contract is clear and unambiguous, a court is required to give effect to that language ... [and must not] distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity”).5
Attempting to escape the plain language of Exclusion 1(f), Sams insists that his negligence claim against Paul is not connected to any “use” of a motor vehicle. Sams emphasizes that he has not asserted claims against Paul for vicarious liability, negligent entrustment, or negligent supervision of Walter’s use of the pickup. Instead, he limits his negligence allegations against Paul to two specific acts: placing the tire in Walter’s truck, and requesting Walter to drive the tire for repair. Neither of those acts, Sams argues, implicates the use of a motor vehicle, and therefore neither falls within the exclusion.
Pennsylvania courts interpreting motor vehicle exclusions have faced similar argu*352ments in negligent entrustment cases, and have consistently rejected attempts to divorce allegations of negligent entrustment from the excluded “use” of a vehicle that actually causes the plaintiffs injuries. See, e.g., Pulleyn, 505 A.2d at 1020. In Pulleyn, a man driving his employers’ vehicle crashed into another vehicle and killed two of the passengers. The victims’ family sued the employers for negligent entrustment of their vehicle. The issue was whether the employers’ insurer was required to defend them in light of the motor vehicle exclusion in their liability policy, which excluded “bodily injury or property damage arising out of the ownership ... operation, [or] use ... of any other automobile or aircraft operated by any person in the course of his employment by any insured.” Id. at 1018. The victims argued that this exclusion did not preclude coverage for their negligent entrustment claim because the entrustment was separate and distinct from the use of the vehicle that had caused their injury. The court rejected that distinction and held that the policy excluded coverage for the negligent entrustment claim, because “liability giving rise to the tort is not actually triggered until the motor vehicle is used in a negligent manner resulting in injury.” Id. at 1020 (quoting Mich. Mut. Ins. Co. v. Sunstrum, 111 Mich.App. 98, 315 N.W.2d 154, 157 (1981)). It was not the entrustment of the vehicle to the employee, the court reasoned, but the employee’s use of the vehicle that gave rise to the insured’s alleged liability. Id. at 1020.
Other Pennsylvania cases involving motor vehicle exclusions have similarly rejected attempts to separate allegations of negligent entrustment from the use of the vehicle that caused injury. See, e.g., Erie, 507 A.2d at 394 (rejecting the view that “negligent entrustment of the automobile” is “separate from the use of the vehicle” and holding that motor vehicle exclusion in a homeowner’s policy excluded coverage for negligent entrustment claim); Wilcha, 887 A.2d at 1259 (holding that a homeowner’s policy excluding coverage for “bodily injury ... arising out of the ownership, maintenance, or use of a motor vehicle” owned or operated by an insured also excluded coverage for a negligent entrustment claim, because “the use of the vehicle [was] an integral part of the tort of negligent entrustment”).6
Admittedly, Pulleyn, Eñe, and Wilcha are distinguishable in that they involved allegations of negligent entrustment. Here, there is no allegation of negligent entrustment, nor could there be, since Walter was driving his own truck at the time of the accident. Nevertheless, we believe that the reasoning employed in those cases forecloses Sams’s attempts to separate his negligent delegation allegations from the use of the vehicle that actually gave rise to his claims. Here, Walter’s use of the pickup truck is “integral” to Sams’s allegations against Paul, Wilcha, 887 A.2d at 1259, just as the use of the vehicle was integral to the negligent entrustment claims in Pulleyn, Erie, and Wilcha. As in those cases, there could be no negligence claim against the insured but for someone’s — ie., Walter’s — “use” of a motor vehicle.
*353IV.
An insurance policy is ambiguous “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 519 A.2d 385, 390 (1986). Exclusion 1(f) is not ambiguous. It excludes coverage for liability imposed by law resulting from the use of a motorized vehicle, regardless of whose use of the motor vehicle caused the bodily injury. Sams’s lawsuit clearly seeks to impose liability on Paul “for the use” of a motorized vehicle — specifically, the use of a pickup truck by Walter. Therefore, coverage is excluded, and Countryway has no duty to defend.
We will reverse the order of the District Court granting summary judgment for the Slaugenhoups and Sams. The case will be remanded, and the District Court is instructed to enter judgment in favor of Countryway.
.The father's name is Walter C. Slaugenhoup and the son's given name is Walter P. (Paul) Slaugenhoup. For ease of reference, we will refer to the father as "Walter" and the son as "Paul.”
. The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1).
. This Court has jurisdiction under 28 U.S.C. § 1291.
. The parties agree that no coverage is provided by an Incidental Motorized Vehicle or Watercraft Coverage.
. The District Court also overstated the significance of the absence of “arising from" language. It assigned great weight to the fact that, unlike the exclusions in Pulleyn, Erie, and Wilcha, the Country way exclusion did not contain the words "arising from” or "arising out of.” The District Court implied that the presence of those words in Pulleyn, Erie, and Wilcha was somehow central to those courts' analyses. It was not. None of those cases turned on the "arising from” language in the policies. The presence of "arising from” language may be sufficient for an insurer to effect a broad motor vehicle exclusion, but there is no suggestion in any of those cases that it is necessary to do so.
. Accord Bankert v. Threshermen's Mut. Ins. Co., 110 Wis.2d 469, 329 N.W.2d 150, 156 (1983). In Bankert, the court held that a homeowner's policy excluding coverage for the “ownership, operation, maintenance or use of automobiles while away from the insured premises” did not provide coverage for a negligent entrustment claim when the alleged negligence entrustment occurred on the premises but the injury occurred away from home. The court refused to separate the negligent entrustment from tire actual “use” that caused the injury, because “the parents' acts could not render them liable without their son's operation of the vehicle.” Id.
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11-05-2022
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FISHER, Circuit Judge,
dissenting.
I write separately to express disagreement with my colleagues’ conclusion that Exclusion 1(f) is not ambiguous. I agree the majority applied the correct Pennsylvania law governing contract interpretation, but its holding is incorrect. I believe Exclusion 1(f) is ambiguous, as it is subject to two reasonable interpretations. Further, the majority’s analysis of the relevant case law, while thorough, relies on cases where the underlying negligence claim is for negligent entrustment. As the underlying cause of action in the instant case is for negligent supervision, and not for negligent entrustment, I do not agree with the conclusions drawn from those eases. Therefore, I would affirm the District Court’s finding that Exclusion 1(f) is ambiguous and that the ambiguity should be construed in favor of the insured, thereby requiring coverage.
The question of an ambiguity “is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). The exclusion in question here has two equally reasonable meanings.
First, the exclusion can reasonably be read to exclude liability for any injury caused as a result of the use of a motor vehicle. ■ This interpretation allows for anyone, not only the insured, to be operating the vehicle in order for the exclusion to apply. Second, it is reasonable to interpret the clause as requiring that the “insured,” in this case Paul, be the one using the motor vehicle, either through ownership or actual physical use. Under this reading, the insured would have to have some type of connection to the motor vehicle at issue.
The ability to read Exclusion 1(f) in two different, yet equally reasonable, ways leads me to the conclusion that the clause is indeed ambiguous. While we are bound to interpret a policy to avoid ambiguities, not to find them, neither interpretation of the policy language violates this principle. City of Erie v. Guaranty Nat’l Ins. Co., 109 F.3d 156, 162-64 (3d Cir.1997). Rather, each has equal merit and comes directly from the text of the exclusion.
In brushing aside Sams’ assertion that Exclusion 1(f) does not apply because his negligence claims against Paul do not involve a motor vehicle, the majority relies on eases applying the doctrine of negligent entrustment. Sams’ complaint does not seek to hold Paul liable for negligent en-trustment, but for (1) placing the tire in his father’s truck, and (2) requesting his father to transport the tire for repair. Sams does not seek to hold Paul liable for *354his use of a motor vehicle, but only for negligently allowing his father to transport a tire.
Negligent entrustment, by its very definition, will always connect an insured to the motor vehicle in question.7 The insured in these negligent entrustment cases always owned, controlled, or employed the motor vehicle that caused the harm. If the insured did not have one of these relationships to the vehicle, there could be no claim of negligent entrustment. Transposing the legal conclusions from these cases onto a case involving negligent supervision or delegation under § 302A of the Restatement (Second) of Torts is plainly incorrect. The opinion goes as far as to acknowledge that “there is no allegation of negligent entrustment, nor could there be, since Walter was driving his own truck at the time of the accident.” Majority Op. at Part III. The majority, in spite of this acknowledgment, nevertheless relies heavily on the reasoning in these factually distinguishable cases.
The majority further relies on Exclusions 1(c) and l(j) to support its conclusion that Exclusion 1(f) is not ambiguous. The opinion asserts that the language in these exclusions demonstrates that “Countryway knew how to limit an exclusion to the actions of the insured when it intended to do so,” but chose not to include such language in Exclusion 1(f). Majority Op. at Part III. I find this reasoning unconvincing. Exclusion 1(c) excludes coverage for “bodily injury ... which results from the ownership, operation, maintenance, [or] use ... of motorized vehicles ... owned or operated by or rented to or loaned to an insured.” The majority emphasizes that this exclusion includes the “owned or operated” language and that Exclusion 1(f) does not. Exclusion 1(c) is, in fact, designed specifically to address claims of negligent entrustment against the insured. Negligent entrustment requires control over another person or item. Thus, the very definition of negligent entrustment dictates that the “owned or operated” language in this clause is required to give it effect. If Countryway wished to exclude coverage for negligent entrustment, it had no choice but to include the “owned or operated” language. This is no indication that Countryway made a conscious decision not to limit Exclusion 1(f) to apply only to the insured’s use of a motor vehicle. Further, Exclusion l(j) applies to “bodily injury ... which is expected by, directed by, or intended by the insured; or that is the result of intentional and malicious acts of the insured.” The majority emphasizes that this exclusion contains “by the insured” as limiting language. I find this not to be language of limitation but, rather, language of identification. I am unconvinced that either of the above mentioned exclusions are indicative of Coun-tryway choosing not to limit Exclusion 1(f) only to the actions of the insured.
In sum, Exclusion 1(f) can be interpreted in two reasonable ways. First, the exclusion can be read to disclaim coverage any time a motor vehicle is involved in causing liability to be imposed on the insured, regardless of the insured’s use of or control over the vehicle. Second, the exclusion can be read to apply only when the insured is the person “using” the motor vehicle, either through physical use, ownership, or control over the user of the vehicle. As such, Exclusion 1(f) is ambiguous and the ambiguity of the Exclusion *355should be construed against the insurer and in favor of the insured, thereby providing coverage. For this reason, I would affirm the order of the District Court granting summary judgment for the Slau-genhoups and Sams on Countryway’s Declaratory Judgement action.
. Restatement (Second) of Torts § 308 provides: "It is negligent to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should have known that such person intends or is likely to use the thing or conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others."
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OPINION OF THE COURT
PER CURIAM.
Appellant Robin McIntyre, proceeding pro se, appeals the order of the District Court denying her motion to reopen. For the following reasons, we will vacate the District Court’s order and remand for further proceedings.
In October 2008, McIntyre filed in the District Court a complaint under Title VII alleging employment discrimination. During the screening process required by 28 U.S.C. § 1915 for actions filed in forma pauperis, the District Court determined— based on McIntyre’s statement that she had yet to file an EEOC complaint — that McIntyre had not yet exhausted her administrative remedies, as required to file a Title VII discrimination action. See Anjel-ino v. New York Times Co., 200 F.3d 73, 87-88 (3d Cir.1999). Accordingly, the District Court dismissed the complaint without prejudice and afforded McIntyre 30 days to file an amended complaint. McIntyre did not file an amended complaint— indeed, she could not, because the EEOC had not yet ruled. Two months later, the District Court dismissed the case and ordered it closed.
Several months later, on May 5, 2009, McIntyre received the EEOC determination and right to sue letter. In June, she filed a motion to reopen, to which she attached a copy of the EEOC decision dismissing her complaint. The District Court treated McIntyre’s motion to reopen as a motion for reconsideration under Federal Rule of Civil Procedure 59(e), and denied it on the merits. McIntyre then filed a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.1
Although the District Court construed McIntyre’s “motion to reopen” as a motion under Rule 59, her motion actually appears to be a request for relief from judgment under Civil Rule 60(b). See United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir.2003) (noting that Rule 59(e) is a device used to allege legal error, not merely request reconsideration). We therefore review the denial of her motion for abuse of discretion. See Brown v. Philadelphia Hous. Auth., 350 F.3d 338, 342 (3d Cir.2003).
Although the failure to pursue administrative remedies before filing a lawsuit may prevent a plaintiff from proceeding in federal court, see Wilson v. MVM, Inc., 475 F.3d 166, 174-75 (3d Cir.2007), this Court has held that failure to exhaust is an affirmative defense and should not be the basis of a sua sponte dismissal. See Ray v. Kertes, 285 F.3d 287 (3d Cir.2002). McIntyre’s later motion was her attempt, pro se, to reinstate proceedings after properly exhausting her remedies. While the better course would have been for her to file a new action, she should not be prejudiced by her choice to file a motion to reopen instead in artful drafting. If the District Court was not prepared to reopen the case, it should have directed her to file a new complaint in light of her clear right to sue.2 Now, 90 days *357has passed,3 and McIntyre, a pro se litigant, will have lost her right to sue notwithstanding her having taken affirmative steps to come back into court following exhaustion, if she is not afforded relief. We conclude that her motion should have been treated as a Rule 60(b) motion and granted by the District Court, since her exhaustion and right to sue was then clear.
Accordingly, we will summarily VACATE the order of the District Court and REMAND for further proceedings.
. The Clerk listed this appeal for possible dismissal due to a jurisdictional defect because McIntyre’s notice of appeal appeared on the District Court docket as a challenge to the District Court order dismissing her case. However, the District Court docket merely reflected a clerical error: McIntyre's notice of appeal only indicates a challenge to the denial of her "motion to reopen." In that regard, McIntyre’s appeal suffers no jurisdictional problem, and we need not consider whether jurisdiction might be asserted over the dismissal order.
. Alternatively, the district court could have construed the motion as a new complaint and opened a new case.
. McIntyre was required to file a civil action within 90 days of the EEOC decision. See 42 U.S.C. § 2000e-5(f)(l).
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OPINION OF THE COURT
PER CURIAM.
Asdrubal Cardenas Rincon and Luz Miriam Ossa Villegas, husband and wife, are citizens of Colombia who were charged with removability for entering the United States without valid entry documents. See Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I) ]. Rincon conceded removability, but applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”).1 Rincon claimed that he was persecuted in Colombia by the Nation*360al Liberation Army (“ELN”), a terrorist organization, because he worked with the Liberal Party to provide medical care to victims of the guerillas. Rincon alleged that the ELN threatened him with death multiple times beginning in May 1999. Scared by the threats, Rincon and his wife departed for the United States. Rincon claimed that he returned to Colombia in November 2001 after learning that his father had suffered a heart attack. Back in Colombia, the ELN allegedly attempted to kill him. According to Rincon’s testimony, he was riding a motorcycle at 10 p.m. on February 13, 2002, when a man exited a car and fired a gun at him. After driving around town to make sure he was not being followed, Rincon went to his parents’ house. When Rincon arrived, his father received a telephone call from someone identifying himself as a representative of the ELN, warning that while Rincon had escaped this time, he would not be “saved” the next time. Rincon testified that he reported the incident to the police the next day, but that he was not sure whether they investigated. Fearful for his life, Rincon departed again for the United States on February 17, 2002.
The Immigration Judge (“IJ”) denied relief, finding that Rincon’s account of the February 13, 2002, attempt on his life was not credible because of inconsistencies in his written applications, his testimony, and documentary evidence. The IJ also cited his failure to provide reasonably expected corroboration. The Board of Immigration Appeals (“BIA”) affirmed without opinion. Rincon filed a petition for review, and we granted the Government’s unopposed motion to remand the case to the Board to reassess whether the IJ’s adverse credibility determination was supported by the record. See Rincon, et al. v. Att’y Gen., 06-4136 (order entered on April 23, 2007). On remand, the BIA analyzed the record and concluded that the IJ’s credibility determination was not clearly erroneous.2 Rincon filed a timely petition for review.
We have jurisdiction under INA § 242 [8 U.S.C. § 1252], Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this Court reviews the decisions of both the BIA and the IJ. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). Our review of these decisions is for substantial evidence, considering whether they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Liv-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir.2009) (en banc) (quotation marks *361and internal citation omitted). We will uphold an adverse credibility determination under the substantial evidence standard “‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Lin v. Att’y Gen., 543 F.3d 114, 119 (3d Cir.2008) (internal citation omitted). Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Furthermore, we must uphold a determination regarding the availability of corroborating evidence unless “a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”3 INA § 242(b)(4) [8 U.S.C. § 1252(b)(4) ]; see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009).
The adverse credibility determination centered on allegedly differing accounts of the ELN’s efforts to kill Rincon on February 13, 2002. The record contains a police report, prepared the day after the shooting, which contains the following account:
[A]t arounfd] 10:00 PM in the evening, I was in the sector of Cali in the Alto Refugio neighborhood])] I was [driving] my father’s] motorcycle on Carrera 67 between [S]econd and [T]hird [S]treet, when a Renaul[t] car appeared[.] I cannot say the plate numbers nor the color since it was very dark[.] [F]rom there a person fired at me with a weapon[.] I was able ... to keep the motorcycle balance[d] and fortunately the shot did not reach me.... [The car] took a different direetion[.] I was going to my parents’] house whose address is the same where I live.
Administrative Record (“A.R.”), 528. The IJ concluded that this story “variefd] significantly” from Rincon’s testimony that he was shot at twice and the Renault was parked at the time of the shooting. We disagree. Rincon provided reasonable explanations for both of these perceived inconsistencies. For instance, Rincon explained during his testimony that he “didn’t tell [the police] about the second shot ... because I didn’t see it and at the that time I omitted it.” A.R. 374. Indeed, earlier in his testimony, Rincon stated that “I only heard a second shot but I did not see [it].”4 A.R. 303. When asked to explain why he had told the police that the Renault was moving, Rincon stated, “when I made the report, I saw the car, which was moving, and then it stopped. I said that the car had come out.... He came out and then he stopped and somebody then got out of the car.” A.R. 373. This account corresponds with Rincon’s earlier testimony that “a car parked, exited and parked. As I approached, somebody exited the vehicle.” A.R. 301. The explanation also is consistent with Rincon’s asylum interview and an addendum attached to his first asylum application, in which Rincon stated, respectively, that “someone came out of the car” and that “a man came out of a dark Renault that was parked across the street.” A.R. 482, 522-23. Notably, the IJ failed to acknowledge either of Rin-con’s explanations for the alleged discrepancies. In any event, they represent minor inconsistencies in Rincon’s description of a traumatic event. Cf. Cham v. Att’y Gen., 445 F.3d 683, 691 (3d Cir.2006) (criticizing IJ for concluding that a “traumatic *362event” would be “forever seared in [the petitioner’s] memory”).
The adverse credibility determination also rested on discrepancies in Rincon’s account of his escape. In both his asylum interview and in the asylum application addendum, Rincon stated that he went to a friend’s house before returning to his parents’ home. A.R. 482, 523. Although Rin-con did not mention going to a friend’s house in his testimony, he did state that he did not immediately return to his parents house because he was afraid that he was being followed. A.R. 376-78. Notably, the IJ acknowledged that she “overlooked [her] obligation to ask [Rincon] to explain this discrepancy.” See Ming Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir.2006) (holding that “an IJ may not rest an adverse credibility finding on non-dramatic putative contradictions or incongruities in an alien’s narrative without first giving the applicant a chance to reconcile the testimony”). The asylum addendum also indicated that Rincon went to his parent’s house two hours after the shooting, but he testified that it “was in a half hour that I got home.” A.R. 357. We conclude that these inconsistencies are minor and do not support an adverse credibility determination, particularly in light of Rincon’s otherwise consistent account.5
Further, substantial evidence does not support the BIA’s conclusion that Rincon was unable to remember reporting the shooting incident to a human rights office. In addition to the police report, which indicated that it was made at 10:00 a.m. on February 14, 2002, the record also contained a statement from the Human Rights Chief at the Security Administrative Department (“DAS”), noting that Rin-con appeared there at 3:00 p.m. on February 14 to “request help due to the death threats and psychological terrorism.” A.R. 415. The IJ asked Rincon, “[d]id you go to more than one office to file a complaint the day after the shooting?” Rincon explained, “I didn’t consider them to be two offices. I went to the police and the DAS.... I consider them the same office. I went to both places but I didn’t think of one being different than the other. For me it’s the same office.” A.R. 380. We also perceive no inconsistency in the 5-hour difference between the reports. Indeed, Rincon’s description of going to the police in the morning is supported by the Human Rights Chiefs statement that Rin-con “presented [a] copy of the complaint submitted to the metropolitan police” when he appeared in the DAS office at 3:00 p.m. A.R. 415.
The BIA also agreed with the IJ that Rincon failed to establish that he was in Colombia from November 2001 to February 2002.6 In particular, the BIA stated that the “police and human rights complaints were not authenticated and are not reliable evidence of [Rincon’s] presence in Colombia on February 14, 2002, in light of the inconsistencies between [his] testimony and the police complaint, and his vague testimony regarding his visit to the human rights office.” We have already rejected the BIA’s reasoning concerning the alleged inconsistencies. With respect to authentication of the documents, we emphasize that the IJ specifically stated that she was *363“reifying] on documents presented by [Rincon] in support of [his] claims, despite their not being authenticated.” The IJ noted that it was “impossible” for Rincon to attempt to authenticate the documents because the Government did not return the documents to Rincon’s counsel with such a request. The Board offered no explanation for its decision to hold the lack of authentication against Rincon. Cf. Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir.2004) (holding that failure to properly authenticate a document is not an absolute rule of exclusion).
For the foregoing reasons, we will grant the petition for review, vacate the BIA’s order of February 20, 2008, including that portion of the order which denied Rincon’s motion to remand on futility grounds, see footnote 2, supra, and remand for further proceedings consistent with this opinion.
. Although this opinion will refer to the lead petitioner, Rincon, it should be understood to include Villegas' derivative application as well. See Al-Fara v. Gonzales, 404 F.3d 733, 736 n. 1 (3d Cir.2005).
. The Board also rejected Rincon’s request to remand the matter to the IJ for consideration of evidence allegedly demonstrating ineffective assistance of counsel and establishing his status as a health care worker. The Board’s decision was based in part on Rincon’s perceived failure to comply with the procedural requirements established by Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
We have generally approved the application of the Lozada procedural requirements to claims of ineffective assistance of counsel in removal proceedings. See Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir.2007). However, we have modified Lozada to excuse strict compliance with its requirements under particular circumstances. See id. at 157 (alien was excused from explaining his failure to file a disciplinary complaint against allegedly ineffective counsel because counsel freely admitted his ineffectiveness); see also Rranci v. Att’y Gen., 540 F.3d 165, 172-73 (3d Cir.2008).
The BIA decision does not specify — and we are unable to clearly discern from the record — the particular Lozada requirement with which Rincon failed to comply. We are therefore unable to meaningfully review the BIA’s application of those requirements to Rincon. The Board, in reviewing upon remand Rincon's evidence that he was targeted by the ELN because he was a health-care worker, should reconsider Rincon’s ineffective-assistance claim in light of our ruling and our cases modifying Lozada.
. The provisions of the Real ID Act of 2005 that address the Court's review of an adverse credibility finding do not apply in this case because Rincon applied for relief before the Act's effective date. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007).
. We note that when Rincon was asked how many times he was fired at, the IJ commented, "I wouldn't expect anybody to ... sit and take notes.” A.R. 303.
. For instance, Rincon consistently maintained that the attack occurred at 10:00 p.m. on Route 67, between Second and Third Streets, that the car from which the shooter emerged was a Renault, and that his parents received a threatening telephone call shortly after the shooting. A.R. 301, 304, 373, 522-23, 528.
. The IJ also faulted Rincon for providing "peculiar new added details (including [his] sudden claim that his parents have received phone calls about [him] since his return here in 2002).” A.R. 205. Given that the family may have received the phone calls after Rin-con filed his asylum application, it is unclear why such evidence was "peculiar.”
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the Court on an appeal brought by John Hyland in this action that Hyland brought against his former employer, American General Life Companies, L.L.C., a wholly-owned subsidiary of American International Group, Inc. In his complaint Hyland charged that American General terminated his employment by reason of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. (West 2002). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. After discovery American General moved for summary judgment and the District Court granted the motion by an opinion and order dated September 12, 2008, entered September 17, 2008, 2008 WL 4308219. Hyland then appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review on this appeal and thus can affirm only “if the pleadings, de*367positions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [American General] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir.2009).
The basic facts in this case in an overview sense are not in dispute. Hyland is an attorney at law whom American General or its predecessor employed in a legal position from 1989, when he graduated from law school, until August 2005 when American General terminated his employment when he was 56 years old by eliminating his position at the time of a reorganization of its employment structure. Though Hyland indicates that he “was terminated as part of an overall reorganization and/or reduction in force,” he contends that “this so-called reorganization was actually an attempt to get rid of one older employee,” i.e., him. Appellant’s br. at 19.
Hyland contends that American General replaced him with Timothy Bolden who is about nine years younger than he is. In Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir.2001), we indicated that one of the elements of a prima facie case in an age discrimination action predicated on indirect evidence is that the person ultimately replacing the plaintiff be sufficiently younger than the plaintiff so that an inference of age discrimination can be drawn from the replacement. The difference in age between Hyland and Bolden satisfies that criterion.
Notwithstanding the difference in ages between Hyland and Bolden, the District Court held that a reasonable fact finder could not conclude that Bolden had replaced Hyland and thus Hyland did not make out a prima facie case of discrimination. In this regard, the record shows that Hyland served in the position of Senior Attorney but that American General appointed Bolden to fill a new position as Associate General Counsel. Of course, an employer does not ensure that one position will be considered to have replaced another simply by changing the title of the original position. Here, however, as Associate General Counsel Bolden performed functions that Hyland had not performed but did not perform duties that Hyland had performed. Though there was some overlap between Hyland’s and Bolden’s duties the difference between their positions was so significant that a reasonable trier of the fact cannot say that the differences in their positions was simply cosmetic. In considering the two positions it is highly significant that Bolden’s gross salary was almost $55,000 higher than Hy-land’s, making it very difficult to conclude that Bolden replaced Hyland. See Monaco v. American General Assurance Co., 359 F.3d 296, 305 (3d Cir.2004). In fact, after American General terminated Hy-land it divided his responsibilities among various employees, some older and some younger than Hyland. In the circumstances, we agree with the District Court that Hyland did not establish a prima facie case and thus his case had to fail.
We realize that at a November or December 2004, staff meeting Marc Her-ling, Hyland’s direct supervisor and the prime mover in the reorganization that resulted in Hyland’s termination referred to Hyland as the “old man” of the operation. But the District Court believed that this stray remark made ten months before Hyland’s termination could not support an inference of age discrimination underlying Hyland’s termination and we agree. See Fuentes v. Perskie, 32 F.3d 759, 767 (3d Cir.1994). We do not think that a single remark that might reflect the declarant’s recognition of an employee’s age in a context unrelated to the employee’s termi*368nation is sufficient evidence to support a prima facie case of age discrimination based on direct evidence at the time that the employer later terminates the employee. After all, whether or not a supervisor makes reference to an employee’s age it is likely that he will have some concept of it. In any event, it would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment equivalent of being politically correct lest it be used later against the employer in litigation.
We can understand why Hyland believes that American General treated him unfairly though we, of course, express no view on that possibility. Nevertheless, it is necessary to remember that the age discrimination laws are not intended to remedy all of the possible wrongful adverse employment decisions by an employer and the law surely should not be used to impede an employer’s effort to organize its business as it deems fit so long as the employer in doing so does not violate employment age discrimination restrictions. See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1088 (3d Cir.1992) (“[T]he ADEA is a discrimination statute and is not intended to handcuff the management and owners of businesses to the status quo”).
For the foregoing reasons as well as for the reasons that District Court set forth in its opinion dated September 12, 2008, we will affirm the order for summary judgment dated September 12, 2008, entered September 17, 2008.
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OPINION
COWEN, Circuit Judge.
Darnell Jackson appeals from the judgment of conviction and sentence entered by the United States District Court for the Western District of Pennsylvania. We will affirm.
I.
A federal grand jury returned a superseding indictment charging Jackson and others with conspiring to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(A)(i).
The government filed an information pursuant to 21 U.S.C. § 851(a), notifying Jackson of its intention to use one of his prior convictions as a basis to enhance his sentence. Specifically, the government alleged that he had been convicted, on or about April 10, 2006, of felony “Possession with Intent to Deliver a Controlled Substance (i.e., heroin)” in “the Allegheny County (Pennsylvania) Court of Common Pleas.” (A28.) It appears that, under 21 U.S.C. §§ 841 and 846, this prior conviction increased the statutory mandatory minimum term of imprisonment from ten to twenty years.
A plea hearing was then conducted on October 23, 2008. Represented by the Federal Public Defender’s Office, Jackson pled guilty. The District Court specifically addressed the government’s § 851(a) filing and its potential effect on the sentence. It therefore asked Jackson whether he understood “that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack your sentence” and whether he understood “that the minimum penalty to count one is 20 years imprisonment.” (A44.) Jackson personally responded in the affirmative to both questions.
*370Later in the plea hearing, an exchange occurred between the District Court and the defense counsel regarding the applicable mandatory minimum sentence and the prior Pennsylvania conviction. The defense counsel specifically noted that the minimum penalty if the District Court accepted the § 851(a) information would be twenty years’ imprisonment. On the other hand, the minimum penalty would be only ten years in prison if the District Court did not accept the information. Both the prosecutor and the District Court eventually agreed with the defense counsel’s assessment, and the District Court stated that:
THE COURT: We should have that in the colloquy, then we should have that in there. I’m assuming you’re correct. We’re going to have to redo the colloquy and ask him those questions because it has to be on the record perfectly.
Marshal, you just keep him here. We’ll take a short recess and we’ll correct that.
(A49-A50.)
Following a brief recess, the District Court evidently sought to ask Jackson about the prior Pennsylvania conviction alleged in the § 851(a) information and the possible mandatory minimum sentence:
THE COURT: The government did file a notice with the Court, and in the early part of the colloquy, I did tell him that. Now, he might want to challenge that at the time of sentencing but the minimum sentence is 20 years with the government having notice of that.
MS. LONG [Defense Counsel]: That’s correct. But if the Court has not accepted the conviction as a predicate offense under 851, yes, that would happen at the time of sentencing.
THE COURT: So, the minimum sentence is 20 years. If he wants to challenge that at the time of sentencing, he can. Is that what you’re saying?
MS. LONG: Yes, Your Honor.
THE COURT: Does he understand that? Do you understand that?
MS. LONG: Your Honor, if I could just speak. If Mr. Jackson, were he able to successfully challenge the 851, then the mandatory minimum would drop to 10 years.
THE COURT: I don’t dispute that with you but as long as he understands, the government, having notified the Court of the previous conviction, the minimum is 20 years. Now, if he’s going to challenge that previous conviction; is that what you have in mind?
MS. LONG: That he would — he’s not waiving the right to challenge that previous conviction. If he does successfully challenge it, then the 20-year minimum would not apply. The 10-year minimum would apply.
THE COURT: That’s correct. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: In other words, is there, as a I understand it, some reason for you to believe that he doesn’t have a previous conviction?
MS. LONG: I’d like to reserve. I don’t want to waive the right to challenge that, Your Honor. Neither does Mr. Jackson at this point. That was all.
THE COURT: Good enough. I think we’re all right then.
(AR50-AR51.)
The Pre-Sentence Report (“PSR”) expressly listed the prior Pennsylvania conviction alleged in the § 851(a) information and noted the applicability of a twenty-year (or 240 months) mandatory term of imprisonment. Jackson filed written objections to the PSR. The District Court then filed its “Tentative Findings and Rulings Concerning Disputed Facts or Factors.” The District Court stated, inter alia, that Jackson was subject to a statute-*371ry minimum sentence of not less than 240 months or twenty years. Jackson submitted, under seal, a “Memorandum in Mitigation of Sentence.” Among other things, he acknowledged facing “a minimum of 240 months’ imprisonment” and asked for this mandatory minimum sentence. (A71.)
Jackson was sentenced on January 22, 2009. His defense counsel evidently conceded at the hearing that her client was subject to a 240-month mandatory minimum term of imprisonment because of the prior Pennsylvania conviction. She specifically stated that “the conviction that the government has attached to that 851 is a one-time sale of $55 worth of heroin, and that is what is making Mr. Jackson subject to double the mandatory minimum.” (A66.) She then said that “I would just make the argument that I have already submitted to the Court.” (Id.) In the end, the District Court sentenced Jackson to a total term of imprisonment of 240 months. This appeal followed.
II.
Jackson argues that the conviction and sentence must be overturned because the District Court committed plain error by failing to comply with 21 U.S.C. § 851(b) and inquire “whether he affirms or denies that he has been previously convicted as alleged in the information.”1 According to Jackson, the prior Pennsylvania conviction was obtained in violation of his federal constitutional right to a speedy trial. We nevertheless conclude that the District Court’s judgment must be affirmed under either the invited error or the waiver doctrine. In the alternative, we conclude that Jackson fails to make out a violation of his speedy trial rights, at least for purposes of the plain error standard of review.
§ 851(b) provides that:
If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence.
It is uncontested that the second prong of this provision was satisfied. Jackson admits that “[t]he court here did advise Mr. Jackson that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack your sentence.” (Appellant’s Br. at 8 (quoting A44, A50-A51).) Under the circumstances, it appears clear that the defense was well aware of the right to challenge the prior Pennsylvania conviction. In fact, the defense counsel made repeated interjections at the plea hearing regarding the prior Pennsylvania conviction and its potential effect on the mandatory minimum sentence. When asked by the District Court whether her client was “going to challenge that previous conviction,” the attorney stated that Jackson was “not waiving the right to challenge that previous conviction.” (A51.) Asked again whether she had “some reason” to believe that her client did not have a previous conviction, she reiterated her wish to reserve on this issue, stating that “I don’t want to waive the right to challenge that” conviction and that Jackson also did not want to do so. (Id.) She then said, “That was all,” meriting the following understandable response from the District Court: “Good enough. I think we’re all right then.” (Id.) Jackson even acknowledges in his appellate brief that he thereby *372“reserved his right to deny that he had been previously convicted as alleged in the information.” (Appellant’s Br. at 6 (citing A50-A51).) As the government notes in its own brief, the defense counsel’s own repeated statements evidently indicated “that there would be no point in asking Jackson directly” whether he affirmed or denied the prior Pennsylvania conviction alleged in the § 851(a) information. (Ap-pellee’s Br. at 15.)
Defense counsel’s statements at the plea hearing seemed to indicate that she might file a written challenge to the prior Pennsylvania conviction pursuant to 21 U.S.C. § 851(c). But no such challenge was ever filed with the District Court. On the other hand, Jackson failed to attack the existence or constitutionality of the prior Pennsylvania conviction in his written PSR objections. Furthermore, his mitigation memorandum went so far as to ask the District Court to impose the mandatory minimum sentence of 240 months’ imprisonment. As repeatedly emphasized by the defense counsel herself, such a mandatory minimum sentence would apply only if the District Court accepted the government’s § 851(a) information and its allegations of a prior Pennsylvania conviction. Likewise, the defense counsel never disputed the existence or constitutionality of the prior Pennsylvania conviction at the sentencing hearing. She instead conceded that her client was subject to the 240-month mandatory minimum sentence and successfully asked the District Court to impose this sentence.
Given what actually occurred before the District Court, it appears that Jackson’s attempt to use § 851(b) in order to bring a new speedy trial claim must be rejected based on either the invited error or the waiver doctrine. See, e.g., United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (distinguishing between waiver and forfeiture); United States v. Console, 13 F.3d 641, 660 (3d Cir.1993) (invited error doctrine). As the government points out, a defendant is not really in a position to challenge a sentence when the sentencing court gave “him exactly the sentence he wanted.” (Appellee’s Br. at 17.)
Nevertheless, even assuming that the plain error standard of review applies and that the District Court committed an error that was plain, the underlying judgment still must be upheld either because the error failed to affect Jackson’s substantial rights or because he failed to demonstrate a miscarriage of justice. See, e.g., United States v. Thielemann, 575 F.3d 265, 270 n. 9 (3d Cir.2009) (substantial rights requirement); United States v. Corso, 549 F.3d 921, 929 (3d Cir.2008) (miscarriage of justice requirement). Simply put, Jackson does not make out a viable claim that his constitutional right to a speedy trial was violated in connection with his prior Pennsylvania conviction.2 See, e.g., Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (indicating that courts assess such claims by considering “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant” (footnote omitted)). Admittedly, the Pennsylvania prosecution did take a rather long time, with the charges being filed in January 2001, and Jackson finally entering his guilty plea in April 2006. However, for a *373significant portion of this time, Jackson was either free on bond or was a fugitive. He also was a rather uncooperative client. For instance, he refused to communicate fully with his initial counsel and filed disciplinary charges against a subsequent lawyer. Focusing on the time he spent incarcerated after his capture, we note that the prosecution should not be held responsible for the time needed for his new defense counsel to obtain discovery when it is unclear what kind of discovery his counsel expected to receive. Likewise, it appears that the continuance obtained in order to reschedule the case for a jury trial was actually requested by the defense because, among other things, the relevant document was evidently completed and signed by Jackson’s defense attorney and noted that it was the defendant who actually requested the jury trial.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court possessed jurisdiction over this criminal matter pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291.
. Both parties have filed motions to supplement the record with documentation from the Pennsylvania prosecution. Both motions are granted so that we may conduct an informed review of Jackson's speedy trial allegations. As noted above, this additional documentation confirms that his allegations ultimately lack any real merit. We further grant Jackson's motion to seal Volume III of his appendix as well as the government's amended motion to file a sur-reply in opposition to Jackson’s own motion to supplement the record.
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OPINION
PER CURIAM.
Petitioner, Yanick Voltaire Montel, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her petition.
I.
Montel is a native and citizen of Haiti. Montel conceded that she was removable for entering the United States without inspection or parole, but applied for asylum and related relief on the ground that she would face persecution by the controlling Lavalas party if forced to return to Haiti.
Montel testified that her political problems in Haiti began on April 9, 2005, when six armed men entered her beauty salon and forced her to shut it down. Montel explained that the men were part of an anti-Lavalas rebel group who were hiding from the police. The men vandalized the salon and slapped her in the face. Montel claimed that after the incident, she began receiving threatening phone calls from La-valas supporters accusing her of providing sanctuary to the rebels. Fearing for her safety, Montel closed her salon down for several months. She testified that she reported the incident to the police on April 17, 2005.
According to Montel, approximately two months after the incident at the salon, on June 12, 2005, a group of Lavalas supporters went to her house looking for her. Montel was not at home at the time, but her uncle, Mario, was. The men assaulted Mario.
Montel testified that she reopened her salon on August 20, 2005. That morning, five men pulled up to the salon in a white van and kidnapped her. Montel testified that two of the men in the van raped her. She was in her sixth month of pregnancy at the time. Eventually, the van began to experience mechanical problems, and the driver pulled over to the side of the road. Montel stated that she was then told to get out of the van, which she did. She then walked away and was able to escape any further harm. Montel did not report this incident to police because she feared that the attack would be made public, subjecting her to humiliation and shame. She stated that her mother advised her to go to the doctor, but she was too upset to discuss the sexual assault.
After this last incident, Montel fled to Baro to hide. She then went to Port-de-Paix, where a friend helped her find passage to the United States. Montel testified that, meanwhile, the men who had beaten her uncle returned to her home looking for her a second time. When her father told them that she had left the country, the men assaulted him as well as her younger sister.
Montel told the court that she sought asylum in the United States because she would be killed by Lavalas if she were forced to return to Haiti; according to Montel, the Lavalas party, which is still in power, believes that she voluntarily gave sanctuary to anti-Lavalas rebels during the April 9, 2009 incident, and has been looking for her ever since.
On cross-examination, the government inquired into several inconsistencies in the record. First, the government noted that Montel’s asylum application made no mention of the August 20, 2005 kidnapping and sexual assault, and asked Montel to provide an explanation for the discrepancy. She stated that she did not include the incident in her application because she was not comfortable talking about the sexual *383assault. The government also asked why her mother, who had provided a statement in support of Montel’s story, did not mention the kidnapping and sexual assault— particularly given Montel’s testimony that she told her mother about the assault. Montel surmised that her mother must have omitted it because she knew that she, Montel, did not like to discuss it.
Next, the government asked Montel about three different police reports that she had submitted to corroborate the April 9, 2005 incident at her salon. Initially, Montel had submitted two reports: one dated February 15, 2007, which stated that her salon had been destroyed on an unspecified date in 2005, that she had been assaulted, and that her uncle had been present during the incident; and one dated June 13, 2005, which stated that, at 2:00 p.m. on June 12, 2005, her salon had been destroyed and she had been hit and threatened.1 Montel later submitted a third police report, which was dated April 9, 2005, and stated that, at 11:00 a.m. that morning, her salon was destroyed and she was hit and threatened. When asked to explain the inconsistencies among the reports, she stated that a friend in Haiti had retrieved the first two reports on her behalf, and must have given the police the wrong information. According to Montel, the third report was the authentic report. As the government pointed out, however, even the third report — which was dated April 9, 2005 — was inconsistent with her testimony insofar as she stated that she had waited until April 17, 2005 to go to the police.
After the parties had finished questioning Montel, the Immigration Judge (“IJ”) asked Montel why, in her initial statement about the April 9, 2005 incident at the salon, she failed to mention that six men had been involved, that the men had damaged property in the shop, and that they had assaulted her. Montel stated that she had in fact provided that information to her attorney, and she did not know why it was not included in her written statement.
After the hearing, the IJ found that Montel was not credible because she had provided conflicting statements and material omissions regarding her mistreatment in Haiti. Based on this adverse credibility determination, the IJ denied Montel’s applications for asylum and withholding of removal. He also denied her application for relief under the CAT. Upon review, the BIA agreed with the IJ’s adverse credibility determination and dismissed the appeal. Montel now petitions for review of the BIA’s order.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001). When, as in this case, the BIA substantially relies on the findings of the IJ, we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Because Montel filed her application for relief after the enactment of the REAL ID Act of 2005, the BIA’s credibility determinations are governed by the Act. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Un*384der the REAL ID Act, an IJ may base his credibility determination on observations of the applicant’s demeanor, the plausibility of the applicant’s story, and on the consistency of the applicant’s statements. See INA § 208(b)(l)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
Montel first argues that the agency’s adverse credibility determination is not supported by substantial evidence. We disagree. The record reveals several inconsistencies in Montel’s story that she could not explain. For example, although she stated at the hearing that, on August 20, 2005, a group of Lavalas supporters kidnapped and raped her, she made no mention whatsoever of this incident in her application for asylum. Nor did her mother, who knew about the abduction, mention it in the statement she made to corroborate Montel’s story. Similarly, although Montel testified at the hearing that the men who entered her salon on April 9, 2005 slapped her in the face and destroyed her property, her application failed to include these material facts. In addition, while Montel testified that she reported the April 9, 2005 incident to the police on April 17, 2005, the report itself is dated April 9, 2005. While Montel argues on appeal that she provided convincing explanations for these inconsistencies and omissions, we cannot conclude that “any reasonable adjudicator” would have been convinced. See 8 U.S.C. § 1252(b)(4)(B). Therefore, we will defer to the agency’s findings. See Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir.2005).
Montel also makes three due process arguments on appeal. First, she claims that the IJ violated her due process rights by denying her request to withdraw from the record the two police reports that were inconsistent with the third. Montel does not, however, cite any authority for the proposition that she was entitled to remove previously-submitted documents from the record on the ground that they contradict others, and we see no other error in the IJ’s ruling. Next, Montel argues that the IJ, in determining that Mon-tel failed to establish a well-founded fear of persecution, impermissibly relied on certain country reports that had not been presented to her for examination. However, as the BIA noted, Montel did not object to the admission of these reports at the hearing or ask to review them. Therefore, she has waived her ability to challenge them on appeal. See In re R-S-H, 23 I. & N. Dec. 629, 638 (BIA 2003). Finally, Montel argues that the IJ violated her due process rights by relying on a lack of evidence as a factor in determining her credibility. Montel, however, failed to present this argument to the BIA. Therefore, it has been waived. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
Given that substantial evidence supports the BIA’s adverse credibility determination, and that Montel has failed to demonstrate that her due process rights were violated at the removal hearing, we agree with the BIA that she failed to establish eligibility for asylum on the basis of past persecution, and that nothing in the record demonstrates that she has a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42)(A); Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir.2006). Furthermore, because Montel’s claims for withholding of removal and relief under the CAT are based on the same evidence as her asylum claim, we conclude that substantial evidence supports the denial of these claims as well.
Accordingly, we will deny the petition for review.
. At the beginning of the hearing, Montel's counsel sought to withdraw the first two police reports, but the IJ denied her request.
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OPINION
PER CURIAM.
Petitioners Yan Zhen Zhang and Hong Biao Chen (collectively, “Petitioners”), a married couple from China, seek review of a final order of removal. Zhang, as the lead petitioner, claims that she suffered past persecution at the hands of government officials through their enforcement of China’s coercive family planning policy. She fears future persecution if removed to China based on her giving birth to a second child while in the United States. Because the Immigration Judge’s (“IJ”) adverse credibility determination is supported by substantial evidence, and because Zhang has failed to brief any issue other than her purported eligibility for asylum, we will deny the petition for review.
I.
Petitioners arrived in the United States sometime in 2005 at an unknown point of entry. In October of that year, Zhang filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 One *386month later, Petitioners were served with a Notice to Appear. After an evidentiary hearing, the IJ concluded that Zhang had failed to establish eligibility for any of the aforementioned forms of relief, as her testimony was not credible and there were no allegations of past or prospective torture.
The BIA dismissed Zhang’s appeal. It concluded that the IJ’s adverse credibility determination was not clearly erroneous, and that the IJ properly considered the following inconsistencies and omissions to support that determination: (1) Zhang’s asylum application did not mention the alleged IUD removal and reinsertion in 1997; (2) the letter from Zhang’s father failed to mention that she was hiding in his home in May 1994, as alleged; (3) the letter from Chen’s mother failed to mention visits from family planning officials in May 1994; and (4) the dates put forth by Zhang and Chen about when Zhang had her IUD removed differed by more than a year’s time. The BIA alternatively determined that with respect to Zhang’s “claim of future persecution based on the birth of her son in the United States ..., the record does not support [her] apparent claim that parents of foreign-born children would face sanctions amounting to persecution upon their return to China.” The BIA also determined that Zhang had failed to “raise any arguments on appeal challenging the [IJ’s] denial of protection under the Convention Against Torture.” Zhang appealed.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 289 F.3d 542, 547 (3d Cir.2001). “[W]hen the BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because Zhang filed her asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go the heart of her claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n. 5 (3d Cir.2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Zhang’s demeanor, the plausibility of her story, and on the consistency of her statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
III.
We conclude that substantial evidence supports the IJ’s adverse credibility determination. Specifically, the inconsistencies with regard to Zhang’s asylum application, the letter from Zhang’s father, the letter from Chen’s mother, and Zhang’s and Chen’s testimony, are supported by the record, and were even conceded by Zhang on appeal to the BIA. (AR 18-19.) Under the REAL ID Act, these inconsistencies justify the adverse credibility determination. Thus, Petitioners are ineligible for asylum and withholding of removal.
Zhang argues in her brief that “the omissions the IJ found did not go to the heart of petitioner’s claim,” and also that “it is unfair to require the petitioner and her witnesses to include every single detail in their written statements.” (Pet. Br. at 14.) Her first point highlights her misunderstanding of the law. As described above, after the passage of the REAL ID Act, an IJ may base her adverse credibility determination on inconsistencies and omissions that do not concern the heart of an asylum-seeker’s claim. See Lin, 543 F.3d at 119 n. 5. Zhang’s second point is disingenuous. The IJ did not require Zhang and her witnesses to furnish “every single detail” related to her claim; the IJ merely *387sought specific information about the most salient events in Zhang’s testimony that supported her claim (i.e., the forced abortions, the IUD insertions, and the visits from family planning officials). The IJ’s inquiry was not only reasonable but also permissible. See 8 U.S.C. § 1158(b)(1)(B)(iii) (IJ considers “the totality of the circumstances, and all relevant factors” in making an adverse credibility determination). As a result, we are unable to say that “no reasonable factfinder could conclude as [she] did” in finding that Zhang was not credible. Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003).
On appeal to the BIA, Zhang did not challenge the IJ’s determination that she was ineligible for relief under the CAT. Nor does she do so here. As we have stated many times, an appellant’s failure to raise an issue in her opening brief effectively waives our consideration of that issue. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
Accordingly, we will deny the petition for review.
. Chen applied as a derivative rider. His eligibility for asylum is therefore predicated on Zhang's claims.
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OPINION
PER CURIAM.
Petitioner Shan Gui Chen, a native and citizen of China, entered the United States in September of 2004 along the Texas border. App. 294. On June 13, 2005, he filed an application for asylum under Immigration & Nationality Act (“INA”) § 208(a), 8 U.S.C. § 1158(a), for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming a fear of persecution on account of his opposition to China’s population control policies. In his asylum application, Shan Chen stated that his wife, Xi Yue Lin, gave birth to their second daughter, Chu Bing Chen, on June 27, 2000, following a Caesarean section at Liang Qi Hospital in Fu Zhou City (Fujian Province). App. 294. Without her knowledge, the doctor sterilized her at the time *389of the delivery. On August 15, 2005, removal proceedings were initiated against Shan Chen when the Department of Homeland Security filed a Notice to Appear with the Immigration Court, charging that he was subject to removal pursuant to INA § 212(a)(6)(A)©, 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Shan Chen admitted the allegations in the NTA and conceded remova-bility.
A hearing on the merits was held on December 12, 2006. At the hearing, Shan Chen testified that he and his wife, who has remained in China, were married in China on April 22, 1993. App. 70. They had two children together, both daughters. Id. at 71. Shan Chen testified that, following the birth of his second child on June 27, 2000, his wife was sterilized against her will following a Caesarean section procedure. Id. at 72-75. Neither he nor his wife knew that the sterilization procedure was going to be performed and they did not consent to it. Shan Chen remained in China for four more years until July 8, 2004. Id. at 77. He did not leave China immediately because his children were very young. Id. at 80. In support of his asylum application, Shan Chen submitted a letter from his wife, in which she stated that she was forcibly sterilized on June 27, 2000 following the birth of her second daughter by Caesarean section at Lang Qi Town Hospital. Id. at 227. The 2005 State Department Country Report on China also was made a part of the Administrative Record.
The Immigration Judge issued a decision at the end of the merits hearing, concluding that Shan Chen did not testify credibly and did not meet his burden of proof under the asylum statute. The IJ also denied withholding of removal, and found that Shan Chen failed to show that it was more likely than not that he would be tortured upon his return to China. The IJ doubted Shan Chen’s claim that his wife was forcibly sterilized,1 because this testimony was belied by the country conditions evidence of record, and, although Shan Chen submitted an affidavit from his wife, the statements contained in it were nearly identical to those in his personal statement, which rendered it less trustworthy than it might have been otherwise. App. 37. The IJ ordered Shan Chen’s removal to China.
Shan Chen appealed to the Board of Immigration Appeals, challenging the IJ’s adverse credibility determination and assessment of country conditions in China. On October 31, 2008, the Board dismissed the appeal, concluding that, even assuming that Shan Chen testified credibly, he did not establish eligibility for asylum. Under Matter ofJ-S- 24 I. & N. Dec. 520 (A.G. 2008), which overruled Matter of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), and Matter of C-Y-Z-, 211. & N. Dec. 915 (BIA 1997), a husband like Shan Chen, who has not claimed or shown that he was forcibly sterilized, experienced harm because he refused to undergo sterilization, or demonstrated other resistance to China’s population control policies, is no longer automatically entitled to refugee status based solely on the forced sterilization of his wife. Accordingly, Shan Chen did not establish past persecution in China that would give rise to a presumption of a well-founded fear of persecution on the same basis. Furthermore, although he testified that he would continue to be harmed by China’s policies, the contention was vague, and the fact remained that he stayed in China for four years after his wife allegedly was forcibly sterilized, and had no further en*390counters with Chinese authorities. The IJ’s withholding of removal and CAT determinations also were upheld. Shan Chen has timely petitioned for review of the Board’s decision.
We will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Where the Board adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review both decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). An applicant bears the burden of proving eligibility for asylum. Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir.2007). In the absence of evidence of past persecution, the applicant must demonstrate a subjective fear of persecution through credible testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003), and the applicant must show that a reasonable person in his circumstances would fear persecution if returned to the country in question, see id. The Board’s findings in this regard “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, Shan Chen must establish that the evidence does not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).
The more exacting withholding of removal standard requires an alien to show by a “clear probability” that his life or freedom would be threatened on account of a protected ground in the proposed country of removal. INS v. Stevie, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (“would be threatened” standard has no subjective component). In making out a CAT claim, the burden of proof is on the applicant to establish that it is more likely than not that he would be tortured in his native country. 8 C.F.R. § 1208.16(c)(2).
Shan Chen contends in his brief on appeal that he has established a well-founded fear of persecution through his wife’s forced sterilization. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which added the following language at the end of INA § 101(a)(42)’s definition of refugee:
For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.
INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2009).
The Board previously held that, under INA § 101(a)(42), a husband who established that his wife underwent a forced abortion or sterilization was per se entitled to refugee status, see Matter of C-Y-Z-, 21 I. & N. Dec. 915, and Matter of S-LL-, 24 I. & N. Dec. 1. We extended Chevron deference2 to this interpretation by the Board in Sun Wen Chen v. Attorney *391General, 491 F.3d 100, 107-08 (3d Cir.2007). However, the Attorney General recently overruled Board precedent in Matter of J-S- 24 I. & N. Dec. 520, concluding that a proper reading of INA § 101(a)(42) does not encompass a per se entitlement to asylum for the spouses of those who have undergone a forced abortion or involuntary sterilization, id. at 529-30. Rather, the statute extends relief only to those who have actually undergone the procedures. See id.3
We independently reached the same conclusion with respect to the proper interpretation of the plain language of the statute in Lin-Zheng v. Attorney General, 557 F.3d 147, 157 (3d Cir.2009) (en banc) (overruling Sun Wen Chen). The statute is unambiguous and does not extend automatic refugee status to spouses. Id. at 156-57. Therefore, the experiences of one’s spouse are legally insufficient to establish eligibility for asylum. Id. at 156 (“Thus, there is no room for us to conclude that Congress intended to extend refugee status to anyone other than the individual who has either been forced to submit to an involuntary abortion or sterilization, has been persecuted for failure or refusal to undergo such a procedure, or has a well-founded fear of that occurring in the future”). The statute cannot be more clear in its reference to a person rather than a couple. See id.
Both Lin-Zheng and Matter of J-S- foreclose eligibility for asylum in Shan Chen’s case solely on the basis of his wife’s alleged forced sterilization. Shan Chen does not present any argument challenging Lin-Zheng’s interpretation of INA § 101(a)(42). Thus, he can only establish a basis for asylum if he shows that he suffered past persecution or has a well-founded fear of persecution in China on account of his “other resistance” to the Chinese government’s population control policies. Lin-Zheng, 557 F.3d at 157; Matter of JS- 24 I. & N. Dec. at 538. The phrase other resistance “covers a wide range of circumstances, including expressions of general opposition, attempts to interfere with enforcement of government policy in particular cases, and other overt forms of resistance to the requirements of the family planning law,” see Matter of S-L-L-, 24 I. & N. Dec. at 10, but Shan Chen produced no evidence of resistance on his part to China’s population control policies. Accordingly, the evidence does not compel the conclusion that he exercised “other resistance” to China’s population control policies. 8 U.S.C. § 1252(b)(4)(B).
In his brief, Shan Chen contends that his right to due process was violated because the change in the law deprived him of a full and fair hearing on the issues. See Pet’r Br. 8. Due process protections are afforded to aliens facing removal. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. We are not persuaded that due process requires a remand in Shan Chen’s case. Although the agency’s interpretation of INA § 101(a)(42) changed with respect to spousal eligibility, and we overruled Sun Wen Chen, an alien’s eligibility for asylum on the basis of “other resistance” has remained constant. The Board has long recognized, and it certainly did at the time of Shan Chen’s merits hearing, that an alien’s eligibility for asylum under INA § 101(a)(42) included eligibility for persecution or feared persecution on account of the alien’s other resistance to family planning policies. See, *392e.g., Matter of J-S-, 24 I. & N. Dec. at 527; Li v. Att’y Gen. of U.S., 400 F.3d 157, 163 (3d Cir.2005). This part of INA § 101(a)(42) has been at all times relevant in Shan Chen’s case. Although he argues that his case should be remanded for consideration of the “other resistance” issue, he does not point to any evidence in the record that could support such a finding, nor does he allege any facts, not previously submitted, that could support such a finding. See 8 C.F.R. § 1003.2 (“A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.”)
Substantial evidence also supports the Board’s determination that Shan Chen failed to demonstrate a well-founded fear of future persecution. He did not claim any personal harm arising from a violation of China’s population control policies, and he remained in China for four years after his wife’s alleged involuntary sterilization without further incident. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (when family members remain in petitioner’s native country without meeting harm, and there is no individualized showing of persecution, the reasonableness of alien’s well-founded fear of persecution is diminished). Shan Chen contends in his brief that the 2005 Country Report for China refers to the detention of tens of thousands of individuals in population schools in Linyi, Shandong Province, for the purpose of forcing them or their relatives to submit to abortion or sterilization, see Pet’r Br. 7-8; App. 96, but he has not established that he and those individuals detained in population schools are similarly situated, or that there is any basis for him to be detained in one.
Because Shan Chen failed to show past persecution or a reasonable fear of future persecution under the lower burden of proof required for asylum, he is necessarily ineligible for withholding of removal. Cardoza-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. In addition, the record does not compel a conclusion that he met his burden of establishing that it is more likely than not that he will be tortured upon his return to China, 8 C.F.R. § 1208.16(c)(2).
For the foregoing reasons, we will deny the petition for review.
. The IJ did not seem to doubt that Shan Chen's wife had been sterilized. App. 44. There is evidence supporting that assertion in the record. App. 249, 252.
. We extend Chevron deference to "an agency’s construction of the statute which it administers.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
. The Attorney General further concluded that the statute’s underlying legislative and enforcement history did not support extending automatic refugee status to spouses. Id. at 538-42.
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OPINION
COWEN, Circuit Judge.
Andre Henry appeals from the judgment of conviction and sentence entered by the United States District Court for the Eastern District of Pennsylvania. We will affirm.
I.
Henry was convicted and sentenced in Pennsylvania state court for robbery at gunpoint. On April 25, 2003, he was released on parole. He signed the standard Pennsylvania form giving parole agents consent to search his person, property, and residence without a warrant.
Henry was subsequently arrested by state parole agents on October 21, 2003. On January 24, 2006, a federal grand jury returned a twenty-eight-count indictment against him and six other defendants. The grand jury subsequently returned a superseding indictment with the same number of counts on October 24, 2006. He was charged with various firearms offenses, Hobbs Act robbery, armed bank robbery, carjacking, and solicitation to commit murder. Henry filed numerous counseled and pro se pretrial motions, and specifically *397sought to suppress evidence obtained in connection with the search of his automobile and his residence on October 21, 2003.
After an evidentiary hearing, the District Court denied the suppression motions on February 2, 2007. It provided its reasoning for doing so in a thorough memorandum. Refraining from deciding the question of whether reasonable suspicion was even required given his written consent to warrant-less searches as a condition of parole, the District Court concluded that there was reasonable suspicion to conduct the two searches at issue in this case. It further found that Henry’s suppression testimony was properly stricken because he had invoked his Fifth Amendment rights on cross-examination. The District Court finally noted that “there is uncontro-verted testimony that defendant consented to the search of his vehicle immediately prior to the October 21, 2003 search of his vehicle, and that defendant’s mother consented to the search of her house immediately prior to the October 21, 2003 search of defendant’s residence.” (82a (citing Jan. 29, 2007 Hearing Transcript at 55, 106).)
On February 22, 2007, the jury found Henry guilty on twenty-seven counts (a single count (possession of body armor) was dismissed by the government). The District Court subsequently sentenced him to a total term of imprisonment of 982 months. This appeal followed.
II.
We agree with the District Court that the parole agents clearly possessed reasonable suspicion to conduct the searches, and we therefore need not decide whether the Supreme Court’s decision in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), otherwise permits suspicion-less searches in the current circumstances.1
The existence of reasonable suspicion is ascertained from the totality of the circumstances. See, e.g., United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Id. (quotation omitted). “Although an officer’s reliance on a mere ‘hunch’ is insufficient [to satisfy the reasonable suspicion requirement], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. at 274, 122 S.Ct. 744 (citations omitted); see also, e.g., United States v. Baker, 221 F.3d 438, 444 (3d Cir.2000) (“The decision to search must be based on ‘specific facts,’ but the officer need not possess probable cause.” (quotation omitted)).
Initially, the District Court properly determined that the parole agents possessed reasonable suspicion to search Henry’s vehicle on October 21, 2003. Special Agent Gerald Gallagher of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) learned on October 7, 2003 that Henry was involved in the August 2003 straw purchases of several “long guns” in Montgomery County. Agent Gallagher then spoke with Donna Henry, who supervised the *398parole officer assigned to Henry, on October 20, 2008. He told her about the Montgomery County straw purchases and his desire to speak with Henry. On the next day, Henry arrived at the parole office without a scheduled appointment and asked for the ankle monitor to be removed. Based on the information from Agent Gallagher, Henry was detained. He admitted that he traveled outside of Philadelphia County. After purportedly obtaining his consent, his vehicle was searched. The parole agents found, inter alia, a turnpike ticket, which indicated travel outside Philadelphia County in violation of the conditions of parole, a bumper sticker for the gun shop mentioned by Agent Gallagher, and three metal pipes (eventually determined not to contain explosives). In the end, the information regarding possible parole violations, combined with Supervisor Henry’s knowledge of Henry’s own prior criminal history, the circumstances of his unexpected visit to the parole office asking for the removal of his ankle monitor, and her own experience as a parole agent, clearly furnished reasonable suspicion to believe that Henry’s ear would contain evidence of parole violations.
Henry acknowledges that the parole agents had “reason to suspect that appellant had violated the conditions of his release (by participating in the straw purchases and leaving the County).” (Appellant’s Br. at 19.) However, he claims that “what is missing here are the ‘specific facts’ that would have permitted a reasonable inference that evidence of those violations (or some other violation) would be found inside the vehicle.” (Id.) But, contrary to his characterizations, Supervisor Henry never actually conceded this point in her testimony. She did admit that Agent Gallagher never specifically told her that she might find weapons in Henry’s vehicle or on his person and that she likewise did not have particular information that he had weapons on his person, in his vehicle, or in his residence. She further admitted that she “didn’t enter the car to look for a turnpike ticket.” (92a.) On the other hand, Supervisor Henry testified that, in her experience, parolees, particularly those with convictions for violent offenses involving weapons, often have weapons in their vehicles. While Henry emphasizes her passing statement that she was looking for “[fjurther violations of any kind,” this assertion came in response to a cross-examination question that inaccurately claimed that Supervisor Henry had previously testified that she “had no reason to believe there were weapons in there.” (92a-93a.)
We likewise must reject Henry’s argument that the present circumstances are analogous to the circumstances addressed by this Court in United States v. Baker, 221 F.3d 438 (3d Cir.2000). In Baker, the defendant was arrested by parole agents because he violated a parole condition against driving without a license. Id. at 440. The agents then searched the trunk of his car, finding drug paraphernalia. Id. at 440-41. We held that they lacked reasonable suspicion to search the trunk because the parole violation of driving without a license had no apparent relation to anything that could be found in the trunk. Id. at 445 (“[Njeither Baker’s violation of his parole by driving a vehicle nor his failure to document that he owned the vehicle can give rise to a reasonable suspicion that he was committing other, unspecified, unrelated parole violations — the evidence of which might be found in the trunk.” (citation omitted)). On the other hand, the parole agents here had a reasonable basis to search Henry’s vehicle, especially in light of the specific information regarding the straw purchases across county lines.
Following the search of the car and questioning by Agent Gallagher (after Mi*399randa warnings were given and he signed a waiver), parole agents searched Henry’s residence with the permission of his own mother. They seized a number of items, including the weapons acquired in the straw purchases. Henry’s challenge to this search largely rests on the notion that this second search (as well as his statements to Agent Gallagher at the parole office) constituted the “inadmissible fruit” of the constitutionally deficient search of his vehicle. (Appellant’s Br. at 17.) We, however, have already concluded that this initial search was supported by reasonable suspicion. Likewise, his assertion that “there were no ‘specific facts’ which could have possibly given rise to a reasonable suspicion that firearms or evidence of some other unspecified violation would be found” must be rejected given Agent Gallagher’s own testimony that Henry admitted to him that the guns had been stored at the house at some point. (Appellant’s Br. at 20.) Agent Gallagher further told the District Court that, in his experience, suspects tend to keep guns in their residences, that such guns are often recovered some time after the authorities receive information about their location, and that long guns especially tend to be kept longer than handguns. Supervisor Henry confirmed this account by testifying that parolees who had been convicted of weapons offenses often keep firearms at their homes. Even setting aside the fact that Henry’s mother consented to the search itself, the District Court properly found that the search of the residence was supported by reasonable suspicion.2
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The District Court possessed subject matter jurisdiction over this criminal matter pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. We review a district court's findings of fact in connection with a suppression motion under a clear error standard of review. See, e.g., United States v. Williams, 413 F.3d 347, 351 (3d Cir.2005); United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002). In turn, the district court’s application of the law to these facts is subject to plenary review. See, e.g. Perez, 280 F.3d at 336.
. The government raises a number of additional grounds for why we should uphold the District Court's ruling denying Henry's motions to suppress. But, given the clear existence of reasonable suspicion, we need not address these additional points to resolve this appeal.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry L. Oliver, a Virginia state prisoner, appeals the district court’s dismissal of his 42 U.S.C. § 1983 (2006) action for failure to state a claim, pursuant to 28 U.S.C. § 1915A (b)(1) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm substantially on the reasoning of the district court. Oliver v. Gray, No. 7:09-cv00004-jct-mfu, 2009 WL 366150 (W.D.Va. Feb. 12, 2009). With regard to Oliver’s claim of denial of access to the courts, we find that Oliver has failed to demonstrate that he suffered an actual injury because of the Defendants’ actions; thus, his claim is not actionable. See Lewis v. Casey, 518 U.S. 343, 351-52, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). 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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PER CURIAM: *
Prentiss I. Guyton appeals from the district court’s grant of summary judgment in his suit alleging constructive discharge. For the reasons given in the district court’s memorandum opinion and order, the judgment is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
This appeal arises from the district court’s grant of summary judgment to all defendants on Plaintiff-Appellant John W. Windhauser’s claims under 42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the Louisiana Employment Discrimination Act, La.Rev.Stat. 23:301. For the following reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Louisiana State University hired Win-dhauser as an associate professor in the School of Journalism in 1982. LSU granted Windhauser tenure in 1984. In 1994, the School of Journalism was elevated to an independent college-level unit and renamed the Manship School of Mass Communication. Beginning in 1994, Windhau-ser began receiving poor annual reviews from John Hamilton, the Dean of the Man-ship School. In 1998, LSU placed Win-dhauser on leave without pay on account of his chronic back pain. In March of 1999, Windhauser filed his first lawsuit against LSU, asserting that it had unlawfully placed him on leave without pay. Throughout this period, Windhauser continued to receive below-average employment reviews from Hamilton. In 2002, Hamilton informed Windhauser that he would initiate a formal faculty review of Windhauser’s job performance pursuant to Permanent Memorandum 35 (PM-35), a policy governing the review of LSU’s faculty ranks. On March 12, 2002, the panel conducting the review concluded that Win-dhauser’s performance was unsatisfactory and warranted formal remediation efforts.
In April of 2002, Vice-Chancellor Daniel Fogel initiated formal remediation efforts by convening a committee to address Win-dhauser’s performance issues. Windhau-ser submitted a document outlining a plan for improvement, but the committee determined that this plan did not outline any specific steps he would take to address his job performance issues. In August of 2002, the committee again requested a plan of improvement, but Windhauser failed to submit any documents. In October of 2002, Windhauser amended his lawsuit to include claims under the ADA for discrimination and failure to accommodated his disability and a claim under Title VII for unlawful retaliation. The defendants removed the litigation to the United States District Court for the Middle District of Louisiana. In January of 2003, Chancellor Mark Emmert requested that Windhauser submit an updated plan to the remediation committee; Windhauser did not submit the required plan.
In May of 2003, Hamilton notified Win-dhauser that he was recommending that proceedings be initiated to terminate Win-dhauser’s employment for cause due to Windhauser’s failure to cooperate with the remediation committee. A faculty panel conducted a hearing and recommended that Windhauser be terminated. After review by Chancellor O’Keefe, President Jenkins, and the Board of Supervisors, Windhauser’s employment with LSU was terminated effective July 8, 2005.
In August of 2005, Windhauser filed a new complaint in the district court alleging that he was denied due process rights during his termination hearing and that he had been terminated in breach of his tenure rights and in violation of the Contracts Clause. Windhauser named LSU President William Jenkins; Chancellor Sean O’Keefe and the individual members of the Board of Supervisors as defendants in this *565lawsuit and sought relief under 42 U.S.C. § 1983. The district court consolidated the new complaint with Windhauser’s previous lawsuit. Defendants filed a motion for summary judgment on all claims except Windhauser’s claims arising from his placement on leave without pay.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same legal standards as the district court. Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir.2005). In reviewing a grant of summary judgment, we we view the evidence and inferences from the summary judgment record in the light most favorable to the nonmoving party. Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 465 (5th Cir.2005). “Summary judgment is proper when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 384 (5th Cir.2008) (internal quotation marks and citations omitted).
III. ANALYSIS
A. § 1983 Claims
The district court held that the individual defendants were entitled to qualified immunity on all of Windhauser’s § 1983 claims. Windhauser did not address this issue in his initial brief to the court; he raised it in his reply brief only after the appellees argued that he had waived the issue on appeal. An appellant’s failure to raise an issue in its initial brief constitutes abandonment of that issue. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.1994); United Paperworkers Int’l Union v. Champion In’t Corp., 908 F.2d 1252, 1255 (5th Cir.1990).
B. ADA and LEDA Claims
Windhauser next argues that the district court erred in granting summary judgment on his claims under the ADA and the Louisiana Employment Discrimination Act. As a preliminary matter, we observe that Windhauser provides no supporting argument regarding his claims under the LEDA1 and has thus failed to properly brief the issue. An appellant who fails to properly brief an issue before this court waives it. U.S. v. Thames, 214 F.3d 608, 611 n. 3 (5th Cir.2000).
Windhauser claims that the district court erred by treating his claims as disparate-treatment claims under the ADA, when in fact they were failure-to-aecommodate claims. A failure-to-accommodate claim under the ADA is distinct from a claim of disparate treatment. 42 U.S.C. §§ 12112(a), (b)(5)(A). A review of Windhauser’s complaint, however, indicates the majority of his claims were in fact disparate-treatment claims.2 Furthermore, the record does not indicate that the *566district court erroneously treated Windhauser’s failure-to-accommodate claims as disparate-treatment claims when it granted summary judgment to the defendants.
Windhauser also argues that the defendants failed to reasonably accommodate his requests regarding the location of his faculty offices, the locations of his classrooms and the length of faculty meetings.3 We first address Windhauser’s claims regarding his assignment of office space. The Louisiana Commission on Human Rights has authority to remedy employment discrimination, rendering Louisiana a “deferral state.” See La.Rev.Stat. Ann. § 51:2231, et seq. Because Louisiana is a deferral state, Windhauser had three hundred days from an alleged act of discrimination to file a charge with the Equal Employment Opportunity Commission (EEOC). See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir.1998) (noting that Texas’s status as a deferral state granted plaintiff three hundred days to file suit). Windhauser filed a charge of discrimination on January 8, 2002.4 Accordingly any acts of discrimination which occurred prior to March 14, 2001 are time-barred.5
Windhauser’s first claim arises from a letter written by his physician, Dr. Kramm, requesting that Windhauser be assigned first-floor office space with an appropriate chair and desk on March 23, 1999. The alleged denial of this request would have occurred before the cut-off date, rendering this claim time-barred. Windhauser also claims that he made two separate requests to be assigned closer office space and was denied on both occasions. The first request was made after Dr. Whitney Mundt passed away in 1996 and his offices became available; this incident is time-barred. The second request was made in the summer of 2002 during the renovation of the Journalism Building. This claim was not included in Windhau-ser’s January 8 EEOC complaint and we therefore will not consider it. Nat’l Ass’n of Gov’t Employees v. City Pub. Ser. Bd. of San Antonio, Tex. 40 F.3d 698, 711 (5th Cir.1994) (holding that courts have no jurisdiction to consider Title VII claims as to which a plaintiff has failed to exhaust administrative remedies).
Windhauser next argues that the district court erred in granting summary judgment on his claims regarding his request for first-floor classroom space and his request that his classrooms be located near his office. The record is somewhat *567unclear as to whether Windhauser ever made a request for first-floor classroom space. Assuming that such request was implied in Dr. Kramm’s March 1999 letter, it is time-barred. Windhauser’s request for closer classroom space refers to the relocation of classrooms for six faculty to the Middleton Library during the spring of 2001. This claim was not styled as a failure-to-accommodate claim in the complaint. Rather, it alleged that Windhauser was purposefully assigned classroom space that made it more difficult on him as a result of his disability while non-disabled faculty were assigned more accessible space. Windhauser cannot recharacterize this claim as one for a failure to accommodate on appeal.6
Finally, Windhauser argues that the district court erroneously granted summary judgment on his claims that the defendants failed to accommodate his requests to limit all faculty meetings in which he was involved to twenty-minutes. Under the ADA, “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability. ...” 42 U.S.C. § 12112(a). The term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” § 12112(b)(5)(A). The plaintiff bears the initial burden of proof on the issue of reasonableness, but need only show that the proposed accommodation is reasonable “in the run of cases.” Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir.1996).
We find that the district court properly granted summary judgment to the defendants on this claim. Windhauser presented no evidence at summary judgment that his proposed accommodations were reasonable. On appeal, he reasserts that his requests were reasonable without citing any evidence presented to the district court. Such unsupported assertions are insufficient to defeat a motion summary judgment. Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir.1997).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
. A footnote in Windhauser's initial brief states that “Louisiana courts frequently find federal jurisprudence in interpreting the state counterpart provision to the ADA to be persuasive.” This statement may be accurate, but it does not constitute a properly-briefed argument. Windhauser makes no other reference to his LEDA claim in his initial brief or his reply brief.
. In his complaint, Windhauser asserted that he was denied a cost of living raise that all other faculty received; that non-disabled faculty were assigned more-accessible classroom space; that non-disabled faculty were allowed to teach graduate school classes while he was denied the same opportunity; that non-disabled faculty were allowed to teach summer courses while he was not; and that non-disabled faculty were granted course reductions to allow for academic research while he was not. These claims rest on a theory of disparate treatment, rather than a failure to accommodate.
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.
. Windhauser has not briefed any of his disparate-treatment claims or his claim of unlawful retaliation and has thus abandoned them. Banks v. Thaler, 583 F.3d 295, 329 (5th Cir.2009).
. Before the district court, the parties also referenced an earlier EEOC charge filed sometime in August of 2001. The record on appeal does not contain a copy of this charge and so we will not consider it. We note, however, that our analysis would yield the same conclusion even if we were to consider the earlier charge and assume that it was dated August 1, 2001.
. Windhauser attempts to circumvent the limitations period by arguing that the defendants' actions fall under the “continuing violation theory” and that the 300-day exhaustion requirement should be relaxed. "The continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period.” Messer v. Meno, 130 F.3d 130, 134 (5th Cir.1997). However, the relevant discriminatory actions alleged in the complaint “[are] the sort[s] of discrete and salient event[s] that should put an employee on notice that a cause of action has accrued.” Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir.1998); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). We therefore find the continuing violation doctrine inapplicable to the time-barred claims.
. Summary judgment would be appropriate even if we were to treat the claim on appeal one for disparate treatment. Windhauser has failed to establish a prima facie case of discrimination with respect to the reassignment as the other faculty members who had their classrooms reassigned were not disabled.
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Remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wade Stepney, Jr. appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. In its final order, the district court stated that Stepney had not filed objections to the magistrate judge’s recommendation, and the court was therefore not required to give any explanation for adopting the recommendation. Following his timely appeal, Stepney wrote a letter to the district court informing the court that he had mailed objections and questioning whether the court had received them. Upon review, the district court discovered the objections had been inadvertently overlooked.
The district court has requested that this case be returned to the district court so that Stepney’s objections may be addressed. We grant the district court’s request and order a limited remand for that purpose. See Fed.R.Civ.P. 60(a); Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir.1999). The record, as supplemented, will then be returned to this court for further consideration. If still dissatisfied, the parties can also appeal to this court from any subsequent final order of the district court.
REMANDED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Caiping Zhao, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (Board) dismissing her appeal from the Immigration Judge’s decision denying Zhao’s motion to reopen and reconsider. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Zhao’s motion. See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Zhao, (B.I.A. Sept. 24, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wendell Sergeant appeals the district court’s order denying his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny his motion for a transcript at Government expense, and affirm for the reasons stated by the district court. See United States v. Sergeant, No. 2:92-cr-00329-2 (S.D. W. Va. July 14, 2009; July 15, 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:
Robert Mason Hendricks and Jacqueline Taylor Hendricks appeal the district court’s order adopting the magistrate judge’s recommendation, dismissing the Hendricks’s civil action for lack of subject matter jurisdiction, and denying the Hendricks’s motion to amend their complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hendricks v. Stepp, No. 3:08-cv-03299-CMC, 2009 WL 2224524 (D.S.C. filed July 22, 2009; entered 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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*481Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie Gathers appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gathers v. Brayboy, No. 9:09-cv-00035-HMH, 2009 WL 2914190 (D.S.C. Sept. 2, 2009). We deny Gathers’ motion for injunctive relief and his “default motion taken against defendants.” 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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PER CURIAM: *
The attorney appointed to represent Ed-mundo Rufino 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). Rufino has filed a response. Our independent review of the record, counsel’s brief, and Rufino’s response discloses no nonfrivolous issue for appeal. Accordingly, the motion for leave to withdraw is GRANTED, Rufi-no’s motion for appointment of substitute counsel is DENIED, 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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Remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wade Stepney, Jr. appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. In its final order, the district court stated that Stepney had not filed objections to the magistrate judge’s recommendation, and the court was therefore not required to give any explanation for adopting the recommendation. Following his timely appeal, Stepney wrote a letter to the district court informing the court that he had mailed objections and questioning whether the court had received them. Upon review, the district court discovered the objections had been inadvertently overlooked.
The district court has requested that this case be returned to the district court so that Stepney’s objections may be addressed. We grant the district court’s request and order a limited remand for that purpose. See Fed.R.Civ.P. 60(a); Fobian v. Storage Tech. Corp., 164 F.3d 887 (4th Cir.1999). The record, as supplemented, will then be returned to this court for further consideration. If still dissatisfied, the parties can also appeal to this court from any subsequent final order of the district court.
REMANDED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Caiping Zhao, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (Board) dismissing her appeal from the Immigration Judge’s decision denying Zhao’s motion to reopen and reconsider. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Zhao’s motion. See 8 C.F.R. §§ 1003.2(a), 1003.23(b)(1) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Zhao, (B.I.A. Sept. 24, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby O. Foster, Jr., appeals the district court’s order denying his 28 U.S.C. § 1651 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Foster v. Drew, No. 3:09-cv-00118-GCM (W.D.N.C. Mar. 25, 2009). We grant leave to proceed in forma pauperis and dispense with oral argument because the facts and legal contentions are adequately presented in the *447materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jin Xiu Chen, a native and citizen of China, petitions for review of an order of the Board of Immigration Appeals (Board) denying Chen’s motion to reopen removal proceedings. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Chen’s motion. See 8 C.F.R. § 1008.2(a) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Chen (B.I.A. Dec. 26, 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.
PETITION DENIED.
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*481Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie Gathers appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gathers v. Brayboy, No. 9:09-cv-00035-HMH, 2009 WL 2914190 (D.S.C. Sept. 2, 2009). We deny Gathers’ motion for injunctive relief and his “default motion taken against defendants.” 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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PER CURIAM: *
Harvey Sossamon, III, Texas prisoner # 120297, has been barred from proceeding in forma pauperis (“IFP”) under 28 U.S.C. § 1915(g) because, on at least three *562prior occasions while incarcerated, he brought an action or appeal in a court of the United States that was dismissed as frivolous or for failure to state a claim upon which relief could be granted. See Sossamon v. Cook, No. 07-10429 (5th Cir. Feb. 20, 2008) (unpublished); Sossamon v. Livingston, No. A-08CA-465-SS (W.D.Tex. Nov. 24, 2008) (unpublished). The district court improvidently granted Sossamon leave to proceed IFP on appeal.
Accordingly, Sossamon’s IFP status is decertified, and the appeal is dismissed. Sossamon has 15 days from the date of this opinion to pay the full appellate filing fee to the clerk of the district court, should he wish to reinstate his appeal. Sossa-mon’s request for appointment of counsel is denied.
IFP DECERTIFIED; APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.
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 Federal Public Defender appointed to represent Alejandro Aguirre-Morales 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). Aguirre-Morales has not filed a response. Our independent review of the record and counsel’s brief disclose no nonfrivolous issue for appeal. Accordingly, the 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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ROGERS, Circuit Judge.
In this appeal, Plaintiff Clarence Bogan, III challenges the district court’s dismissal of his civil rights complaint under 28 U.S.C. § 1915(e). On September 28, 2009, after the appeal was docketed, Bogan moved to dismiss his appeal. Accordingly, the court grants Bogan’s motion to dismiss the appeal.
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ORDER
Abdul Love filed this suit under 42 U.S.C. § 1983, claiming that while he was confined in the pretrial detention unit at the Lake County, Illinois Correctional Center, employees of the County Sheriffs Department violated his Fourteenth Amendment right to due process by transferring him into the segregation unit from the general jail population without a hearing. The district court ruled in favor of the sheriffs department motion for summary judgment. Love appeals, and we affirm.
In October 2005 Love was arrested and placed in the pretrial detention unit pending a hearing on a cocaine charge. Shortly thereafter the sheriffs criminal investigations unit informed Patrick Firman, chief of corrections of the Lake County Sheriffs Department, that Love — while confined in the general inmate population — attempted to solicit the murder of the police officer who arrested him in his pending criminal case. Subsequently, Love was indicted and charged with the solicitation of murder in the cocaine case.
As a result of the attempted murder solicitation, Love was transferred in January 2006 to the administrative segregation unit (“ASU”) where he was placed in “lock-down” status for 23 hours per day, keeping him from interacting with the other inmates. David Kirk, Sergeant of the Lake County Sheriffs Department, explained in a letter that, based on Love’s criminal conduct, he was being transferred to ASU for the safety of the staff and other inmates as well as his own safety. The letter stated,
Mr. Love, you have been assigned to Status 3 Segregation. This is an administrative segregation and the current charges that you face, nessitates [sic] the need for this segregation.
Your segregation status is in the best interest of your safety and the safety and security of the Lake County Sheriff[’]s Adult Correctional Division.
Love was ordered segregated for an indefinite period of time, but the jail’s classification committee routinely reviewed his placement to determine whether he could be returned to the general population. Shortly after being transferred to ASU, Love gave one of the jail’s officers a letter containing a threat to two Lake County judges. Although Love denies writing the letter or intending to personally threaten the judges, the letter became part of Love’s record for the classification committee’s consideration during his confinement.
Love filed several grievances and requested a hearing as well as challenged the conditions of his segregation. Jail officials denied Love’s request for a hearing, stating that it is not a part of the ASU’s procedure. In response to one of Love’s grievances, Firman also explained that while in ASU, Love’s ability to mix with other inmates would be limited: “[d]ue to your demonstrated behavior, the serious nature of your criminal actions while in custody, and my concerns for the safety and security of this facility.” Both Firman and Kirk later testified at the deposition hearing that Love posed a significant security risk to the Lake County Sheriff’s Adult Correctional Division and that ASU was the only place where they could closely monitor his activity. Kirk added that had Love’s “alleged charges” been reduced or dropped, he probably would have been released from ASU. But jail officials received no information during 2006 which would lead them to cast any doubt about their decision that Love posed a security risk, necessitating Love’s continued segre*653gation until January 2007. Thereafter, a change in the jail’s command structure took place, and he was transferred back to the general inmate population.
Love filed this suit in March 2006, alleging that the defendants (Kirk, et.al.) violated his Fourteenth Amendment right to due process when he was placed in segregation without a hearing. Love argued that his segregation was punishment for his alleged solicitation attempt, and “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Love claimed that the defendants were somehow constitutionally required to provide him a disciplinary hearing before transferring him into the segregation unit.
The trial judge granted summary judgment for the defendants (jail officials), ruling that the defendants were entitled to take the steps necessary “to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees” or otherwise ensure the “effective management of the detention facility.” See id. at 540, 99 S.Ct. 1861. Furthermore, Love failed to establish that his segregation required a due process hearing under Bell. In Bell, the Supreme Court held that, unlike one convicted and sentenced, a pretrial detainee — not yet found guilty of any crime — may not be punished for misconduct while in custody without due process. Id. at 535-37, 99 S.Ct. 1861; see Higgs v. Carver, 286 F.3d 437, 438-39 (7th Cir.2002); Zarnes v. Rhodes, 64 F.3d 285, 291 (7th Cir.1995). To establish a right to due process, a pretrial detainee must demonstrate either 1) an “expressed intent to punish on the part of detention facility officials” or 2) that the challenged condition or restriction lacked a reasonable relationship to a legitimate, non-punitive administrative purpose. Bell, 441 U.S. at 538-39, 99 S.Ct. 1861; see Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir.1999). After reviewing the undisputed facts in this case, the trial court concluded that Love failed to demonstrate an express intent on the part of the defendants to punish him nor did he establish the lack of a reasonable relationship between his segregation and a legitimate, non-punitive purpose.
On appeal Love argues that the district court erred in granting summary judgment to the defendants because a genuine issue of material fact existed dealing with the question of whether his segregation was punitive and if so, necessitated a disciplinary hearing. Love contends that the defendants’ express intent to punish him is reflected in statements by Firman and Kirk in which they justified his segregation as being based on his solicitation “charges” and “criminal actions” while in custody.
After reviewing the record, we are convinced that Love failed to establish that the defendants expressly intended to punish him. When read in context, the statements of Firman and Kirk justify segregating Love in order to promote the safety of those in the facility as well as the general public. See Zarnes, 64 F.3d at 291 (defendant’s decision to segregate detainee for “unacceptable conduct” lacked punitive intent because context of statement showed that the conduct posed a security threat); cf. Higgs, 286 F.3d at 438-39 (question of punitive intent was ambiguous where letter justifying segregation for detainee’s threatening behavior did not expressly refer to security concerns). Although Love now challenges the veracity of the defendants’ stated rationale for placing him in segregation, he failed to point out anything in the record that demonstrates that the defendants expressly intended to punish him. See Bell, 441 U.S. *654at 588, 99 S.Ct. 1861; Zarnes, 64 F.3d at 291.
Absent proof of any jail officials’ express intent to punish him, Love’s only alternative under Bell, then, depends on his ability to establish that his segregation was either arbitrary or not reasonably related to a legitimate, non-punitive, administrative purpose. See Bell, 441 U.S. at 538-39, 99 S.Ct. 1861; Hart v. Sheahan, 396 F.3d 887, 892 (7th Cir.2005); Rapier, 172 F.3d at 1005. The trial judge considered Love’s admission that Firman believed the ASU was the only appropriate unit in the Lake County Correctional Center where he could monitor Love’s activities to preclude any future harm and concluded that Love failed to ascertain a purpose for his segregation beyond its legitimate function of preventing harm to the officer he threatened, other inmates, and other institutional personnel. On appeal, Love has again failed to properly challenge this conclusion, and he cannot adequately contest the legitimacy of segregating an inmate attempting to solicit the murder of a police officer.
On the other hand, Love does raise two additional arguments for the first time on appeal. He contends that the duration of the segregation imposed on him is an “atypical and significant hardship” relative to the ordinary incidents of prison life, a standard applicable only to convicted prisoners. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Rapier, 172 F.3d at 1004-05. He also refers to the specific restrictions of his segregation (i.e., restricted access to the commissary, television, outdoor recreation, and educational services) as exceeding the purpose of the segregation to promote the safety of the facility as well as the general public. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Neither of these arguments were presented to the trial court when Love was represented by counsel. These arguments are thus forfeited, and we see no need to consider them. See Witte v. Wisconsin Dept. of Corrections, 434 F.3d 1031, 1038 (7th Cir.2006).
AFFIRM the judgment of the district court.
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ORDER
In April 2009, Michael Henry saw fit to continue his campaign of litigation against the IRS over the income taxes he owes for the 1999 tax year. Since 2002 Henry has filed multiple lawsuits in the Fifth Circuit and Seventh Circuit and continues to litigate his 1999 tax liability in the United States Tax Court. In December 2007, the Northern District of Illinois Executive Committee (“Executive Committee”) issued an order that barred him from filing any new civil cases in its district. The trial judge dismissed Henry’s complaint because it was in violation of the Executive Committee’s order. Henry appeals, and we affirm the action of the Executive Committee.
From December 2006 to October 2007, Henry had filed six pro se civil cases in the Northern District of Illinois dealing with his 1999 tax liability. After receiving an unfavorable ruling in one of these law suits, Henry sent threatening e-mails addressed to the judge presiding over the case as well as a number of other government officials involved in his lawsuit. As a result of these threats, he was convicted of impeding and retaliating against federal officials engaged in their official duty in violation 18 U.S.C. § 115 and sentenced to 16 months’ imprisonment. To curb Henry’s habit of filing numerous civil cases dealing with the same subject matter (1999 *656tax liability) and combined with his sending threatening e-mails, the Executive Committee entered an order barring Henry from filing any new civil cases in the district. In re Michael F. Henry, No. 07 CV 7159 (N.D.Ill.Dec. 20, 2007) (unpublished order). As detailed in the order, the filing bar did not affect Henry’s pending cases or apply to criminal or postcon-viction matters. Further, the Executive Committee authorized Henry to seek modification or rescission of the order after nine months. Id. Henry did not challenge the order, and in April 2009, he filed this suit in the Northern District. Once again the suit seeks to challenge and overturn his 1999 tax liability.
On appeal Henry complains that he did not receive notice of the Executive Committee’s order and learned of the filing bar only after the court dismissed this suit in May 2009. Furthermore, Henry asserts that the Executive Committee’s order is a violation of his Constitutional rights to due process and equal protection.
After review of the record, it is clear that the order was sent by certified mail to Henry’s home address and was returned as undeliverable, presumably because Henry was incarcerated at the time. See United States v. Henry, No. 08-CR-19 (E.D.La. July 17, 2008), appeal dismissed, 332 Fed.Appx. 212 (5th Cir.2009). “A paper is served under this rule by ... mailing it to the person’s last known address — in which event service is complete upon mailing.” Fed.R.Civ.P. 5(b)(2)(C). Furthermore, when Henry did learn about the Executive Committee’s order, Henry did not file any papers requesting to reopen the time for filing an appeal. See Fed. R.App. P. 4(a)(6); In re Fischer, 554 F.3d 656, 656-57 (7th Cir.2009). Rather, he filed a motion to modify the order, and in June 2009, the Executive Committee denied his motion and ordered that the filing bar remain in force for an additional nine months. In re Michael F. Henry, No. 07 CV 7159 (N.D.Ill. Jun. 17, 2009) (unpublished order). Henry did not appeal that decision either. See In re Chapman, 328 F.3d at 904 (holding that a filing restriction is a judicial order and, thus, appealable). Thus, Henry had sufficient opportunity to challenge the Executive Committee’s order.
Courts have ample authority to curb abusive and repetitive litigation with the imposition of a number of filing restrictions, so long as the restrictions imposed are narrowly tailored to the nature and type of abuse and do not pose an absolute bar to the courthouse door. See In re Anderson, 511 U.S. 364, 365-66, 114 S.Ct. 1606, 128 L.Ed.2d 332 (1994); Miller v. Donald 541 F.3d 1091, 1096-98 (11th Cir.2008); In re Chapman, 328 F.3d 903, 905 (7th Cir.2003); In re Davis, 878 F.2d 211, 212-213 (7th Cir.1989). We review filing restrictions under the abuse of discretion standard. Miller, 541 F.3d at 1096. In this case, the Executive Committee issued an order that was narrowly tailored to prevent Henry from continuing to file suits regarding his 1999 tax liability and stop his repetitive abusive conduct in the Northern District. Furthermore, the order is not an absolute bar as it also provides a provision under which the restriction may be lifted. Without this order, it is clear that Henry would continue to file new lawsuits regarding his 1999 tax liability as evidenced by the factual situation presented. “[T]he right of access to the federal courts is not absolute; rather, an individual is only entitled to meaningful access to the courts.” In re Chapman, 328 F.3d at 905 (internal citations omitted). Thus, the court properly exercised its discretion in restricting Henry’s ability to file and the trial judge correctly applied the order in dismissing this case.
We note that Henry’s latest lawsuit repeats claims that he has already litigated *657and lost in this circuit and the Fifth Circuit. His contention that the IRS has engaged in improper “collection” practices rests entirely on his refusal to accept the fact that he owes back taxes. But as we explained to him when we affirmed the dismissal of an earlier complaint, civil remedies for improper collection activity, see 26 U.S.C. §§ 7432, 7433, cannot be used to disguise what is fundamentally a dispute about the underlying tax liability. See Henry v. United States, 276 Fed.Appx. 503 (7th Cir.2008); see also Hudson Valley Black Press v. IRS, 409 F.3d 106, 112-13 (2d Cir.2005); Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 411 (4th Cir.2003); Gandy Nursery, Inc. v. United States, 318 F.3d 631, 636 (5th Cir.2003); Miller v. United States, 66 F.3d 220, 222-23 (9th Cir.1995). Henry is currently litigating his 1999 tax liability in the Tax Court, which is the only forum which has jurisdic'tion to review the tax computation. See 26 U.S.C. §§ 6213(a), 6214; Redeker-Barry v. United States, 476 F.3d 1189, 1190-91 (11th Cir.2007); Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir.2004).
Accordingly, we affirm the dismissal of Henry’s lawsuit. We also warn him that his pursuit of any additional frivolous appeals may subject him to sanctions in this court as well. See Fed. R.App. P. 38; Szo-pa v. United States, 460 F.3d 884, 887 (7th Cir.2006); Szopa v. United States, 453 F.3d 455, 456 (7th Cir.2006); Ins. Co. of the W. v. County of McHenry, 328 F.3d 926, 929 (7th Cir.2003).
AFFIRMED.
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ORDER
Marc Cooper and two of his buddies robbed a jewelry store in Rockford, Illinois. The authorities eventually caught up with them, and Cooper and the others were charged with conspiracy, robbery and using a firearm during a crime of violence. *658Cooper pled guilty to the robbery count pursuant to 18 U.S.C. § 1951 and the firearm offense pursuant to 18 U.S.C. § 924(c). Cooper was sentenced to 71 months on the robbery offense and a consecutive 84 months on the firearms offense, for a total of 155 months. Cooper filed a notice of appeal but his appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot find any nonfrivolous ground for appeal. Cooper filed a response to his lawyer’s submission. See Cir. R. 51(b). Limiting our review to the potential issues raised in counsel’s facially adequate supporting brief and in Cooper’s response, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009), we grant counsel’s motion to withdraw and dismiss the appeal.
According to Cooper’s plea agreement, on August 2, 2007, he and two others entered Soto’s Jewelry store in Rockford, Illinois intent on robbing the place. All three were armed. Cooper jumped on the counter and ordered an employee of the store to get on the ground as one of his cohorts went into a small back room and dragged a second employee from the back room to the front area of the store causing the employee to sustain injuries in the form of abrasions and bruises. The district court estimated that the employee was dragged about six feet. Cooper and the others stole merchandise valued at approximately $3,000.
The principal issue at sentencing was whether the dragging of the employee from the back of the store was an “abduction” of the victim or merely a “restraint” under the pertinent sentencing guideline. See U.S.S.G. § 2B3.1(b)(4). Also at issue was whether the victim sustained bodily injury when she was dragged across the store, and whether assessing the bodily injury enhancement and the abduction or restraint amounted to impermissible double counting. The district court found that the victim was abducted (not merely restrained) and that she sustained bodily injury. The court also noted that even if it was incorrect on the abduction versus restraint issue, it would have given the same sentence.
We begin with Cooper’s primary argument that the court was incorrect in finding that there was an “abduction” of the victim. Under § 2B3.1(b)(4), a defendant convicted of a robbery offense is given a four level increase in his offense level if “any person was abducted to facilitate commission of the offense or to facilitate escape” and a two level increase if anyone was “physically restrained.” U.S.S.G. § 2B3.1(b)(4). The term “physical restraint” is defined to include (but is not limited to) tying, binding or locking up a victim. See U.S.S.G. § 1B1.1, comment (n.1(K)); United States v. Doubet, 969 F.2d 341, 346 (7th Cir.1992).
Because there is no question that this offense at least involved a physical restraint of the victim, the question before us is whether the conduct at issue here— dragging a robbery victim about six feet from one room to another — is an “abduction.” As a criminal history category IV offender, if Cooper is correct his sentencing range would have been 57-71 months. If the district court was correct, then his range would have been 70-87 months. The district court, following United States v. Osborne, 514 F.3d 377 (4th Cir.2008), found that moving the victim from the back room of the store to the front area, amounted to an abduction because, under the guidelines, an abduction occurs when a victim is forced to accompany a defendant “to different location.” See U.S.S.G. § 1B1.1, comment (n.1(A)).
An abduction enhancement is not supported by this Circuit’s case law. In United States v. Carter, 410 F.3d 942, 954 (7th *659Cir.2005), we held that forcing a bank teller at gunpoint from the back vault to her drawer against her will constitutes a restraint. And in a similar case, we held that a restraint enhancement was appropriate where the defendant directed three bank tellers to a small room in the back of the bank at gun point. United States v. Doubet, 969 F.2d 341, 346 (7th Cir.1992); see also United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir.1998) (“[O]rder[ing] a jewelry store employee and customer to the back room at gunpoint ... constitutes physical restraint.”). By contrast, forcing a bank employee at gunpoint from a parking lot into the bank warranted a four level enhancement for abduction, because this amounted to a “different location” under the guidelines. United States v. Taylor, 128 F.3d 1105, 1110-11 (7th Cir.1997); see also United States v. Gall, 116 F.3d 228, 230 (7th Cir.1997) (abduction enhancement proper where victims were forced at gunpoint into trucks and drove around “a significant distance”); United States v. Davis, 48 F.3d 277, 279 (7th Cir.1995) (forcing victim at gunpoint from parking lot to inside the credit union satisfied abduction requirement).
As mentioned, the district court relied on United States v. Osborne, 514 F.3d 377 (4th Cir.2008), in finding the abduction enhancements applicable. In Osborne, the defendants forced employees of a Wal-greens drug store from the pharmacy section of the store, which was separated by a secured door and only accessible by authorized persons via keypad, through the entire building and out to the front door. Id. at 391. The court found that the victims were taken hostage to facilitate the defendants’ escape — which is the type of conduct “plainly targeted by the abduction enhancement.” Id. at 390.
The facts in this case really do not resemble the situation in Osborne. Here, the store was a small retail jewelry store and the victim was moved no more than six feet. Given the dimensions of the store and the nature of the movement of the victim, this case is materially different from Osborne. On the other hand, this case is indistinguishable from cases such as Carter and Doubet. Under these facts, and taking into account the physical dimensions of the jewelry store, we believe that transporting the victim six feet is more akin to a restraint than it is an abduction, and so the district court erred in holding otherwise.
The next issue is whether the error was harmless. We believe it was. The district court calculated Cooper’s final offense level (including the abduction enhancement) to be a level 23. Cooper started at a base offense level of 20; two points were added because the victim sustained bodily injury during the robbery, see U.S.S.G. § 2B3.1(b)(3); four points were added— erroneously, as we have just found — because the victim was abducted; and three points were subtracted because Cooper accepted responsibility leaving a final offense level of 23. Cooper was a criminal history category IV. This yielded a suggested range of imprisonment under the guidelines of 70-87 months. With our finding that the victim was restrained, not abducted, Cooper’s final offense level should have been 21 and with a criminal history category of IV, the recommended range is therefore 57-71 months.
Recall that Cooper was sentenced to 71 months on the robbery count, which is a sentence that is within the range whether this was an abduction or a restraint. In other words, the ranges overlap, and the sentence that was chosen was in both ranges. At sentencing, the judge stated that he would have given the identical sentence whether or not he was correct on the abduction versus restraint issue. Given the defendant’s significant criminal his*660tory, and the fact that a victim was harmed in the robbery, the court concluded that a sentence of 71 months was appropriate one way or the other. Since a sentence within the guideline range is almost never unreasonable, United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.2008), any error in this case was harmless.
In his response to counsel’s Anders brief, Cooper also suggests that appellate counsel could argue that he was the victim of impermissible double counting by the district court. In particular, he claims that being given a two level enhancement for bodily injury and an additional enhancement for restraint of the victim was an error. Cooper’s counsel in the district court correctly conceded that this was not double counting. We agree, and to raise the argument on appeal would be frivolous. Improper double counting only occurs “when a district court imposes two or more upward adjustments within the same guideline range, when both are premised on the same conduct.” United States v. Schmeilski, 408 F.3d 917, 919 (7th Cir.2005) (quoting United States v. Haines, 32 F.3d 290, 293 (7th Cir.1994)) (italics in Haines). But when each enhancement addresses distinct conduct, there is no double counting even if there is some factual overlap. Id. at 919.
When an assailant restrains a victim and causes bodily injury in the process, that is obviously more egregious than when the assailant merely restrains a victim and causes no bodily injury. The guidelines sensibly find that the former is deserving of a higher sentence than the latter. That’s the situation that Cooper (or more specifically his victim) was in. Both the restraint enhancement and the bodily injury enhancement are targeting different harms and so holding Cooper responsible for both harms does not amount to impermissible double counting. See United States v. White, 222 F.3d 363, 376 (7th Cir.2000).
Because there are no nonfrivolous grounds for appeal, appointed counsels’ motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) is GRANTED, and the appeal is DISMISSED.
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ORDER
Employees at the federal prison in Greenville, Illinois, confiscated and destroyed 347 photographs belonging to inmate Scotter Clark. Clark refused an offer to settle for $135 and instead filed suit against the United States under the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. §§ 1346(b)(1), 2671-80. He later amended his complaint to add a second claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Nar*662cotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that six prison employees had engaged in a pattern of harassment to retaliate for his lawsuit. The district court dismissed both claims, the first on the basis of sovereign immunity, see 28 U.S.C. § 2680(c), and the second for failure to exhaust administrative remedies, see 42 U.S.C. § 1997e(a). Clark appeals.
The FTCA’s waiver of sovereign immunity does not apply to claims involving the detention of property “by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. § 2680(c). At the time Clark filed his complaint, we interpreted the phrase “any other law enforcement officer” to include only those officers performing customs or excise duties. See Dahler v. United States, 473 F.3d 769, 772 (7th Cir.2007); Ortloff v. United States, 335 F.3d 652, 657-58 (7th Cir.2003). But while Clark’s case was pending, the Supreme Court announced that the phrase encompasses all law-enforcement officers, including Bureau of Prisons employees. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 128 S.Ct. 831, 834, 169 L.Ed.2d 680 (2008). Reasoning that the Supreme Court’s controlling interpretation of § 2680(c) was entitled to “full retroactive effect in all cases still open on direct review,” see Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), the district court held that the United States was immune from Clark’s FTCA claim.
Clark apparently accepts that Ali’s interpretation of § 2680(c) applies to this litigation, see Parrott v. United States, 536 F.3d 629, 635 (7th Cir.2008), but he seeks to dodge Ali by asking us to consider equitable factors and fashion a remedy for his loss; after all, he insists, he was relying on our erroneous interpretation of § 2680(c) when he decided to sue instead of accepting the Bureau of Prisons’ offer of compensation. But Clark’s reliance on our mistaken view of § 2680(c) does not thwart Harper's rule of retroactivity, see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 759, 115 S.Ct. 1745, 131 L.Ed.2d 820 (1995), and thus we are not free to evaluate whether applying the Supreme Court’s controlling interpretation of that provision “would be inequitable or undermine reliance interests,” see Felzen v. Andreas, 134 F.3d 873, 877 (7th Cir.1998). See also Mojica v. Gannett Co., 7 F.3d 552, 564 (7th Cir.1993) (“Judicial interpretations ‘change the law’ from (losing) litigants’ perspective, but from the judicial perspective the process of interpretation aims at getting as close as one can to a meaning that predates the litigation.”).
As for Clark’s retaliation claim, the district court acknowledged that Clark had filed a formal grievance with the warden at Greenville. See 28 C.F.R. § 542.14. But the district court reasoned that after the warden denied that grievance on the ground that Clark had failed to first attempt an informal resolution, see id. § 542.13(a), Clark should have appealed the decision to either the prison’s regional director or general counsel, see id. § 542.15(a). And because Clark did not, the district court concluded, he did not comply with the exhaustion requirement of 42 U.S.C. § 1997e(a).
In this court, Clark does not defend his failure to appeal the warden’s rejection of his formal grievance. Instead he points out that inmates are not required to exhaust administrative remedies that prison officials have made unavailable through interference, see Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.2006), and he cites the affidavit he submitted to the district court attesting that after the warden’s decision, he was refused the necessary forms to attempt an informal resolution. That affidavit does not explain the failure to file an administrative appeal, and more impor*663tantly, it was not submitted until after a magistrate judge had recommended granting the prison employees’ motion for summary judgment. Until then, Clark had said nothing about staff interference; instead he had said repeatedly that he deemed further efforts to use the grievance process futile and thus had not bothered. The district court, in adopting the magistrate judge’s report and recommendation, did not abuse its discretion by refusing to consider the late-submitted affidavit and indulge Clark’s belated attempt to change his story. See 28 U.S.C. § 686(b)(1); Jasty v. Wright Med. Tech., Inc., 528 F.3d 28, 33-34 (1st Cir.2008); Doe v. Chao, 306 F.3d 170, 183 n. 9 (4th Cir.2002); United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.2000). And apart from the affidavit, Clark has no answer to the district court’s determination that he failed to exhaust his administrative remedies.
AFFIRMED.
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ORDER
On November 3, 2009, we heard oral argument on Pushkar Potnis’s petition for *664review of a Board of Immigration Appeals order denying him asylum, withholding of removal, and protection under the Convention Against Torture. After argument, on December 28, 2009, the Board of Immigration Appeals reopened his case and remanded it to an immigration judge to consider new evidence Potnis had presented. Potnis has moved this court to remand consideration of his petition for review to the BIA in light of the reopening of his case.
Potnis is correct that the BIA’s decision to reopen his ease affects our ability to consider his petition, but instead of remanding his petition to the BIA, we are compelled to dismiss it for lack of jurisdiction. Our jurisdiction is premised on the existence of a final order of the BIA. 8 U.S.C. § 1252(a)(1). The BIA’s order to reopen the proceedings in Potnis’s case “vacates the previous order of deportation or removal and reinstates the previously terminated immigration procedures.” Orichitch v. Gonzales, 421 F.3d 595, 598 (7th Cir.2005); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir.2004). Because the previous order is vacated, we have no jurisdiction to consider it. Gao v. Gonzales, 464 F.3d 728, 730 (7th Cir.2006). “The order sought to be reviewed is no more. Any judicial act while there is no outstanding order of removal would be advisory.” Id. We note that our order dismissing the case does not foreclose our future consideration of the issues in this petition in the event that Potnis seeks review of the Board’s determination of his reopened petition. Id.
Accordingly, Potnis’s petition for review is dismissed for lack of jurisdiction.
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ORDER
On the morning of his trial date, Anta-won Chairs pleaded guilty to one count of felony possession of a firearm, see 18 U.S.C. § 922(g)(1), and one count of possessing an unregistered firearm, see 26 U.S.C. §§ 5841, 5861(d), 5871. At sentencing the district court denied Chairs a two-level reduction for acceptance of responsibility based on his last-minute guilty plea and his lack of sincere remorse. See U.S.S.G. § 3E1.1. Chairs was sentenced to a prison term of 147 months. On appeal Chairs claims that the district court erroneously denied him a sentencing reduction. We affirm.
On October 9, 2007, local law enforcement in East St. Louis, Illinois, spotted Chairs driving with a sawed-off shotgun in his hands and followed him. Distracted while fumbling with the gun, Chairs crashed into a utility pole, accidentally discharging the shotgun. The pursuing officers then arrested him. Because Chairs previously had been convicted of a drug-related felony, he was charged with being a felon in possession of an unregistered firearm.
In a videotaped statement given the day after his arrest, Chairs described how and why he came to possess the shotgun. Earlier on the evening of his arrest, he and other family members responded to a call from his fifteen-year old cousin, who was involved in a fight with several other teenagers at a nearby public housing project. After the fight broke up, and as Chairs and the rest of the family were leaving the scene, a man named “Red” threatened them and opened fire on their three vehicles as they pulled away. Chairs was in*670censed because his young son had been in one of the cars Red targeted. After taking his son home, Chairs drove to a friend’s house and picked up the sawed-off shotgun along with five additional shells. Chairs said that he intended to return to the housing project only to “scare” Red, but when he could not find him, Chairs fired shots into the air and left. Statements from two 911 callers that the government intended to offer as evidence at trial, however, reported that someone shot at the apartment building. In the taped statement, Chairs admitted knowing it was illegal for him to possess a shotgun because of his previous felony conviction, but he nonetheless went ahead with his plan to scare Red because he figured it would be his first gun charge.
In the months leading up to his eventual guilty plea, the district court granted Chairs numerous continuances as well as two motions to appoint new counsel, resulting in the trial date being pushed back eight months to November 2008. On the morning of trial, the court granted the government’s motion to allow the videotaped statement into evidence, and the court also stated it was inclined to grant the government’s motion in limine to prevent Chairs from introducing evidence of inadequate investigation as part of his defense. After those rulings and as the jury was on its way to the courtroom, Chairs made his third pro se motion for new counsel, citing, among other complaints, his attorney’s refusal to move to dismiss the case based on what Chairs considered a Speedy Trial Act violation. The court denied this motion, admonishing Chairs for trying to “game the system.” The court explained that it would not allow Chairs to keep postponing the proceedings only to allege that he was wronged by the delay.
Only after the judge informed Chairs that the trial would proceed that day as scheduled did Chairs decide to plead guilty to both counts. As the government described the foundational facts for the plea, however, Chairs objected to the government’s assertion that it could prove he knew the barrel of the shotgun was less than eighteen inches, a necessary element of the charge for possession of an unregistered firearm. Once the court explained that the government would have to prove only constructive knowledge, Chairs agreed to plead guilty.
A probation officer prepared a presen-tence report in which he recommended a two-level reduction for acceptance of responsibility because Chairs admitted his involvement in the offense and entered a guilty plea before trial. See U.S.S.G. § SE1.1. But at sentencing the district court rejected this recommendation, noting that Chairs waited until the morning of trial to change his plea, and that even then continued to dispute his knowledge of an element of the crime. The court also expressed concern that Chairs admitted to “making a mistake,” but had never shown any real remorse or recognition of the seriousness of his offenses. The court found it particularly troubling that the only victims Chairs could identify were the members of his family who, Chairs argued, would suffer during his absence while in prison. The court noted that Chairs did not recognize how the residents of the housing project were also victims of his shooting and that this type of violent crime endangers the community.
The district court calculated a total offense level of 30 and a criminal history category of IV, resulting in a guidelines range of 135 to 168 months. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the court sentenced Chairs to 147 months’ imprisonment. The court explained that while, initially, it was inclined to give Chairs a sentence at the high end of the range because of his *671lengthy criminal history and the seriousness of his current and past offenses, it decided on a mid-range sentence because of Chairs’s recent efforts at rehabilitation and because the court gave him credit for four months for a discharged sentence, see U.S.S.G. §§ 5G1.3, 5K2.23.
On appeal Chairs challenges only the district court’s denial of a two-level acceptance of responsibility reduction under § 3E1.1. A district court’s factual determination regarding acceptance of responsibility is reviewed for clear error and its finding will be reversed only if there is no foundation for the judge’s decision. United States v. Leahy, 464 F.3d 773, 790 (7th Cir.2006). Great deference is given because the trial judge is in the best position to evaluate the sincerity of a defendant’s remorse and contrition. Id.
Although a guilty plea in conjunction with complete and truthful admission of the offense conduct is typically viewed as significant evidence of acceptance of responsibility, an admission alone does not entitle a defendant to the reduction automatically. See U.S.S.G. § 3E1.1, cmt. n. 3; United States v. Gordon, 495 F.3d 427, 431 (7th Cir.2007). A judge “must look beyond formalistic expressions of culpability and determine whether the defendant has manifested an acceptance of responsibility for his offense in a moral sense.” United States v. Fiore, 178 F.3d 917, 925 (7th Cir.1999) (emphasis added). An expression of sincere remorse includes a defendant’s recognition of how his criminal conduct has hurt others. See United States v. Ewing, 129 F.3d 430, 436 (7th Cir.1997) (affirming denial of reduction where defendant did not demonstrate until sentencing understanding of how his actions affected victims); United States v. Panadero, 7 F.3d 691, 694 (7th Cir.1993) (affirming denial of reduction where district court found defendant did not understand harm caused by her “Ponzi” scheme).
The district court here properly determined that Chairs did not demonstrate an awareness of the inappropriateness of his actions or show sincere remorse for what he did. Chairs argues that the packet of poems, letters, and drawings he submitted to the district court at sentencing were evidence of his sincere remorse, his repentance, and his efforts to rehabilitate himself by embracing religion. The court noted, however, that even though Chairs acknowledged he should have called the police instead of arming himself, his representations at his sentencing hearing demonstrated that he did not perceive the seriousness of his taking matters into his own hands. The court also noted that Chairs refused to recognize that his actions could have escalated an already violent conflict or that he could have hurt innocent bystanders when he fired the shotgun at the housing project. Based on these findings, the district court did not clearly err in denying the reduction.
Moreover, Chairs’s last-minute plea alone was a sufficient basis for the district court to deny an acceptance-of-responsibility reduction. A judge may determine that a reduction under § 3E1.1 is not warranted when a defendant waits until the eleventh hour to enter a plea. United States v. Rosalez-Cortez, 19 F.3d 1210, 1219 (7th Cir.1994). This court consistently has affirmed a denial of such a reduction in cases where the defendant waited until the final days before trial to enter a guilty plea. See, e.g., United States v. Wallace, 280 F.3d 781, 786 (7th Cir.2002) (affirming denial of reduction when defendant did not plead guilty until after jurors empaneled); United States v. Sierra, 188 F.3d 798, 805 (7th Cir.1999) (plea entered last business day before trial); United States v. Francis, 39 F.3d 803, 808 (7th Cir.1994) (plea entered one week before trial). A last-minute plea thwarts the main purpose of § 3E1.1, which is to avoid wasting govern*672mental and judicial resources preparing for trials that never happen. See United States v. Tolson, 988 F.2d 1494, 1499 (7th Cir.1993). Such tactics also suggest that the defendant is holding out for a better deal rather than accepting responsibility from the outset. Tolson, 988 F.2d at 1499.
Chairs argues that his admission of involvement in the offense and his guilty plea before trial are significant evidence of acceptance of responsibility. But Chairs’s eleventh-hour plea required the government and the district court to expend resources preparing for trial, thus undermining the central purpose of the reduction. Although Chairs stated that he always intended to plead guilty, his intent alone, even if expressed, would not be enough to allow the government to abandon its preparations for trial. Furthermore, the fact that Chairs waited until after the district court ruled against him on two motions in Kmine makes his claims of honest acceptance of responsibility even more incredible because it appears that Chairs pleaded guilty only after he knew his chances of success at trial were low. Given the circumstances of his plea in conjunction with his other attempts to delay the proceedings, the district court did not clearly err in denying a reduction for acceptance of responsibility.
AFFIRMED.
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ORDER
Terri Grieves applied for Social Security disability benefits in 2005. The Social Security Administration (“SSA”) Commissioner denied her application but the district court reversed that decision. The same district court, however, found that the Commissioner’s position was substantially justified and therefore denied Grieves’s request for attorneys’ fees under the Equal Access to Justice Act (“EAJA”). Grieves appeals. We affirm.
I.
Grieves applied for Disability Insurance Benefits and Supplemental Security Income in 2005, claiming that she was not able to work due to degenerative disc disease, depression, and anxiety. Following the SSA’s denial of her application at both the initial and reconsideration levels, Grieves requested a hearing before an administrative law judge (“ALJ”). Grieves testified at the hearing. The ALJ found that Grieves had the residual functional capacity (“RFC”) to perform simple, repetitive tasks that involved lifting or carrying no more than 10 pounds frequently and 20 pounds occasionally, standing or walking no more than one-third of the workday, and crouching or stooping only occasionally. Based on this RFC, a vocational expert testified that there were jobs in the national economy that an individual with such limitations could perform. The ALJ found that, while Grieves could not return to her past work as a secretary, she could perform other jobs such as an assembler, hand packager, or hand sorter and therefore was not disabled. Accordingly, the ALJ denied Grieves’s application.
The ALJ’s RFC finding was inconsistent with Grieves’s own testimony and the opinion of her treating physician, Dr. Jones, who claimed that Grieves was only able to sit, stand, or walk for four hours a day, that she required a 15-minute break every 15 to 20 minutes, and that she would be absent from work more than four days each month. When the vocational expert was asked to include these additional limitations in his hypothetical, he testified that there were no jobs that such person could do. But the ALJ found that Grieves was not credible because, despite the limitations she claimed, she enjoyed a relatively active lifestyle. This included doing laundry,1 watching television, reading, playing card games, and other routine activities. The ALJ also relied on the fact that Grieves did not pursue a chronic pain pro*674gram, despite her orthopaedic specialist’s recommendation. The ALJ further found that Dr. Jones’s opinion was not consistent with the evidence because it conflicted with the activities that Grieves was able to do and with some of the findings of her orthopaedic specialist. Accordingly, rather than giving controlling weight to Dr. Jones’s opinion, the ALJ adopted the opinion of the state agency evaluators as the basis for his RFC determination.
Grieves then challenged the ALJ’s decision in federal district court, which remanded the case to the Commissioner for further proceedings after finding that the ALJ had failed to make an adequate credibility determination and had inappropriately discounted Dr. Jones’s opinion. Although it used some strong language — at one point calling one of the ALJ’s observations in support of the credibility determination “unreasoned and unsupported”— the court ultimately opined that the case was close. While some evidence in the record supported the ALJ’s position, the ALJ had not adequately explained his decision.
Grieves then applied to the district court for attorneys’ fees under the EAJA. The district court explained it had been a close case and that the ALJ’s deficiency had ultimately been a failure to adequately articulate his evaluation of the evidence. Noting that such a failure to articulate does not mandate an award of attorneys’ fees under the EAJA, and that there may have been enough evidence in the record to support the ALJ’s position, the district court found that the government’s position was substantially justified and therefore denied the application for attorneys’ fees. Grieves now appeals.
II.
On appeal, Grieves argues that she is entitled to attorneys’ fees under the EAJA. The EAJA provides that she is entitled to attorneys’ fees only if “the position of the United States was not substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Grieves is not entitled to attorneys’ fees under the EAJA merely because she was successful in the litigation at the district court. See Pierce v. Underwood, 487 U.S. 552, 569, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (holding that the government can take a position that is substantially justified but still lose). Rather, the government’s position is substantially justified if it is “justified to a degree that could satisfy a reasonable person.” Id. at 565-66 & n. 2, 108 S.Ct. 2541. That is, the government’s position must have reasonable factual and legal bases, and there must be a reasonable connection between the facts and the legal theory. Cunningham v. Barnhart, 440 F.Sd 862, 864 (7th Cir.2006) (citing Pierce, 487 U.S. at 565, 108 S.Ct. 2541); Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004). We review the district court’s decision not to award attorneys’ fees under the EAJA only for abuse of discretion. Cunningham, 440 F.3d at 864; Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir.2006) (“[O]ur review on appeal is limited by [the abuse of discretion] standard of review, which is ultimately dispositive in this case.”)
Grieves claims that the district court abused its discretion because its critical evaluation of the ALJ’s decision negates any possible justification for denying her application for disability benefits. In support of her position, Grieves relies on Go-lembiewski. In that case, we held that the district court abused its discretion in denying an award of attorneys’ fees under the EAJA. Golembiewski, 382 F.3d at 725. We had previously vacated the district court’s affirmance of ALJ’s denial of Go-lembiewski’s application and “made it clear that the Commissioner’s argument had no reasonable basis in law.” Id. Using highly critical language, we noted numerous prob*675lems with the ALJ’s decision: it contained no discussion of credibility at all; it mis-characterized the facts by finding “no evidence of herniated discs when there was clear evidence of herniated discs”; and it “improperly ignored three distinct lines of evidence.” Id. at 724. And we urged that a new ALJ be assigned. Id. at 725.
Grieves’s analogy to Golembiewski is inapt. Unlike in Golembiewski, here the merits opinion was written by the same court that denied the EAJA award. While there is some strong language in the merits opinion, we think it likely that the district court understood what it meant to suggest by using this language. And the strong language does not exist in a vacuum: the district court also noted that it found the case close and that the ALJ might have been correct but failed to articulate his reasoning sufficiently. Both in its EAJA and merits opinions, the district court characterized the problem with the ALJ’s decision as a failure to “supply supportive reasons,” and “connect all the dots in his analysis.” The district court found that although the ALJ had expressly made a credibility finding — unlike in Golembiew-ski — the reasons that the ALJ gave in his decision did not support his finding that Grieves lacked credibility. And although he did not analyze any other evidence that he thought conflicted with Grieves’s complaints, the ALJ listed numerous facts in his summary of the case that perhaps could have supported his credibility determination.
Similarly, the district court found that the reasons the ALJ discussed for discounting the medical opinion of Grieves’s treating physician were flawed and inadequate. But the district court did not conclude that the record lacked substantial evidence to support the ALJ’s ruling. It did not suggest that the ALJ was not entitled to believe the opinion of the state agency evaluators over that of Dr. Jones, but instead found that the ALJ had not adequately justified his decision. See Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir.2001) (“When treating and consulting physicians present conflicting evidence, the ALJ may decide whom to believe, so long as substantial evidence supports that decision.”). And unlike in Golembiewski, the ALJ here did not ignore entire lines of evidence or find that there was no evidence in support of Grieves’s application. Rather, the ALJ acknowledged contrary facts and chose to discount them, albeit without adequate explanation.
This case is thus unlike Golembiewski but nearly identical to Cunningham, a case relied upon by the government. In that case, the ALJ denied benefits after finding that the applicant was not credible and discounting the opinions of the applicant’s treating physician. Cunningham, 440 F.3d at 863. The district court remanded for “further articulation of the analysis,” finding that the ALJ did not “adequately describe the medical evidence leading to [his] conclusions” or “properly assess Cunningham’s credibility.” Id. But the district court later denied the applicant’s motion for attorneys’ fees under the EAJA. Id. The applicant appealed and, like Grieves, relied almost exclusively on Go-lembiewski to argue that the district court abused its discretion in finding that the ALJ’s decision was substantially justified. This court disagreed. We reasoned that the case was unlike Golembiewski. The ALJ did make a credibility determination, even if it was inadequate. Id. at 864. There was evidence in the record to support the ALJ’s conclusion that the opinion of the applicant’s treating physician was not supported by substantial evidence, “even though [the ALJ] did fail to adequately explain the connection.” Id. at 865. And we observed that the articulation requirement is “deliberately flexible” and that a failure to meet it “ ‘in no way *676necessitates a finding [that] the [government’s] position was not substantially justified.’ ” Id. (quoting Stein v. Sullivan, 966 F.2d 317, 319-20 (7th Cir.1992)).
This is a close case. The district court might well have been justified to grant attorneys’ fees, but it chose not to. Like Cunningham, the ALJ’s decision contained several facts that may have helped justify his decision, including evidence that some of Grieves’s statements to her ortho-paedic specialist were not completely honest and that she had falsely denied alcohol use. The ALJ chose to articulate a few facts and was silent about the others. Given the “deliberately flexible” nature of the articulation requirement, we cannot say that the district court abused its discretion in finding that the ALJ’s decision was substantially justified.
III.
The decision to award or deny attorneys’ fees under the EAJA lies in the discretion of the district court. In this case the same district court that decided the original case and concluded that it was a close case also found that the government’s position was substantially justified. For the reasons stated above, the record does not compel the conclusion that the government’s position lacked substantial justification. Thus, the district court did not abuse its discretion in denying Grieves’s application for attorneys’ fees under the EAJA. Accordingly, we AFFIRM the decision of the district court.
. The ALJ also found Grieves not credible because she testified that she could not do laundry, but had told one of her doctors that she had hurt herself while doing laundry.
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ORDER
Police officers arrested Artis Martin after a pat-down, and a search of his car revealed a concealed firearm and several small bags of marijuana. The district court denied Martin’s motion to suppress the evidence uncovered during the incident, and a jury found him guilty of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and possession of marijuana, 21 U.S.C. § 844(a). On appeal, Martin challenges the denial of his motion to suppress, arguing that: (1) the officer did not have sufficient cause to stop his vehicle, and (2) the search of his car was improper because Martin was already secured in the officer’s patrol car. Because the officer had probable cause to conduct the initial traffic stop and later, during the stop, developed probable cause to search Martin’s vehicle without a warrant, we affirm.
At the suppression hearing, the police officer who initially stopped Martin, Martin Chnupa, described the events leading up to the search. Chnupa, a patrolman for the Lake County Sheriffs Department, testified that on the day of the traffic stop he was on a “seatbelt grant,” a special four-hour overtime shift where he primarily sought to stop motorists who were not complying with applicable seatbelt laws. This grant required him to have four contacts with motorists per hour.
During his shift, Chnupa observed in his rearview mirror that the driver of the vehicle behind him, later identified as Martin, was not wearing his seatbelt. Chnupa also believed that he saw the buckle of the seatbelt dangling from a pillar. (Photos of the defendant’s car show that the seatbelt actually attaches to the rear of the driver’s seat.) Because the road was under construction, Chnupa did not immediately stop Martin. Instead, he moved to the shoulder of the road and let Martin pass him. While following Martin, Chnupa saw Martin change lanes several times without signaling. After they passed the construction area, Chnupa pulled alongside Martin’s vehicle and confirmed that he was not wearing his seatbelt. He did not recall other details like the color of either Mar*688tin’s shirt or the unbuckled seatbelt. Chnupa then positioned his vehicle behind Martin’s and turned on his emergency-lights. Martin did not immediately stop; he proceeded for two to four blocks and then pulled into a parking lot, where Martin has a business.
Seconds after stopping, Martin opened the driver’s side door of his vehicle and attempted to exit. Believing that Martin would either try to flee or harm him, Chnupa exited his patrol car, rushed to Martin’s vehicle, and pinned him against the door. Upon pinning Martin, Chnupa smelled from the car a strong odor of burnt marijuana and saw a green leafy substance on Martin’s shirt that he believed to be marijuana. While he had Martin pinned to the car, Chnupa also observed a bulge in Martin’s right hip area. He patted Martin down, finding a firearm. Chnupa then handcuffed Martin and placed him in his patrol car.
Chnupa next searched Martin’s car, both for inventory assessment before its im-poundment and to investigate the strong odor of marijuana emanating from the vehicle. He found several small bags of what later turned out to be marijuana and two burnt marijuana cigarettes in the vehicle. Two Hammond police officers assisted at the scene and also testified that a strong odor of marijuana was emanating from the vehicle.
Louis Rizo, an acquaintance of Martin’s who worked at a used car lot next to the parking lot where the stop occurred, testified on Martin’s behalf. Rizo stated that, while in the car lot servicing several customers, he observed Martin pull into the adjacent lot and take off his seatbelt to reach into the glove compartment.
The district court denied Martin’s suppression motion. The court credited Chnupa’s testimony, concluding that he had probable cause to conduct a traffic stop because Martin was not wearing his seatbelt in violation of Ind.Code § 9-19-10-2 and, independently, because Martin changed lanes without signaling in violation of Ind.Code § 9-21-8-25. The court acknowledged that Chnupa mistakenly believed that the seatbelt attached to a pillar rather than the rear of the driver’s seat, but still believed Chnupa’s report that Martin was not belted. The court did not believe Rizo’s testimony that he had seen, from across the lot while servicing customers, Martin wearing his seatbelt.
Martin challenges the denial of his motion to suppress for two reasons. First, he contends that Officer Chnupa’s testimony failed to establish that Chnupa had sufficient cause to stop Martin’s vehicle. When reviewing the denial of a motion to suppress the fruits of a warrantless search, we review legal questions de novo and factual findings for clear error. United States v. Groves, 530 F.3d 506, 509 (7th Cir.2008); United States v. McIntire, 516 F.3d 576, 578 (7th Cir.2008). While courts exclude evidence obtained through unreasonable stops, see Phelan v. Village of Lyons, 531 F.3d 484, 488 (7th Cir.2008); United States v. Robeles-Ortega, 348 F.3d 679, 681 (7th Cir.2003), police may stop a vehicle when they have probable cause to believe the driver has committed a traffic violation, see United States v. Hernandez-Rivas, 513 F.3d 753, 758-59 (7th Cir.2008); United States v. Moore, 375 F.3d 580, 583 (7th Cir.2004).
In support of his argument, Martin points out that Chnupa initially reported seeing Martin’s seatbelt buckle dangling from a driver’s side pillar, but that photos of Martin’s car show that the buckle was attached to the rear of the driver’s seat. Martin also points out that Chnupa could not remember the details like the color of the driver’s shirt or the color of the seat-belt. Finally, Martin urges that the requirement that Chnupa have four contacts *689per hour increased the likelihood of an improper stop. Martin argues that all these facts together make Chnupa’s testimony incredible.
The district court weighed these credibility factors, and.its finding that Chnupa saw Martin unbelted was not clear error. Chnupa had two close-range opportunities to see that Martin did not have a seatbelt across his chest. Details like the belt’s color or how it attached to the car were immaterial to Chnupa’s two observations, if believed, that Martin was, in fact, un-belted. Furthermore Martin points to nothing that required the district court to treat Chnupa’s quota of four stops per hour as invalidating two otherwise credible observations. The court also permissibly found incredible Rizo’s testimony that he saw, from across the lot, Martin remove his seatbelt because Rizo admitted that he was servicing customers and was not looking at the distant scene for very long.
Because the district court’s factual finding that Chnupa saw Martin unbelted was not clearly erroneous, Chnupa had probable cause to stop Martin for failing to wear a seatbelt. See Hernandez-Rivas, 513 F.3d at 758-59. Chnupa also had independent probable cause to stop him for changing lanes without signaling. Martin disputes this independent basis for the stop on the ground that, during his trial testimony, Chnupa did not repeat this alternative basis for the stop. But the reason for the stop was not relevant to the trial, see United States v. Cunningham, 462 F.3d 708, 714 (7th Cir.2006) (issue properly decided on motion to suppress moot at trial), and therefore Chnupa’s omission of the point at trial does not undermine his second justification for stopping Martin’s vehicle.
Martin next challenges the search of his vehicle. Citing Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Martin contends that Chnupa should not have searched his vehicle without a warrant because Martin was secured in the patrol car, so any search incident to the arrest to ensure Chnupa’s safety was unnecessary. Martin also argues that since he was arrested for possession of a firearm, the search was inappropriate because it could not have contained evidence of the offense of arrest.
Gant is distinguishable because its ban on warrantless car searches applies to only one exception to the Fourth Amendment’s warrant requirement: the search-incident-to-arrest exception. The government does not rely on that exception here. The search-incident-to-arrest exception states that police officers may search a vehicle within an arrestee’s reach for their own safety without a warrant. Gant, 129 S.Ct. at 1723-24. While Gant held that this exception excuses the need for a warrant only when the arrestee actually has potential access to the vehicle, it also emphasized, as we recently observed in United States v. Stotler, 591 F.3d 935, 940-41 (7th Cir.2010), that the Court did not invalidate other exceptions to the warrant requirement for vehicle searches.
Chnupa was entitled to search the car because his actions fell within two exceptions to the warrant requirement for vehicle searches: probable cause of criminal activity and inventory searches. The former states that when police have probable cause to believe a vehicle contains contraband, they may search the vehicle. See Gant, 129 S.Ct. at 1721 (stating that the probable-cause exception remains valid); Stotler, 591 F.3d at 940-41 (7th Cir.2010). The latter, the inventory-search exception, states that a warrantless search of a vehicle before impoundment is lawful if conducted in conformity with standard police procedures aimed at protecting the owner’s property. See United States v. Cherry, 436 F.3d 769, 772-73 (7th Cir.2006); *690United States v. Pittman, 411 F.3d 813, 817 (7th Cir.2005).
Chnupa testified that he searched Martin’s vehicle, not incident to Martin’s arrest, but both to inventory the vehicle before its impoundment and to investigate the strong odor of marijuana he detected coming from the car. When Chnupa detected the odor of marijuana emanating from the vehicle, he had probable cause to search the car independent of the firearm arrest. See Cherry, 436 F.3d at 772; United States v. Wimbush, 337 F.3d 947, 950-51 (7th Cir.2003); United States v. Mazzone, 782 F.2d 757, 761 (7th Cir.1986). And once Martin was under arrest, the reasonable decision to impound the car gave Chnupa another independent reason to conduct a thorough inventory search. Though the record regarding the inventory-search policy is undeveloped, Martin does not dispute that Chnupa followed protocol.
For these reasons, the judgment of the district court is
AFFIRMED.
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ORDER
Eric Frazier moved to reduce his life sentence based on amendments to the United States Sentencing Guidelines. But under the amended Guidelines, his sentence remains life in prison. The district court’s denial of Frazier’s motion to reduce his sentence is AFFIRMED.
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PER CURIAM: *
The Federal Public Defender appointed to represent Alejandro Aguirre-Morales 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). Aguirre-Morales has not filed a response. Our independent review of the record and counsel’s brief disclose no nonfrivolous issue for appeal. Accordingly, the 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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ROGERS, Circuit Judge.
In this appeal, Plaintiff Clarence Bogan, III challenges the district court’s dismissal of his civil rights complaint under 28 U.S.C. § 1915(e). On September 28, 2009, after the appeal was docketed, Bogan moved to dismiss his appeal. Accordingly, the court grants Bogan’s motion to dismiss the appeal.
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ORDER
In April 2009, Michael Henry saw fit to continue his campaign of litigation against the IRS over the income taxes he owes for the 1999 tax year. Since 2002 Henry has filed multiple lawsuits in the Fifth Circuit and Seventh Circuit and continues to litigate his 1999 tax liability in the United States Tax Court. In December 2007, the Northern District of Illinois Executive Committee (“Executive Committee”) issued an order that barred him from filing any new civil cases in its district. The trial judge dismissed Henry’s complaint because it was in violation of the Executive Committee’s order. Henry appeals, and we affirm the action of the Executive Committee.
From December 2006 to October 2007, Henry had filed six pro se civil cases in the Northern District of Illinois dealing with his 1999 tax liability. After receiving an unfavorable ruling in one of these law suits, Henry sent threatening e-mails addressed to the judge presiding over the case as well as a number of other government officials involved in his lawsuit. As a result of these threats, he was convicted of impeding and retaliating against federal officials engaged in their official duty in violation 18 U.S.C. § 115 and sentenced to 16 months’ imprisonment. To curb Henry’s habit of filing numerous civil cases dealing with the same subject matter (1999 *656tax liability) and combined with his sending threatening e-mails, the Executive Committee entered an order barring Henry from filing any new civil cases in the district. In re Michael F. Henry, No. 07 CV 7159 (N.D.Ill.Dec. 20, 2007) (unpublished order). As detailed in the order, the filing bar did not affect Henry’s pending cases or apply to criminal or postcon-viction matters. Further, the Executive Committee authorized Henry to seek modification or rescission of the order after nine months. Id. Henry did not challenge the order, and in April 2009, he filed this suit in the Northern District. Once again the suit seeks to challenge and overturn his 1999 tax liability.
On appeal Henry complains that he did not receive notice of the Executive Committee’s order and learned of the filing bar only after the court dismissed this suit in May 2009. Furthermore, Henry asserts that the Executive Committee’s order is a violation of his Constitutional rights to due process and equal protection.
After review of the record, it is clear that the order was sent by certified mail to Henry’s home address and was returned as undeliverable, presumably because Henry was incarcerated at the time. See United States v. Henry, No. 08-CR-19 (E.D.La. July 17, 2008), appeal dismissed, 332 Fed.Appx. 212 (5th Cir.2009). “A paper is served under this rule by ... mailing it to the person’s last known address — in which event service is complete upon mailing.” Fed.R.Civ.P. 5(b)(2)(C). Furthermore, when Henry did learn about the Executive Committee’s order, Henry did not file any papers requesting to reopen the time for filing an appeal. See Fed. R.App. P. 4(a)(6); In re Fischer, 554 F.3d 656, 656-57 (7th Cir.2009). Rather, he filed a motion to modify the order, and in June 2009, the Executive Committee denied his motion and ordered that the filing bar remain in force for an additional nine months. In re Michael F. Henry, No. 07 CV 7159 (N.D.Ill. Jun. 17, 2009) (unpublished order). Henry did not appeal that decision either. See In re Chapman, 328 F.3d at 904 (holding that a filing restriction is a judicial order and, thus, appealable). Thus, Henry had sufficient opportunity to challenge the Executive Committee’s order.
Courts have ample authority to curb abusive and repetitive litigation with the imposition of a number of filing restrictions, so long as the restrictions imposed are narrowly tailored to the nature and type of abuse and do not pose an absolute bar to the courthouse door. See In re Anderson, 511 U.S. 364, 365-66, 114 S.Ct. 1606, 128 L.Ed.2d 332 (1994); Miller v. Donald 541 F.3d 1091, 1096-98 (11th Cir.2008); In re Chapman, 328 F.3d 903, 905 (7th Cir.2003); In re Davis, 878 F.2d 211, 212-213 (7th Cir.1989). We review filing restrictions under the abuse of discretion standard. Miller, 541 F.3d at 1096. In this case, the Executive Committee issued an order that was narrowly tailored to prevent Henry from continuing to file suits regarding his 1999 tax liability and stop his repetitive abusive conduct in the Northern District. Furthermore, the order is not an absolute bar as it also provides a provision under which the restriction may be lifted. Without this order, it is clear that Henry would continue to file new lawsuits regarding his 1999 tax liability as evidenced by the factual situation presented. “[T]he right of access to the federal courts is not absolute; rather, an individual is only entitled to meaningful access to the courts.” In re Chapman, 328 F.3d at 905 (internal citations omitted). Thus, the court properly exercised its discretion in restricting Henry’s ability to file and the trial judge correctly applied the order in dismissing this case.
We note that Henry’s latest lawsuit repeats claims that he has already litigated *657and lost in this circuit and the Fifth Circuit. His contention that the IRS has engaged in improper “collection” practices rests entirely on his refusal to accept the fact that he owes back taxes. But as we explained to him when we affirmed the dismissal of an earlier complaint, civil remedies for improper collection activity, see 26 U.S.C. §§ 7432, 7433, cannot be used to disguise what is fundamentally a dispute about the underlying tax liability. See Henry v. United States, 276 Fed.Appx. 503 (7th Cir.2008); see also Hudson Valley Black Press v. IRS, 409 F.3d 106, 112-13 (2d Cir.2005); Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 411 (4th Cir.2003); Gandy Nursery, Inc. v. United States, 318 F.3d 631, 636 (5th Cir.2003); Miller v. United States, 66 F.3d 220, 222-23 (9th Cir.1995). Henry is currently litigating his 1999 tax liability in the Tax Court, which is the only forum which has jurisdic'tion to review the tax computation. See 26 U.S.C. §§ 6213(a), 6214; Redeker-Barry v. United States, 476 F.3d 1189, 1190-91 (11th Cir.2007); Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir.2004).
Accordingly, we affirm the dismissal of Henry’s lawsuit. We also warn him that his pursuit of any additional frivolous appeals may subject him to sanctions in this court as well. See Fed. R.App. P. 38; Szo-pa v. United States, 460 F.3d 884, 887 (7th Cir.2006); Szopa v. United States, 453 F.3d 455, 456 (7th Cir.2006); Ins. Co. of the W. v. County of McHenry, 328 F.3d 926, 929 (7th Cir.2003).
AFFIRMED.
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ORDER
Marc Cooper and two of his buddies robbed a jewelry store in Rockford, Illinois. The authorities eventually caught up with them, and Cooper and the others were charged with conspiracy, robbery and using a firearm during a crime of violence. *658Cooper pled guilty to the robbery count pursuant to 18 U.S.C. § 1951 and the firearm offense pursuant to 18 U.S.C. § 924(c). Cooper was sentenced to 71 months on the robbery offense and a consecutive 84 months on the firearms offense, for a total of 155 months. Cooper filed a notice of appeal but his appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot find any nonfrivolous ground for appeal. Cooper filed a response to his lawyer’s submission. See Cir. R. 51(b). Limiting our review to the potential issues raised in counsel’s facially adequate supporting brief and in Cooper’s response, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009), we grant counsel’s motion to withdraw and dismiss the appeal.
According to Cooper’s plea agreement, on August 2, 2007, he and two others entered Soto’s Jewelry store in Rockford, Illinois intent on robbing the place. All three were armed. Cooper jumped on the counter and ordered an employee of the store to get on the ground as one of his cohorts went into a small back room and dragged a second employee from the back room to the front area of the store causing the employee to sustain injuries in the form of abrasions and bruises. The district court estimated that the employee was dragged about six feet. Cooper and the others stole merchandise valued at approximately $3,000.
The principal issue at sentencing was whether the dragging of the employee from the back of the store was an “abduction” of the victim or merely a “restraint” under the pertinent sentencing guideline. See U.S.S.G. § 2B3.1(b)(4). Also at issue was whether the victim sustained bodily injury when she was dragged across the store, and whether assessing the bodily injury enhancement and the abduction or restraint amounted to impermissible double counting. The district court found that the victim was abducted (not merely restrained) and that she sustained bodily injury. The court also noted that even if it was incorrect on the abduction versus restraint issue, it would have given the same sentence.
We begin with Cooper’s primary argument that the court was incorrect in finding that there was an “abduction” of the victim. Under § 2B3.1(b)(4), a defendant convicted of a robbery offense is given a four level increase in his offense level if “any person was abducted to facilitate commission of the offense or to facilitate escape” and a two level increase if anyone was “physically restrained.” U.S.S.G. § 2B3.1(b)(4). The term “physical restraint” is defined to include (but is not limited to) tying, binding or locking up a victim. See U.S.S.G. § 1B1.1, comment (n.1(K)); United States v. Doubet, 969 F.2d 341, 346 (7th Cir.1992).
Because there is no question that this offense at least involved a physical restraint of the victim, the question before us is whether the conduct at issue here— dragging a robbery victim about six feet from one room to another — is an “abduction.” As a criminal history category IV offender, if Cooper is correct his sentencing range would have been 57-71 months. If the district court was correct, then his range would have been 70-87 months. The district court, following United States v. Osborne, 514 F.3d 377 (4th Cir.2008), found that moving the victim from the back room of the store to the front area, amounted to an abduction because, under the guidelines, an abduction occurs when a victim is forced to accompany a defendant “to different location.” See U.S.S.G. § 1B1.1, comment (n.1(A)).
An abduction enhancement is not supported by this Circuit’s case law. In United States v. Carter, 410 F.3d 942, 954 (7th *659Cir.2005), we held that forcing a bank teller at gunpoint from the back vault to her drawer against her will constitutes a restraint. And in a similar case, we held that a restraint enhancement was appropriate where the defendant directed three bank tellers to a small room in the back of the bank at gun point. United States v. Doubet, 969 F.2d 341, 346 (7th Cir.1992); see also United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir.1998) (“[O]rder[ing] a jewelry store employee and customer to the back room at gunpoint ... constitutes physical restraint.”). By contrast, forcing a bank employee at gunpoint from a parking lot into the bank warranted a four level enhancement for abduction, because this amounted to a “different location” under the guidelines. United States v. Taylor, 128 F.3d 1105, 1110-11 (7th Cir.1997); see also United States v. Gall, 116 F.3d 228, 230 (7th Cir.1997) (abduction enhancement proper where victims were forced at gunpoint into trucks and drove around “a significant distance”); United States v. Davis, 48 F.3d 277, 279 (7th Cir.1995) (forcing victim at gunpoint from parking lot to inside the credit union satisfied abduction requirement).
As mentioned, the district court relied on United States v. Osborne, 514 F.3d 377 (4th Cir.2008), in finding the abduction enhancements applicable. In Osborne, the defendants forced employees of a Wal-greens drug store from the pharmacy section of the store, which was separated by a secured door and only accessible by authorized persons via keypad, through the entire building and out to the front door. Id. at 391. The court found that the victims were taken hostage to facilitate the defendants’ escape — which is the type of conduct “plainly targeted by the abduction enhancement.” Id. at 390.
The facts in this case really do not resemble the situation in Osborne. Here, the store was a small retail jewelry store and the victim was moved no more than six feet. Given the dimensions of the store and the nature of the movement of the victim, this case is materially different from Osborne. On the other hand, this case is indistinguishable from cases such as Carter and Doubet. Under these facts, and taking into account the physical dimensions of the jewelry store, we believe that transporting the victim six feet is more akin to a restraint than it is an abduction, and so the district court erred in holding otherwise.
The next issue is whether the error was harmless. We believe it was. The district court calculated Cooper’s final offense level (including the abduction enhancement) to be a level 23. Cooper started at a base offense level of 20; two points were added because the victim sustained bodily injury during the robbery, see U.S.S.G. § 2B3.1(b)(3); four points were added— erroneously, as we have just found — because the victim was abducted; and three points were subtracted because Cooper accepted responsibility leaving a final offense level of 23. Cooper was a criminal history category IV. This yielded a suggested range of imprisonment under the guidelines of 70-87 months. With our finding that the victim was restrained, not abducted, Cooper’s final offense level should have been 21 and with a criminal history category of IV, the recommended range is therefore 57-71 months.
Recall that Cooper was sentenced to 71 months on the robbery count, which is a sentence that is within the range whether this was an abduction or a restraint. In other words, the ranges overlap, and the sentence that was chosen was in both ranges. At sentencing, the judge stated that he would have given the identical sentence whether or not he was correct on the abduction versus restraint issue. Given the defendant’s significant criminal his*660tory, and the fact that a victim was harmed in the robbery, the court concluded that a sentence of 71 months was appropriate one way or the other. Since a sentence within the guideline range is almost never unreasonable, United States v. Tahzib, 513 F.3d 692, 695 (7th Cir.2008), any error in this case was harmless.
In his response to counsel’s Anders brief, Cooper also suggests that appellate counsel could argue that he was the victim of impermissible double counting by the district court. In particular, he claims that being given a two level enhancement for bodily injury and an additional enhancement for restraint of the victim was an error. Cooper’s counsel in the district court correctly conceded that this was not double counting. We agree, and to raise the argument on appeal would be frivolous. Improper double counting only occurs “when a district court imposes two or more upward adjustments within the same guideline range, when both are premised on the same conduct.” United States v. Schmeilski, 408 F.3d 917, 919 (7th Cir.2005) (quoting United States v. Haines, 32 F.3d 290, 293 (7th Cir.1994)) (italics in Haines). But when each enhancement addresses distinct conduct, there is no double counting even if there is some factual overlap. Id. at 919.
When an assailant restrains a victim and causes bodily injury in the process, that is obviously more egregious than when the assailant merely restrains a victim and causes no bodily injury. The guidelines sensibly find that the former is deserving of a higher sentence than the latter. That’s the situation that Cooper (or more specifically his victim) was in. Both the restraint enhancement and the bodily injury enhancement are targeting different harms and so holding Cooper responsible for both harms does not amount to impermissible double counting. See United States v. White, 222 F.3d 363, 376 (7th Cir.2000).
Because there are no nonfrivolous grounds for appeal, appointed counsels’ motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) is GRANTED, and the appeal is DISMISSED.
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ORDER
On November 3, 2009, we heard oral argument on Pushkar Potnis’s petition for *664review of a Board of Immigration Appeals order denying him asylum, withholding of removal, and protection under the Convention Against Torture. After argument, on December 28, 2009, the Board of Immigration Appeals reopened his case and remanded it to an immigration judge to consider new evidence Potnis had presented. Potnis has moved this court to remand consideration of his petition for review to the BIA in light of the reopening of his case.
Potnis is correct that the BIA’s decision to reopen his ease affects our ability to consider his petition, but instead of remanding his petition to the BIA, we are compelled to dismiss it for lack of jurisdiction. Our jurisdiction is premised on the existence of a final order of the BIA. 8 U.S.C. § 1252(a)(1). The BIA’s order to reopen the proceedings in Potnis’s case “vacates the previous order of deportation or removal and reinstates the previously terminated immigration procedures.” Orichitch v. Gonzales, 421 F.3d 595, 598 (7th Cir.2005); Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir.2004). Because the previous order is vacated, we have no jurisdiction to consider it. Gao v. Gonzales, 464 F.3d 728, 730 (7th Cir.2006). “The order sought to be reviewed is no more. Any judicial act while there is no outstanding order of removal would be advisory.” Id. We note that our order dismissing the case does not foreclose our future consideration of the issues in this petition in the event that Potnis seeks review of the Board’s determination of his reopened petition. Id.
Accordingly, Potnis’s petition for review is dismissed for lack of jurisdiction.
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ORDER
On the morning of his trial date, Anta-won Chairs pleaded guilty to one count of felony possession of a firearm, see 18 U.S.C. § 922(g)(1), and one count of possessing an unregistered firearm, see 26 U.S.C. §§ 5841, 5861(d), 5871. At sentencing the district court denied Chairs a two-level reduction for acceptance of responsibility based on his last-minute guilty plea and his lack of sincere remorse. See U.S.S.G. § 3E1.1. Chairs was sentenced to a prison term of 147 months. On appeal Chairs claims that the district court erroneously denied him a sentencing reduction. We affirm.
On October 9, 2007, local law enforcement in East St. Louis, Illinois, spotted Chairs driving with a sawed-off shotgun in his hands and followed him. Distracted while fumbling with the gun, Chairs crashed into a utility pole, accidentally discharging the shotgun. The pursuing officers then arrested him. Because Chairs previously had been convicted of a drug-related felony, he was charged with being a felon in possession of an unregistered firearm.
In a videotaped statement given the day after his arrest, Chairs described how and why he came to possess the shotgun. Earlier on the evening of his arrest, he and other family members responded to a call from his fifteen-year old cousin, who was involved in a fight with several other teenagers at a nearby public housing project. After the fight broke up, and as Chairs and the rest of the family were leaving the scene, a man named “Red” threatened them and opened fire on their three vehicles as they pulled away. Chairs was in*670censed because his young son had been in one of the cars Red targeted. After taking his son home, Chairs drove to a friend’s house and picked up the sawed-off shotgun along with five additional shells. Chairs said that he intended to return to the housing project only to “scare” Red, but when he could not find him, Chairs fired shots into the air and left. Statements from two 911 callers that the government intended to offer as evidence at trial, however, reported that someone shot at the apartment building. In the taped statement, Chairs admitted knowing it was illegal for him to possess a shotgun because of his previous felony conviction, but he nonetheless went ahead with his plan to scare Red because he figured it would be his first gun charge.
In the months leading up to his eventual guilty plea, the district court granted Chairs numerous continuances as well as two motions to appoint new counsel, resulting in the trial date being pushed back eight months to November 2008. On the morning of trial, the court granted the government’s motion to allow the videotaped statement into evidence, and the court also stated it was inclined to grant the government’s motion in limine to prevent Chairs from introducing evidence of inadequate investigation as part of his defense. After those rulings and as the jury was on its way to the courtroom, Chairs made his third pro se motion for new counsel, citing, among other complaints, his attorney’s refusal to move to dismiss the case based on what Chairs considered a Speedy Trial Act violation. The court denied this motion, admonishing Chairs for trying to “game the system.” The court explained that it would not allow Chairs to keep postponing the proceedings only to allege that he was wronged by the delay.
Only after the judge informed Chairs that the trial would proceed that day as scheduled did Chairs decide to plead guilty to both counts. As the government described the foundational facts for the plea, however, Chairs objected to the government’s assertion that it could prove he knew the barrel of the shotgun was less than eighteen inches, a necessary element of the charge for possession of an unregistered firearm. Once the court explained that the government would have to prove only constructive knowledge, Chairs agreed to plead guilty.
A probation officer prepared a presen-tence report in which he recommended a two-level reduction for acceptance of responsibility because Chairs admitted his involvement in the offense and entered a guilty plea before trial. See U.S.S.G. § SE1.1. But at sentencing the district court rejected this recommendation, noting that Chairs waited until the morning of trial to change his plea, and that even then continued to dispute his knowledge of an element of the crime. The court also expressed concern that Chairs admitted to “making a mistake,” but had never shown any real remorse or recognition of the seriousness of his offenses. The court found it particularly troubling that the only victims Chairs could identify were the members of his family who, Chairs argued, would suffer during his absence while in prison. The court noted that Chairs did not recognize how the residents of the housing project were also victims of his shooting and that this type of violent crime endangers the community.
The district court calculated a total offense level of 30 and a criminal history category of IV, resulting in a guidelines range of 135 to 168 months. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the court sentenced Chairs to 147 months’ imprisonment. The court explained that while, initially, it was inclined to give Chairs a sentence at the high end of the range because of his *671lengthy criminal history and the seriousness of his current and past offenses, it decided on a mid-range sentence because of Chairs’s recent efforts at rehabilitation and because the court gave him credit for four months for a discharged sentence, see U.S.S.G. §§ 5G1.3, 5K2.23.
On appeal Chairs challenges only the district court’s denial of a two-level acceptance of responsibility reduction under § 3E1.1. A district court’s factual determination regarding acceptance of responsibility is reviewed for clear error and its finding will be reversed only if there is no foundation for the judge’s decision. United States v. Leahy, 464 F.3d 773, 790 (7th Cir.2006). Great deference is given because the trial judge is in the best position to evaluate the sincerity of a defendant’s remorse and contrition. Id.
Although a guilty plea in conjunction with complete and truthful admission of the offense conduct is typically viewed as significant evidence of acceptance of responsibility, an admission alone does not entitle a defendant to the reduction automatically. See U.S.S.G. § 3E1.1, cmt. n. 3; United States v. Gordon, 495 F.3d 427, 431 (7th Cir.2007). A judge “must look beyond formalistic expressions of culpability and determine whether the defendant has manifested an acceptance of responsibility for his offense in a moral sense.” United States v. Fiore, 178 F.3d 917, 925 (7th Cir.1999) (emphasis added). An expression of sincere remorse includes a defendant’s recognition of how his criminal conduct has hurt others. See United States v. Ewing, 129 F.3d 430, 436 (7th Cir.1997) (affirming denial of reduction where defendant did not demonstrate until sentencing understanding of how his actions affected victims); United States v. Panadero, 7 F.3d 691, 694 (7th Cir.1993) (affirming denial of reduction where district court found defendant did not understand harm caused by her “Ponzi” scheme).
The district court here properly determined that Chairs did not demonstrate an awareness of the inappropriateness of his actions or show sincere remorse for what he did. Chairs argues that the packet of poems, letters, and drawings he submitted to the district court at sentencing were evidence of his sincere remorse, his repentance, and his efforts to rehabilitate himself by embracing religion. The court noted, however, that even though Chairs acknowledged he should have called the police instead of arming himself, his representations at his sentencing hearing demonstrated that he did not perceive the seriousness of his taking matters into his own hands. The court also noted that Chairs refused to recognize that his actions could have escalated an already violent conflict or that he could have hurt innocent bystanders when he fired the shotgun at the housing project. Based on these findings, the district court did not clearly err in denying the reduction.
Moreover, Chairs’s last-minute plea alone was a sufficient basis for the district court to deny an acceptance-of-responsibility reduction. A judge may determine that a reduction under § 3E1.1 is not warranted when a defendant waits until the eleventh hour to enter a plea. United States v. Rosalez-Cortez, 19 F.3d 1210, 1219 (7th Cir.1994). This court consistently has affirmed a denial of such a reduction in cases where the defendant waited until the final days before trial to enter a guilty plea. See, e.g., United States v. Wallace, 280 F.3d 781, 786 (7th Cir.2002) (affirming denial of reduction when defendant did not plead guilty until after jurors empaneled); United States v. Sierra, 188 F.3d 798, 805 (7th Cir.1999) (plea entered last business day before trial); United States v. Francis, 39 F.3d 803, 808 (7th Cir.1994) (plea entered one week before trial). A last-minute plea thwarts the main purpose of § 3E1.1, which is to avoid wasting govern*672mental and judicial resources preparing for trials that never happen. See United States v. Tolson, 988 F.2d 1494, 1499 (7th Cir.1993). Such tactics also suggest that the defendant is holding out for a better deal rather than accepting responsibility from the outset. Tolson, 988 F.2d at 1499.
Chairs argues that his admission of involvement in the offense and his guilty plea before trial are significant evidence of acceptance of responsibility. But Chairs’s eleventh-hour plea required the government and the district court to expend resources preparing for trial, thus undermining the central purpose of the reduction. Although Chairs stated that he always intended to plead guilty, his intent alone, even if expressed, would not be enough to allow the government to abandon its preparations for trial. Furthermore, the fact that Chairs waited until after the district court ruled against him on two motions in Kmine makes his claims of honest acceptance of responsibility even more incredible because it appears that Chairs pleaded guilty only after he knew his chances of success at trial were low. Given the circumstances of his plea in conjunction with his other attempts to delay the proceedings, the district court did not clearly err in denying a reduction for acceptance of responsibility.
AFFIRMED.
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ORDER
On December 1, 2009, the district court issued an order in which it said that it would not have imposed the same sentence, if it had known the extent of its discretion to deviate from the guidelines in crack cocaine sentences. See Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). It further indicated that it would be inclined to impose a lesser sentence.
Accordingly, in conformity with our order of October 7, 2008, we therefore vacate the defendant’s sentence and remand for resentencing as contemplated by that order.
It is so ordered.
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ORDER
Terri Grieves applied for Social Security disability benefits in 2005. The Social Security Administration (“SSA”) Commissioner denied her application but the district court reversed that decision. The same district court, however, found that the Commissioner’s position was substantially justified and therefore denied Grieves’s request for attorneys’ fees under the Equal Access to Justice Act (“EAJA”). Grieves appeals. We affirm.
I.
Grieves applied for Disability Insurance Benefits and Supplemental Security Income in 2005, claiming that she was not able to work due to degenerative disc disease, depression, and anxiety. Following the SSA’s denial of her application at both the initial and reconsideration levels, Grieves requested a hearing before an administrative law judge (“ALJ”). Grieves testified at the hearing. The ALJ found that Grieves had the residual functional capacity (“RFC”) to perform simple, repetitive tasks that involved lifting or carrying no more than 10 pounds frequently and 20 pounds occasionally, standing or walking no more than one-third of the workday, and crouching or stooping only occasionally. Based on this RFC, a vocational expert testified that there were jobs in the national economy that an individual with such limitations could perform. The ALJ found that, while Grieves could not return to her past work as a secretary, she could perform other jobs such as an assembler, hand packager, or hand sorter and therefore was not disabled. Accordingly, the ALJ denied Grieves’s application.
The ALJ’s RFC finding was inconsistent with Grieves’s own testimony and the opinion of her treating physician, Dr. Jones, who claimed that Grieves was only able to sit, stand, or walk for four hours a day, that she required a 15-minute break every 15 to 20 minutes, and that she would be absent from work more than four days each month. When the vocational expert was asked to include these additional limitations in his hypothetical, he testified that there were no jobs that such person could do. But the ALJ found that Grieves was not credible because, despite the limitations she claimed, she enjoyed a relatively active lifestyle. This included doing laundry,1 watching television, reading, playing card games, and other routine activities. The ALJ also relied on the fact that Grieves did not pursue a chronic pain pro*674gram, despite her orthopaedic specialist’s recommendation. The ALJ further found that Dr. Jones’s opinion was not consistent with the evidence because it conflicted with the activities that Grieves was able to do and with some of the findings of her orthopaedic specialist. Accordingly, rather than giving controlling weight to Dr. Jones’s opinion, the ALJ adopted the opinion of the state agency evaluators as the basis for his RFC determination.
Grieves then challenged the ALJ’s decision in federal district court, which remanded the case to the Commissioner for further proceedings after finding that the ALJ had failed to make an adequate credibility determination and had inappropriately discounted Dr. Jones’s opinion. Although it used some strong language — at one point calling one of the ALJ’s observations in support of the credibility determination “unreasoned and unsupported”— the court ultimately opined that the case was close. While some evidence in the record supported the ALJ’s position, the ALJ had not adequately explained his decision.
Grieves then applied to the district court for attorneys’ fees under the EAJA. The district court explained it had been a close case and that the ALJ’s deficiency had ultimately been a failure to adequately articulate his evaluation of the evidence. Noting that such a failure to articulate does not mandate an award of attorneys’ fees under the EAJA, and that there may have been enough evidence in the record to support the ALJ’s position, the district court found that the government’s position was substantially justified and therefore denied the application for attorneys’ fees. Grieves now appeals.
II.
On appeal, Grieves argues that she is entitled to attorneys’ fees under the EAJA. The EAJA provides that she is entitled to attorneys’ fees only if “the position of the United States was not substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Grieves is not entitled to attorneys’ fees under the EAJA merely because she was successful in the litigation at the district court. See Pierce v. Underwood, 487 U.S. 552, 569, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (holding that the government can take a position that is substantially justified but still lose). Rather, the government’s position is substantially justified if it is “justified to a degree that could satisfy a reasonable person.” Id. at 565-66 & n. 2, 108 S.Ct. 2541. That is, the government’s position must have reasonable factual and legal bases, and there must be a reasonable connection between the facts and the legal theory. Cunningham v. Barnhart, 440 F.Sd 862, 864 (7th Cir.2006) (citing Pierce, 487 U.S. at 565, 108 S.Ct. 2541); Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004). We review the district court’s decision not to award attorneys’ fees under the EAJA only for abuse of discretion. Cunningham, 440 F.3d at 864; Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir.2006) (“[O]ur review on appeal is limited by [the abuse of discretion] standard of review, which is ultimately dispositive in this case.”)
Grieves claims that the district court abused its discretion because its critical evaluation of the ALJ’s decision negates any possible justification for denying her application for disability benefits. In support of her position, Grieves relies on Go-lembiewski. In that case, we held that the district court abused its discretion in denying an award of attorneys’ fees under the EAJA. Golembiewski, 382 F.3d at 725. We had previously vacated the district court’s affirmance of ALJ’s denial of Go-lembiewski’s application and “made it clear that the Commissioner’s argument had no reasonable basis in law.” Id. Using highly critical language, we noted numerous prob*675lems with the ALJ’s decision: it contained no discussion of credibility at all; it mis-characterized the facts by finding “no evidence of herniated discs when there was clear evidence of herniated discs”; and it “improperly ignored three distinct lines of evidence.” Id. at 724. And we urged that a new ALJ be assigned. Id. at 725.
Grieves’s analogy to Golembiewski is inapt. Unlike in Golembiewski, here the merits opinion was written by the same court that denied the EAJA award. While there is some strong language in the merits opinion, we think it likely that the district court understood what it meant to suggest by using this language. And the strong language does not exist in a vacuum: the district court also noted that it found the case close and that the ALJ might have been correct but failed to articulate his reasoning sufficiently. Both in its EAJA and merits opinions, the district court characterized the problem with the ALJ’s decision as a failure to “supply supportive reasons,” and “connect all the dots in his analysis.” The district court found that although the ALJ had expressly made a credibility finding — unlike in Golembiew-ski — the reasons that the ALJ gave in his decision did not support his finding that Grieves lacked credibility. And although he did not analyze any other evidence that he thought conflicted with Grieves’s complaints, the ALJ listed numerous facts in his summary of the case that perhaps could have supported his credibility determination.
Similarly, the district court found that the reasons the ALJ discussed for discounting the medical opinion of Grieves’s treating physician were flawed and inadequate. But the district court did not conclude that the record lacked substantial evidence to support the ALJ’s ruling. It did not suggest that the ALJ was not entitled to believe the opinion of the state agency evaluators over that of Dr. Jones, but instead found that the ALJ had not adequately justified his decision. See Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir.2001) (“When treating and consulting physicians present conflicting evidence, the ALJ may decide whom to believe, so long as substantial evidence supports that decision.”). And unlike in Golembiewski, the ALJ here did not ignore entire lines of evidence or find that there was no evidence in support of Grieves’s application. Rather, the ALJ acknowledged contrary facts and chose to discount them, albeit without adequate explanation.
This case is thus unlike Golembiewski but nearly identical to Cunningham, a case relied upon by the government. In that case, the ALJ denied benefits after finding that the applicant was not credible and discounting the opinions of the applicant’s treating physician. Cunningham, 440 F.3d at 863. The district court remanded for “further articulation of the analysis,” finding that the ALJ did not “adequately describe the medical evidence leading to [his] conclusions” or “properly assess Cunningham’s credibility.” Id. But the district court later denied the applicant’s motion for attorneys’ fees under the EAJA. Id. The applicant appealed and, like Grieves, relied almost exclusively on Go-lembiewski to argue that the district court abused its discretion in finding that the ALJ’s decision was substantially justified. This court disagreed. We reasoned that the case was unlike Golembiewski. The ALJ did make a credibility determination, even if it was inadequate. Id. at 864. There was evidence in the record to support the ALJ’s conclusion that the opinion of the applicant’s treating physician was not supported by substantial evidence, “even though [the ALJ] did fail to adequately explain the connection.” Id. at 865. And we observed that the articulation requirement is “deliberately flexible” and that a failure to meet it “ ‘in no way *676necessitates a finding [that] the [government’s] position was not substantially justified.’ ” Id. (quoting Stein v. Sullivan, 966 F.2d 317, 319-20 (7th Cir.1992)).
This is a close case. The district court might well have been justified to grant attorneys’ fees, but it chose not to. Like Cunningham, the ALJ’s decision contained several facts that may have helped justify his decision, including evidence that some of Grieves’s statements to her ortho-paedic specialist were not completely honest and that she had falsely denied alcohol use. The ALJ chose to articulate a few facts and was silent about the others. Given the “deliberately flexible” nature of the articulation requirement, we cannot say that the district court abused its discretion in finding that the ALJ’s decision was substantially justified.
III.
The decision to award or deny attorneys’ fees under the EAJA lies in the discretion of the district court. In this case the same district court that decided the original case and concluded that it was a close case also found that the government’s position was substantially justified. For the reasons stated above, the record does not compel the conclusion that the government’s position lacked substantial justification. Thus, the district court did not abuse its discretion in denying Grieves’s application for attorneys’ fees under the EAJA. Accordingly, we AFFIRM the decision of the district court.
. The ALJ also found Grieves not credible because she testified that she could not do laundry, but had told one of her doctors that she had hurt herself while doing laundry.
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ORDER
An immigration judge denied Serge Christian Nyamsi Babo’s application for asylum but granted him voluntary departure, and the Board of Immigration Appeals affirmed that decision in 2004. Four years later, Babo moved to reopen, asserting that his counsel was ineffective. The Board denied the motion as untimely and found no evidence that he was prejudiced by counsel’s performance. Babo petitions us for review, but we must dismiss his petition for lack of jurisdiction.
Babo, a native of Cameroon, entered the United States on a five-month visitor visa in 1999 and sought asylum, asserting that he was tribal royalty and that he had been beaten because of his father’s support for an opposition political party. He asserted that he would be arrested and possibly killed if he returned to Cameroon. The government denied his application when he failed to appear for an interview with an asylum officer. He was then placed in removal proceedings. Babo, represented at this stage by counsel, renewed his asylum request and asserted new requests for withholding of removal and protection under the Convention Against Torture.
During a removal hearing in July 2002, Babo asked to switch to a new counsel, Albert Ngwana, because Ngwana was a fellow Cameroonian. The IJ allowed the substitution and granted a ten-day continuance followed by a one-month extension. In September, the hearing resumed, at which point the IJ denied the application because he found Babo’s testimony unreliable and uncorroborated. The IJ did, however, grant voluntary departure. Babo, through Ngwana, filed an appeal with the Board, which summarily affirmed the order of the IJ in early 2004.
Babo asserts that Ngwana never told him about the Board’s denial and that he did not learn the status of his appeal until August 2006, when he received information on his case under a request he filed pursuant to the Freedom of Information Act. Despite learning about the Board’s denial, Babo made no attempt to adjust status (or voluntarily depart) over the next two *678years. Then in August 2008, with new counsel, Babo and his second wife submitted an application to register him for permanent status.
On November 28, 2008, Babo moved to reopen his removal proceedings based on ineffective assistance of counsel. In his motion, Babo asserted that Ngwana failed to file a visa petition based on his first marriage, neglected to keep Babo apprised of the status of his case, misrepresented to Babo his eligibility for asylum, and did not disclose his suspension from practice.
The Board denied the motion as untimely, finding that Babo waited more than four years to file the motion, well past the 90-day deadline. The Board declined to equitably toll the deadline because Babo failed to file the motion with due diligence; in so ruling, the Board noted that Babo did not explain why he did not file the motion immediately after learning of the status of his case in 2006. The Board also found that Babo’s claims of ineffective assistance did not warrant reopening because he did not show any prejudice — that is, he did not provide any evidence that he could have successfully adjusted status were it not for counsel’s deficient performance. Although he asserted that Ngwana had failed to file any visa petition based on his first marriage (from 2003 to 2006), Babo did not provide the Board with any evidence about the marriage. The Board had no indication of whether any visa petition would have been granted, and therefore it did not find any prejudice. The Board also declined without explanation to sua sponte reopen proceedings based on Babo’s ineffective assistance of counsel claims.
Babo asserts that the Board abused its discretion by denying his motion to reopen based on ineffective assistance of counsel. Specifically, he asserts that the Board (1) ignored evidence that he could not have filed his motion earlier after learning the status of his case, and (2) should have considered evidence based on his second marriage when it looked for prejudice from counsel’s performance.
As the government notes, there is a threshold question of our jurisdiction to review the Board’s denial, in light of our decision in Kucana v. Mukasey, 533 F.3d 534, 536 (7th Cir.2008). In Kucana, we held that we lacked jurisdiction to review the discretionary denial of a motion to reopen unless a legal or constitutional claim is presented. The ground for reopening that Babo advanced — that his counsel’s ineffectiveness entitles him to a new hearing — does not fit within the exception because there is no constitutional, statutory, or administrative right to effective counsel in immigration proceedings; a claim of ineffective assistance is purely a request for a favorable exercise of discretion. See Jezierski v. Mukasey, 543 F.3d 886, 888-891 (7th Cir.2008). Accordingly we dismiss the petition for lack of jurisdiction. But in light of the Supreme Court’s recent decision to grant certiorari in Kucana, we address the arguments Babo presses in this petition.
Babo first argues that the Board should have equitably tolled the deadline for filing his motion to reopen. He now asserts, for the first time, that he was prevented from filing his motion to reopen earlier because he was (1) busy with family turmoil (namely, a stillborn birth of his son in 2006) and (2) incorrectly advised to delay his application by a second attorney. He maintains that the Board erred in failing to mention these facts when it rejected his request for equitable tolling.
A motion to reopen based on ineffective assistance of counsel must be filed within 90 days of a final administrative decision, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2), but the Board may equitably toll the deadline if the alien — despite exercising due diligence — could not reasonably have been expected to have filed *679earlier. See Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir.2007); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir.2005). To evaluate whether to equitably toll the deadline for a motion to reopen for ineffective assistance, we apply a two-part test that first examines whether and when a reasonable person in the petitioner’s situation should have discovered the ineffective assistance. See Gao v. Mukasey, 519 F.3d 376, 377-78 (7th Cir.2008). The petitioner then bears the burden of proving that he exercised due diligence in the period that elapsed between the point at which he discovered, or should have discovered, the ineffective assistance, and the actual filing of his motion to reopen. See Pervaiz, 405 F.3d at 490.
Babo waived any argument of due diligence by not explaining to the Board why he waited two years to file a motion to reopen after learning of the alleged ineffective assistance. See Ghani v. Holder, 557 F.3d 836, 839 (7th Cir.2009). He cannot now offer explanations which he did not present to the Board, see id.
The lack of diligence effectively dooms Babo’s petition, but in any event, Babo also contests the Board’s finding that he was not prejudiced by counsel’s performance — another requisite for a motion based on ineffective assistance. He asserts- — in a highly confusing fashion — that the Board incorrectly focused on his likelihood of relief based on his first marriage, at the time he was represented by Ngwana, and should have instead focused on his likelihood of relief based on his second marriage, at the time he filed the motion to reopen.
In order to prevail on an ineffective assistance of counsel claim, a petitioner must provide evidence that he was prejudiced by counsel’s performance because he may have been eligible for relief from removal at the time of the representation. See Pede v. Gonzales, 442 F.3d 570, 571 (7th Cir.2006); In re Assaad, 23 I. & N. Dec. 553, 562 (BIA 2003). For example, if counsel failed to file an application to adjust status based on a marriage to a U.S. citizen, a petitioner must provide some evidence that the marriage was bona fide. Iglesias v. Mukasey, 540 F.3d 528, 532 (7th Cir.2008).
The Board properly declined to consider Babo’s likelihood of relief based on the marriage after Ngwana represented him, as Ngwana’s performance was no longer relevant and could not have prejudiced an application for relief at that time. Babo needed to present evidence that he was eligible for relief during Ngwana’s representation, but he failed to do so.
That’s all we need say about the merits, but having said that, we return to the question of jurisdiction. Per Kucana, we have none. Accordingly, the petition for review is DISMISSED for want of jurisdiction.
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ORDER
A jury found Jabari Veals guilty of possessing crack cocaine for distribution. See 21 U.S.C. § 841(a)(1). At trial the government introduced incriminating statements that Veals had made with his lawyer’s approval during a post-indictment debriefing. The debriefing was conducted under a conditional grant of informal use immunity, but when Veals later breached a reciprocal promise to testify before a grand jury, the government revoked his immunity and used the statements to bolster its case at trial. Veals contends for the first time on appeal that the debriefing violated his right to counsel.
I.
Police in Decatur, Illinois, obtained a warrant to search a second-floor apartment rented by David Parker. A team of officers broke down the front door after they announced their purpose but there was no response. As they entered the apartment, another officer stationed outside watched Veals jump from an upstairs window in the apartment and take off running. He was promptly captured. The search uncovered 56 grams of crack in a jar of hair gel that was shelved with items belonging to Veals.
A week later Veals was charged by complaint in federal court with violating § 841(a)(1). He made his initial appearance on the complaint that same day, and an assistant federal public defender was appointed to represent him. Veals was facing a mandatory life sentence because of the quantity of crack and his nine drug convictions, see 21 U.S.C. § 841(b)(l)(A)(iii), and after conferring *682with his lawyer, he quickly resolved to cooperate with the government.
Three days after the initial appearance, Veals executed a cooperation agreement that obligated him to provide the government with complete and truthful information and, if called upon to do so, to testify before “any grand jury.” In exchange the government promised that it would not make direct use at trial or sentencing of statements Veals made under the agreement, except to impeach his credibility or to rebut contrary statements at trial. The government also agreed to consider moving for a sentence below the statutory minimum if Veals provided substantial assistance. But all of the government’s promises, including the limitations on using Veals’ statements, were conditioned on his “complete compliance” with his reciprocal promises.
Veals’ relationship with the government got off to an encouraging start. Veals, who was detained pending trial, sat down for a debriefing at the jail with Detective Edward Root of the Decatur police department and Special Agent Jeffrey Warren of the FBI. Veals’ lawyer knew about but elected not to attend the meeting, which took place on February 2, 2007, just two weeks after Veals signed the cooperation agreement. During the interview Veals described his living arrangements with Parker, who provided him sleeping space in exchange for crack. He also admitted that he used Parker’s apartment to sell crack obtained from a local dealer named Magic. He told the interviewers that Magic had supplied the crack in the jar of hair gel, which he intended to sell. Shortly after that session, Veals was indicted on the same charge included in the federal complaint, and the parties began working toward a plea agreement.
Then in August 2007 the government subpoenaed Veals to testify before a grand jury. When he refused, the government requested an evidentiary hearing to establish that Veals had breached the cooperation agreement, and that his interview statements were thus admissible at trial. At that hearing defense counsel confirmed that he was not present for the February 2 debriefing, but he also conceded that, as far as the outcome of the government’s motion, whether he attended or not was a “distinction without a difference.” Veals did not testify, or even suggest, that his lawyer was absent without his approval or against his wishes, and counsel effectively conceded that the cooperation agreement had been breached by Veals’ later refusal to testify. The district court reviewed the written agreement and concluded that Veals had given up his informal immunity by not honoring the grand jury subpoena. The district court twice asked the prosecutor if Veals had been entitled to Miranda warnings before participating in the February 2 interview; both times the prosecutor said no, and both times defense counsel remained mum.
At trial the government called two of the officers who executed the search warrant. One described entering the residence, and the second testified to seeing Veals jump out the window. David Parker, now a government witness, told the jury that Veals had been living in his apartment for months. He described the living arrangements, including their agreement that Veals would pay rent with dime bags of crack. He said Veals slept on a mattress in the living room and kept his belongings on nearby shelves. Detective Root, who also helped search the apartment, testified that the items on those shelves included a shaving kit, a toothbrush and toothpaste, a Bible, some $2 bills inscribed with Veals’ name, and the jar containing the crack. Root, without objection, also recounted the admissions Veals made during the February 2 debriefing. Special Agent Warren *683corroborated Root’s testimony about the interview, again without objection.
Veals was the sole witness for the defense. He testified that he lived with his girlfriend, not with Parker, and that he was at Parker’s apartment the night of the search only because one of his friends needed a haircut. Veals insisted that he first met Magic at the apartment that night, and that Magic departed just moments before the police arrived. He denied seeing the jar of hair gel before trial. He said he was unaware that a team of police officers was present before he was tackled on the street. Asked why he jumped out the window, Veals said he heard a knock at the door followed by a female guest screaming, “They’s gonna kill us.”
The jury found that Veals had possessed 50 or more grams of crack with the intent to distribute. He was sentenced to life imprisonment. On appeal, through new counsel, Veals contends that the district court committed plain error by allowing Detective Root and Special Agent Warren to testify about his admissions at the debriefing. That debriefing, asserts Veals, was conducted in violation of his right to counsel under the Fifth and Sixth Amendments.
II.
We begin with the Fifth Amendment. Veals makes the narrow argument that Detective Root and Special Agent Warren were obligated to administer Miranda warnings before questioning him at the debriefing. Because they did not do so, according to Veals, the debriefing was a custodial interrogation that violated his Fifth Amendment right to counsel. But Veals waived this claim by passing up the opportunity to raise it in the district court. A defendant in a criminal case who knows about but elects not to pursue an objection waives any claim of error, see United States v. Garcia, 580 F.3d 528, 541 (7th Cir.2009); United States v. Brodie, 507 F.3d 527, 531 (7th Cir.2007); United States v. Clarke, 227 F.3d 874, 881 (7th Cir.2000), and that is what happened here. The government alerted Veals that it intended to offer his statements at trial, and at the hearing on the government’s motion, the district court pointedly raised the question about the need for Miranda warnings at the debriefing. The prosecutor was resolute in insisting that warnings were unnecessary, and that position could not have gone unnoticed by counsel for Veals, who actively participated in a running discussion with the prosecutor and the court. Under these circumstances, defense counsel’s pregnant silence in response to the court’s inquiry about Miranda was more than a forfeiture; it was a waiver.
That is enough to reject this claim, but for the sake of completeness we also note that it lacks merit. The Fifth Amendment right to counsel protects persons in police custody against coerced self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. McClellan, 165 F.3d 535, 543 (7th Cir.1999); United States v. LaGrone, 43 F.3d 332, 337 (7th Cir.1994); Sulie v. Duckworth, 689 F.2d 128, 129 (7th Cir.1982). The Miranda warnings were formulated as a procedural precaution to safeguard that principle, and to address concerns that police were using in-custody interrogations to wrench confessions from suspected criminals. Miranda, 384 U.S. at 467, 86 S.Ct. 1602; Rice v. Cooper, 148 F.3d 747, 750 (7th Cir.1998). But warnings are not mandated when the person is not in custody, see, e.g., United States v. Barker, 467 F.3d 625, 628 (7th Cir.2006); United States v. Wyatt, 179 F.3d 532, 537 (7th Cir.1999), or when he has waived the Fifth Amendment rights underlying the warnings, see Moran v. *684Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Allen v. Buss, 558 F.3d 657, 669 (7th Cir.2009); United States v. Carson, 582 F.3d 827, 833-34 (7th Cir. 2009). Both of these limitations are present here.
A suspect is in custody for purposes of Miranda only if a reasonable person in his position would conclude that he could not leave the presence of the authorities. United States v. Thompson, 496 F.3d 807, 810 (7th Cir.2007); United States v. Budd, 549 F.3d 1140, 1145 (7th Cir.2008); Barker, 467 F.3d at 628; United States v. James, 113 F.3d 721, 727 (7th Cir.1997). If the person questioned is already incarcerated, the inquiry turns on whether a reasonable inmate in his place would believe that the setting of the interrogation added new constraints to his freedom. Illinois v. Perkins, 496 U.S. 292, 297-98, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990); United States v. Menzer, 29 F.3d 1223, 1232-33 (7th Cir.1994); United States v. Willoughby, 860 F.2d 15, 23 (2d Cir.1988); Leviston v. Black, 843 F.2d 302, 303 (8th Cir.1988). In Menzer we held that an inmate who sat down for a voluntary interview knowing he could leave the interview room at any time was not in “custody.” 29 F.3d at 1232-33. As with the defendant in Menzer, Veals was incarcerated, and he attended the debriefing because he hoped to benefit from cooperating with his interrogators. He has never contended that he was not present voluntarily, or that he was thwarted from leaving the interview room after the debriefing started. And since Veals voluntarily executed the cooperation agreement, the only inference that can be drawn from this record is that he could have elected not to attend the session, or to cut it short at any time. Nothing in the record suggests that the setting of the debriefing or the conduct of the two interviewers added any further constraints on Veals’ freedom.
More importantly, law enforcement officials are not required to administer Miranda warnings to a person who has voluntarily waived his underlying Fifth Amendment rights for the very purpose of inducing an interview. See Sweeney v. Carter, 361 F.3d 327, 331 (7th Cir.2004); United States v. Scruggs, 356 F.3d 539, 546-47 (4th Cir.2004). If the defendant did not make an express waiver, courts may infer one from his conduct; we and other circuits have found waivers when, as here, the defendant, acting with the knowledge of his lawyer, volunteered incriminating information pursuant to a cooperation agreement with the government. See, e.g., Sweeney, 361 F.3d at 331; Scruggs, 356 F.3d at 546-47; United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir.2000); United States v. Resto, 74 F.3d 22, 27 (2d Cir.1996); United States v. Lawrence, 918 F.2d 68, 72 (8th Cir.1990); United States v. Wiggins, 905 F.2d 51, 52 (4th Cir.1990); United States v. Wise, 603 F.2d 1101, 1104 (4th Cir.1979). Veals and his lawyer negotiated the cooperation agreement because Veals wanted to talk to authorities. Veals attended the debriefing voluntarily, with the knowledge of his lawyer, and with the hope of profiting from the cooperation agreement by making the very statements he now seeks to exclude.
We turn, then, to the Sixth Amendment claim, and at the outset it is critical to rule out the arguments that Veals is not making. Veals does not contend that the government conducted the debriefing without the prior approval of his lawyer. Nor could Veals make that assertion because counsel conceded that he endorsed the session, and he was fairly certain that an investigator from his office attended with Veals. (Counsel could not verify that belief because the investigator had died before the hearing on the government’s motion, but Veals was present in the *685courtroom and made no effort to contradict his lawyer’s representation.) As long as counsel had notice of the debriefing, waiver is implied. See United States v. Ming He, 94 F.3d 782, 794 (2d Cir.1996) (“Defendant and his counsel should be given reasonable notice of the time and place of the scheduled debriefing so that counsel might be present. A cooperating witness’s failure to be accompanied by counsel at debriefing may later be construed as waiver, providing defendant and counsel have had notice so that the consequences of counsel’s failure to attend could be explained to defendant.”). Moreover, Veals does not assert that he asked to contact his lawyer either before or during the debriefing. Instead, Veals simply argues that, after he invoked his Sixth Amendment right to counsel, the government was forever prohibited from speaking to him without counsel present.
This particular claim was not waived because, in contrast with the Miranda argument, it was not discussed at the hearing on the government’s motion. But, still, the claim was forfeited by the failure to raise it in the district court, and Veals thus concedes, as he must, that our review is for plain error only. See United States v. Murdock, 491 F.3d 694, 698 (7th Cir.2007); United States v. Johnson, 223 F.3d 665, 668 (7th Cir.2000). We see no error, much less plain error.
It is well settled that a represented defendant can elect to waive his right to counsel without first speaking to an attorney. See Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990); Patterson v. Illinois, 487 U.S. 285, 293, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). Until several months after oral argument in this case, there was, under Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), a prophylactic rule that barred police from approaching represented defendants. The Supreme Court invalidated that rule in Montejo v. Louisiana, along with the notion that the waiver of a represented defendant’s right to counsel is presumptively invalid. See — U.S. -, 129 S.Ct. 2079, 2091, 173 L.Ed.2d 955 (2009). After Montejo, Veals’ Sixth Amendment argument has no legs to stand on: either he waived his Sixth Amendment right to counsel by initiating the debriefing, see Harvey, 494 U.S. at 352, 110 S.Ct. 1176; Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), or he waived it by consenting to a government-initiated debriefing, which, under Montejo, is now permissible, see 129 S.Ct. at 2091. In either case, as his trial counsel observed, whether or not his lawyer was present is a distinction without a difference.
All of this leads to one further observation: even if Veals had demonstrated that his debriefing statements were admitted at trial in violation of his right to counsel, the error would have been harmless beyond a reasonable doubt. Subtracting the marginal value of the proffered statements, the government still marshaled sufficient evidence to convince a jury beyond a reasonable doubt that the crack in the jar of hair gel belonged to Veals. The government presented testimony that Veals lived in Parker’s apartment and paid rent with crack; that he slept in the living room and kept his belongings on nearby shelves; that he jumped out of a second-story window when the police arrived with a search warrant; and that officers discovered more than 50 grams of crack in a jar of hair gel stored with his other personal items. Even without the debriefing statements, the case against Veals was overwhelming.
AFFIEMED.
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ORDER
Eric Frazier moved to reduce his life sentence based on amendments to the United States Sentencing Guidelines. But under the amended Guidelines, his sentence remains life in prison. The district court’s denial of Frazier’s motion to reduce his sentence is AFFIRMED.
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PER CURIAM.
Hunter Levi appeals the district court’s1 dismissal of a civil action he brought based on diversity jurisdiction, asserting wrongful termination and other claims. Upon de novo review, see Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.), cert. denied, — U.S. -, 129 S.Ct. 222, 172 L.Ed.2d 142 (2008), we find no basis for reversal. We also conclude that there is no merit to Levi’s assertion that the district court had a conflict of interest. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.
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PER CURIAM.
Hunter Levi petitions for review of a final order of the United States Department of Labor Administrative Review Board, affirming dismissals of three administrative complaints he brought under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. Upon careful review, see 5 U.S.C. § 706(2) (standard for reviewing agency decision), we find no basis for reversal. Accordingly, we deny the petition. See 8th Cir. R. 47B. We also deny Levi’s pending motion.
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MEMORANDUM **
Hayk Grigoryan, a native and citizen of Armenia, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Wang v. INS, 352 F.3d 1250, 1253 (9th Cir.2003), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the IJ’s determination that Grigoryan’s asylum application was untimely because that finding is based on disputed facts. See 8 U.S.C. § 1158(a)(3); cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (exercising jurisdiction to consider one-year bar determination where facts were undisputed). Accordingly, we dismiss Grigoryan’s asylum claim.
Grigoryan claims his father, Vartan Grigoryan, was persecuted in Armenia because of articles his father wrote against the Robert Kocharyan government, and that he was persecuted, in part, for the same reason. The IJ found Grigoryan not credible, among other reasons, because: Grigoryan could not recall which month his father was beaten “almost to death”; there were implausibilities regarding Grigoryan’s lack of knowledge of the whereabouts of his father and the rest of family in the United States; there was no documentation that Vartan Grigoryan was his father; and Grigoryan failed to produce any articles written by his father against the Robert Kocharyan government. We conclude the record does not compel reversal of the IJ’s adverse credibility determination. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir.2000) (when the IJ has reason to question applicant’s credibility, the IJ may require applicant to corroborate testimony). In the absence of credible testimony, Grigoryan failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003)
Finally, because Grigoryan did not raise his CAT claim before the BIA, it is unexhausted and we lack jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
PETITION FOR REVIEW DISMISSED in part; DENIED 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 **
Perci Obdulio Lemus, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo due claims of process violations. Iturribama v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Lemus’ motion to reopen as untimely because the motion was filed more than 10 years after the final order of deportation, see 8 C.F.R. § 1003.23(b)(1), and Lemus failed to demonstrate that he acted with the due diligence required for equitable tolling, see Iturribarria, 321 F.3d at 897 (deadline for filing motion to reopen can be equitably tolled when petitioner acts with due diligence). Lemus’ contention that the denial of his motion to reopen violated due process therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for due process violation).
Lemus’ contention that the BIA violated his due process rights by refusing to accept his late-filed brief fails because the BIA has discretion to reject an untimely brief. See 8 C.F.R. § 1003.3(c)(1) (BIA has discretion, upon written motion, to extend the time period for filing a brief). Even assuming error, Lemus has failed to demonstrate prejudice. See Lata, 204 F.3d at 1246 (requiring prejudice to prevail on a due process challenge).
Lemus’ contention that the BIA violated due process by failing to provide a transcript fails because he has not shown prejudice. See id.
To the extent Lemus contends that he received inadequate notice of his duty to voluntary depart, this court lacks jurisdiction to review the claim because it was not raised before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In light of our disposition, we do not reach Lemus’ remaining contentions.
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 **
Bakhtawar 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 application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence an IJ’s adverse credibility finding. Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s determination that Singh’s application for asylum is time-barred because that finding is based on disputed facts. See 8 U.S.C. § 1158(a)(3); Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (“ ‘questions of law’ as it is used in [the Real ID Act], extends to questions involving the application of statutes or regulations to undisputed facts[.]”). Accordingly, we dismiss the petition for review as to Singh’s asylum claim.
Singh testified inconsistently about whether he knew the people who met at his farm house had militant links. Substantial evidence supports the IJ’s adverse credibility finding based on this testimony because the discrepant accounts of the circumstances leading to his arrests go to the heart of his claim. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004). Accordingly, in the absence of credible testimony, Singh’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Singh’s CAT claim is based on the testimony the agency found not credible, and he points to no other evidence showing it is more likely than not he will be tortured in India, his CAT claim also fails. Id. at 1156-57.
Respondent’s January 2, 2008 motion to supplement the administrative record is granted.
PETITION FOR REVIEW DISMISSED in part; DENIED 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 **
Javier Lavin-Delgado, 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 order denying his application for cancellation of removal. We dismiss the petition for review.
We lack jurisdiction to review the BIA’s discretionary good moral character determination. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Lopez-Castellanos v. Gonzales, 437 F.3d 848, 854 (9th Cir.2006) (no jurisdiction to review discretionary good moral character determinations of agency).
Lavin-Delgado’s due process contention is not colorable, so it does not invoke our jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”).
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 **
Hayk Grigoryan, a native and citizen of Armenia, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Wang v. INS, 352 F.3d 1250, 1253 (9th Cir.2003), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the IJ’s determination that Grigoryan’s asylum application was untimely because that finding is based on disputed facts. See 8 U.S.C. § 1158(a)(3); cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (exercising jurisdiction to consider one-year bar determination where facts were undisputed). Accordingly, we dismiss Grigoryan’s asylum claim.
Grigoryan claims his father, Vartan Grigoryan, was persecuted in Armenia because of articles his father wrote against the Robert Kocharyan government, and that he was persecuted, in part, for the same reason. The IJ found Grigoryan not credible, among other reasons, because: Grigoryan could not recall which month his father was beaten “almost to death”; there were implausibilities regarding Grigoryan’s lack of knowledge of the whereabouts of his father and the rest of family in the United States; there was no documentation that Vartan Grigoryan was his father; and Grigoryan failed to produce any articles written by his father against the Robert Kocharyan government. We conclude the record does not compel reversal of the IJ’s adverse credibility determination. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir.2000) (when the IJ has reason to question applicant’s credibility, the IJ may require applicant to corroborate testimony). In the absence of credible testimony, Grigoryan failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003)
Finally, because Grigoryan did not raise his CAT claim before the BIA, it is unexhausted and we lack jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
PETITION FOR REVIEW DISMISSED in part; DENIED 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 **
Perci Obdulio Lemus, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo due claims of process violations. Iturribama v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
The agency did not abuse its discretion in denying Lemus’ motion to reopen as untimely because the motion was filed more than 10 years after the final order of deportation, see 8 C.F.R. § 1003.23(b)(1), and Lemus failed to demonstrate that he acted with the due diligence required for equitable tolling, see Iturribarria, 321 F.3d at 897 (deadline for filing motion to reopen can be equitably tolled when petitioner acts with due diligence). Lemus’ contention that the denial of his motion to reopen violated due process therefore fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for due process violation).
Lemus’ contention that the BIA violated his due process rights by refusing to accept his late-filed brief fails because the BIA has discretion to reject an untimely brief. See 8 C.F.R. § 1003.3(c)(1) (BIA has discretion, upon written motion, to extend the time period for filing a brief). Even assuming error, Lemus has failed to demonstrate prejudice. See Lata, 204 F.3d at 1246 (requiring prejudice to prevail on a due process challenge).
Lemus’ contention that the BIA violated due process by failing to provide a transcript fails because he has not shown prejudice. See id.
To the extent Lemus contends that he received inadequate notice of his duty to voluntary depart, this court lacks jurisdiction to review the claim because it was not raised before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In light of our disposition, we do not reach Lemus’ remaining contentions.
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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ORDER WITHDRAWING MEMORANDUM DISPOSITION AND DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
The memorandum disposition filed September 25, 2009 is withdrawn. A superseding memorandum disposition is being filed concurrently with this order.
The panel has voted to deny the petition for rehearing. Judges Fisher and Gould voted to deny the suggestion for rehearing en banc and Judge England so recommends.
The full court has been advised of the suggestion for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
Appellant’s petition for rehearing and suggestion for rehearing en bane, filed November 20, 2009, is DENIED. No further petitions for rehearing will be permitted.
MEMORANDUM **
Juan Garcia-Sandoval appeals the district court’s judgment entered on a conditional guilty plea given after denial of a motion to suppress. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a district court’s denial of a motion to suppress de novo and the district court’s underlying factual findings for clear error. United States v. Delgado, 545 F.3d 1195, 1200 (9th Cir.2008).
The district court properly concluded that Garcia-Sandoval was subject to an investigative stop rather than an arrest when officers took precautionary measures during a 4:00 a.m. stop of a vehicle that had been reported stolen. See Allen v. City of Los Angeles, 66 F.3d 1052, 1056-57 (9th Cir.1995) (holding police use of “reasonable methods to protect themselves and others in potentially dangerous situations” does not convert investigative stop into an arrest). Garcia-Sandoval does not contest that police had reasonable suspicion sufficient to carry out a Terry stop. Therefore, the stop did not violate Gareia-Sandoval’s Fourth Amendment rights.
The district court also properly determined that the officer who spoke with Garcia-Sandoval did not unduly prolong the detention by asking a series of questions concerning identity. See United States v. Christian, 356 F.3d 1103, 1106 (9th Cir.2004) (“[Djetermining a suspect’s identity is an important aspect of police authority under Terry.” (citing Michigan v. Summers, 452 U.S. 692, 700 n. 12, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981))). Nor did the officer prolong the detention by *792asking a series of biographical questions after Garcia-Sandoval was unable to produce identification or provide his social security or driver’s license numbers. See United States v. Turvin, 517 F.3d 1097, 1101-02 (9th Cir.2008) (holding “brief pause” to ask unrelated questions reasonable based on hunch not amounting to reasonable suspicion).
Finally, the district court found that Garcia-Sandoval was not in custody for Miranda purposes. Even assuming he were in custody, however, see United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir.2008), the questioning was not for the purpose of a criminal prosecution for violating the immigration laws. See United States v. Chen, 439 F.3d 1037, 1041-42 (9th Cir.2006); United States v. Salgado, 292 F.3d 1169, 1173-74 (9th Cir.2002).
AFFIRMED.
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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MEMORANDUM **
Javier Lavin-Delgado, 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 order denying his application for cancellation of removal. We dismiss the petition for review.
We lack jurisdiction to review the BIA’s discretionary good moral character determination. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Lopez-Castellanos v. Gonzales, 437 F.3d 848, 854 (9th Cir.2006) (no jurisdiction to review discretionary good moral character determinations of agency).
Lavin-Delgado’s due process contention is not colorable, so it does not invoke our jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“traditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”).
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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SUMMARY ORDER
Plaintiff-appellant Christopher Earl Strunk, pro se, appeals from a June 13, 2008 judgment of the District Court dismissing plaintiffs claims, sua sponte, for failure to state a claim and as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). On appeal, plaintiff argues that the District Court erred in dismissing his complaint and reasserts the allegations made in that complaint. We assume the parties’ familiarity with the facts and procedural history of this case.
We review a district court’s dismissal of a complaint pursuant to 28 U.S.C. § 1915(e)(2) de novo. See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001).
Substantially for the reasons stated by the District Court in its Memorandum and Order dated May 9, 2008 and its Order and Civil Judgment of June 13, 2008, we conclude that Strunk failed to state a claim and that his action was frivolous. Accordingly, the June 13, 2008 judgment of the District Court is AFFIRMED.
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MEMORANDUM **
Ghaleb Sarama, a native of Jordan and citizen of Israel, 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 asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand.
*832The BIA determined that Sarama’s failure to submit fingerprints was a sufficient reason to deny his application for relief. The BIA, however, did not have the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir.2008) (holding IJ’s denial of petitioner’s request for a continuance constituted an abuse of discretion where law governing fingerprint requirement was unclear and uncertain, and IJ did not warn petitioner that failure to submit new fingerprints in advance of merits hearing could result in pretermission of her claims). The government contends this case should be remanded for the BIA to reconsider its dismissal of Sara-ma’s appeal in light of Cui, and we agree. See id. at 1292-95; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir.2008) (reaching same result as in Cui).
We also grant the petition for review and remand as to Sarama’s claim that the IJ violated his due process rights by failing to provide adequate notice regarding the fingerprint requirement. Sarama raised this contention to the BIA, but the BIA did not address it, so we remand for the BIA to do so in the first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007).
Because the BIA did not rely upon the IJ’s finding that Sarama’s asylum claim was time-barred as a ground for denying relief, the BIA properly declined to address Sarama’s due process claim regarding the IJ’s time-bar finding.
PETITION 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 **
Tajinder Singh petitions for review of the board of immigration appeals’s (“BIA”) order rejecting his applications for asylum, withholding of removal, and protection under the Convention Against Torture. The BIA affirmed the IJ’s decision without issuing an opinion, so “we review the IJ’s decision as the final agency determination.” Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006).
We review questions of law de novo and findings of fact for substantial evidence. Brezilien v. Holder, 569 F.3d 403, 404 (9th Cir.2009). “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We will uphold the IJ’s credibility determination if it is “supported by a specific, cogent reason.” Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004). We have jurisdiction under 8 U.S.C. § 1252. We deny Singh’s petition.
The facts of this case are known to the parties. We do not repeat them.
I
An alien seeking asylum must establish both a subjective and an objective fear of persecution through credible testimony. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). The IJ’s adverse credibility finding is well supported by the material inconsistencies and omissions in Singh’s testimony and documents. See Wang v. INS, 352 F.3d 1250, 1258-59 (9th Cir.2003). Singh points out no evidence in the record that compels a contrary result.
*869II
Because Singh failed to establish his eligibility for asylum, he also failed to meet the higher burden required for withholding of removal. See Kumar v. Gonzales, 489 F.3d 520, 525 (9th Cir.2006).
III
The Convention Against Torture prevents the forcible return of “any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir.2003). The alien bears the burden of proving “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Singh presents no additional evidence to support this claim and fails to meet his burden of proof. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.2003) (denying an alien’s claim under the Convention Against Torture when that alien relies on statements found to be not credible and offers no additional evidence).
DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donna H. Riddick appeals the district court’s order granting her employer’s motion for summary judgment and dismissing her complaint of racial discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Riddick v. City of Elizabeth City, No. 2:08-cv-00025-F, 2009 WL 2134919 (E.D.N.C. July 15, 2009). We also deny Riddick’s motion for appointment of coun*483sel. 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 **
Ghaleb Sarama, a native of Jordan and citizen of Israel, 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 asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand.
*832The BIA determined that Sarama’s failure to submit fingerprints was a sufficient reason to deny his application for relief. The BIA, however, did not have the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir.2008) (holding IJ’s denial of petitioner’s request for a continuance constituted an abuse of discretion where law governing fingerprint requirement was unclear and uncertain, and IJ did not warn petitioner that failure to submit new fingerprints in advance of merits hearing could result in pretermission of her claims). The government contends this case should be remanded for the BIA to reconsider its dismissal of Sara-ma’s appeal in light of Cui, and we agree. See id. at 1292-95; see also Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir.2008) (reaching same result as in Cui).
We also grant the petition for review and remand as to Sarama’s claim that the IJ violated his due process rights by failing to provide adequate notice regarding the fingerprint requirement. Sarama raised this contention to the BIA, but the BIA did not address it, so we remand for the BIA to do so in the first instance. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007).
Because the BIA did not rely upon the IJ’s finding that Sarama’s asylum claim was time-barred as a ground for denying relief, the BIA properly declined to address Sarama’s due process claim regarding the IJ’s time-bar finding.
PETITION 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 **
Julius Lee Jackson, a California state prisoner, appeals pro se from the district court’s judgment in his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the denial of a motion for appointment of counsel, Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991), and we affirm.
The district court did not abuse its discretion by denying Jackson’s motions for appointment of counsel because Jackson failed to demonstrate exceptional circumstances. See id.
Jackson does not raise any contentions challenging the judgment, and we thus deem any such challenge abandoned. See Cook v. Schriro, 538 F.3d 1000, 1014 n. 5 (9th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1033, 173 L.Ed.2d 301 (2009).
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:
Kevin Percell Lyons appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Lyons, No. 5:05-cr-00101-F-l (E.D.N.C. July 13, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
Ravinesh Govind, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal and cancellation of removal, and the BIA’s order denying his motion to remand proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, Chebchoub v. INS, 257 F.3d 1088, 1042 (9th Cir.2001), and for abuse of discretion the denial of a motion to remand, Malhi v. INS, 336 F.3d 989, 992 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that Govind did not establish that the harms he experienced after the 1987 coup rose to the level of persecution. See Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (“Random, isolated criminal acts perpetrated by anonymous thieves do not establish persecution.”). Substantial evidence also supports the agency’s finding that Govind’s similarly situated Indo-Fijian parents remained in Fiji for twelve years without incident after his departure, and thus Govind did not demonstrate a well-founded fear of persecution. See Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir.2001). Accordingly, Go-vind’s asylum and withholding of removal claims fail.
We lack jurisdiction to review the agency’s discretionary determination that Govind failed to show exceptional and extremely unusual hardship to a qualifying relative. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.2005).
The BIA acted within its broad discretion in determining the transcript was sufficient, and denying Govind’s motion to remand. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to law”); see also Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir.2003) (en banc) (a motion to remand is treated as a motion to reopen).
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 **
In these consolidated petitions for review, Ricardo Becerra-Serrano and Maria Magdalena Becerra, spouses and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their applications for cancellation of removal, and the BIA’s order denying their motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, including due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). In No. 06-72913, we dismiss the petition for review. In No. 06-74248, we deny the petition for review.
Petitioners did not file their first petition to this court within 30 days of the BIA’s decision. We therefore lack jurisdiction, and dismiss their petition. See Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir.2007).
The BIA did not abuse its discretion by denying Petitioners’ motion to reopen, because the BIA considered the evidence they submitted and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law.”).
The BIA also did not abuse its discretion in denying Petitioners’ motion to reopen because they failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). See *962Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.2004).
Petitioners’ remaining contentions are unpersuasive.
IN 06-72913, PETITION FOR REVIEW DISMISSED.
IN 06-74248, 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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JUDGMENT
PER CURIAM.
This cause was considered on the record from the United States District Court for the District of Columbia, and was briefed and argued by counsel. It is
Ordered and Adjudged that the judgment of the District Court be affirmed on the limited grounds given in this judgment.
Appellant Kevin Walters challenges the District Court’s denial of his motion to suppress tangible evidence seized from a search of his car and a later search of his residence. United States v. Walters, 563 F.Supp.2d 45 (D.D.C.2008). The arguments raised by Walters on appeal do not demonstrate a Fourth Amendment violation as to either search.
Appellant first argues that the search of his car was unlawful because the initial stop for a traffic violation was pre-textual. However, a stop is reasonable under the Fourth Amendment so long as the police have probable cause to believe that a traffic violation has occurred, regardless of the officers’ actual motivations for the stop. United States v. Mapp, 476 F.3d 1012, 1016 (D.C.Cir.2007) (citing Whren v. United States, 517 U.S. 806, 810, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). The District Court properly found that the officers who stopped Walters had probable cause to believe that his car windows were tinted in violation of District of Columbia law. See Walters, 568 F.Supp.2d at 48-49. The officers therefore executed a permissible stop.
*154The officers testified that as they approached Walters’ vehicle during the stop for the tint violation, they smelled burnt marijuana and Walters appeared nervous, his hands visibly shaking. See id. at 47. In response to a question as to whether he had any narcotics on his person or in the vehicle, Walters “made a quick motion towards his right side” and one of the officers quickly grabbed Walters’ hands. Id. at 47-48. Responding to a second question about possession of narcotics, Walters indicated that he had marijuana on his person and gestured to his right side. Id. at 48. One of the officers reached into Walters’ pocket and recovered marijuana and a lighter. Id. On appeal, Walters did not challenge the circumstances leading to this search of his pocket. Specifically, Walters did not contest the District Court’s determination that his statements and gestures indicating that he had marijuana on his person were not obtained in violation of his Miranda rights. See Walters, 563 F.Supp.2d at 50-52; see also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant further failed to challenge the District Court’s determination that the officers had probable cause to search his person. Walters, 563 F.Supp.2d at 52.
Appellant primarily argues that the uncorroborated testimony of police officers that they smell burnt marijuana is insufficient to establish probable cause to search a vehicle. See Appellant’s Br. at 6, 8. The court need not reach this issue. After finding marijuana and a lighter in appellant’s jacket, the officers had probable cause to arrest him. See Mapp, 476 F.3d at 1016. The officers then lawfully searched his car. See Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.”) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)). Arizona v. Gant does not change this result. See — U.S. —, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Clarifying the circumstances under which the police may search a vehicle incident to a recent occupant’s arrest, the Court held that police may lawfully search a vehicle where “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723.
As for appellant’s challenge to the affidavit in support of the search warrant issued to search his residence, appellant has not met his burden under the test set forth in Franks v. Delaware. See 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). To successfully challenge an affidavit, appellant “must show that (1) the affidavit contained false statements; (2) the statements were material to the issue of probable cause; and (3) the false statements were made knowingly and intentionally, or with reckless disregard for the truth.” United States v. Richardson, 861 F.2d 291, 293 (D.C.Cir.1988) (per curiam) (citing Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). Walters argues that the testifying officer failed to include evidence that he lived in Maryland, rather than at the District of Columbia residence searched pursuant to the warrant. The Government does not challenge the District Court’s conclusion that the affidavit for the search warrant should have included the information about Walters’ address in Maryland. Appellee’s Br. at 24; Walters, 563 F.Supp.2d. at 53. But, as the District Court found, Walters has not demonstrated that inclusion of the omitted information would have defeated probable cause. See United States v. Spencer, 530 F.3d 1003, 1007 (D.C.Cir.2008).
*155Pursuant 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 rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41.
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SUMMARY ORDER
Plaintiffs K.H. and E.H. appeal an award of summary judgment in favor of defendants (collectively, the “School District”), whom plaintiffs allege failed to provide their son C.H. with an appropriate public education and discriminated against him based on disability, violating the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983. We assume familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Timeliness
Plaintiffs claim the district court erred in rejecting as untimely their IDEA claims based on the 2001-02 and 2002-03 school years. They do not dispute that those claims accrued no later than September 5, 2002, or that they commenced this action by requesting a due process hearing on May 10, 2004. Rather, they argue that the applicable time limit is not one year, as the district court concluded, but four years, under the federal “catch-all” statute, 28 U.S.C. § 1658(a). In the alternative, they assert that the School District failed to advise them of their rights, so that a three-year limit applies. They also argue that the School District misled them as to the applicable limit, and is therefore es-topped from arguing that their claims are untimely.
Because plaintiffs’ argument urging application of 28 U.S.C. § 1658 was not raised below, we would generally treat it as waived. See Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir.2000). Even if plaintiffs could clear this procedural hurdle, however, their argument fails on the merits. As to claims arising before the IDEA was amended, effective July 2005, to include a two-year statute of limitations, “the applicable limitations period [is] determined with reference to the most appropriate or analogous state statute of limitations.” Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 n. 7 (2d Cir.2008) (internal quotation marks omitted). We detect no error in the district court’s affir-mance of the State Review Officer’s (“SRO”) adoption of the one-year period specified in the New York Human Rights Law. E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., Nos. 1:05-CV-972, 1:06-CV-713, 2008 WL 3930028, *8 (N.D.N.Y. Aug. 21, 2008). Plaintiffs do not claim that another state law is more closely analogous.
Nor have plaintiffs shown that the School District failed to advise them of their rights or misled them as to the applicable time limit. Plaintiffs point to a Procedural Safeguards Notice prepared by the New York State Education Department and provided to them by the School District, which states as follows:
You have the right to submit a written complaint.... The alleged violation *159must have occurred not more than one year prior to the date of the complaint:
* unless the violation is continuing; or
* the complaint is requesting compensation services. This only applies to alleged violations that occurred not more than three years prior to the date of the complaint.
Plaintiffs claim they alleged a continuing violation, and they read this notice to apply a three-year limit in such a case. We are not persuaded. While not a model of clarity, the notice states that the normal limit is one year, and that a three-year limit applies only where “compensation services” are at issue, which plaintiffs do not assert. We therefore affirm the holding of the district court that plaintiffs’ claims based on the 2001-02 and 2002-03 school years are untimely.
2. Free Appropriate Public Education
Plaintiffs contend that in 2003-04 and 2004-05, defendants denied C.H. the “free appropriate public education” (“FAPE”) to which he is entitled under the IDEA. See 20 U.S.C. § 1400(d)(1)(A). We review de novo the district court’s grant of summary judgment, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009), mindful that the IDEA offers no “invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review,” and that courts “lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy,” Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks omitted); accord Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112-13 (2d Cir.2007).
a. Classroom Placement
Plaintiffs contend the School District denied C.H. a FAPE by offering him classroom placements inappropriate to his needs. C.H.’s 2003-04 individualized education program (“IEP”) provided for a 12:1:3 classroom,1 and his 2004-05 IEP provided for a 12:1:2 classroom and a one-on-one aide. Plaintiffs contend that C.H. required a classroom limited to six students, or, at a maximum, eight, and that such a placement was mandatory under New York regulations, which cap class size at six for students -with “highly intensive” needs “requiring a high degree of individualized attention and intervention,” N.Y. Comp.Codes R. & Regs. tit. 8, § 200.6(h)(4)(ii)(a), and at eight for students with “intensive” needs, id. § 200.6(h) (4) (ii) (b). They cite recommendations for a six-student placement by a psychiatrist, C.H.’s pediatrician, and Dr. Alison Curley, a pediatric neuropsychologist.
Upon a thorough examination of the record, and exercising our “strictly limit[ed]” review, D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir.2005), we identify no error in the ruling of SRO Paul Kelly as to the 2003-04 placement. Application of a Child with a Disability, No. 04-110. SRO Kelly found that C.H.’s needs were not “highly intensive” for purposes of the regulations cited above. Id. at 10 (citing N.Y. Comp.Codes R. & Regs, tit. 8, § 200.6(g)). Notwithstanding the use of the phrase “intensive needs” in an IEP prepared for C.H. on July 18, 2001, see Appellants’ Br. at 10, we defer to SRO Kelly on this question requiring specialized knowledge, see Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. at 208, 102 S.Ct. 3034. We likewise defer to his conclusion, based on the *160testimony of an independent psychologist and on data regarding other students in the classroom to which defendants proposed to assign C.H., that the six-person classroom requested by plaintiffs would not have been the “least restrictive environment” the statute requires. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d at 108.
Nor do we detect error in the ruling of SRO Joseph Frey as to the 2004-05 placement. See Application of a Child with a Disability, No. 05-128. Considering each element of C.H.’s IEP, and noting input from plaintiffs and the approval of clinicians familiar with C.H.’s needs, SRO Frey rejected the claim that C.H. required a 6:1:1 environment. Id. at 11-14. He acknowledged the view of Dr. Curley that a six-student classroom would be “best,” but accurately observed that the IDEA does not require school districts to provide “the ‘best’ possible placement that can be imagined ... so long as the district offers to provide an appropriate education, defined as one which allows the child to receive meaningful educational benefit.” Id. at 14; see Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir.1998). Thus we affirm the district court’s holding that the classroom placements proposed for C.H. in the 2003-04 and 2004-05 school years did not violate the IDEA.
b. Parent Participation
Plaintiffs claim defendants barred them from full participation in the development of C.H.’s IEPs, as the IDEA requires.2 See 20 U.S.C. § 1415(b)(1). The record reflects a robust, if acrimonious, dialogue between school personnel and plaintiffs, as well as plaintiffs’ participation in many meetings aimed at developing educational programming for C.H. Many of the incidents of which plaintiffs complain occurred during the 2001-02 and 2002-03 school years, and are beyond the scope of our review. The remainder are insufficient to demonstrate the denial of the active role to which plaintiffs were entitled. See T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 253 (identifying no IDEA violation where parents “meaningfully participated” in development of IEP); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 193 (2d Cir.2005) (identifying no violation where parents had “numerous opportunities to participate in meetings with respect to the identification, evaluation, and educational placement of the child” (internal quotation marks omitted)). Thus we identify no error, much less one capable of denying C.H. a FAPE.
c. Behavioral Interventions
Plaintiffs claim defendants violated the IDEA by omitting behavioral programming from C.H.’s IEPs. We are unpersuaded. “The IDEA requires that, in developing an IEP for ‘a child whose behavior impedes the child’s learning,’ the school district must ‘consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior.’ ” A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir.2009) (quoting 20 U.S.C. § 1414(d)(3)(B)®). Curiously, plaintiffs’ main brief does not challenge the district court’s principal ruling on this issue: that SRO Frey erred in finding that defendants denied C.H. a FAPE when they failed to prepare a required functional behavioral assessment (“FBA”), behavioral intervention plan (“BIP”), or transition plan in a timely fashion. See E.H. v. Bd. *161of Educ. of Shenendehowa Cent Sch. Dist., 2008 WL 3930028, at *11; Application of a Child with a Disability, No. 05-128, at 9-10. Plaintiffs raise the issue only in their reply brief. Thus it is waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998). What remains is the general claim that C.H.’s IEPs failed to address behaviors with the potential to impede his learning, e.g., his inability to use the toilet, to tolerate change, or to participate in activities with his teacher. With respect to the three areas mentioned, however, as well as other related areas, the 2003-04 and 2004-05 IEPs address C.H.’s needs, techniques his teachers can employ, and skills he should acquire. Thus plaintiffs’ general challenge is without merit.
3. Other Claims
Finally, plaintiffs fault the district court for dismissing their ADA, Rehabilitation Act, and § 1983 claims. Even if we were to conclude that the School District had violated the IDEA, such a violation, without more, would be insufficient to support a claim of disability-based discrimination under the ADA or Section 504 of the Rehabilitation Act. See E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 2008 WL 3930028, at *14. To make out a prima facie case under either of these statutes, a plaintiff must show “(1) that [he] is a qualified individual with a disability; (2) that the defendants are subject to [the relevant statute]; and (3) that [he] was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by defendants, by reason of [his] disability.” Harris v. Mills, 572 F.3d 66, 73-74 (2d Cir.2009). Plaintiffs have adduced no evidence that would support an inference of such prim a facie discrimination. Accordingly, we affirm the dismissal of plaintiffs’ discrimination claims. As for plaintiffs’ § 1983 claim, it lacks any factual basis other than the alleged discrimination, and is likewise dismissed.
We have reviewed plaintiffs’ remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
. This figure denotes the number of students (12), teachers (1), and aides (3).
. Though not discussed in the district court’s opinion, this allegation was included in plaintiffs' complaint. See Compl. ¶ 119.
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